R v Beard

[1992] QCA 258

COURT OF APPEAL [1992] QCA 258

FITZGERALD P
DAVIES JA

DEMACK J

CA No 129 of 1992

THE QUEEN

v.

MICHAEL JOHN BEARD

BRISBANE

..DATE 9/6/92

JUDGMENT

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090692 D.1

THE COURT RESUMED 12.07 P.M.

THE PRESIDENT: Yes, Mr Justice Davies will give the first

Judgment.

DAVIES JA: The applicant was convicted in the District Court

at Southport on 19 March 1992 of seven sets of offences, 17 in
all, committed over a period of about a year and a half. On

the first of those occasions which was 20 May 1990 he was seen

by police at 3 o'clock in the morning leaning into a smashed

window of a car parked on the Esplanade at Surfers Paradise.

On being pursued he was observed to have a number of cassettes

and a garage remote control unit in his possession. He was

convicted of wilful destruction and of stealing.

The second occasion was on 27 October 1990 where he and an

accomplice snatched a handbag from a shop in the Lido Arcade
at Surfers Paradise. He was placed on bail after coming

before the Magistrate for that offence and had been on bail

for only a week or so before he committed the next offence, by

far the most serious of those which he's been convicted, that

of unlawfully doing grievous bodily harm, the circumstances of
which were that at about 3 a.m. on the day in question he and
a number of other fairly intoxicated males were at a
restaurant in Surfers Paradise, there was a noisy argument and

the manager asked them to leave. He, the applicant, pulled

out a knife and deliberately stabbed the manager causing a

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wound to the right upper quadrant of the abdomen.

It penetrated through the lower part of the liver and into the

rectroperitonium, being 4 cm long and 10 cm in depth. There
was a 4 cm laceration to the liver. Without medical treatment

that would have caused a haemorrhage and shock, probably

resulting in death.

The next occasion was on 10 March the following year where he

entered a dwelling house with intent and he unlawfully used a
motor vehicle and he broke, entered and stole, two counts in
respect of that. On the following day he also unlawfully used
a motor vehicle twice, he wilfully damaged and twice broke,

enter and stole.

The next offence occurred on 30 June when he was convicted of

assault occasioning bodily harm. He was observed by the
manager of a building to be climbing down from a balcony in

the building, a home unit building. When confronted he struck

the manager on the side of the cheek causing him severe pain.

A struggle then ensued in which the manager was then struck

again and the applicant ran off.

He was on bail again when he committed the last of the group

of offences which was on 13 November 1991, the offences on

this occasion being housebreaking and assault occasioning

bodily harm. He was found in the bedroom of a house, having

ripped open a fly-screen to gain entry, a neighbour armed with

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a tennis racket confronted him and the applicant pushed him out of the way and he punched this man three or four times.

The applicant at the time of these offences was only 18 years

of age and he had no criminal record. The totality of the
sentences imposed was in effect five years. On the most
serious of the charges, unlawfully doing grievous bodily harm,

he was sentenced to three years’ imprisonment, on the

breaking, entering offences 2 years’ imprisonment, on the

assault and stealing and unlawful is one year imprisonment and

on the wilful damage six months’ imprisonment.

However, he had already served a total of 11 months in gaol

awaiting sentence which was an equivalent of 22 months in
custody and consequently the effective sentence was a total of

five years. The learned sentencing Judge took into account

the prevalence of offences such as this and consequently the

importance of deterrence. He took into account the youth of

the applicant and the lack of the previous convictions, he

took into account the period which the applicant had already

spent in gaol awaiting sentence and on the other hand he took

into account the willingness of the applicant on more than one

occasion to resort to violence and the absence of remorse and

that the grievous bodily harm was the result of a deliberate

and intended act committed whilst on bail.

Having regard to the serious nature of the offences and the

fact that they were separate series of offences committed over

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quite a long period of time, I would not interfere with the

sentence of imprisonment of five years. It was not suggested

that the sentencing Judge had erred in principle and it was

not established to my satisfaction that a sentence of, in
effect, five years’ imprisonment was outside the appropriate

range for the totality of these offences.

However, having regard to the youth of the applicant and the

fact that that applicant had no previous criminal record, I

would add a recommendation that he be considered for parole at

the end of 12 months.

THE PRESIDENT; I agree. An effective sentence of five years

without any recommendation for consideration for early parole

is too high for this very young offender with no previous

convictions, even though he has engaged in a series of

offences involving disgraceful misconduct.

DEMACK J: I agree.

THE PRESIDENT; The appeal is allowed to the extent of adding a

recommendation that the applicant be considered for parole
after serving a period of 12 months from the date when he was

sentenced.

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