R v Greczko[2001] QCA 221

COURT OF APPEAL

McMURDO P

THOMAS JA

ATKINSON J

BRISBANE

DATE 05/06/2001

JUDGMENT

THE PRESIDENT:  Justice Thomas will deliver his reasons first.

THOMAS JA:  The applicant pleaded guilty to a variety of offences committed between November 1999 and October 2000.  Five separate indictments were presented in relation to 14 offences and two further summary matters were also dealt with.

The indictments included seven counts of stealing, two of wilful damage, one of entering a vehicle with intent, one of assault occasioning bodily harm whilst armed, one of assault occasioning bodily harm in company, one of fraud and one of common assault.  The summary matters consisted of behaving in a disorderly manner and unauthorised dealing in shop goods. 

The operative sentence of 18 months' imprisonment was imposed with respect to assault occasioning bodily harm in company, which was committed on 25 September 2000.  Concurrent sentences of 12 months' imprisonment were imposed on counts of wilful damage and assault occasioning bodily harm whilst armed, 30 November 1999 and concurrent six months' sentences were imposed in respect of all other matters.

The applicant is 31 years old and has a fairly extensive criminal history, although, with relatively minor exceptions, it was not such as resulted in her being sent to prison for other than short periods.  Her record includes many offences of dishonesty.

There has been a poor record of compliance with orders that have been made.  Probation and community service orders have been breached.  An order of suspended imprisonment failed to discourage her from re-offending.  The present offences were committed whilst she was subject to suspended orders of imprisonment that had been made in the Magistrates Court on 19 July 1999 and 13 September 1999.  It is clear that with her prolific history of offending and the failure of alternative options, the Court was left in a position where the only appropriate sentence was one of imprisonment. 

The circumstances may be briefly stated.  The four counts on the first indictment resulted from an argument with a male complainant.  The applicant entered his car, took a wheel brace and used it to scratch every panel of the complainant's car, before throwing it at the complainant, striking him on the arm. 

The second indictment concerns her stealing a quantity of electrical appliances from Woolworths in January 2000.

The third indictment concerns further shop stealing offences, in which she stole a rug and a video cassette recorder. 

The fourth indictment concerns further shop stealing of coffee, moisturising cream and cosmetics in April 2000.

The fifth indictment concerns the shop lifting of 27 items of clothing from Myer at Pacific Fair on 16 August 2000, followed by further shop lifting from Myer at Logan, 24 August, resulting in the taking of $836 worth of property. On 10 September 2000, the applicant obtained accommodation worth $90 by passing a false cheque.  Finally, on 25 September 2000, the applicant and a co-offender behaved aggressively on a bus, abusing and threatening other passengers.

The applicant twice slapped a complainant (Davies) across the face.  She struck another passenger (Fogarty) and when Fogarty stood up, she assaulted Fogarty by pushing her back into her seat, hitting her in the face and scratching her neck.  When the driver attempted to obtain calm he was abused and threatened.  Prior to leaving the bus, the applicant ripped the radio cord from its socket, rendering it inoperable. 

The offences were drug related.  The applicant is addicted to heroin and this is said to explain her history of offences of dishonesty.

Her counsel referred to her dysfunctional adolescence and to the fact that she herself has two juvenile children who are currently in care.  It was submitted that the offences form a series committed in a period of drug abuse, exacerbated by the authorities taking the second child into care.

That, however, does not appear to present a case in which her drug abuse can have any relevant mitigating effect upon the appropriate sentence.  The only truly mitigating factor would seem to be her early plea of guilty to all offences, including a plea to an ex officio indictment in relation to some of them.

I cannot see that the response of the learned sentencing Judge in this particular matter is excessive in any way.  Indeed, both counsel for the Crown and defence below submitted that the appropriate head sentence was 18 months' imprisonment. 

It was correctly conceded that the learned sentencing Judge acted appropriately in looking at the overall criminality and in choosing an operative sentence to take account of it. His Honour mentioned the possibility of cumulative sentences but decided against making such an order.

Having regard to the fairly extended period over which the offending behaviour continued and the different forms of criminality, it is not surprising that at least some thought was given to the possibility of a cumulative sentence. But in the end his Honour rejected that option and chose an effective overall sentence of 18 months, having regard to the multiple criminality over an extended period.

I do not think it necessary to refer to any comparable sentences.  Those imposed were comfortably within the range available and properly accommodated the mitigation of early pleas.

In my view the application should be refused.

THE PRESIDENT:  I agree.  Whilst the sentencing Judge could have imposed a recommendation for parole slightly earlier than the halfway mark, his decision not to do so in this case does not make the sentence manifestly excessive.  I agree the application for leave to appeal should be refused.

ATKINSON J:  I agree for the reasons given by the President and Justice Thomas that the application for leave to appeal should be refused.

THE PRESIDENT:  The order of the Court is that the application for leave to appeal is refused.