R v Witherington[2001] QCA 411

McPHERSON JA:  The applicant for leave to appeal against sentence in this matter is Kathleen Alice Witherington. She was convicted on her own pleas of guilty in the District Court at Maroochydore. The offences of which she was convicted were as follows:

Indictment 1: Break and enter with intent, stealing, wilful damage.

Indictment 2: Unlawful use of a motor vehicle with damage, stealing, unlawful use of a motor vehicle and, again, unlawful use of a motor vehicle, fraud breaking and entering premises and wilful damage, stealing, breaking and entering premises and stealing, entering premises with intent to commit an indictable offence, burglary, stealing, burglary, stealing, unlawful use of a motor vehicle with intent to facilitate the commission of an indictable offence.

For those offences the applicant was sentenced to imprisonment for three years suspended after 12 months with an operational period of three years. A period of 56 days pre‑sentence detention was declared to be time served under the sentence.

The application for leave to appeal is brought on the grounds that the sentence was manifestly excessive. The applicant had pleaded guilty to all counts. The offences had occurred within a limited period when the applicant was suffering from an amphetamine addiction after her partner was gaoled and she was faced with the task of bringing up four children.

The circumstances of the offences in indictment 1 can be summarised as follows. The applicant entered the complainant's house by breaking a bedroom window and the wall of a wardrobe. The house was extensively vandalised which cost $5,874 to clean up and repair in addition to the value of the property stolen which was $11,157.

Damage was caused by the applicant or, as she has explained to us, one of her children, defecating in the toilet and the toilet lid was then cemented shut. The flushing devices on the toilet were broken. Bleach was sprayed over clothes in the wardrobe and obscenities were written on a bedroom mirror.

The applicant's daughter told the police that she had gone with her mother to look for houses to break into. The applicant herself had not been strong enough to pull out a window of the house that was targeted, so she smashed a window with a brick and then pushed her child through the window. The child then opened the front door and let her mother in. After hearing these admissions the applicant, who had claimed to have had little recollection of events, said that the admissions must be true.

The circumstances of the offences in indictment 2 can be summarised as follows. Between 11 and 15 November 2000 the applicant took a Holden Commodore from the Sunshine Plaza car park. She was caught a couple of days later with her two daughters in the vehicle. The applicant was in possession of numerous keys, one of which she used to take the car. The boot lock of the car was damaged by the applicant's inserting a screw driver to see if there was anything inside the boot.

In March/April 2001 the applicant was found with a mobile phone in her bag which she said she had found recently in a taxi and kept for her own use.

Between 15 and 19 March 2001 she took a Holden Commodore from an open carport of a unit complex. The vehicle was located abandoned some time later in bushland. Between

16 and 19 March 2001 the applicant drove a Holden Commodore from the Maryborough City Council swimming pool car park. The police intercepted her driving the vehicle on the Bruce Highway. On 18 March the applicant was seen to fill the complainant's vehicle with petrol and drive away.

Between 2 and 7 April 2001 the applicant broke and entered a number of holiday units at Mooloolaba. The police patrolled the vicinity and located her and her family. In that instance one unit, which was not let, had obviously been lived in. There was said to be cat faeces on the carpet and a mattress was torn. The damage cost $2,601.75 to rectify.The stereo, the TV, and a video cassette recorder were stolen. They were valued at $1,796. A fire alarm key taped to the back of the complainant's business card was found in the applicant's possession.

A second unit was broken into and in it was found some of the property stolen from the first unit. A third unit was also broken into but no property was taken. A fourth unit, which had been let to a couple, at least one of whom was asleep, was also broken into when the applicant stole keys from the unit.

On 5 May 2001 the applicant was observed by police to be driving a BMW vehicle with her daughters and stolen property in the vehicle. It and the property had been stolen from a residence which had been completely ransacked.

The applicant's personal circumstances are that she's aged 35. She has a prior criminal record involving drug offences relating to cannabis in 1987, receiving in the same year, some traffic offences including drink-driving in 1989 and 1999, some further drug offences and stealing in the year 2000, shoplifting in 2001, although she does not seem previously to have served time in prison.

Before us the applicant, who appeared in person, emphasised that she is the single mother and carer of four children who are now separated from her and from each other in consequence of the sentence. She said she was not arguing with the head sentence but rather submitting that the suspension order ought to have taken effect earlier than the 12 months at which the Judge fixed it.

His Honour, in arriving at the conclusion that he did, thought that the factors tending to increase the sentence and, no doubt, to determine when the suspension should be given effect, included the obviously appalling conduct involved in the first indictment; that is to say, the vandalisation and generally the filth quite unnecessarily left in the house that was burgled, the fact that the applicant's children were used or involved in one or more of these offences - indeed, as I have said, one of them was used to gain access through a window - the total value of the property taken or damaged and the fact that the offences were plainly planned and premeditated and not spur of the moment offences. Most of the offences occurred while the applicant was on bail, one of them very shortly after she was released from custody.

In those circumstances, and particularly having regard to the fact that the applicant has introduced her own children to a criminal activity, it is impossible to place a great deal of credence on her expressed concern for their welfare.

It is encouraging to learn that she is now taking steps towards rehabilitation; but in my view it is necessary that she be punished for the offences of such a serious kind that she has committed and the only way in which this can be done is to subject her to an appropriate period of imprisonment.

In my view, the sentence complained of was not excessive and I would not grant leave to appeal against it in the circumstances of this case.

CHESTERMAN J: I agree.

DOUGLAS J: I agree.

McPHERSON JA: The application for leave to appeal against sentence is dismissed.