R v Broome

[2009] QCA 31

SUPREME COURT OF QUEENSLAND

CITATION:	R v Broome [2009] QCA 31
PARTIES:	R v BROOME, Roslyn June (applicant)
FILE NO/S:	CA No 285 of 2008 DC No 44 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Gympie
DELIVERED ON:	25 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2009
JUDGES:	Keane and Muir JJA, and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused
CATCHWORDS:	CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where offences committed with respect to present application committed whilst applicant on parole for like offences — where applicant alleged unfortunate personal circumstances warrant appellate interference with sentence — whether sentence manifestly excessive or inadequate
COUNSEL:	The applicant appeared on her own behalf S G Bain for the respondent
SOLICITORS:	The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA:  I have had the advantage of reading the reasons for judgment prepared by P Lyons J.  I agree with those reasons and the order proposed by his Honour.

1. MUIR JA:  I agree with the reasons of P Lyons J and with the order he proposes.

1. P LYONS J:  The applicant seeks leave to appeal against sentences imposed on her on 10 October 2008.

1. She pleaded guilty to five counts: one of robbery with personal violence; one of entering premises with intent to commit an indictable offence; one of assault occasioning bodily harm; one of wilful and unlawful damage to property; and one of stealing.

1. The offences were committed when the applicant was on parole with a period of approximately seven months remaining to be served of a sentence previously imposed on her.  She has been required to serve that period (terminating on

   
   

   13 March 2009), cumulatively with the sentences imposed on 10 October 2008.

1. On the count of robbery, the sentence imposed on 10 October 2008 was imprisonment for three years.  On each of the other four counts, the sentence was imprisonment for 12 months; all to be served concurrently.

1. At the same time the Court dealt with a summary offence (committed on 9 October 2008) of which the applicant was convicted, but not further punished.  It is not the subject of this application.

Circumstances of the Offence

1. After 9 pm on 7 August 2008, the applicant approached the first complainant at a service station, asking for a light for a cigarette.  She appeared to be intoxicated.  The complainant gave her a cigarette lighter which he retrieved from his vehicle.  She then asked for a cigarette, and when this complainant said he did not smoke, she became aggressive.  She grabbed the complainant by the hair.  She then proceeded to lean into his vehicle and rummage around inside it (the count relating to entering premises).  The complainant then noticed that the applicant had his wallet.  There was a struggle.  It appeared that by this time the applicant had removed $20 from the wallet (the robbery).  The applicant then placed the complainant in a headlock and he suffered two blows to the left side of his face.  The complainant’s two friends came to his assistance.  One was punched by the applicant (the assault).  The applicant then bent the aerial of the complainant’s vehicle over a number of times until it snapped off (the count relating to damage to property).

1. A short time later the applicant stole a twin packet of tampons from another service station (the count of stealing).  She initially asserted that they were hers, but subsequently admitted that she had stolen them.

Criminal History of the Applicant

1. The applicant is 28 years of age, her date of birth being 10 April 1980.

1. Her criminal history extends back to 1997.  She has committed a number of offences involving assaults and thefts.

1. In 2004 she was convicted of an assault and other offences.  She was sentenced to a period of four months imprisonment suspended for 18 months for the assault, and for shorter periods, similarly suspended, on the other offences.

1. In 2005 she was convicted of unlawful use of a motor vehicle, and sentenced to

   
   

   12 months imprisonment, to be served by way of an intensive correction order.  On 7 March 2006, she was convicted of breaches of the intensive correction order, and ordered to serve some 227 days of the sentence.  On the same day she was convicted of a number of other offences, for which short terms of imprisonment were imposed.

1. On 14 September 2006 she was convicted of robbery with actual violence (when armed with a crowbar) and in company.  For this she was sentenced to a term of imprisonment of two years and six months, with a date for parole fixed at 14 March 2007.  It was during this period of parole that the offences of 7 August 2008 were committed.

The hearing below

1. At the hearing it was common ground that a head sentence of three years for the offence of robbery would be appropriate.  Her Counsel referred to her early plea and her cooperation with the authorities.  He asked that an early date be set for eligibility for parole.

1. A letter from the applicant was placed before the Court.  It acknowledged her wrong doing, and expressed regret.  In it she attributed her conduct to alcohol, to the fact that her uncle had recently died, and to the fact that she had just received news that her father had a brain tumour (as a result of which he has since died).  She stated that she had three young children, a good family network, and prospects of employment.  She also stated that she would be willing to undertake drug, alcohol and/or grief counselling.

1. A report dealing with the applicant’s parole period was placed before the sentencing Court.  Although there had been not insignificant periods of compliance with the conditions on which the applicant had been placed on parole, there was some breach of reporting requirements, and evidence of drug use.  The author of the report concluded that the applicant had not been able to comply with the requirements of court ordered parole supervision.

Discussion

1. The applicant is not represented on this application.

1. The effect of the sentences is that the applicant is required to serve a total of approximately 17 months before she becomes eligible for parole.  At that point two years will remain of the sentence imposed in respect of the robbery.

1. The personal circumstances of the applicant are unfortunate.  However, her criminal record tells against her.  Of particular significances is that the offences the subject of this application were committed while the applicant was on parole as a result of a previous conviction for robbery for which the head sentence was only a little shorter then the present head sentence, in respect of which she had been required to serve six months imprisonment prior to release on parole, and in the course of her time on parole she had breached conditions of her release.

1. Some authorities were referred to, both at first instance and in this Court.  While they are not particularly comparable, they indicate that the sentence imposed on the applicant is not out of line with sentences imposed in not dissimilar circumstances.

Conclusion

1. The material does not demonstrate that the sentences were manifestly excessive.  The application should be refused.