Melchiori v McNulty

[1993] QCA 393

IN THE COURT OF APPEAL [1993] QCA 393

SUPREME COURT OF QUEENSLAND

C.A. No. 310 of 1993

Brisbane
[Melchiori v. McNulty]

BETWEEN:

J. MELCHIORI

Respondent

v.

DAMIEN JOHN McNULTY

Applicant

The President
Mr Justice McPherson

Mr Justice Thomas

Judgment delivered 15/10/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE THE ORDER FOR CUMULATIVE TERMS OF IMPRISONMENT AND THE RECOMMENDATION WITH RESPECT TO PAROLE. OTHERWISE, THE SENTENCES STAND.

CATCHWORDS:	CRIMINAL LAW - Sentence - Cumulative terms of imprisonment - single criminal episode - whether manifestly excessive.
Counsel:	Ms. K. Wenck for applicant Mr. P. Ridgway for the respondent
Solicitors:	Legal Aid Office for the applicant Director of Prosecutions for the respondent

Hearing Date: 12/10/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.310 of 1993

Before The President

Mr Justice McPherson

Mr Justice Thomas

[Melchiori v. McNulty]

BETWEEN:

J. MELCHIORI

Respondent

v.

DAMIEN JOHN McNULTY

Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered on 15/10/93
This is an application for leave to appeal against sentences imposed in the Magistrate Courts at Cairns on 26 August 1993. The offences occurred on 15 May 1993, when the applicant, who was born on 21 January 1962, was aged 31 years.

On 15 May 1993, the applicant arrived at his residence heavily intoxicated. His de facto wife, McKenzie, and two friends, Martin and Hillier, were present. The applicant became abusive, picked up a bowl and smashed it on the floor. When McKenzie remonstrated with him, he grabbed her by the throat. Hillier then intervened and he and the applicant pushed and shoved each other until the applicant was pushed out of the residence by Hillier. When Martin opened the door to give the applicant his tobacco, he grabbed her by the shoulders and pulled her down a four-step flight of stairs. Hillier again intervened and thoroughly beat the applicant who also hit Hillier. In the course of the events, the applicant also damaged windows and a wall at the residence and other property including a bicycle and a telephone.

Some eleven months earlier, a Domestic Violence Order had been made against the applicant after he assaulted McKenzie. However, they had reconciled and had lived together throughout that period. Although the applicant had previously been convicted of other criminal offences, none involved any element of violence.

Initially, the Magistrate convicted and sentenced the applicant as follows:

Breach of domestic violence order	- 6 months' imprisonment.
Aggravated assault upon McKenzie	- 6 months' imprisonment.
Aggravated assault upon Martin	- 3 months' imprisonment.
Two offences of wilful damage	- 3 months' imprisonment on each with an order that restitution of $215.00 be paid with twelve months.
Assault on Hillier	- 9 months imprisonment.

All sentences were to be served concurrently. In addition the Magistrate recommended that the applicant be eligible for parole after six months, which was longer than the period after which he would have been eligible to be considered for parole in the ordinary course of events.

The Magistrate later realised that he had sentenced the applicant in relation to the assault on Hillier to a period of imprisonment in excess of the maximum permitted, which was imprisonment for six months. Later that day, he substituted a period of imprisonment for six months in relation to the assault on Hillier, but ordered that it run cumulatively upon the two three-month sentences which he had imposed in respect of the offences of wilful damage. No other change was made. The net result was that the appellant remained sentenced to imprisonment for nine months with a recommendation that he be considered to be eligible for parole after six months.

The Magistrate was not entitled to follow this course. It was inappropriate to impose cumulative sentences of imprisonment in respect of what was a single criminal episode. Further, that episode attracted no greater punishment than imprisonment for six months leaving the question of parole to follow the normal course.

The application for leave to appeal should therefore be granted and the appeal allowed. The order for cumulative terms of imprisonment and the recommendation with respect to parole should be set aside but the sentences should otherwise stand.