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[2001] QCA 89
Court of Appeal (Qld)
2001-03-12
Moynihan J, Pherson JA, Byrne J
Original judgment source is linked above.
The applicant has drawn our attention to other decisions which might be described as comparative. Some of them were clearly among those referred to before the judge below. Some of the sentences may appear more lenient than that imposed here. In the end, however, comparability breaks down having regard to the different balance to be given to the considerations which are peculiar to each case.
There is no doubt that the applicant, and the sentencing Judge referred to it, had a difficult childhood in circumstances of coming here from another country. A relevant consideration that deserves to be remarked on is the criminal history of the applicant. He had had convictions, admittedly some time previously, for assault occasioning bodily harm, unlawful assault and breaches of domestic violence orders.
He obviously had a significant drug problem at the time of this offence. On 28 June 1999 he had been sentenced in the District Court to an intensive correctional order in respect of a number of property offences and he had been released from the effect of that order 25 days before the offence which was committed here.
The circumstances of the offence in the present case have in the applicant's favour the fact that the confrontation had its origins in the actions of the deceased. But the fact is, as the sentencing Judge remarked, that the accused took up the knife and left the house to pursue the deceased.
That obviously is a consideration, very different from what might have occurred had the knife been involved in the earlier assaults in the house, for example, in some other way. The other material consideration which cannot be ignored is the criminal history to which I have referred.
The sentence, in my view, is within the range which was applicable to the circumstances of the case. It has not been shown that there was a departure from the exercise of a sound sentencing discretion and no error has been demonstrated in the application of that discretion. I would therefore refuse leave to appeal.
BYRNE J: The only matter which has troubled me concerning the sentence is the question of whether some, or some additional, allowance ought to have been made for the resource savings which would have been associated with the offer of the plea of guilty had it been accepted by the prosecution.
On balance, however, having regard to the factual and other considerations mentioned by Justice Moynihan, I am not in the result persuaded in all the circumstances that the sentence is beyond the range of a sound sentencing discretion, even assuming that some or some additional allowance ought to have been made for those resource savings.
McPHERSON JA: The order is that the application for leave to appeal against sentence is dismissed.
R
Arnoutovic [2001] QCA 89