The Queen v Wilshire[1998] QCA 30

COURT OF APPEAL

DAVIES JA

PINCUS JA

BYRNE J

CA No 402 of 1997

THE QUEEN

v.

STANLEY WILSHIRE Applicant

BRISBANE

DATE 06/02/98

JUDGMENT

PINCUS JA:  The applicant, who appeared before us today is a man aged 37.  He was convicted on 1 October 1997 of breaking, entering and stealing and was sentenced to 18 months' imprisonment with a recommendation for release on parole after six months.  The primary judge also recommended the applicant receive psychiatric treatment and supervision.

The offence was one which the applicant committed with another man.  They broke into a church and removed from it a safe containing a substantial amount of cash, account books, and what are described as memorabilia.  This was done at night and some time later, the same night, the police were called and they found the applicant together with his co-offender and the safe. When the police came the applicant and his co-offender were trying to so arrange matters as to fit the safe on the back seat of a car, because it would not go in the boot.

The applicant has a substantial criminal history, although it appears to be one which consists primarily of fairly minor offences.  Stealing, destruction of property and breaking and entering are to be found in that criminal history.  The judge had before him a report by a community corrections officer dealing with three orders made against the applicant, the last being a probation order completed in 1995 in relation to which the officer said the applicant was deemed suitable for further probation orders.

The co-offender had much less of a criminal history than the applicant.  He was a man aged 24 and he was given a community based order.  Mr Wilshire has told us today, in effect, that he feels some resentment about the disparity between the treatment accorded to him and that accorded to the co-offender who, he assures us, is a man who really is involved in criminal activity although he has not frequently been caught. Although I have some sympathy with the argument which Mr Wilshire has advanced, it does not seem to be possible for us to ignore the formal criminal history which is, in Mr Wilshire's case, much more substantial. 

The sentencing judge had the advantage of access to sentencing remarks made in the District Court in respect of the applicant in 1992, when he received a community service order and an order for probation in respect of offences of breaking and entering, arson and entering a dwelling house with intent.  The damage was of the order of $34,000.  On the basis of reports tendered before him, the District Court judge who sentenced the applicant in 1992 declined to order imprisonment.  His Honour accepted the view that the combined effect of alcohol plus certain medication interacted with the applicant's damaged personality and impaired intellectual function so as to reduce his ability to control himself.  In the present case, the sentencing judge made reference to the observations which were made about the applicant in this 1992 case.

The points in the applicant's favour appear to be that although he has a long criminal history, most of his offences have been minor; that he is, or was thought to be, afflicted by a psychological or psychiatric problem; that he pleaded guilty; and the fact that he and his co-offender were so quickly apprehended, which suggests that the offence was of a rather amateurish kind.  I think it must be conceded also in favour of Mr Wilshire that the criminal history is unusual, in that although there is a large number of offences starting nearly 20 years ago, only one previous period of imprisonment is to be found and that is a short one in 1987.  This suggests that the offences that the applicant has committed have not been of a serious nature and also, perhaps, that he has had the benefit of consideration of his psychiatric or psychological difficulties.  Mr Wilshire, who has made helpful and sensible submissions to us today, has urged upon us the view that he has been sufficiently punished.  He points out that he still has to serve until some date in April to be eligible for parole.  And that, in a number of ways, his imprisonment has adversely affected his life.

What we have to hold, however, in order to accede to Mr Wilshire's application, is that the primary judge could not properly sentence the applicant on this, the 29th occasion on which he has come before a court, to a fairly modest term of imprisonment but the primary judge had to impose a shorter sentence or a non-custodial sentence.

On the basis of what Mr Wilshire has said to us today, he seems to me to be a very genuine person, and I personally feel some sympathy for him.  But it is necessary to think also of the interests of those who might perhaps be in the future victims of Mr Wilshire's tendency to offend against the criminal law.  I express the hope that his genuine attempts to mend his ways will bear fruit.  But it appears to me that what the judge did was not an unreasonable course, that is, to treat the case as warranting a custodial term and one of about the length which was fixed.

I would dismiss the application.

DAVIES JA:  I agree.

BYRNE J:  I agree.

DAVIES JA:  The application is refused.