The Queen v Bathis[1998] QCA 241

COURT OF APPEAL

de JERSEY CJ

THOMAS J

DERRINGTON J

CA No 142 of 1998

THE QUEEN

v.

STUART-JOHN BATHIS Applicant

BRISBANE

DATE 15/07/98

JUDGMENT

THOMAS J:  This is an application for leave to appeal against sentences imposed in the District Court at Southport in respect of two counts of receiving and one of false pretences.

The applicant was sentenced to two and a half years imprisonment on the first two counts and to one year on the third. The sentences were concurrent.

The applicant was 31 years old and held an unenviable criminal history. It included numerous convictions for stealing, receiving, offences of violence, dangerous driving, breaking, entering and stealing, drug offences, driving when under disqualification - indeed it is a wide-ranging and persistent history. He had been frequently imprisoned including periods of imprisonment commencing in 1988, 1992, 1993, 1994, 1995, 1996 and 1997.

On 8 May 1996 he was imprisoned for six months for various offences of having goods in custody, and for possession of implements capable of entering. He had been released only a very short time before the offence in Count 1 was committed.

Count 1 alleges that he received a quantity of property namely a video cassette recorder, a stereo system, a quantity of jewellery, a quantity of clothing, bag, toaster and video camera and that he then knew that the said property had been stolen. I quote the elements of the offence to which he pleaded guilty, because one of the written submissions relied upon a statement on behalf of the applicant to the effect that the relevant property was already in the car when he got into it. When one examines the record however this does not suggest that he was not in possession of it once he got into the car or that he did not know that it was stolen.

The circumstances may be briefly stated. There had been a housebreaking in which property of a total value in the region of $45,000 was taken. The applicant and two others, one of whom was apparently a prison escapee, were found in the car with a substantial part of that property. Indeed the car contained almost all the items taken from the house except some electrical items (to which the applicant has in any event pleaded guilty to possessing) which may have already been disposed of.

Earlier in the day the applicant had attempted to sell a video camera taken from the house. He gave a false name and refused to take part in a record of interview or to be involved in a line-up.

After being released on bail on Count 1 he committed Counts 2 and 3 which came to the attention of the police through a pawn broking transaction where he obtained money by pawning golfing equipment. The value of the property not recovered from the housebreaking in Count 1 was $2,800.

The submissions for the applicant were, not surprisingly, limited. It was conceded that a sentence of two and a half years was within range. The basic submission was that the learned sentencing Judge should have ordered or recommended early parole in the region of nine to 12 months after commencement of the sentence. The basis of that recommendation seems to be that during the interim between commission of the offences and coming up for sentence he submitted himself to a series of drug counselling sessions and treatment involving the taking of appropriate medication.

That factor to my mind does not render the sentence inappropriate, erroneous or excessive. In my view a simple sentence of two and a half years imprisonment was an appropriate one and could not in any respect be said to be manifestly excessive.

I would accordingly refuse the application.

THE CHIEF JUSTICE:  I agree.

DERRINGTON J:  I agree.

THE CHIEF JUSTICE:  This application is refused.