The Queen v Michael Martinovic

[2000] QCA 167

[2000] QCA 167

COURT OF APPEAL

McMURDO P
McPHERSON J
DOUGLAS J

[R v MARTINOVIC]

CA No 31 of 2000

THE QUEEN

v.

MICHAEL MARTINOVIC  Applicant

BRISBANE

..DATE 08/05/2000

JUDGMENT

THE PRESIDENT:  On 4 February 2000, in the District Court at Southport, the applicant pleaded guilty to one count of breaking, entering and committing an indictable offence. 

The facts of that offence are as follows:  Between 9 p.m. on 4 June 1999 and 10 a.m. on 5 June 1999, the applicant, together with Warne Scott and another person known as Paul, entered the storeroom of a company trading as Brothers Nielsen in the Dolphin Arcade, Surfers Paradise.  They stole a quantity of surfing merchandise with a retail value of $38,585.16.  They forced the lock on the roller door and the merchandise was placed in a motor vehicle.  Paul was given one bag of the merchandise.  The applicant and Scott took the remainder of the property to the home of a person, Christopher, at Runaway Bay.

The applicant and Scott transported some of the stolen merchandise to New South Wales the next day when they were apprehended on the Pacific Highway for speeding.  Police officers noticed the property and questioned them.  They participated in a record of interview at Coffs Harbour Police Station where they made full admissions.  All the property, except for the bag taken by Paul, has been recovered. 

Scott, who was 21 at the time of the offence, pleaded guilty at an earlier time before the same Judge. Scott committed this offence whilst on bail for other serious offences. Scott had prior convictions for wilful damage, stealing, possession of dangerous drugs, supplying dangerous drugs and breach of the Bail Act in the Southport Magistrates Court in 1998. He received fines in respect of all those offences. He applied for fine option orders and then breached those fine option orders in 1999. He was sentenced on 22 October 1999 in the Southport District Court for this offence, together with other offences including unlawful use of a motor vehicle and robbery with actual violence. He was sentenced to four years imprisonment to be suspended for five years after serving 18 months in respect of the robbery offence and 18 months concurrent in respect of the unlawful use of the motor vehicle. In respect of this offence, he was sentenced to 12 months cumulative imprisonment.

This applicant was extremely cooperative with the police, assisting him in the recovery of the property.  He was 22 at the time he committed the offence.  He has prior convictions in New South Wales for obtaining benefit by deceit; possession of a prohibited drug, cannabis; possession of equipment for administering a prohibited drug; possession of a prohibited drug; self-administering a prohibited drug, two counts; all of which were dealt with in local Courts.

He had no convictions of a like nature.  In the past he has been fined or, on one occasion, placed on a good behaviour bond;  he had not before been sentenced to a term of imprisonment.

The learned sentencing Judge understandably regarded the offence as serious and considered it to be preplanned as the applicant was attempting to take property interstate, no doubt with a view to disposing of it.  He took into account the applicant's plea of guilty and the fact that he had a lesser criminal history than his co-accused Scott but, as has been noted, sentenced him to 12 months imprisonment to be suspended after serving three months with an operational period of three years.

The applicant submits that the sentence is manifestly excessive in that it does not properly reflect the mitigating circumstances of youth, the relatively minor criminal history of this applicant, his very full cooperation with police, his early plea and the fact that almost all of the property was recovered.

We have been told that the applicant was granted bail pending appeal after serving approximately eight days of his three-month sentence.  During that time, he was able to obtain employment and it seems he is likely to gain full-time employment in the near future.

The comparable sentence of R v Bleisner, 435 of 1996, delivered 13 November 1996, does not suggest that, despite the serious aspects of this offence, a custodial sentence was not mandatory.  In this case, the differences I have set out between this applicant's case and that of his co-accused Scott demonstrate that principles of parity did not make a custodial sentence in this case essential.

In all the circumstances, there seems no point now in returning the applicant to prison;  his youth, his extensive cooperation with police, his plea of guilty, the fact that he has not been sentenced to imprisonment before and his current employment, lead me to conclude that the application for leave to appeal against sentence should be granted.

I would allow the appeal and vary the sentence only to the extent of suspending the term of imprisonment forthwith. 

McPHERSON J:  I agree.

DOUGLAS J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is granted.  The appeal is allowed and the sentence is varied only to the extent of suspending the term of imprisonment forthwith.

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