R v Tomlin

[1992] QCA 188

COURT OF APPEAL	[1992] QCA 188
MACROSSAN CJ DAVIES JA DEMACK J
CA NO 121 OF 1992
THE QUEEN
v.
SCOTT ALAN TOMLIN	Applicant
BRISBANE ... DATE 23/6/92
JUDGMENT

THE CHIEF JUSTICE: The is an application for leave to appeal against sentence. The applicant pleaded guilty to a charge of attempted breaking and entering of a clubhouse with intent, the offence being committed on 19 July 1991. He was, at the same time as he was sentenced in this matter, sentenced also because of two breaches of probation which the present offence involved.

He had been placed on two years' probation on 5 February 1991 in respect of an arson matter. He had been involved in the burning of a motor vehicle and assisting a friend to make some false insurance claim. He has also previously been placed on probation for two years in 1990 in relation to stealing from motor vehicles, as I believe it was.

No challenge is made in this application to the orders which were imposed in respect of the two breaches of probation. The effective penalty for the probation breaches was a 12-month custodial term. The learned sentencing Judge no doubt impelled by the thought that some additional penalty should be imposed for the further offence with which we are concerned, imposed the term of two years' imprisonment. A co-offender who had been involved with the applicant in this present matter was convicted and fined and the fine was converted into a community service order but we know nothing of the prior history of that co-offender.

The applicant, although only a 21 year old, had some significant previous criminal history. From the criminal history sheet and looking only at the offences of dishonesty which there appear we see that he was convicted of stealing in 1986, again in 1989 and again in 1990 and then once more in 1990 when he was placed on probation for two years. I have already referred to that last matter. Then again, the arson to which I have referred involving his being placed on probation in February 1991 was an offence which had been committed on 3 April 1990. The facts relevant to the present application were that the applicant and his companion attempted to force a roller door at a tennis club premises in Cairns. They failed to gain entry and the applicant was apprehended near the scene.

The learned sentencing Judge referred, as indeed was quite proper, to the fact that the applicant had been placed twice on probation and had been previously told extremely clearly, as it is said in the record, that if he came before the Court again he should regard it as likely that he would be treated to a custodial term. His Honour pointed out that the applicant had rejected the chance which he had been given and had by his behaviour flouted the conditions of probation.

No challenge, as I say, is made to the penalties imposed for breach of probation. They were effectively a 12 months custodial term. The complaint which is made on the applicant's behalf however is that the applicant never having previously been sentenced to a custodial term, a sentence of two years must be regarded as an undue jump in terms of severity when compared with previous treatment of him. There is substance in the submission that a two-year term in the case of a young man of 21 is a substantial first custodial term to be imposed. On the other hand the sentencing Judge was presented with a point which required careful attention. He would have felt himself quite reasonably obliged to impose some additional penalty because of the attempted breaking and entering. The offence itself is something for which a deterrent is required. The prior chances and warnings had been disregarded.

Although the Court may not be disposed to make fine distinctions and would not be entitled to do so under the principle that it interferes only when there is a manifestly excessive sentence imposed, in this case because of the substance in the remarks advanced on behalf of the applicant I think that the matter would

be appropriately dealt with by interfering and reducing somewhat the head sentence imposed in this case. It should still however be left at a point above the effective sentence imposed for the breaches of probation. I would be disposed to allow the application to the extent of setting aside the two-year term of imprisonment ordered and substituting in lieu a term of 18 months. Once again it will be concurrent with the other sentences for breach of probation which were imposed at the same time.

DAVIES JA: I agree DEMACK J: I agree. THE CHIEF JUSTICE: That will be the order of the Court.

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