R. v Troy Maxwell Harders - [1996] QCA 390

COURT OF APPEAL

[1996] QCA 390

THOMAS J
de JERSEY J

DOWSETT J

CA Nos 220 of 1996

235 of 1996

THE QUEEN
v.

TROY MAXWELL HARDERS

BRISBANE
..DATE 23/08/96
230896 T10-11/RZB3 M/T COA198/96
DOWSETT J: The applicant was born on 8 September 1961 and
therefore is presently 34 years of age. He has a substantial
criminal history dating back to 1979 when, as he has pointed out
to us, he was aged only 17. There are, however, only a small
number of incidents in his criminal history which are
immediately and directly relevant for present purposes. They
are four convictions for offences of dishonesty which occurred
in 1979, 1980, 1982 and 1994.

With respect to the first three, they appear to have been of a minor nature and the length of time since the commission of those offences would normally lead me to treat them as being of only minimal relevance for present purposes. The fourth offence was committed in 1994 and involved the passing of a cheque in respect of which funds were not available. It is fair, therefore, to say that the applicant has a history of dishonesty but in terms of the histories which we regularly see in this Court, it is a relatively minor one.

In addition to this he has been convicted for a very large number of traffic offences, including drink driving, and offences in connection with prohibited substances. He also has a number of other offences of the kind which are regularly described as "street offences". I would therefore describe him as a person who has been something of a nuisance to society for most of his adult life. In those circumstances, it can hardly be surprising that the learned sentencing judge in this case took a rather dim view of him. He has only been sentenced to imprisonment on one occasion. That was in 1981. The record suggests that it was in connection with the unlicensed driving 230896 T10-11/RZB3 M/T COA198/96

of a motor vehicle, but he says that it was for drink-driving.

He has in recent times had the benefit of community service orders in respect of various offences and, although the details are not clear, it does seems that he may not have complied with the terms of those orders. In all of those circumstances again, it is easy to see why the learned sentencing Judge in the present case felt it appropriate to look for a sentence other than a non-custodial one.

He is married and has his own business and I infer from what I have been told that his business is reasonably successful. This is somewhat surprising in view of his record, but nonetheless there it is. The offences in question arose out of his dealing with a friend. Apparently the friend (who was the complainant in respect of the first count of which the applicant stands convicted) lent him his guitar. He tried to recover it from him and was told that the applicant had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R. v Troy Maxwell Harders

Details

AGLC: R. v Troy Maxwell Harders [1996] QCA 390
Case: [1996] QCA 390
Decision Date: 23/08/1996

CaseChat Overview and Summary

In the case of The Queen v Troy Maxwell Harders, the Court of Appeal was asked to review the sentence given to the applicant by the lower court. The applicant, who had a history of criminal activity including dishonesty, was sentenced to imprisonment for nine months for stealing a guitar and passing a bad cheque. The applicant appealed the sentence on the grounds that it was excessive. The legal issues before the Court were whether the sentence was appropriate given the nature and circumstances of the offence and the applicant's criminal history, and whether the sentence should be varied. The Court found that while the applicant's criminal history and the aggravating circumstances of the offence justified a custodial sentence, the value of the property involved did not warrant a sentence of nine months. The Court varied the sentence, imposing a nine-month sentence suspended after the applicant had served 42 days, and ordered the applicant to pay compensation to the pawnbroker.
The Court held that the sentence was excessive given the relatively small value of the property involved. The Court found that the sentence of nine months was more appropriate for offences involving motor vehicles or high-value property. The Court also noted that the applicant had already served 42 days in custody, and that a suspended sentence was an appropriate alternative to imprisonment in this case. The Court further ordered that the applicant pay compensation to the pawnbroker in the amount of $150, with a default period of one month's imprisonment for failure to pay. The Court's decision was based on the principle that the sentence should be proportionate to the offence and the offender's criminal history, and that alternative sentences should be considered where appropriate.

Orders