The Queen v Jason Neil Graham

[2000] QCA 181

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DUTNEY J

CA No 72 of 2000

THE QUEEN

v.

JASON NEIL GRAHAM
(Also known as McLEAN)  Applicant

ROCKHAMPTON

..DATE 16/05/2000

JUDGMENT

THE PRESIDENT:  The applicant, who represents himself in this application, pleaded guilty in the District Court at Mackay on 17 March this year to three break, enter and steals (counts 1, 3 and 4) and one entering with intent (count 2).  He was sentenced to 12 months’ imprisonment on counts 2 and 3 and to 18 months’ imprisonment on counts 1 and 4, concurrent with each other, and with a nine-month sentence imposed for an unlawful use of a motor vehicle, sentence which was imposed on 10 January 2000.  These sentences were, however, cumulative upon a six-month term of imprisonment imposed for breach of probation for two burglaries and one stealing offence.  It was recommended that the applicant be considered for release on parole after serving eight months of this effective sentence of two years. 

The applicant complains in his notice of appeal that he was dealt with unfairly because his co-accused got nine months for 30 break and enters, whereas he got two years for four break and enters.  It seems that this is a misconception which was based on what was incorrectly said at the sentence below.

The facts are as follows.  The applicant, who has a drug problem, broke into three childcare centres and a pharmacy within a period of a week between 23 November 1999 and
3 December 1999.  In all, about $4,400 worth of property was stolen and $1,500 worth of damage was caused.  In the offence involving the pharmacy the roof was removed and $3,000 worth of pharmaceuticals, including 63 boxes of Sudafed tablets, were stolen.  The property from the pharmacy was recovered but the property taken from the childcare centres was not.  The offences were in breach of a probation order, as I have already noted. 

The applicant’s co-offender, Townroe, was about 30 years of age.  He pleaded guilty to 26 offences, which included these four offences.  His offending was over a six-month period and was drug related.  Some of Townroe’s offences occurred whilst he was effectively on bail, and the property taken and unrecovered exceeded $20,000.  Townroe, however, had a lesser criminal history than this applicant.  He was sentenced to two and a-half years’ imprisonment with a recommendation for parole after nine months. 

The burglary counts, the subject of the breach of probation, involved the stealing of property from people’s homes, on one occasion whilst residents were at home and asleep. 

The applicant has been in custody since his arrest on
27 December 1999 for the unlawful use of a motor vehicle charge, which was committed whilst on bail for these offences.  He told the Court below, and has confirmed today, that he has been drug-free since he has been in custody. 
The applicant was 20 years old at the time of sentence. He has an extensive criminal history, apparently considerably worse than Townroe’s, commencing with stealing in 1996. He has many convictions for dishonesty, for which he has been sentenced in the past to non-custodial orders. In 1997 he was sentenced to two months’ imprisonment, suspended for two years, for a breach of the Bail Act. In 1998 he was sentenced to one month imprisonment for escaping lawful custody. On
12 July 1999 he was sentenced to four months’ imprisonment and three years’ probation in respect of a number of property offences.  As has been noted, these offences constituted a breach of that probation order. 

A court report from the Community Corrections Office tendered at his sentence was to the effect that he was:

“…an immature and manipulative drug offender who has little intention of changing his lifestyle whilst he is gaining positive outcomes with his behaviour.  His criminal history and pattern of offending behaviour appears to be escalating and becoming more frequent.

It appears that probation is of little deterrent to him and a more punitive sentence may bring home to him the seriousness of his situation and enforce the fact that the community and the courts will no longer tolerate his behaviour.” 

His co-accused’s sentence was compassionate but he had a minimal criminal history, whereas this applicant had been sentenced to gaol terms in the past for like offences and had committed these offences whilst on probation and committed another offence whilst on bail.  The applicant’s response to that probation order was most unsatisfactory.  The applicant was effectively sentenced to two years’ imprisonment with a recommendation for parole after eight months.  Townroe, in fact, was sentenced to two and a-half years’ imprisonment with a recommendation for parole after nine months, not nine months’ imprisonment as was submitted at sentence.

Bearing in mind all relevant factors, including the sentence imposed on Townroe, the applicant’s sentence was not manifestly excessive.  Nor is there such a disparity in sentence between the applicant and Townroe as to cause a justifiable sense of grievance warranting interference with his sentence.  The parole recommendation given to the applicant appropriately recognises all mitigating factors.  I would refuse the application for leave to appeal that sentence.

THE CHIEF JUSTICE:  I agree.

DUTNEY J:  I agree.

THE PRESIDENT:  The application is refused.

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