R v Wojcicki & Lette

[1998] QCA 150

[1998] QCA 150

COURT OF APPEAL

PINCUS JA DAVIES JA SHEPHERDSON J

Appeal Nos 468 of 1997

469 of 1997

THE QUEEN
v.
MARK CHRISTOPHER WOJCICKI and

RACHAEL MARGARET LETTE	Applicants
BRISBANE ..DATE 27/03/98 270398 D.1 T16/JJD24 M/T COA63/98

PINCUS JA: Mr Justice Shepherdson will deliver the first judgment.

SHEPHERDSON J: On 10 December 1997 a learned District Court Judge at Southport sentenced the above-named persons to terms of imprisonment for a large number of offences. Each applied for leave to appeal against the head sentences imposed on them, on the ground that such sentences were manifestly excessive.

The first applicant, Wojcicki, has abandoned his appeal and that has been dismissed earlier today. The second applicant has persisted with her application for leave to appeal.

She was born on 20 November 1972. She has no previous criminal history. She pleaded guilty to some 67 charges. These included two charges of housebreaking, eight break enter and steal, 24 stealing, 29 wilful damage to property, one unlawful use of a motor vehicle with a circumstance of aggravation, two of unlawful use of a motor vehicle and one of false pretences.

It appears that she was in some type of relationship with the co-applicant Wojcicki. The learned sentencing Judge imposed a sentence of three years on each of the two housebreaking charges, two years on each of the eight break enter and steal charges and in respect of the other offences sentences down to three months' imprisonment.

His Honour ordered, in effect, that the sentences beyond nine months be suspended after serving nine months with an 270398 T17/JAP/20 M/T COA 63/98

operational period of four years. He declared that 92 days spent in custody from 7 July to 7 October 1997 be part of the sentence already served.

All offences committed by this applicant were committed between 4 June and 30 June 1997 with two on 30 June. On 27 June 1997 she had been located by police from New South Wales at Kingscliff. She was in possession of a large amount of property which police suspected was stolen and she was driving a stolen motor vehicle. She was interviewed on that day and admitted that most of the property had been stolen from cars n the Gold Coast. She was given bail by New South Wales police. She then committed two offences on 30 June 1997.

On 1 July 1997 police attended a unit on the Gold coat highway where this applicant and the other applicant were found. Again, a large amount of property was discovered. The total amount of stolen property attributable to this applicant could not be ascertained.

The learned sentencing Judge was told the amount unrecovered was $11,672.00 and the total amount of property damaged was $27,221.00 making a total of $38,893.00. In respect to a number of charges this applicant and the other applicant were joint offenders.

This applicant did not commit as many offences involving unlawful use of a motor vehicle with or without a circumstance of aggravation as her co-accused nor did she commit as many 270398 T17/JAP/20 M/T COA 63/98

housebreaking offences. He committed nine, she committed two but she had more wilful damage to property offences (29 compared to 12) and eight break enter and steal compared with his two break enter and steal and his one break and enter with intent.

Generally speaking the targets of the offences seemed to have been houses and home units. Once inside the unit blocks cars were broken into, and on some occasions, property was stolen from the cars.

The learned sentencing Judge, in addition to referring to the offences with a substantial amount of $38,890-odd took into account this applicant's pleas of guilty to a total of some 67 charges and said, "You're in a very different situation from your co-accused. You have no previous convictions. However, you are now 25; you can't be treated as a young person."

He also took into account her personal circumstances in the recent past which he described as unfortunate and other matters which had been urged on her behalf. He said:

"Despite the fact that you have no previous convictions I am satisfied that the number of offences which you have committed, the extent of the property damage caused, the amount of the unrecovered stolen property particularly and the seriousness of some of these offences are such that a custodial sentence should be imposed. However, I intend to partly suspend that sentence."

In this Court this applicant's counsel has submitted the head sentence is manifestly excessive as the learned Crown Prosecutor had indicated to the sentencing Judge the sentencing range of between one and two years and he has argued that a sentence of 270398 T17/JAP/20 M/T COA 63/98

18 months' imprisonment with a recommendation for parole after

serving six months is appropriate.

He has argued the sentencing discretion miscarried because:

a)The learned sentencing Judge failed to differentiate sufficiently between the circumstances, the criminality and the previous record of this applicant and her co-accused;

b)He gave excess weight to the need for general deterrence and insufficient weight to her previous good character, personal background circumstances and rehabilitative efforts of the applicant.

The other applicant has, as I have said, abandoned his application for leave to appeal against sentence. The learned sentencing Judge gave him a head sentence of five years and they were in respect of the nine charges of housebreaking which His Honour described as extremely serious and very prevalent in the area. He had quite a substantial prior criminal history.

In my view, neither of the grounds on which Mr Farmer has relied, in this Court, has been made out. His Honour was required to impose a sentence which was proportional to the total criminality of this applicant. There were a very large number of offences including eight counts of breaking, entering and stealing and two of house breaking.

His Honour correctly recognised these as the most serious
270398 T17/JAP/20 M/T COA 63/98
offences. His Honour recognised that a sentence of imprisonment
was required and this applicant's counsel does not cavil with
that. His Honour reflected the prior good record of this
applicant by suspending the sentences after she had served nine
months and, as I have said, he declared that a period of 92 days
spent in custody from 7 July to 7 October 1997 was part of the
sentence already served.

Effectively, this meant the applicant was to serve another six months before hoping to be released from custody. I am not persuaded there has been any error in the exercise of the sentencing discretion against this applicant and I would dismiss the application.

PINCUS JA: I agree. Mr Farmer's argument included some comparison, as Mr Justice Shepherdson has mentioned, between this applicant's treatment and the treatment of the last applicant co-offender Wojcicki in respect of some of these offences.

Wojcicki did not pursue his application after it was pointed out that, perhaps, contrary to the sentencing judge's intention, the five year sentence imposed upon him was concurrent with an existing period of imprisonment, the consequence being that he had added to his existing liability to serve imprisonment a period of only a little over two years.

This does not appear to me to be a sufficient ground upon which to hold that the applicant Lette is entitled to feel a sense of 270398 T17/JAP/20 M/T COA 63/98

grievance. I agree with Mr Justice Shepherdson's reasons for

thinking that the application should be refused.

DAVIES JA: I agree with both of their Honours.

PINCUS JA: The application will be refused.

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