Symonds v Harrison

[1996] QCA 538

[1996] QCA 538

COURT OF APPEAL

FITZGERALD P McPHERSON JA MOYNIHAN J

C A No 454 of 1996
G SYMONDS
v.

HUGH KIEREN HARRISON Applicant

BRISBANE
..DATE 03/12/96
031296 D.1 T15/TES2 M/T COA300/96
MOYNIHAN J: This is an application for leave to appeal against
the imposition of a sentence of four months imprisonment for the
commission of an offence of break and enter with intent. The
applicant, in effect, pushed the door or breached the door of a
medical centre in Cairns, set off an alarm system and fled the
scene; shortly afterwards he was apprehended by the police. He
had been seen walking along the street trying the doors of a
number of motor vehicles.

The Magistrate suggests that the applicant's interest in the medical centre may have been an interest beyond the prospect of money there, but that does not sit particularly well with his other observed activities. He was intoxicated. He is a man of 25 who had some history of employment in labouring-style occupations and had travelled to Cairns from Victoria over about some nine months and apparently was interested in taking up a job in the hospitality industry at some stage.

He was sentenced on the basis that he had no criminal history to be taken into account. It is plain, from what the Magistrate said, that the sentence reflected a concern about persons coming to Cairns and not being able to provide for themselves without offending and that the breaking and entering offences were prevalent in Cairns and elsewhere and the community expected them to be dealt with in a realistic way.

The fact remains, though, that the man was dealt with as a first offender. He has a history of difficulties with alcohol apparently. I think it is right to say that it was not appropriate to impose a custodial sentence on a first offender 031296 D.1 T15/TES2 M/T COA300/96

for an offence of this kind, notwithstanding the legitimate consideration of community concerns and particularly of Cairns community concerns.

There is then a difficulty as to what is to be done with the applicant. It is acknowledged that a fine is not a realistic option. A bond seems to me not to be appropriate, having regard to the circumstances of the offence and the applicant's itinerant lifestyle. He had, I note, served some three days in custody for the offence.

He cannot be contacted in respect of probation or community service for the purpose of obtaining his consent to those orders. That is not to say that he could not ultimately, in due course, be found. But in terms of obtaining instruction in those respects, there seems to be difficulty.

One would doubt, in any event, whether probation was an appropriate sentence in the circumstances and perhaps community service might be. That really means that if a custodial sentence requiring service of time in a correctional institution is not appropriate, the last resort is to impose a custodial sentence but to suspend its operation. In all the circumstances of the present case, I would be inclined to set aside the sentence of four months imprisonment and impose a sentence of four months, but suspend it for an operational period.

No submissions have been made in respect of that and I must say, I am inclined to suspend for an operational period of 12 months, but as I say, I have no firm view about that particular aspect. 031296 D.1 T15/TES2 M/T COA300/96

Subject to that, that is in my view how the matter should be

dealt with.

THE PRESIDENT: I agree.

McPHERSON JA: I agree.

THE PRESIDENT: The order of the Court is: application for leave to appeal granted. Appeal allowed. Sentence imposed below of 4 months' imprisonment varied by wholly suspending the sentence with an operational period of 12 months.

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