The Queen v Shultz[1997] QCA 169

COURT OF APPEAL

DAVIES JA

MOYNIHAN J

de JERSEY J

Appeal No 111 of 1997 

THE QUEEN 

v. 

STEVE SHULTZ 

BRISBANE

DATE 27/05/97

JUDGMENT

MOYNIHAN J:  This is an application for leave to appeal against sentence.  The applicant, in a timely plea, pleaded guilty to two offences, one of stealing with the circumstance of aggravation that the property was valued at in excess of $5,000.  It in fact was valued at the order of $14,000.

The second offence was for wilful damage of property and a sentence of two years was imposed in respect of that together with an order for restitution in an amount of $4,945.48.

In each case the term of imprisonment was suspended after six months for an operational period of four years.

The applicant was born on 14 April 1945, was 50 years of age at the time of the offence and had no previous criminal history.  The circumstances of the commission of the offences were that he was employed as a contract cleaner by a firm who had a contract to clean police headquarters and he performed part of that contract.

In the course of him carrying out his duties, he noticed a box which turned out to contain a computer server which was on loan to the Police Department, apparently on a loading dock which it may be taken was in a secure position.  He apparently looked at the box for - on a number of occasions.  When the owners ultimately came to pick it up, it was found to be empty - the computer server was not inside.

In fact there had been video surveillance cameras operating and they disclosed the applicant's activities and among other things they disclosed him viewing the box on a number of occasions.  They showed him remove the server from the carton and place it in a rubbish bin from which he later removed it and took it home.

Once the theft was reported, it was necessary for the police to review a number of hours of surveillance film and in the course of that, the applicant's activities were noted.  He was ultimately questioned by police on 17 July where he made full admissions in relation to the theft.

He said he took the server to see if it was compatible with his own computer and dismantled it for the purpose of carrying out that attempt.  He found that the computer and server were not compatible and he left the server in dismantled state at his home until he was questioned by police in circumstances which I have mentioned.

The figure by way of restitution is the cost of reassembling the server although it seems that it could not be used commercially again because of the uncertainty of operation which had been brought about because it had been disassembled in the circumstances to which I have referred.

The issue on the applications in relation to the sentence really comes down to whether the sentencing Judge erred by not fully suspending the terms of imprisonment.

He had regard to a number of considerations.  They included the history and age of the applicant, to which I have already referred, the timely plea, the cooperation with the police.  He also had regard to the fact that the offence was demonstrably not on the spur of the moment and to the fact that it may well have gone undetected and others may have been under suspicion for involvement in the theft had it not been for the video evidence.

I have not mentioned it - I should say that the applicant said that he had thought that the video cameras were not operating although he was observed on occasions to take what might be thought to have been precautions to conceal his activities from that surveillance.

It was an offence which was committed when he took advantage of the access which he had to police headquarters by virtue of his employment as a cleaner.

Taking all the considerations into account, I am not persuaded that the sentencing Judge's discretion miscarried in imposing the sentences which he did impose or that he erred by not in effect suspending the sentences completely with the consequence that the applicant would have served no time in prison.  I would therefore refuse the applications.

DAVIES JA:  I agree.

de JERSEY J:  I agree.

DAVIES JA:  The application is refused.