Walker v Sproule

[1996] QCA 556

[1996] QCA 556

COURT OF APPEAL
DAVIES JA
DERRINGTON J

AMBROSE J

CA No 355 of 1996
G WALKER
v.

DEBORAH KATHERINE SPROULE Applicant

BRISBANE
..DATE 23/10/96
231096 T6/JAP/6 M/T COA 261/96
DAVIES JA: I'll ask Mr Justice Ambrose to deliver his reasons
first.

AMBROSE J: This is an application for leave to appeal against a sentence imposed in the Magistrates Court upon the applicant, subsequent to the imposition on her by the District Court of a sentence of three years' imprisonment to be suspended after six months with an operational period of four years.

The offences dealt with in the District Court were offences committed towards the end of 1993 and early 1994. The offences for which she was sentenced in the Magistrates Court were two; each being for the unlawful use of a motor vehicle. The unlawful use offences occurred in January 1996 and in December 1995.

Each of the unlawful use offences involved a holding over by the applicant. She had hired a car in each case and had not returned the car to the leasing company but instead had abandoned the vehicle where it could be discovered having kept it a few days beyond the hiring period. The first count involved a holding over for six days and the second one a holding over for four days.

At the time she was sentenced in the Magistrates Court at Brisbane she was already serving the sentence imposed in the District Court. The Magistrate concluded, looking at the totality of the criminal activity in which she was involved, for which she had been dealt with in the District Court and for which he had to deal with her in the Magistrates Court,

231096 T6/JAP/6 M/T COA 261/96
that the appropriate sentence for the two counts before him
would be a cumulative one, although as between themselves they
ought be concurrent. That is, there ought be a sentence
cumulative to the sentence imposed in the District Court.

He ordered that she be imprisoned for six months cumulatively on the District Court sentence imposed on 20 June 1996 and ordered that she be eligible to apply for parole on 19 March 1997. She had a significant criminal history which had evolved since June 1985. She had been released on probation on one occasion. She had been required to do community service on another and on another had been sentenced to imprisonment for 12 months for false pretence offences.

For the applicant it is contended that the sentences ought not to have been cumulative but ought to have been made concurrent with the sentences imposed in the District Court. It was contended that if the offences dealt with in the Magistrates Court had also been before the District Court then the same penalty would have been imposed by the District Court Judge who had, in fact, dealt with 109 offences of dishonesty one only of which involved the unlawful use of a motor vehicle.

In my view, it would be speculative and unproductive to attempt to conclude what different sentences may have been imposed by the District Court Judge had the two matters before the Magistrate been dealt with before him.

I must say, in my view, it is a great pity that they were not dealt with before him but, in any event, they were not. Perhaps 231096 T6/JAP/6 M/T COA 261/96

the explanation is that these two unlawful use offences were committed roughly 12 months after the last of the offences committed that were dealt with in the District Court.

In my view, it was open to the Stipendiary Magistrate to conclude that it was appropriate to impose a cumulative sentence with respect to the two offences before him. On the other hand, the fact was that the applicant had already been dealt with for a large number of offences. She had already had imposed upon her a sentence of three years imprisonment which was to be suspended after serving six months.

That is a factor which, in my view, was probably not given sufficient weight in determining that the appropriate sentence was six months' imprisonment. It must be kept in mind that the quantum or length of a cumulative sentence must be carefully considered with respect to the length of sentence already imposed for other offences.

However, in my view, it was proper for the Magistrate to conclude on the facts that a cumulative sentence was appropriate. In my view, however, the offences to which the applicant pleaded guilty were within the lower range of unlawful use offences and having regard to the circumstances canvassed as to the explanation for her holding over I have come to the conclusion that it was a manifestly excessive sentence to impose six months' imprisonment cumulatively.

In my view, the appropriate sentence was one of three months cumulative imprisonment. I would therefore allow the 231096 T6/JAP/6 M/T COA 261/96

application, allow the appeal, set aside the sentence and impose with respect to each offence a sentence of three months' imprisonment. Those sentences to be served concurrently as between themselves but cumulatively with the sentence imposed in the District Court.

I would also make a recommendation with respect to eligibility
for parole that she be entitled to apply for parole on

19 January 1997.

DAVIES JA: I agree.

DERRINGTON J: I agree.

DAVIES JA: The orders are as indicated by Mr Justice Ambrose.

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