Marama v Rudolph - [1994] QCA 494

[1994] QCA 494

COURT OF APPEAL

FITZGERALD P
McPHERSON JA
PINCUS JA

CA No 344 of 1994

A C RUDOLPH

JAMES MARAMA Applicant

BRISBANE

..DATE 20/10/94

JUDGMENT

THE PRESIDENT: This is an application for leave to appeal against a sentence imposed in the Magistrates Court at Cairns on 4 August 1994 for an offence of burglary.

The applicant, who is 19 years old and was 18 at the time of the offence, was convicted on his own plea and was sentenced to imprisonment for two years with a recommendation for parole after nine months. He has sought to appeal against sentence on the ground that it is manifestly excessive.

On 29 July this year, at about a quarter to 5 in the morning, the applicant entered an unlocked room in a hostel in Cairns in which a male and female were sleeping. Upon discovering that the room was occupied, he immediately left but was apprehended shortly afterwards by the male occupant who gave chase. He was arrested and told police that he had entered the room with the intention of stealing money or food, whatever he could find, and that he was under the influence of alcohol at the time. No property was taken.

Though still a young man, the applicant has had a number of Court appearances and convictions for offences of this kind dating back to 1991. It is convenient to take part of his history from the previous Judgment of this Court, delivered on 3 February 1993. In 1991, on 28 May 1991, he committed the offence of breaking, entering and stealing, for which on
26 June in that year, he was convicted and placed under supervision for six months. Again in 1991, on 7 June, he broke and entered a dwelling with intent to commit an indictable offence, for which he was convicted on 16 September 1992 and placed under supervision for twelve months and ordered to make restitution.

Again in 1991, on 22 November, he committed the offence of wilful and unlawful damage to property in the night-time, for which on 3 December 1991 he was convicted and placed under care and control for one year, and again ordered to make restitution. On 16 June 1992, he committed a further offence of breaking and entering a dwelling house with intent, and on 19 October 1992, he was for that offence placed on probation for a period of twelve months. Shortly afterwards, he committed other offences and on 26 September 1992, in the District Court at Cairns, he was sentenced to one year imprisonment for each of the offences of entering a dwelling house with intent to commit an indictable offence, unlawful wounding and indecent assault. The sentences for the offences of wounding and indecent assault were ordered to be served concurrently, but cumulative upon the sentence for the offence of entering a dwelling house with intent to commit an indictable offence.

The circumstances giving rise to those latter, more serious offences are to some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marama v Rudolph

Details

AGLC: Marama v Rudolph [1994] QCA 494
Case: [1994] QCA 494
Decision Date: 20 October 1994

CaseChat Overview and Summary

The case of Marama v Rudolph involved an application for leave to appeal against a sentence imposed in the Magistrates Court at Cairns for an offence of burglary. The applicant, James Marama, was sentenced to imprisonment for two years with a recommendation for parole after nine months. The appeal sought to challenge the sentence as manifestly excessive. The applicant, aged 19 at the time of the offence, had a history of similar convictions dating back to 1991, including breaking and entering, unlawful damage, and assaults. Despite this history, the Court had previously shown leniency, granting the applicant a further chance for rehabilitation. However, Marama had reoffended shortly after his release from prison, entering a hostel room with intent to steal but leaving immediately upon discovering it was occupied. The appeal argued that the sentence was excessive considering his age, timely plea, intoxication, and the amateurish nature of the offence. The Court of Appeal considered these arguments alongside the applicant’s repeated reoffending despite leniency.

The legal issues before the Court were whether the sentence imposed was manifestly excessive and whether the Court should exercise its discretion to interfere with the sentence. The Court examined the severity of the sentence in light of the applicant's persistent offending pattern and the need for a substantial deterrent. The arguments put forward by the applicant's counsel highlighted various mitigating factors, but the Court emphasised the importance of deterrence, especially given the applicant's history of taking advantage of leniency. The Court had to balance the need for an appropriate punishment against the principle of not sending a message that leniency would be consistently extended.

The Court of Appeal, after careful consideration, concluded that while the sentence was severe, it was within the range of a proper sentencing discretion and not manifestly excessive. The Presiding Judge and the other Justices recognised the applicant's history and the need for a substantial deterrent but also acknowledged the previous leniency shown by the Court. They held that repetitive leniency could undermine the Court's authority and the effectiveness of punishment. Therefore, the application for leave to appeal was refused. The Court ordered that the application be dismissed, upholding the original sentence imposed by the Magistrates Court.

Orders