R v Hartnett[2001] QCA 512

COURT OF APPEAL

McPHERSON JA

MACKENZIE J

CHESTERMAN J

No CA 221 of 2001

THE QUEEN

v.

JAMIE JOHN HARTNETT

BRISBANE

DATE 16/11/2001

JUDGMENT

McPHERSON JA: I will ask Mr Justice Chesterman to give the first judgment.

CHESTERMAN J: On 30 July, last, the applicant pleaded guilty in the District Court at Maryborough to three counts of the unlawful use of a motor vehicle. The offences were committed about a week apart on 20 September, 27 September and 1 October 2000.

On each occasion the application negotiated to sell a stolen motor vehicle to an undercover police officer. Each vehicle was comparatively new and of substantial value. 

The applicant was described as "a cog in a very sophisticated scheme" to steal and sell motor vehicles in and around Bundaberg. The applicant was not, himself, a thief but was, in effect, the agent for the sale of those who stole and organised the theft of cars. He does appear to have co-operated with the police in their investigation. 

The applicant was sentenced to two and a half years' imprisonment on each count to be served concurrently. The imprisonment in each case to be suspended after serving nine months with an operational period of the sentence for a period of four years.

The applicant makes no complaint about the time he must spend in custody but does complain that the term of imprisonment is excessive and should have been 18 months. As well, he argues for a reduction in the operational period to two years.

The applicant is comparatively young.  He was 24 at the time of the offences and is now 25. He has a criminal history, though not for offences of dishonesty. He has twice been convicted of offences against the Drugs Misuse Act and twice of breaching obligations of community based orders.

He obtained an apprenticeship as a carpenter and had almost qualified as a tradesman when convicted. He appears to have been a capable employee who has favourably impressed his employers.

The applicant's lapse into crime was caused by drugs. He became addicted to amphetamines and incurred debts to his suppliers. It was to discharge those debts as well as to obtain some cash for himself that he participated in the organised theft of motor vehicles.

At the time of conviction the applicant had returned to live with his parents who are supportive. He was in employment and had apparently overcome his drug addiction. He anticipates that he will have to pay just over $3,000.00 by way of compensation to those whose vehicles were taken.

The argument advanced on his behalf is that a comparison of sentences for like offences indicate that the appropriate range was between 18 months and two years, making the imposed sentence of two and a half years excessive.

Secondly, it is said that the operational period of four years is particularly harsh because it extends the applicant's liability to serve the balance of the period of imprisonment should he re-offend well beyond the notional finishing point of the sentence. 

This is said to offend the requirements of Part 8 of the Penalties and Sentences Act that there be a proportionality between a suspended sentence and the operational period.

The cases relied upon for the first part of the submission are Ferranti, CA 339 of 1991 and Bailey, CA 5 of 1994.  Relevantly, Ferranti was convicted of the unlawful use of a motor vehicle with a circumstance of aggravation for which he was sentenced to two and a half years' imprisonment. 

Ferranti was the same age as the applicant but had a lengthy criminal history for offences of dishonesty and the misuse of drugs. Bailey was sentenced to two years' imprisonment to be served concurrently on one count of unlawfully possessing a motor vehicle and two counts of unlawfully using a motor vehicle. They had been stolen and the identifying plates and numbers altered or removed. He had an extensive criminal history but mostly for regulatory offences. What was said to make his offending serious was the offences followed in relatively quick succession one after another.

We were also referred by counsel for the Crown to two other cases, Heydon and Priman in which respectively sentences of three years, suspended after 10 months with an operational period of four years and a term of three years were imposed. They were both cases involving the organised theft of motor vehicles.

I am not persuaded that these cases indicate that the sentence imposed upon the applicant was manifestly excessive especially when one remembers that the applicant's sentence is to be suspended after serving nine months.

The other criminals did not have the amelioration of such an order. If one ignores the suspension it still does not appear that the sentence was excessive. What makes this case worse than the others is the applicant's involvement in organised crime.

Nor do I think that there is any substance in the second point. Section 144 of the Penalties and Sentences Act does not in terms impose a requirement of proportionality between the length of a suspended sentence and its operational period, though I would accept that generally there should be some proportionality.

The section confers a wide discretion to be exercised according to the particular circumstances of each case. The only statutory requirements are that the Court when imposing a suspended sentence must state an operational period during which the offender must not commit another offence punishable by imprisonment if he is to avoid being sent to gaol for the suspended portion of the sentence and that the operational period must be not less than the term of imprisonment imposed and be not more than five years.

I expect the applicant's real concern is the length of time during which he must not commit another offence if he is to avoid being returned to gaol and the term of imprisonment he will have to serve if he does return.

A shorter operational period and/or a reduction in the suspended term will reduce the risks for the applicant should he re-offend.  However, in my view, a sentencing Judge is entitled to structure a suspended sentence in such a way as to provide a substantial incentive for an accused not to re-offend. This was done here.

In my opinion the sentencing discretion was properly exercised. I would dismiss the application for leave to appeal against sentence.

McPHERSON JA: I agree.

MACKENZIE J: I agree.

McPHERSON JA: The order is that the application is dismissed.