R v Jurd

SUPREME COURT OF QUEENSLAND

CITATION: R v Jurd [2007] QCA 228

PARTIES: R / v / JURD, Clint Bernie / (applicant)

FILE NO/S: CA No 74 of 2007 / DC No 1485 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Gladstone

DELIVERED EX TEMPORE ON: 19 July 2007

DELIVERED AT: Brisbane

HEARING DATE: 19 July 2007

JUDGES: Williams and Keane JJA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where appellant pleaded guilty to offences of burglary, assault occasioning bodily harm and stealing – where appellant sentenced to four years imprisonment with parole eligibility after 14 months – where applicant contends trial judge failed to give sufficiently discount the sentence for the applicant's cooperation in naming his co-offender – whether sentence manifestly excessive / R v Abednego [2004] QCA 377 , cited / R v Bowe; R v Taylor [2004] QCA 414 , cited / R v Bower-Miles & Smith [1995] QCA 453 , cited / R v. Blenkinsop; R v Blenkinsop [2007] QCA 181 , cited / R v Gompelman [2002] QCA 191 , cited / R v Hardman [2001] QCA 15 , cited / R v Hess [2003] QCA 553 , cited / R v Houghton & Genrich [1998] QCA 137 , cited / R v Kraaz [2006] QCA 520 , cited / R v Porter [2002] QCA 59 , cited / R v Salmon ex parte Attorney-General [2002] QCA 262 , cited / R v Zerafa [1992] QCA 61 , cited

COUNSEL: A W Moynihan SC for the applicant / R G Martin SC for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: This is an application for leave to appeal against a sentence of four years' imprisonment with parole eligibility fixed at 13 May 2008, that is, after serving 14 months, imposed on the applicant after he pleaded guilty to offences of burglary, assault occasioning bodily harm and stealing.

In the written submissions in support of the application, it was contended on behalf of the applicant that the sentence was manifestly excessive because the sentencing Judge did not give sufficient discounting for the fact that the applicant named his co-offender.

In the light of the filing by the respondent of the affidavit of Wayne Edward Butcher, that ground has been abandoned.

The applicant was born on 2 May 1971, making him 36 years of age when the offences were committed on 29 April 2006. He was sentenced in the District Court at Gladstone on 13 March 2007. The applicant knew the 41 year old male complainant. At about 10.45 p.m. on 29 April 2006, accompanied by another man, the applicant forced open the door and entered the complainant's caravan in a caravan park in Gladstone. At the time the applicant's face was partially covered by a balaclava. The applicant demanded of the complainant "Where are your drugs?" The complainant replied that he did not have any and attempted to leave by another door which was locked.

The complainant then tried to push past the applicant and a struggle ensued. The other person accompanying the applicant hit the complainant, causing him to release his grip on the applicant. That blow caused some bruising to the forearm.

The complainant was then forced on to his bed where he experienced difficulty in breathing and felt light-headed. He thought he was suffocating. The applicant's companion said, "Don't scream and don't call the police." The applicant said, "Tell the wog he's next."

The applicant and his companion then left the caravan, taking $590 cash which the applicant had taken from the complainant's wallet, together with two clipseal bags containing mothballs and a knife blade. It may well be that the applicant thought the clipseal bags contained illicit drugs.

The applicant was identified by the complainant to the police and was subsequently interviewed. The applicant's plea of guilty was a timely one. The plea of guilty came after a hand-up committal. The sentencing Judge recognised because of that he had to make an allowance for the applicant's cooperation in the administration of justice when determining sentence.

Of critical importance to the determination of the appropriate sentence was the applicant's criminal history, but of particular significance in that criminal history, which covered both Queensland and South Australia were the following offences.

On 17 May 2002, the applicant was dealt with for two offences of unlawful assault occasioning bodily harm, two breaches of a domestic violence order and drug offences. He was sentenced on that occasion to nine months' imprisonment, suspended after three months, with an operational period of two years.

Next the appellant was dealt with on 12 October 2004 for one count of receiving and two counts of serious assault on one indictment and a further count of receiving on another. On that occasion, he was dealt with for breach of the suspended sentence imposed on 17 May 2002. The sentence then imposed was 18 months' imprisonment, suspended after six months, with an operational period of 18 months.

Then on 18 August 2006, the applicant was sentenced to nine months' imprisonment for an offence of receiving and a further breach of a domestic violence order.

It is an aggravating feature of this case that the applicant was on bail for those offences dealt with on 18 August 2006, when he committed the offences now under consideration. It is sufficient to make brief reference to the fact that in 2003 the applicant committed a number of offences in South Australia, including that of breaching a domestic violence order.

It is not necessary to particularise further the applicant's criminal history. Suffice it to say that it began in 1990 and contained a number of convictions of street offences, unlawful use of a motor vehicle and some drug offences dealt with in the Magistrates Court.

The sentencing Judge referred specifically to the number of offences involving violence in the applicant's criminal history. He also emphasised that there was obviously some planning associated with the Commission of the home invasion, which was an offence the Court treated seriously. The wearing of the balaclava was some evidence as to the degree of planning involved.

The sentencing Judge also referred to the fact that during the periods of imprisonment, the applicant had undergone courses in anger management. He indicated that there was some evidence that the applicant had made genuine attempts at rehabilitation.

The applicant himself has placed some handwritten material before this Court indicating that since he has been in custody, he has developed a good rapport with counsellors and made a decision to turn his life around for the sake of his family. The extent of rehabilitation will only ultimately be determined after the applicant has returned to the community.

Mr Moynihan, Senior Counsel, for the applicant submitted that the sentencing discretion miscarried because the sentencing Judge imposed a manifestly excessive head sentence.

With respect to the head sentence, he referred the Court to a number of authorities, R v. Bowe [2004] QCA 414, R v. Hardman [2001] QCA 15, R v. Hess [2003] QCA 553, R v. Houghton & Genrich [1998] QCA 137, R v. Zerafa [1992] QCA 61, R v. Porter [2002] QCA 59, R v. Gompelman [2002] QCA 191, R v. Salmon ex parte Attorney-General [2002] QCA 262, R v. Bower-Miles & Smith [1995] QCA 453, R v. Abednego [2004] QCA 377, R v. Kraaz [2006] QCA 520 and R v. Blenkinsop [2007] QCA 181.

As is not surprising, those cases reveal a reasonably wide range of sentence imposed for offences involving a home invasion or offences analogous thereto. The age of the offender, the criminal history of the offender, whether the offence was committed in company, and whether the offender was armed, have all been recognised as factors relevant to determining the appropriate sentence.

Here the applicant was a mature man with a significant criminal history involving offences of violence who committed the offences in question in company and whilst on bail. Given that he had previously served periods of actual imprisonment of three months, six months and nine months for offences involving serious violence, a significant head sentence was called for in the present case.

None of the authorities referred to by counsel for the applicant clearly indicates that the present head sentence of four years was not within range for an offender who was a mature adult, had significant previous convictions for serious assault and who committed the offence in question whilst on bail.

It also cannot be ignored that $590, a significant sum of money to the complainant, was stolen on the occasion in question.

The sentencing Judge also regarded it as an aggravating factor that the offence took place in circumstances where the applicant's demand was for drugs. The fact that no drugs were obtained does not significantly alter the position. The learned sentencing Judge was justified in taking into account that the motive for the home invasion was the pursuit of drugs.

The applicant was entitled to an allowance for his cooperation with the administration of justice in pleading guilty at an early stage.

In the present case, the parole eligibility date has been fixed after serving 14 months, which means the applicant would serve significantly less than would be the case if no parole date was fixed by the Court.

The sentence imposed could be said to be towards the top of the range, given the previous decisions referred to by Mr Moynihan, but given the applicant's age, his criminal history and the fact that the offences were committed whilst on bail, I am not persuaded that the head sentence imposed was manifestly excessive, even having regard to the mitigating factor referred to.

The application for leave to appeal against sentence should be dismissed.

KEANE JA: I agree.

MULLINS J: I agree.

WILLIAMS JA: The order of the Court is the application is dismissed.