Turner & McNee v Hollywood

[1994] QCA 451

IN THE COURT OF APPEAL  [1994] QCA 451

SUPREME COURT OF QUEENSLAND
  C.A. No.  274 of 1994

Before           Fitzgerald P.
  Davies JA.
  Mackenzie J.

[Turner and McNee v. Hollywod ]

BETWEEN:
  L.S. TURNER and B.J. McNEE

v.

LEON GRAHAM HOLLYWOOD  (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered   16/09/94

This is an application for leave to appeal against sentences imposed in the Magistrates Court at Brisbane on 9 June 1994.  The ground of the application is that the sentences are manifestly excessive. The applicant was convicted on his own plea on one count of unlawful use of a motor vehicle and two counts of break and enter and steal. On each charge he was sentenced to imprisonment for six months and placed on probation for three years, with the terms of imprisonment made concurrent.   A little more than a month later he was released on bail pending this application.
           The unlawful use of a motor vehicle count related to an incident in November 1993. Police responded to complaints about a car being used to create a disturbance in a street in Stafford, and found the car, which had been stolen earlier that day from Stafford City Shopping Centre, parked in the street, with the engine still hot and the smell of burnt rubber still noticeable.  Shortly afterwards, the applicant walked past and was questioned. He claimed that he was walking home from the residence of a friend whom he refused to name.  When asked to empty his pockets, a key was found which operated the stolen vehicle.  The applicant stated that he had found the key in a drain near where the car was located, admitted that he had been at Stafford City Shopping Centre earlier that day, but declined to be interviewed.  He was subsequently arrested and transported to the city watchouse and charged. 
           While he was on bail for that offence, the applicant committed the two other offences to which this application relates.
           In mid-December 1993, he broke into a store by smashing the front glass door and stole a microwave oven and some toys, with a total value of $375.00.  His fingerprints were found at the scene, but he declined to be interviewed. 
           Then, in February 1994, the applicant broke into commercial premises by smashing a front glass pane and stole a cellular telephone and associated equipment as well as $12.00 cash.  His fingerprints were again found at the scene, but he declined to be interviewed.  The cellular telephone was recovered, but batteries for the telephone worth $50.00 were either not recovered or had been exhausted. 
           The applicant has been convicted of a number of offences, including offences of dishonesty, dating back to mid-1993, which is about the time when he left home. He had not previously been sentenced to prison or placed on probation. At the time of the offences which are the subject of the present application for leave to appeal, the applicant was seventeen years old, had been living away from home for approximately six or seven months and was experiencing financial difficulties.  He was without parental guidance and support at a particularly unsettled time in his life.
           The prosecution quite correctly drew attention to the applicant's behaviour since mid-1993, which, it was submitted, suggested a disregard for the law and rejection of attempts for his rehabilitation.  It was submitted that he had been treated relatively leniently in respect of his previous sentences and pointed out that he had ignored past orders for restitution and community service, including an order for community service made on 6 January 1994, during the period in which the presently material offences were committed.
           There is force in these submissions, and it cannot be doubted that the applicant has now reached a point at which further offences of dishonesty are likely to see him  sent to prison.
           However, on this occasion, we think that the balance of the period of imprisonment imposed upon him on 9 June 1994 should be set aside. This is a borderline case, but there are prospects for the applicant's rehabilitation, which is in the community's, as well as his, best interests.  That prospect is more likely to be realised if he is immediately placed on probation rather than if he is returned to the corrupting influence of the prison environment.  He is young and has now had a taste of prison. Further,  when he was released in July, it was made a condition of his bail that he reside with his mother, which may have been altered to reside with his father. He continues to do so.  There is no suggestion that he is not complying with other terms of his bail.  And, he has obtained employment with a mowing service.  The proprietors of that service support him and say that he has a permanent part-time position with possible extension of the hours available to him because their business is expanding.
           In all these circumstances, the remainder of the term of imprisonment imposed below should be set aside, but the order placing him on probation for three years should stand.   That period of probation will start immediately and will be subject to a special condition, to which the applicant has consented, that until the condition is varied he will continue living with either his father or his mother.
           The application for leave to appeal is accordingly granted and the appeal is allowed. The terms of imprisonment imposed below are set aside and the period of the applicant's probation for three years is to start immediately. The terms of that probation will be the usual terms subject to an additional condition that, until such condition is varied, the applicant will continue to reside with either his father or his mother.