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
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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 lent it to another person who was in hospital. In fact it turned out that the applicant had pawned the guitar very shortly after borrowing it from the first complainant.

As a result of these transactions he has been charged with, firstly, stealing the guitar and, secondly with the charge broadly described as false pretences in that he represented to the pawn broker that he owned it. The net effect of the transactions was that the owner, the first complainant, got his guitar back but the pawn broker was out of pocket to the extent of $150, being the amount advanced against the guitar. The pawn broker was Aurom Pty Ltd.

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The applicant pleaded not guilty to both counts, defending
himself upon the basis that he had received the guitar as a
pledge against certain work which the owner of the guitar was
said to be doing for him, namely the construction of a fence.
This explanation was obviously rejected by the jury. As I say,
the learned sentencing Judge apparently took a rather dim view
of the applicant and the way in which he conducted himself at
the trial. I would infer that in so doing His Honour was
drawing the inference, which was readily available to him, that
the applicant had not demonstrated any remorse. He sentenced
him in respect of both counts to imprisonment for a period of
nine months, the sentences to be concurrent. It would appear
that no order was made as to restitution.

Counsel for the respondent conceded that the sentences appeared to be on the high side but suggested that in the light of the record and the aggravating circumstances, namely the fact that he defrauded a friend, they were understandable and within an appropriate range. A substantial number of comparable sentences have been given to us. On is the decision of this Court in Necker. That was a case in which a 37 year old with an extensive criminal history stole four wheels and tyres from a car, together with the battery. He was initially sentenced to imprisonment for a period of three years, but this was reduced to two years on appeal.

It must be said that such a sentence for property of the apparent value of the property in this case would appear to be excessive, and I would think that the decision in Necker must be seen in the context of the prevalence of offences of dishonesty 230896 T10-11/RZB3 M/T COA198/96

in connection with motor vehicles. Of more assistance is the decision of this Court in Bundi. That was a case in which an applicant, 34 years of age, described as a persistent offender, received property including foodstuffs, clothing and four swords. He was initially placed on probation for two years. On appeal by the Attorney, a period of imprisonment of six months was substituted.

In Ewins a 28 year old with a considerable list of previous convictions for similar offences was convicted of stealing property from a flat mate and pawning it. The equipment was of substantial value, including two television sets and a video- recorder. He also passed a bad cheque to Woolworths and hired a car, knowing that he did not have funds to pay for it. He was initially sentenced to six months imprisonment on the more serious charges and on appeal this was - I'm sorry, it is not quite clear what happened in that case, is it?

MR MEREDITH: Well, he retained the six months remained.
DOWSETT J: The sentence was upheld?
MR MEREDITH: Yes, but-----

DOWSETT J: On appeal the sentence was upheld but there was a variation of the orders relating to compensation. In Cuskelly a 29 year old with a substantial criminal history, who stole tools from his father and pawned them, was initially sentenced to two years imprisonment which was suspended wholly for a period of four years. On appeal, the sentence was reduced to three months imprisonment which was wholly suspended for an operational period of six months.

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I should say that it is not entirely clear what the total value
of the property in issue in this case might be. It is
reasonable to infer that the pawn broker must have estimated the
value of the guitar at something in excess of $150, probably
substantially in excess of it, but nonetheless the value of the
property involved was quite small.

The applicant has served 42 days in custody. We are told that he obtained bail pending the appeal. In all of the circumstances, given the applicant's criminal history and the aggravating circumstances of this case, I can understand why the learned sentencing Judge considered that a period of imprisonment was called for. It was reasonable to conclude that other means of dealing with the applicant in the past had failed and, as I say, the circumstances of the case involved some elements of aggravation. Nonetheless the value of property involved, in my view, was relatively small and could not in any sense be said to justify a period of imprisonment of the order of that imposed.

Although in other circumstances this view would have led me to reduce the term of imprisonment, in the special circumstances of this case, I consider that a different order is justified. In my view, it would be appropriate to leave the sentence of nine months imprisonment in place but to order that it be suspended after the service of 42 days, the period of suspension to be nine months from the date of sentence and the suspension being conditional upon the applicant not committing another offence punishable by imprisonment during that period of suspension. In addition, I would order pursuant to section 35(1)(b) that he pay 230896 T10-11/RZB3 M/T COA198/96

compensation to Aurom Pty Ltd in the amount of $150 within 14 days of this date and in default thereof that he serve a further period of one month's imprisonment.

In those circumstances, I would give leave to appeal and vary the orders accordingly.

de JERSEY J: I agree with the reasons which have been expressed

and I agree in the orders which are proposed.

THOMAS J: I agree.

Mr Harders, you are to understand that a suspended sentence is
being imposed in place of the prison sentence which was
originally imposed and the order is that it be suspended after
42 days. You have told us that you have already served
42 days and on that basis it would seem that you will not be
returned to prison.

The most important aspect of a suspended sentence is that you must not commit any offence at all during the period of the suspension, that is to say for a period of nine months from the date of the sentence. If you did commit any such offence, you would almost automatically be required to serve the balance of that sentence. Do you understand that?

The order of the Court is that which has been proposed by
Justice Dowsett.

DOWSETT J: No warrant will issue, is the answer, I suppose, is it. But should it be formalised in some way or is the order 230896 T10-11/RZB3 M/T COA198/96

sufficient?
MR MEREDITH: I believe it is sufficient. Of course, this order will go to the District Court and to the Corrective Services Department. The restitution, if he fails to pay that would be something that would be - the default period would be imposed by the District Court, I would expect.
APPLICANT: I will pay that this afternoon.
de JERSEY: No, no, we have imposed and one month default period
in respect of that.

MR MEREDITH: Oh, yes, but I mean that if he fails to pay it then the show cause - he would go back to the Court and-----

de JERSEY: Who notifies - the pawn broker will draw attention to any default in payment, I suppose, through the police, will he?
MR MEREDITH: Well, yes, or he could pay it to the Registrar.

DOWSETT J: Well, perhaps we should order that it be paid to the Registrar of the District Court for disbursement. That might be better.

Well, the order will be that the fine be paid to the Registrar

of the District Court to be disbursed to Aurom Pty Ltd.

THOMAS J: Are there any conditions of bail?
APPLICANT: Just that I sign the book once a week over at
Woodridge Police Station.

THOMAS J: Well, I would imagine that the bail is now terminated or at least becomes academic.

MR MEREDITH: Yes. We will have a letter sent to the Woodridge Police Station to point out that he is no longer required to satisfy those conditions.
THOMAS J: Yes, thank you, Mr Meredith.
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DOWSETT J: You understand, Mr Harder, that you have to pay the

$150 to the Registrar of the District Court within 14 days?

APPLICANT: Downstairs. I will pay on the way out.
de JERSEY J: It is not downstairs here, actually; it is over in the other building. So you had better make sure you go to the right one.

APPLICANT: Across the road, the back building. Is that the one?

de JERSEY J: No, it is within this complex but it is perpendicular to this building. Mr Meredith's solicitor, I am sure, will show you where to go.

THOMAS J: Yes. Well you are free to leave, Mr Harders.

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