Adams v Hebblethwaite[2010] QDC 183

[2010] QDC 183

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE KOPPENOL

Appeal No 3284 of 2009

BRISBANE

DATE 19/04/2010

ORDER

HIS HONOUR:  This is an appeal from the decision of a learned Magistrate in Brisbane. On the 6th of November 2009 the applicant pleaded guilty to one count of fraud.

The background was that in July 2009 the applicant attended at a pawn broker's premises with a stereo before which a long-standing friend of his had asked him to take her to the pawn brokers so that she could pawn it.  In the circumstances which occurred, the applicant was the person who entered the pawn broker's store and signed a docket there that the stereo was his property.  He received the money for the stereo and passed it on to his friend.

He was subsequently charged with fraud and pleaded guilty.  He was sentenced to two months' imprisonment which was suspended after 12 months.  He was also ordered to pay restitution of $150.

Ms Schilton for the applicant submits that the sentence was manifestly excessive.  She relies particularly upon the fact that the applicant, whose criminal history sheet consists of three pages, did not commit any further offences between 2004 and 2009.  An analysis of the criminal history reveals that in 2003 the applicant was dealt with in the District Court for a number of offences which were committed between 1999 and 2002.  He was ordered to be imprisoned for 12 months to be served by way of an intensive correction order.  In 2005 he appeared in the Magistrates Court charged with unauthorised stealing with shop goods in December 2004. The applicant's criminal history includes a number of dishonesty offences, although they are, as it were, somewhat dated.

The learned Magistrate was concerned to ensure that there would be no repetition of the applicant's criminal behaviour.  It was for that reason that his Honour imposed the sentence which is the subject of the appeal today.

Ms Schilton submitted that the sentence was manifestly excessive, having regard to the passage of time since the dates of the offences which were the subject of various convictions in the District Court and the Magistrates Court and submitted that her client should have received a fine.

Whilst it is undoubtedly the case that the applicant could have received a fine in the circumstances, I am not satisfied that the sentence which was imposed by the learned Magistrate was manifestly excessive.  It seems to me that it was well within the range of sentences which could have been imposed in the circumstances.

Ms Logan for the Queensland Police Service drew my attention to the Court of Appeal's decision in R v Moore [2005] QCA 400 where an intensive correction order was imposed where a person pleaded guilty to one count of receiving and one count of fraud.  That person had a lengthy criminal history and the fraud offence was committed whilst that person was on bail for like offences.  The imposition there of an intensive correction order, which was not interfered with by the Court of Appeal, illustrates that in the circumstances of this case it could well have been the case that an intensive correction order could have been imposed.  That, of course, would be much more demanding upon the applicant, much more so than an order for a suspended sentence of imprisonment in circumstances where this applicant had previously received penalties by way of imprisonment to be served by an intensive correction order.

In the circumstances, as I've said, I'm not satisfied that the learned Magistrate's sentence was manifestly excessive.  The appeal will therefore be dismissed.