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
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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 young nephews who also live on the island. According to the material in the record, they had reported to the applicant an incident in which Berkefeld had spoken to them in a way which is described as having caused them "some disquiet". It was the combination of drink and the applicant's self-righteous indignation that led him to carry out this raid on the Berkefeld house. When he entered the house, he 140995 D.1 T13/MS M/T COA 95/279

was, according to Mrs Berkefeld, accusing Mr Berkefeld of being
a child molester.

I am not at all persuaded that this circumstance can in any way be regarded as a mitigating factor. Indeed, it might, if anything, have a contrary effect. Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.

In any circumstances, attacks of the kind that were carried out

here have a potential to inflict serious injuries.

In the present case, the applicant used the baseball bat and according to the information in the record, he wielded it with both hands. His target was a man in the safety of his own house and a woman who had not, on any view of the matter, any connection with the offence which her husband had committed or with any such further offence that the applicant thought might be committed.

The case is not like that of Bower-Miles and Smith with which we dealt earlier today, in which the applicants were themselves the recipients of what Mr Martin for the Crown helpfully described as summary justice, by which it is meant that the assailants in that case sustained considerable injuries at the hands of their intended victims. Three years imprisonment is a lengthy period, but it is plainly not beyond the range. The decision in Bunney to which reference was made tends to support that conclusion.

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The applicant may have been fortunate in attracting a recommendation for early parole after twelve months. It may have been merited by factors mentioned by Mr Gorman in his submissions, that is to say, the applicant's good work history, his record of working with youth and assisting with the rugby league playing at Inala, and also his good employment record. He is a leading hand with a sandblasting firm, from whom he has a reference which would assure him of continued employment notwithstanding this offence.

The case therefore is not one in which we can take account of the same sort of factor as led us to consider that we were able to reduce the sentence in the previous case of Bower-Miles and Smith.

The applicant here was 27 years old when he committed this offence. He has previous convictions including a conviction for assaulting police in December 1993, but in all the circumstances, so far as one can gather them from the record, those offences are of little real significance in this context.

Taking all these matters into account, together with the principles on which we act, which is that we do not sit here to resentence the offender, but simply to see whether the sentence is within the range of sentences for this kind, I am not able to persuade myself that either the head sentence or the effective sentence imposed in the present case is manifestly excessive.

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In those circumstances, I would refuse the application for leave

to appeal against sentence.

THOMAS J: I agree.

WILLIAMS J: In my view, this was a fairly serious illustration of the offence which has become colloquially described as "home invasion". It was more serious because it occurred at night and the applicant was armed with a baseball bat. A significant custodial sentence was called for. I agree with the reasons of the learned presiding Judge. The application should be refused.

McPHERSON JA: The application for leave to appeal against sentence is dismissed.

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