Nant v Maskell[1997] QCA 295

COURT OF APPEAL

DAVIES JA

McPHERSON JA

WILLIAMS J

CA No 169 of 1997

CA No 177 of 1997 

CONSTABLE NANT 

v. 

AARON MASKELL (Applicant)

BRISBANE

DATE 16/07/97

JUDGMENT

McPHERSON JA:  On 24 April 1997 the applicant pleaded guilty in the Magistrates Court at Brisbane to a charge of unlawful use of a motor vehicle.  He was sentenced to imprisonment for 12 months and ordered to pay $300 by way of compensation, in default two months imprisonment.  He was given 13 months to pay.

The applicant took the vehicle from an address in Gladstone and drove it to Brisbane where he used it for the ensuing three and a half months.  His explanation is that he needed the vehicle because he was going through desperate times and required a vehicle in which to drive to Brisbane to see his son.

The explanation does not, perhaps, readily fit in with his retaining and using the vehicle for a further three and a half months.  The Magistrate adopted a stern view of that aspect of the matter saying that the applicant had used the vehicle for three and a half months "for your own selfish needs".

The period of time during which the vehicle was used is something that plainly counts against the applicant.  For all he knew the owner of the vehicle might himself have been in desperate straits through not having his vehicle after the applicant had taken it.  The applicant did not concern himself at all with matters like that.

Nevertheless, the sentence of 12 months appears to me to be unduly severe.  The applicant is a man of 30 or, now, 31 years of age.  He was in full-time employment as a truck driver at the time of sentencing and has a family to support.  He has no prior convictions of any kind apart from one in 1990 of being in possession of a drug and a pipe, for which he received a community service order.

He has a two and a half year old son from a permanent relationship with a young woman.  They are, we are informed in the second two notices of appeal that have been filed, both HIV positive, something which has been discovered recently.

The applicant, it should be noted, pleaded guilty to the offence.  In Queen v. Ketu, (No. 445 of 1993) a sentence of 12 months in somewhat similar form, unlawful use of a motor vehicle in somewhat similar circumstances, was reduced to eight months.  In Queen v. Grant this Court declined to interfere with a six month sentence which it was said was rather high.  Both were cases of offences carrying a higher maximum penalty than this.

The applicant has already served nearly three months of the term of 12 months imposed.  I would for my part be inclined to suspend the sentence for two years after he has served a full three month term.  I would not be inclined to interfere with the order recording the conviction or, of course, the order for compensation.

I would therefore allow the application in No. 169 of 1997   and allow the appeal by varying the sentence so as to suspend it for three years after the applicant has served three months, or in other words, on 24 July 1997.  I would also dismiss the application numbered 177 of 1997.

DAVIES JA:  I agree.

WILLIAMS J:  I agree.

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