R v Broome - [2015] QCA 119

SUPREME COURT OF QUEENSLAND

CITATION:

R v Broome [2015] QCA 119

PARTIES:

R
v
BROOME, Steven
(applicant)

FILE NO/S:

CA No 304 of 2014
DC No 90 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Unreported, 15 October 2014

DELIVERED ON:

26 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2015

JUDGES:

Margaret McMurdo P and North and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted and the appeal be allowed.1.

Set aside the sentences of five years imprisonment imposed on each of counts one and two and instead impose sentences of imprisonment of four years on each of those counts.2.

Confirm the sentences imposed in counts three and four.3.

All sentences to be served concurrently.4.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of burglary in the night and assault offences and sentenced to a head sentence of five years imprisonment for two offences with lesser sentences all to be served concurrently – where the applicant has a bad criminal history – where the applicant claims his criminal history overwhelmed the sentence process and resulted in a sentence so high it was disproportionate to the seriousness of the offending for which he was sentenced

Penalties and Sentences Act 1992 (Qld), s 9

R v Hess[2003] QCA 553, considered
R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, distinguished
R v Rankin[2004] QCA 2, distinguished
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied

COUNSEL:

V P Keegan for the applicant
J M Phillips for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Henry J’s reasons and proposed orders.

NORTH J: I have read the reasons for judgment of Henry J. I agree with his Honour’s reasons and with the orders he proposes.

HENRY J: The applicant was convicted after a trial in the Rockhampton District Court of the following offences:
Count 1 – Burglary in the night;
Count 2 – Assault occasioning bodily harm whilst armed;
Count 3 – Assault occasioning bodily harm whilst armed;
Count 4 – Common assault.
He was sentenced to concurrent terms of imprisonment for five years in respect of each of counts one and two, three years in respect of count three and two years in respect of count four.
He seeks leave to appeal his sentence on the ground it was manifestly excessive. He submits the head sentence of five years, imposed for each of counts one and two, should have been within the vicinity of three and a half to four years imprisonment.
The applicant has a…

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 Broome

Details

AGLC: R v Broome [2015] QCA 119
Case: [2015] QCA 119
Decision Date: 26 June 2015

CaseChat Overview and Summary

The applicant in this case was convicted of burglary in the night and assault offences and was sentenced to a head sentence of five years imprisonment for two of the offences, with lesser sentences to be served concurrently. The applicant has a history of criminal activity and claims that this history led to an excessive sentence that was disproportionate to the seriousness of the offending. The applicant sought leave to appeal against the sentence, which was granted, and the appeal was allowed.

The legal issue before the court was whether the sentence imposed on the applicant was manifestly excessive or inadequate. The applicant argued that his criminal history had overwhelmed the sentence process, resulting in a sentence that was disproportionate to the seriousness of the offending. The court considered the applicant's criminal history and the nature and circumstances of the offending in determining whether the sentence was appropriate.

The court found that the sentence imposed on the applicant was manifestly excessive and disproportionate to the seriousness of the offending. The court noted that the applicant's criminal history was extensive, but it was not the sole factor in determining the appropriate sentence. The court considered the nature and circumstances of the offending, including the use of a weapon and the impact on the victims, in determining the appropriate sentence. The court also noted that the sentence imposed on the applicant was significantly higher than the sentences imposed on other offenders who had committed similar offences. The court set aside the sentences of five years imprisonment imposed on counts one and two and instead imposed sentences of imprisonment of four years on each of those counts, while confirming the sentences imposed in counts three and four. All sentences were to be served concurrently.

Orders

Orders of the court

Application for leave to appeal against sentence granted and the appeal be allowed.1.

Set aside the sentences of five years imprisonment imposed on each of counts one and two and instead impose sentences of imprisonment of four years on each of those counts.2.

Confirm the sentences imposed in counts three and four.3.

All sentences to be served concurrently.4.

Background

Background to the litigation

The applicant has a bad criminal history. He submits it overwhelmed the sentence process, resulting in a sentence so high as to be disproportionate to the seriousness of the offending for which he was sentenced.Facts On 11 November 2011 in suburban Rockhampton a group of men were enjoying a social drink under the highset house of Melanie Kielly, a former girlfriend of the applicant. The area under the house was enclosed by slats and accessible via a door that was closed. The area was not a residential component of the dwelling. The residents of the house – Ms Kielly and her children – were not in the area during the offences that ensued. Some time after 9.00 pm one of the men, Isaac Kielly, noticed a shadowy figure moving outside and went to investigate, opening the door. The applicant then stepped uninvited into the area under the house. He looked angry and was holding a stick, about 80 to 90 centimetres in length. It was thicker at one end and described by the witnesses who saw it as a nulla nulla. The applicant stepped towards Isaac Kielly who backed away. One of the other men, Shaun Muller, was seated on a couch with his back to this activity. Mr Muller used crutches to walk because of a temporary back ailment. As Mr Muller moved to turn towards what was occurring the applicant struck Mr Muller’s head with the nulla nulla. Mr Muller put a hand up to protect himself and was struck on the arm about three times. Mr Kielly yelled at the applicant who then advanced upon Mr Kielly swinging the nulla nulla at him as Mr Kielly backed away. Mr Kielly blocked the applicant’s blows using one of Mr Muller’s crutches. As he moved backwards he tripped over and the applicant swung the nulla nulla at him on the ground. He blocked those blows with his hand resulting in swelling and tenderness over the third knuckle of his left hand. It is this attack which gives rise to count three. Mr Kielly pushed himself under a bench press which the applicant struck at a few times. Another of the group of men, John Murray, threw something at the applicant. The applicant then walked towards Mr Murray still holding the nulla nulla. Mr Murray backed away, turned and ran from the house. He ran down the street and jumped the fence into a nearby school yard. The applicant followed him but lost him. It is the applicant’s threatening approach and pursuit of Mr Murray that gave rise to count four. The applicant did not return to the house. The police attended but no complaint was made that night. Mr Muller sought medical attention for a laceration to the top of his head caused by the assault. It required six staples to be inserted in it at a local hospital. Mr Muller also received bruises and abrasions to his left forearm. The assault upon him gave rise to count two. Complaints were eventually made to the police who conducted photo board identifications with the witnesses in August 2012 before finally charging the applicant. An indictment was not presented until May 2013 and the trial did not occur until October 2014.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Broome [2015] QCA 119
PARTIES:	R v BROOME, Steven (applicant)
FILE NO/S:	CA No 304 of 2014 DC No 90 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton – Unreported, 15 October 2014
DELIVERED ON:	26 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2015
JUDGES:	Margaret McMurdo P and North and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to appeal against sentence granted and the appeal be allowed.1. Set aside the sentences of five years imprisonment imposed on each of counts one and two and instead impose sentences of imprisonment of four years on each of those counts.2. Confirm the sentences imposed in counts three and four.3. All sentences to be served concurrently.4.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial of burglary in the night and assault offences and sentenced to a head sentence of five years imprisonment for two offences with lesser sentences all to be served concurrently – where the applicant has a bad criminal history – where the applicant claims his criminal history overwhelmed the sentence process and resulted in a sentence so high it was disproportionate to the seriousness of the offending for which he was sentenced Penalties and Sentences Act 1992 (Qld), s 9 R v Hess[2003] QCA 553, considered R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, distinguished R v Rankin[2004] QCA 2, distinguished Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, applied
COUNSEL:	V P Keegan for the applicant J M Phillips for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent