R v Bourke

[2014] QCA 38

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bourke [2014] QCA 38

PARTIES:

R
v
BOURKE, Jason John
(applicant)

FILE NO/S:

CA No 128 of 2013
DC No 79 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2014

JUDGES:

Muir, Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted on his own plea of armed robbery in company, whilst armed with an offensive weapon – where the applicant was sentenced to four years and six months imprisonment, with a parole eligibility date set at one third of the sentence –whether in all the circumstances the sentence was manifestly excessive

R v Apps[2008] QCA 326, considered
R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, considered
R v Moss[1999] QCA 426, considered

COUNSEL:

The applicant appeared on his on behalf
P J McCarthy for the respondent

SOLICITORS:

The applicant appeared on his on behalf
Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by Morrison JA.

1. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

1. MORRISON JA:  This is an application for leave to appeal against a sentence imposed on 23 April 2013.  The applicant was convicted of armed robbery in company, whilst armed with an offensive weapon.  On the applicant’s plea of guilty he was sentenced to four years and six months imprisonment, with a parole eligibility date set at 11 September 2014.  That date took into account 43 days declared as pre-sentence custody.

1. The applicant seeks to agitate two matters on the proposed appeal.  The first is that his counsel did not accede to his request, on the day of his court hearing, for a short adjournment.  The contention is that some further unspecified documentation could have been produced in support of the applicant on the question of sentence.  As it was, the only document tendered on his behalf was a medical report from his general practitioner.

1. The second seeks to explain the background to his drug addiction.  In essence he seeks to show that at some unspecified time in the past he was the subject of a violent attack causing physical injury and mental trauma.  The applicant wishes to show that the attack led to his abuse of opiates and subsequent criminal behaviour in funding a spiralling drug habit.

1. In a more formal sense the application for leave to appeal raises the question of whether the sentence was manifestly excessive in all the circumstances.

Circumstances

1. An agreed schedule of facts was…