R v Tidyman

[1997] QCA 46

COURT OF APPEAL

[1997] QCA 046

MACROSSAN CJ McPHERSON JA BYRNE J

CA No 516 of 1996
THE QUEEN
v.

SHERIDAN LEE TIDYMAN Applicant

BRISBANE
..DATE 26/02/97
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McPHERSON JA: On 1 November 1996 the applicant pleaded guilty
in the District Court to an indictment charging 33 counts of
misappropriation, one with the circumstance of aggravation that
the property involved was worth over $5,000. On the count of
misappropriation with a circumstance of aggravation the
applicant was sentenced to imprisonment for three years, on all
the other counts the sentence was one of imprisonment for two
years. All of the sentences were ordered to be served
concurrently.

The offences were committed from about February to May 1996 during which period an amount of property valued at about $68,000 was appropriated. The effect of sentence, therefore, in respect of all of these offences, was imprisonment for three years, which may be compared with a potential maximum sentence in respect of the offence, when committed with a circumstance of aggravation, of 10 years; or a maximum of five years where no such circumstance is present.

Earlier on 4 August 1995 the applicant had pleaded guilty to two counts of breaking and entering and three counts of stealing. Those offences were committed between August and December 1994.

The District Court Judge on that occasion placed her on probation for two years from the time of the sentence in August 1995. As I have remarked, she was back before the District Court on 1 November 1996 on the misappropriation charges, which it will be observed were committed during the period of her probation.

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It therefore became necessary for the Judge on that occasion to
re-sentence her for the earlier offences. He did so by
sentencing her to imprisonment for nine months cumulative on the
three year sentence for the misappropriation offences. For what
it matters, the nine months was made up of four months for the
breaking and entering charges and nine months for the stealing
charges to be served concurrently with the former.

The result of all this was that the applicant received an overall effective sentence for all these offences of three years and nine months.

She was, at the time of sentencing, a woman of 25 years of age, having been born in 1971, who, according to what appears from the record, has been a heroin addict from some time past. Apart from the matters already mentioned, the only other offence of which she appears to have been convicted was breach of bail on 8 March 1996, for which she sustained a sentence of imprisonment for six weeks. I should perhaps have said that in relation to the breaking, entering and stealing offences, the property valued at some $5,000 was either not recovered or suffered damage.

The applicant's associate on the occasion of both offences was a man named Perry, with whom she had a relationship for some years past. He was sentenced to a term of imprisonment of seven and a half years for substantially the same offences, though perhaps slightly fewer of them.

It was submitted in support of the application on appeal that an
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appropriate sentence would have been imprisonment for some two
to three years for all the offences taken together, but with a
recommendation for early parole. It was pointed out that the
applicant had pleaded guilty to the misappropriation offences
and thereby saved the State a great deal of money. The
sentencing Judge said he took into account her plea of guilty in
arriving at the head sentence, which it was said made the
unmitigated head sentence actually or potentially excessive.

One of the problems with the applicant's case is the fact that she committed such a large number of offences involving a substantial amount of property during a period when she was on probation. Her general response to attempts to help her rehabilitate herself has not been fruitful. She failed to carry out her obligations under a community service order, and I notice in the report made by the community service officer on 28 March 1996, the observation is made that the outstanding characteristic of the applicant's response to probation supervision is her repeated failure to report as directed.

The officer goes on to remark that unless the applicant can make a convincing undertaking to report to her community correctional officer as directed, there is little to be gained from persevering with community supervision. It seems to me that in the light of those remarks, the utility of a recommendation for early parole, having regard to the purposes which parole is intended to achieve, is largely undermined.

The applicant's attitude to cooperation with the authorities has
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indeed overall not proved to be at all good. She was
uncooperative with respect to details of the misappropriation
offences, and with respect to the identify of her associate,
when she was first approached about these matters. Initially
she would not give her name; but those investigating were, in
the end, able to identify her.

She refused, and has continued to refuse, to explain the details of the method used to effect the misappropriation, which appears to involve the use of credit card numbers being telephoned to the prospective victims of the offences being committed. In most cases it would appear that the property being misappropriated was alcohol; but there are other items of property as well.

All matters considered, although it may be that, on one view the Judge did take a serious view of what she had done, the case is not one where it is obvious that the sentence is excessive, or that there are other features that would justify this Court in intervening to set it aside, or to vary it in such a way as to alter the sentence in an effective way. In the end I am persuaded that this is an application that cannot succeed; and consequently I would dismiss it.

THE CHIEF JUSTICE: I agree.
BYRNE J: I agree.

THE CHIEF JUSTICE: The application is dismissed.

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