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

v.

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 extent but probably incompletely summarised in the reasons for judgment of the Court on that occasion, and it is reasonable to infer that the applicant was sentenced on the basis that he was not fully involved, either actively or in his knowledge, in respect of some of the deplorable activities and assaults and indignities to which the woman involved was subjected. 

On that occasion the Court granted the application for leave to appeal and set aside the sentences imposed in the District Court and substituted sentences in each case of six months' imprisonment together with a term of probation for a further three years. 

It is convenient to quote some short passages from the judgment on that occasion.   Mr Justice Davies, who delivered the judgment in which the other members of the Court including myself agreed, said:

"According to the report of the child care officer which was before the learned sentencing Judge, the applicant's offences, at least those committed before those with which we are concerned, appeared to stem from a desire to seek attention rather than from any criminal intent.  He was apparently easily influenced by his peers and especially by adults." 

Later he added:

"The applicant apparently has poor social and learning skills and low self-esteem.  None of his previous offences involve personal violence or, so far as I can see, involved him in concert with others.  There is no doubt that for a person as young as this applicant, his record is an extremely bad one.  There is also no doubt about the seriousness of the offences with which we are concerned.  On the other hand he pleaded guilty and was cooperative with the police to the extent of assisting them in their investigations and he has been in continuous custody since July last year.

Notwithstanding the very serious nature of the offences and as I have said, the applicant's poor record, I think that his youth and lack of opportunity to perform in a more structured environment require that he be given a further chance of rehabilitation."

It is appropriate to say that this Court is satisfied that on the previous occasion, when an application for leave to appeal against sentence by this applicant was before the Court, he was treated with considerable leniency.

Subsequent to being released from prison, the applicant was convicted in the Cairns Magistrates Court in March 1993 of assaulting police and resisting police on 5 March 1993 and he was convicted and fined a total of $180.  Then also in March 1993 he was convicted in the Cairns Magistrates Court of breaking and entering a dwelling house with intent in the night time, two charges relating to activities on 19 March 1993, and he was convicted and sentenced to imprisonment for three months, and then in the Cairns District Court in May 1993 he was resentenced for the offences which had previously been considered by this Court, and on the first charge sentenced to imprisonment for nine months and on the other charges he was sentenced to similar terms of imprisonment concurrent with each other but cumulative upon the sentence for the first charge, making a total sentence of 18 months' imprisonment.

He had not long been released from prison when he committed the instant offence and shortly afterwards was sentenced in respect of the matter with which we are now concerned.

It has been submitted on behalf of the applicant that the sentence is manifestly excessive having regard to the applicant's age; timely plea - three days after his arrest; the fact that he was intoxicated at the relevant time; the amateurish nature of the offence in that he did not try to hide his activities or take any property; and it is appropriate also to take into account that he was in custody after charging and before pleading guilty and being sentenced for about three days.

All these matters are raised on behalf of the applicant and everything has been said on his behalf that could reasonably be said.

In my opinion the sentence which has been imposed upon him is heavy and heavier than might have been appropriate in ordinary circumstances.  However, I think that this is a case in which deterrents, both generally and in relation to the particular applicant, is of especial significance having regard to his history, which I have recited in a little detail, including his previous appearance before this Court and the leniency which was extended to him on that occasion.

As I say, I think the sentences are high, but I do not think they are beyond the range of a proper sentencing discretion and I do not think it can be said that they are manifestly excessive such as to entitle this Court to interfere.

The Court must, I think, be conscious of the fact that the message which is sent if leniency is repetitively extended to the one offender is that the Court does not seek to impose punishment which is genuinely appropriate for the conduct in question.

I would accordingly refuse the application.

PINCUS JA:  Despite the helpful submissions put before us by counsel for the applicant in this difficult case and some concern about the length of the head sentence, I am unconvinced that one could characterise the punishment here as manifestly excessive.

The pattern of behaviour appears to be that each time the applicant is shown any leniency, he takes advantage of that by reoffending, if not at the earliest opportunity, quite soon.  Although as Ms Richards rightly says the present offence is by no means a bad example of its kind, I think the Magistrate was entitled to take the view that a substantial deterrent in this particular case was called for. 

I therefore agree with the order proposed by the learned Presiding Judge.

McPHERSON JA:  The sentence, having regard to the circumstances of the particular offence itself, was severe but the applicant has shown a degree of persistence in committing offences of this kind and I agree that the application be refused.

THE PRESIDENT:  The order of the Court is:  application refused.

-----