The Queen v Harrison[1997] QCA 474

McPHERSON JA:  The applicant pleaded guilty in the District Court at Brisbane to one count of unlawful use of a motor vehicle with a circumstance of aggravation and one count of stealing.  The circumstance of aggravation was that the stolen vehicle was used to commit the offence of stealing which constituted the second count. 

The applicant was travelling with his brother in the stolen vehicle, which had been taken from the Runcorn Railway Station, when they stopped to steal a handbag from the complainant's car.  Fortunately for her the offence was seen by one of her friends.  The police were summoned and were on the scene quickly enough to catch up with the car.  The applicant ran away and was caught, but refused to assist the police in any way.  The handbag was recovered without loss, but the car sustained damage to the extent of some $300.  The sentence imposed for those two offences was imprisonment for two years with a recommendation that the applicant be considered for parole after six months. 

The applicant is a man aged 29 or 30 years.  He has an extensive prior criminal history including convictions for burglary, two of theft, three or four of breaking and entering, three of stealing, one of receiving, three of possession of property suspected of being stolen or tainted, one of attempted false pretences, one of unlawful use of a motor vehicle with aggravating circumstances, two of possession of a drug, and various but numerous police offences, including breach of bail.

In 1990 he was sentenced to a term of imprisonment of three years for some of these offences.  He appears to have served that sentence but committed offences soon after being released.  In June 1995 he committed an offence of stealing, for which he was sentenced in the Cairns Magistrates Court on 24 August 1995,  the sentence imposed on that occasion being imprisonment for six months which the Judge or Magistrate suspended for two years.  After that there was, I notice in his record, an instance of breach of bail, on which no action was taken, that came before the Cairns Magistrates Court on 8 February 1996.  That suspension of the earlier offence was still in operation when the applicant came before the Cairns Magistrates Court once again on a charge of being in possession of property suspected of being tainted. 

The possession is alleged to have taken place on 24 January 1996, and on 4 March 1996 the applicant was placed on a bond to be of good behaviour for two years.  The offence must have been regarded as fairly trivial because the Magistrate who dealt with the matter on that occasion did not take action with respect with respect to the suspended sentence which had been activated by that further conviction.

The only factor going at all seriously in mitigation is that the applicant has the misfortune to suffer from an organic personality disorder, resulting, so it is said, from frontal lobe damage caused by injuries sustained in one or more vehicle accidents.  He is, it is said, nevertheless able to distinguish right from wrong. 

Cases of his kind attract genuine human sympathy, but, even so, the community is entitled to at least a brief period of respite from the applicant's criminal activities which appear to be of a repetitive kind, even though in a number of cases the offences committed appear to be fairly minor.

The head sentence of two years, which was imposed by the Judge at the hearing below, is, in an objective sense a justified sentence, by which I mean to say that it is consistent with the level one would expect in the circumstances for this offence having regard to the applicant's prior criminal record.  His unfortunate disability, which was acknowledged by the Judge, was appropriately accommodated by a generous recommendation for parole after six months.

All matters considered, there is no basis on which this Court, having regard to the principles on which it acts in cases of this kind, can properly interfere with the sentence, with the consequence that in my opinion the application for leave to appeal against the sentence must be dismissed.

THOMAS J:  I agree.

DOWSETT J:  I also agree.

McPHERSON JA:  The order of the Court is that the application for leave to appeal is dismissed.