R v Cummins

[2004] QCA 350

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cummins [2004] QCA 350

PARTIES:

R
v
CUMMINS, Dane John

(applicant)

FILE NO/S:

CA No 294 of 2004

DC No 300 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

23 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2004

JUDGES:

McPherson JA, White J, Cullinane J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – SENTENCING – PROPERTY OFFENCES – whether sentence imposed on applicant for four counts of attempted burglary, six counts of entering a dwelling with intent, three counts of receiving, one count of entering premises and stealing, and one count of common assault is manifestly excessive

R v Harch [2004] QCA 113 ; CA No 45 of 2004, 14 April 2004, cited

COUNSEL:

A J Rafter SC for the applicant

R G Martin for the respondent

SOLICITORS:

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

McPHERSON JA:  The applicant pleaded guilty in the District Court at Townsville on 27 August 2004 to four counts of attempted burglary, six counts of entering a dwelling with intent, three counts of receiving, one count of entering premises and stealing and one count of common assault.  He was sentenced to serve a term of three months' imprisonment to be followed by two years' probation.  He now seeks leave to appeal against that sentence arguing that it is manifestly excessive.

The fourteen property offences were related and occurred between January and August of 2003.  The distinguishing feature of the applicant's offences was that he would use a set of Stilsons, to open or attempt to open a front door in order to gain entry to the dwelling house that he intended to steal property from.  Stilsons, it seems, are a form of wrench. 

The applicant was unable to gain entry on four occasions and when he did he often could not find any suitable property to steal.  As a result of his ineptitude as a burglar, or perhaps due simply to bad luck, the total loss of property involved was $460, most of which consisted of damage done to the door knobs by the applicant when attempting to gain entry rather than the loss of any property taken by him.

Notwithstanding the small amount of property taken or damaged, the applicant's offending behaviour did have a number of serious aspects, as the learning sentencing Judge pointed out.

The applicant committed the majority of his offences at night and on dwelling houses.  Moreover, on two occasions residents of the dwelling houses were present at the time the applicant unlawfully entered their property and they were naturally disturbed by the applicant who would, in cases like that, immediately flee after finding the dwelling to be occupied.

He was taken into custody on 2nd August 2003.  His property was searched and the police found a…