R v Vo

[1994] QCA 415

[1994] QCA 415

COURT OF APPEAL
FITZGERALD P
DAVIES JA

MACKENZIE J

CA No 298 of 1994
THE QUEEN
v.

SAM VO Applicant

BRISBANE
..DATE 12/09/94
THE PRESIDENT: This is an application for leave to appeal
against sentences imposed in the District Court of Brisbane on
15 July 1994 for two counts of house breaking and two counts
of stealing. The applicant was convicted on his own plea and
was sentenced on each count to imprisonment for three years
with a recommendation for parole after one year.

The applicant, who was born in Vietnam, was 19 years old at the time of the commission of the offences and at the time of sentencing. He has no previous convictions and was unemployed at the material time. However, he has been educated to year 12 standard and has some employment since leaving school.

Further, before this Court, it was contended, on his behalf, that because of his behaviour, he has been ostracised by his family and community. The applicant broke into a house at Jamboree Heights and stole property including money and jewellery. One month later, he broke into a house at Calamvale and stole property, including money, jewellery, electrical and photographic equipment.

Both houses were owned by Chinese persons. The total value of
the property stolen was probably in excess of $6,000 and may
have been considerably more. At the Jamboree Heights home, a
small piece of glass had been cut from a kitchen window near
the window latch. A lounge window was also found open with
the corresponding flyscreen having been removed.
The applicant's fingerprints were found on the outside of a
kitchen window. At the Calamvale home, a bathroom window had
been forced. The applicant's fingerprints were found on a tin
in the hallway of the house. The applicant declined to be
interviewed by police when approached on 2 January 1994 but
claimed that he had never been to the suburbs of Jamboree
Heights or Calamvale.

On sentence, the defence counsel explained that on his instructions, the applicant committed the offences in company with three other experienced criminals whom the applicant would not name for fear of retribution. These other three persons with whom the applicant was living at the time of the offences were said to have intended to sell the stolen property to raise money to buy Rohypnol.

They in turn intended to sell the Rohypnol at a profit in their home State of Victoria in order to raise bail money for their incarcerated associates. The applicant gave instructions that he received no benefit from the crimes and at the time of the offences, he was under the influence of Rohypnol tablets which impaired his judgment.

The sentencing Judge who described the offences as very well
planned and very well executed did not accept the entirety of
the applicant's account of what had occurred, although he
considered that "some features" might "have their credence".
Regrettably, he did not explain what he accepted and what he
disbelieved.
Further, he seemed to take account of the fact that the
applicant had been charged but not convicted of other serious
offences for which he was in custody, armed robbery,
deprivation of liberty, stealing and house breaking for which,
of course, the custody was custody on remand and that the
sentencing Judge did not state in open Court the reason for
the sentence of imprisonment as required by subsection 19(1)
of the Penalties and Sentences Act from which the applicant
submitted that the Court should infer that the sentencing
Judge did not consider all the other sentencing options.

There is nothing inherently improbable in the applicant's account of events and the matter suggested by the prosecution that the offences were a month apart does not essentially discredit his story. There is no basis upon which this Court could reject, for example, that he was a young person in the company of older, hardened criminals when he offended.

Further, I am disinclined to take cognisance of the other
offences charged against him. His incarceration pending trial
of those charges limits the sentencing options but does not
disqualify him from the leniency commonly extended to young
first offenders, especially those who have been influenced by
others taking advantage of their immaturity and as noted
earlier, the applicant pleaded guilty. By subsection 9(4) of
the Penalties and Sentences Act, imprisonment should only have
been imposed as a last resort.
The applicant almost certainly faces a term of imprisonment if
he is convicted of the other offences with which he is
presently charged but this can and should be disregarded.
That can and should be decided at that time and provides no
basis for treating him more severely than would otherwise be
the case on this occasion.

After hearing submissions from both counsel, the position seems to have been reached where it is generally accepted that an appropriate sentence on this occasion would be to reduce the sentence of imprisonment on each offence from three years to six months to be served concurrently, to order that the balance of the sentence from today be suspended and to place the applicant on probation for three years on the usual terms and conditions.

Do you have instructions, Mr East, about probation?

MR EAST: Unfortunately, I do not. I believe it was canvassed by my instructing clerk.

THE PRESIDENT: The formal orders must await confirmation from counsel for the applicant that he will cooperate in the sentences proposed. Will you seek those instructions as soon as possible, please?

MR EAST: I certainly will, Your Honour.

THE PRESIDENT: Yes, thank you.
DAVIES JA: I agree.
MACKENZIE J: I agree.

THE PRESIDENT: The order of the Court will be as I have indicated. When you bring in those instructions, Mr Justice Mackenzie reminds me that there should be an operational period for the suspension. Unless you want to make submissions to the contrary, I would propose that the operational period be a period of two years from the date of conclusion of the suspended sentences.

DAVIES JA: I agree.

MACKENZIE J: I agree.

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