Morris v Paton
[2001] QDC 311
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- Morris v Paton[2001] QDC 311
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Morris v Paton[2001] QDC 311
Morris v Paton[2001] QDC 311
DISTRICT COURT | Appeal No 5 of 2001 |
APPELLATE JURISDICTION
JUDGE ROBERTSON
ANTHONY JAMES MORRIS | Appellant |
and
JULIE PATON | Respondent |
MOUNT ISA
DATE 31/10/2001
JUDGMENT
HIS HONOUR: Anthony James Morris, the appellant, appeals against an overall head sentence of four months imposed in the Mount Isa Magistrates Court on 11 August 2001. It is conceded that he pleaded guilty at a very early stage, the offences all having occurred on the previous day. He had illegally obtained some traveller's cheques belonging to a British tourist in Alice Springs. By his plea of guilty to bringing stolen goods into Queensland, he acknowledges that he obtained those traveller's cheques by the commission of the offence of stealing.
The submissions made on his behalf and not contested before the Magistrate, were that he had found the traveller's cheques in the back of a taxi. It follows that his plea of guilty, combined with that uncontested fact, leads me to the conclusion that he acknowledged that he was guilty of stealing by finding.
In Mount Isa he obtained $329.13 by cashing a number of traveller's cheques with the Commonwealth Bank on 10 August 2001, then attempted to cash further cheques at the ANZ, and then made a further attempt to cash further cheques at the Commonwealth Bank and he was then apprehended.
He is 27 years of age. He has a significant criminal history for offences of dishonesty. An important factor in his favour was that since his imprisonment for five years for a large number of offences of burglary on 26 March 1996 in the Cairns District Court, he had not been convicted of offences of dishonesty until these offences. To some extent, that factor in his favour is mitigated by the reality that he would have served a considerable time in prison, but certainly he would have been out for some years at a time which he has not, until this occasion, committed further offences.
The offence of bringing stolen goods into Queensland was opportunistic in the sense that temptation was placed in his way and which he could not resist it. Apparently he cashed the cheques at the urging of his family who needed it for their own entertainment. It is hard to accept that he did not intend to cash the cheques at some stage.
The Magistrate sentenced him to four months in relation to the bringing of stolen goods into Queensland, and made one month terms concurrent in relation to all other sentences. The correct approach in Appeal Court on appeal from sentence is set out in a number of authorities, but in particular The Queen and Alano, ex parte Attorney-General (1995) 2 Queensland Reports 186 at 189, and that is:
“Unless the sentencing Judge has erred in principle either because of an error that is discernible or demonstrated by manifest inadequacy or excessiveness, the sentence that he or she has imposed will be proper.”
In other words, it is not for this Court to say that the sentence that I would have imposed would have been different.
In that regard, the Magistrate's sentencing remarks are brief indeed. His Worship appears to have recognised the need to recognise the mitigating factors and, particularly, the early plea, by reducing what would have obviously been a higher head sentence. Unfortunately, his Worship did not state in his reasons what that head sentence would be.
As a result of imposing the term of imprisonment, the Magistrate quite correctly deemed it as unrealistic to make an order for restitution which was offered.
In all the circumstances and bearing in mind those factors to which I have referred, in my view, a much more appropriate response to the mitigating factors, particularly the long period of time in which this man had remained trouble free and the very early plea of guilty, and the circumstances of the offences which place them at the lower range of offences of dishonesty, would have been to impose a term of imprisonment and ordered that it be suspended. Indeed, in my view, such a sentence would have been most appropriate given this man's history and would have acted as a considerable deterrent to ensure that he continued on his apparent wish to remain law abiding.
He spent some six days in custody from when he was sentenced on 11 August 2001 until when he was released on bail on 17 August by order of Mr Justice Dutney in the Townsville Supreme Court.
In the circumstances, the appeal is allowed. The sentences of the Magistrate are set aside. In lieu thereof, one sentence is imposed in relation to each offence and that is four months' imprisonment which I will order that it be suspended after he has served six days. I declare that he has been in custody between 11 August 2001 and 17 August 2001, a period of six days, which I declare to be time already served on the sentence. The balance of that sentence is then to be suspended for a period of two years from today's date.
I will order in relation to the charge of fraud upon the Commonwealth Bank that the appellant pay compensation to the Commonwealth Bank of Australia, Mount Isa Branch, the sum of $329.13. How long, Ms Trezise?
MS TREZISE: Four months, please, your Honour.
HIS HONOUR: Such sum to be paid on or before the 2nd day of March 2002 by payment to the Registrar of the Magistrates Court. If such sum is not paid on or before that date, the applicant is to be imprisoned for 14 days.