R v Webb

[1996] QCA 501

[1996] QCA 501

COURT OF APPEAL

DAVIES JA DOWSETT J WHITE J

CA No 415 of 1996
THE QUEEN
v.

JEREMY JOHN PETER WEBB Applicant

BRISBANE
..DATE 14/11/96
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DAVIES JA: The applicant pleaded guilty in the District Court
on 26 August last on two counts, one of receiving a television
set between 29 May and 7 November 1995, and one of false
pretences in respect of the television set. He was sentenced to
imprisonment for 18 months with a recommendation that he be
eligible for parole at the expiration of six months, that is on
26 February next year.

The applicant is 27 years of age, having been born on 28 December 1968. He has quite a long criminal history, dating from 1986. Most of his offences are drug related, but he was convicted of breaking and entering in 1986, of receiving in 1995, of receiving, false pretences and possession of a motor vehicle with an intent to deprive in April this year, and of false pretences in July this year.

He was imprisoned in respect of the offences of which he was convicted in April and July this year and I will say something more about those in a moment. He has also served short terms of imprisonment on earlier occasions in respect of drug-related offences and for breach of a probation order.

There are no redeeming features in respect of the offences, the subject of this appeal or in the applicant's prior criminal or personal history. It appears that his offences are related to drug abuse. Were it not for the offences for which he was convicted and sentenced earlier this year there could be no possible basis, in my view, for this application.

The submission on his behalf by Mrs McGinness was that because
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the offences, the subject of this application, were committed
during the same period as those for which he was convicted and
sentenced earlier this year, and were of the same character, had
he been convicted for them when he was sentenced earlier this
year he would have received no greater sentence than that which
was then imposed.

The effect of this sentence imposed here is to extend his term of imprisonment for a little over four months and his non-parole period by three months.

In my view, there is some substance in the applicant's contentions. The offences for which he was sentenced on 30 April this year included one count of receiving, two of obtaining money by false pretences and two of unlawful possession of a motor vehicle. They were committed between September 1995 and January 1995.

He received a total sentence for those of 18 months imprisonment with a recommendation that he be eligible for parole after serving seven months. He was then arrested in respect of these offences on 2 May this year and he came before the same Judge who sentenced him on 30 April on 16 July in respect of another false pretence charge, this having occurred in December 1995. He was given a concurrent sentence of one month. No satisfactory reason was given as to why the applicant was not sentenced for these offences when he came before the Court in July this year.

Having regard to the character of the subject offences and the
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period during which they were committed it is my view that it
was likely that, if he had been sentenced for these offences by
the original sentencing Judge either in April or July this year,
he would not have received any greater effective term of
imprisonment than was then imposed, nor, in my view, would he
have received any longer non-parole period.

It is correct, as the learned sentencing Judge in this case said, the sentence imposed may have been a little longer but the likelihood, in my view, is that it would not have been. What the learned sentencing Judge in this case sought to do was to impose a sentence which was a little longer and a non-parole period which was a little longer.

Mr Campbell for the respondent sought to show that the commission of these offences put a different complexion on matters. Significant he said at one stage. Slight, he was more inclined to say a little later. In my view the evidence in support of this was too slim to justify any inference that the commission of these offences put any different complexion on the situation which ensued before the learned sentencing Judge who sentenced the applicant in April and July this year.

For those reasons I would grant the application and allow the appeal. I would set aside the sentence which was imposed below and impose, in lieu, a sentence of three months imprisonment concurrent with the sentence which was imposed by the learned sentencing Judge who sentenced the applicant on 30 April this year.

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I would leave the non-parole period in respect of the sentences
including the subject sentence as the date fixed by the learned
sentencing Judge who sentenced the applicant on 30 April this

year.

DOWSETT J: I agree.

WHITE J: I agree.

DAVIES JA: The sentences are as I have indicated.

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