The Queen v Franklin[1998] QCA 457

COURT OF APPEAL

McPHERSON JA

WILLIAMS J

MUIR J

CA No 313 of 1998

THE QUEEN

v.

IAN McGREGOR FRANKLIN Appellant (Applicant)

BRISBANE

DATE 28/10/98

JUDGMENT

MUIR J:  The applicant was convicted in the District Court at Maryborough on 28 August 1998 on one count of receiving property namely a typewriter, a ride-on tractor, a brush cutter, an electric jigsaw, a UHF radio, an electric welder, a cordless telephone, an oxygen bottle, an acetylene bottle, computer software, a quantity of stationery, a video camera, a microwave, a video recorder, a computer hard drive, a monitor and printer, which property the applicant then knew to have been stolen. He also pleaded guilty to a summary charge of possession of a drop saw and an air compressor suspected of being stolen.

The applicant was sentenced to a term of imprisonment of two years on the first count, such sentence to be suspended after a term of nine months had been served. A term of imprisonment of six months was imposed in respect of the matter referred from the Magistrates Court. The two sentences were ordered to be served concurrently.

The applicant seeks leave to appeal against sentence. The ground of appeal is that the sentences are manifestly excessive. The applicant had only one prior conviction namely that on 8 October 1985 of stealing headlight trims, spotlight covers. The penalty imposed for that offence was community service of 60 hours.

The applicant is a 34-year-old married man with three children aged 10, 7 and 5. He was educated to grade 8 but cannot read or write and is dyslexic. As a result of these handicaps he has been unable to obtain work of recent years and is on a disability pension. He suffers ill health by reason of an arthritic condition for which he takes regular multiple medications. The condition causes him to experience pain and he has monthly blood tests in order to monitor the level of drugs being taken by him. His wife has difficulty in managing the children and, in particular, one of the children who has a hyperactive condition without the assistance of the applicant.

The factors to which Mr Leask, who appears for the applicant, points in order to support the application are the applicant's state of health, the hardship occasioned his wife and family should he be absent from the home for any extended period, his cooperation with the police and his early plea of guilty. The cooperation extended to the making of admissions by the applicant in relation to property the subject of the charge which is not on any stolen property list.

The contention advanced on behalf of the applicant is that an appropriate sentence would be a period of 12 months imprisonment to be served by way of an intensive correction order.

In the learned sentencing Judge's reasons, he observed:

"This is one of the worst cases of receiving we have encountered in these Courts for some time. It represents repeated acts of receiving stolen property. This sort of thing has to be punished and seen to be punished. People must be dissuaded from following in the example of these two."

The reference to the "two" was a reference to the applicant and his wife.

It is true that the applicant's offences involved receiving a number of different items of property over a considerable period. However, with respect to the learned sentencing Judge's observations, it is an overstatement to categorise the offences as being one of "the worst cases". The goods concerned were not of great value, relatively speaking, and the applicant's conduct involved no element of commerciality. It seems that all of the goods in question were supplied to the applicant by a relative of his.

The reasons of the Court of Appeal in The Queen v. Owens offer some support for the Crown's contention that the sentence is within the permissible range for an offence of the type under consideration. The goods involved in Owens were of lesser value than those involved here and were not received over such a lengthy period. The sentence in that case was 18 months. In Owens though, the features of this case to which I am about to refer do not seem to have been present.

The sentence imposed by the learned sentencing judge may be thought to be on the high side but a term of imprisonment was clearly warranted by the seriousness of the offence. But in my view, having regard to the applicant's cooperation with the authorities and early plea, but more particularly having regard to the personal circumstances which I have outlined including his dyslexic condition and state of health, the actual custodial element of the sentence was manifestly excessive.

Having regard to the particular circumstances of the applicant it would be appropriate that the sentence of two years be suspended after four and one half months. I would not be inclined to interfere with the operational period set by the learned trial Judge.

If the sentence were to be altered in the manner which I have indicated, it would also be appropriate to suspend the other sentence after four and a half months, and that is the course which I would favour. I would allow the appeal to that extent.

McPHERSON JA:  Yes, I agree. I do so principally because of the disabilities from which the applicant suffers. In addition to the arthritis which was mentioned by Mr Justice Muir, and which requires the applicant to have five different drugs each morning and another five at night as well as monthly blood tests, it is perhaps pertinent to point out the following further factors that go to disadvantage the applicant. He is apparently unable to read and write. He was sent to Brisbane for various tests and assessments which demonstrated that he suffers from two types of dyslexia, and that it is, in the words of his counsel at the sentence hearing, "hopeless trying to retrain him or train him for any particular trade or occupation" because as counsel said, "he is not taking it in".

The result of that is that it seems to me that a prison sentence will certainly bear more harshly on this applicant than it would on any normal person. He may also of course be vulnerable to the sort of unpleasantness that is sometimes visited on disadvantaged persons by other people in the gaol, who are not particularly known for their sensitivity.

Bearing that in mind and the need also to maintain the pattern of sentencing in cases of this kind, I would therefore not be disposed to alter the head sentence, nor even to permit the applicant to escape altogether from a period in prison. On the other hand, it does seem to me that some reduction in the custodial period of sentence should have been considered by his Honour and allowed to an extent greater than the sentence appealed against has recognised.

I would therefore allow the appeal in the case of the sentence on indictment by reducing the duration of the period to be served before the sentence is suspended to that of four and a half months mentioned by Mr Justice Muir. Otherwise I would not disturb that sentence.

In the case of the other sentence of six months for the possession offence, which was transferred from the Magistrates Court into the District Court, the appeal ought also be allowed to the extent of suspending that sentence after four and a half months of it has been served, with an operational period for the suspension of three years.

The appeal will therefore be allowed to the extent of those variations in the two sentences.

WILLIAMS J:  I agree with what has been said by each of the other members of the Court.

McPHERSON JA:  The order will therefore be as I have expressed it.