The Queen v Richards[1997] QCA 218

COURT OF APPEAL

DEMACK J

DOWSETT J

MACKENZIE J

CA No 174 of 1997

THE QUEEN

v.

VANESSA MAY RICHARDS

BRISBANE

DATE 19/06/97

JUDGMENT

DEMACK J:  This is an application for leave to appeal in respect of sentences imposed in the Magistrates Court at Bundaberg on 17 April 1997.  The applicant is a 19 year old woman who, from the material placed before the Magistrate, had been acting in a thoroughly anti-social way from early January 1997 until April 1997 in and around Bundaberg.

She had previously been before the Magistrates Court at Yeppoon on 5 May 1995 and was there placed on 18 months probation in respect of the unlawful use of a motor vehicle and a breach of the Bail Act.  She was apparently also dealt with there for certain driving offences.  There was an order for restitution in respect of one of the offences for an amount of $559.

On 14 June 1995 she was dealt with in the Magistrates Court in Rockhampton for two charges of stealing and for failing to dispose of a hypodermic syringe.  She was placed on probation for 12 months and an amount of $340 ordered by way of restitution.  She did not report, as required by the probation officer, on 25 August 1995 and no restitution was paid.  Consequently proceedings to deal with her for breach of the probation order seemed to have been instituted and these then surfaced when her criminality at Bundaberg was finally brought before the Court.

It appears that she imposed on a number of people in Bundaberg in the period from January 8th through to the end of February.  She was eventually charged with one offence of entering premises with intent on 8 January 1997.  She is said to have taken a phone, which I assume was a mobile phone, and a wallet.  There was some hesitation on the part of the complainant apparently to press charges and some alleged uncertainty as to whether there was permission to take the telephone, but nonetheless she was charged with that and first appeared on that charge on 16 April 1997.

Later in January 1997 she was living in premises owned by Mr Laurensteirn, and at some time between 24 January and 17 February 1997 she is alleged to have stolen two rifles, a cigarette case, binoculars, a knife, a camera and some ammunition.  These apparently were worth about $1600 and it is not clear what has happened to that property.  Again, there seems to have been some uncertainty on Mr Laurenstern's part as to whether he wanted to report this, but on 17 February his video camera was taken by the applicant and he then reported this.  She sold that for $250 allegedly to support her drug habit.

On 25 February 1997 she saw a 90-year-old man, a Mr Stammers, and told him she was looking for accommodation and generally gave a hard luck story.  He took her to premises where he said that friends of his might be able to help her, and while there she asked for money, he produced his wallet and she snatched it and ran off.  There was an amount of $100 in the wallet.

On 6 February she was stopped by the police while driving a motor vehicle and it was found that she was unlicensed.  On 15 April 1997 she was again stopped by the police while speeding in a motor vehicle.  She gave a name which the police suspected was false, and was also unlicensed at that time.  She then was seen subsequently and gave the police an address that she said was a place where her presence could be vouched for and her name vouched for.  She took the police there but then disappeared through the house and the police found that the occupant did not know her.  Consequently she was charged with hindering the police and obstructing the police and giving a false name, as well as the speeding and driving whilst unlicensed.

In the meantime she had had two failures to appear before the Magistrates Court in Bundaberg on 11 March and on 1 April.  Consequently, when she finally came before the Magistrate on 17 April, he was faced with an appalling mess of charges, all of which were relatively minor but, nonetheless, together represented a very worrying degree of criminality.

He apparently decided that she should receive an overall sentence of two years imprisonment and he seems to have tailored the sentencing to achieve that result.  He sentenced her to one sentence of two months for a breach of the Bail Act, and four months in respect of the other breach of the Bail Act.  That total sentence of six months is, of course, not subject to appeal and is cumulative upon the other sentences that were imposed.

In respect of the breaches of probation, he sentenced her to various sentences of a maximum of four months in each set of charges.  In respect of the entry of the premises with intent on 8 January he sentenced her to nine months, in respect to the two charges of stealing from Mr Laurenstern he sentenced her to six months, and in respect of the stealing from Mr Stanners he sentenced her to 12 months.  He also sentenced her to various sentences in respect of the traffic offences with a maximum of six weeks.

To achieve the result he intended he made the sentence of stealing the video cumulative upon the sentence of 12 months.  In this way he ended up with a sentence of two years.  He made no recommendation for parole.  The appeal is based on the essential premise that there was no basis for making a cumulative sentence in respect of these charges because the Magistrate had graded them to take account of their progression, so that the last in time attracted a sentence of 12 months.  Consequently it could be said that that 12-month sentence reflected adequately the seriousness of the fresh offences that had been committed in January and February.

It was also submitted that there should have been some recommendation for parole because although this young woman had previously been given probation and had failed to take advantage of that she was still only 19 years of age and serving the sentence of two years without any recommendation of parole took no account of her plea of guilty or her age and previous non-custodial sentences.

In my view both of these submissions are correct.  The Magistrate, no doubt, was faced with a serious problem but it seems to me that in fixing on the concept of making one of the sentences cumulative he went outside sound sentencing practice.  He clearly increased the sentences as they were imposed in relation to their seriousness and their sequence in time.  On its own the stealing of $100 without any violence would hardly attract a 12-month sentence, but when it is taken in conjunction with the other sentences that were imposed it adequately reflects the seriousness of the whole series of incidents.  Consequently, in my view, the order for a cumulative sentence should be set aside.

Also, in my view, a recommendation for parole should be made to take account of the plea of guilty and the age and the fact that this is the first custodial sentence imposed upon the applicant.  Because of the complex series of sentences that have been imposed, the best course is to fix a date for parole, and in my view that should be six months after the date the sentence was imposed, namely, 17 October 1997.  So I propose to grant leave to allow the appeal, to vary the sentence imposed by deleting reference to a cumulative sentence and to fix a non-parole date at 17 October 1997.

DOWSETT J:  I agree.

MACKENZIE:  I agree.

DEMACK J:  Those then will be the orders of the Court.