R v Brelsford - [1995] QCA 594

[1995] QCA 594

COURT OF APPEAL
McPHERSON JA
THOMAS J

WILLIAMS J

CA No 301 of 1995
THE QUEEN
v.

MARK ROBERT BRELSFORD

Appellant

BRISBANE
..DATE 14/09/95
140995 T 12/PEH M/T COA95/279
McPHERSON JA: The applicant was sentenced in the District Court
at Brisbane to concurrent sentences of three years for one count
of entering a dwelling house at night with intent and two counts
of assault occasioning bodily harm. The learned sentencing
Judge recommended that he be considered for parole after serving
12 months of the sentence. The applicant now applies for leave
to appeal against the sentence imposed.

The incident out of which the offences arose took place on Lamb Island, which is a small island in the Bay, at 11.45 p.m. on 27 April 1994. Mrs Berkefeld was watching television in the lounge room of her house on the island when someone knocked on the door.

She went to answer it and found that it was the applicant who was there. He asked for her husband and then, putting both hands on her, he pushed her out of the way and entered the house. She was thrust against the door handle and struck it with sufficient force to sustain a broken rib.

Her husband Allan Berkefeld was in bed at the time. The applicant entered his bedroom and Berkefeld got out of the bed.

An argument ensued in the course of which the applicant said he was going out to get a gun with which he would kill the complainant Berkefeld when he came back.

The applicant did indeed leave the house. He drove off in his vehicle and then returned. He re-entered the house carrying a baseball bat with which he proceeded to belabour Berkefeld, hitting him with it on and around the head and causing bruising 140995 D.1 T13/MS M/T COA 95/279

to his victim's head, face and back. A struggle ensued between them, the outcome of which was that Berkefeld succeeded in reducing the applicant's opposition and ended up sitting on top of him.

The explanation for this quite unwarranted behaviour is or is said to be that the applicant had been drinking that night. He has, it seems, a serious problem with alcohol. Having drunk too much that night, he decided to take the law into his own hands against Berkefeld whom he accused of being a child molester. Indeed, when he entered the home, he was shouting that he wanted to find the complainant because he was a child molester.

Berkefeld had been convicted of an offence of indecent dealing evidently committed in about 1992. The conviction was sustained on 10 June 1994 when he was given a suspended sentence of six months imprisonment. The details of what he did are not before us and for present purposes it has little, if any, relevance. It is nevertheless right to say that according to the sentence he received, it must have been a relatively trivial form of the offence.

The applicant has three…

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 R v Brelsford

Details

AGLC: R v Brelsford [1995] QCA 594
Case: [1995] QCA 594
Decision Date: 14/09/1995

CaseChat Overview and Summary

The case of R v Brelsford involved an appeal against sentence by Mark Robert Brelsford, who was sentenced to concurrent terms of imprisonment for entering a dwelling house at night with intent and assaulting two individuals. The incidents occurred on Lamb Island in Brisbane, where Brelsford entered the house of Allan Berkefeld, accusing him of being a child molester. The entry and subsequent assault were fueled by alcohol and Brelsford's belief that Berkefeld had caused disquiet to his young nephews. The District Court sentenced Brelsford to three years imprisonment for each count, to run concurrently, with a recommendation for parole consideration after 12 months. Brelsford sought leave to appeal against the severity of the sentence.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly excessive. The Court had to consider the principles of sentencing, including the nature and circumstances of the offence, the offender's culpability, and the appropriateness of a custodial sentence. The Court also had to assess the potential mitigating factors, such as Brelsford's employment history, involvement in community activities, and the recommendation for early parole.

The Court of Appeal found that the sentence was within the appropriate range for the offences committed. McPherson JA, delivering the judgment, noted that while Brelsford's actions were driven by alcohol and a sense of vigilante justice, these factors did not mitigate the seriousness of the offences. The Court emphasized that home invasions, especially when committed at night and with a weapon, are inherently serious. The use of a baseball bat in the assault further aggravated the offence. Despite Brelsford's good work history and community involvement, the Court could not find the sentence to be manifestly excessive. Thomas and Williams JJ concurred, highlighting the need for a significant custodial sentence to deter such conduct.

The Court of Appeal dismissed the application for leave to appeal against the sentence. The decision underscored the importance of maintaining appropriate deterrents for serious offences like home invasion and assault, while also considering the offender's background and potential for rehabilitation.

Orders