R v Ewen

[2006] QCA 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ewen [2006] QCA 11

PARTIES:

R
v
EWEN, Simon Matthew
(applicant)

FILE NO/S:

CA No 347 of 2005
DC 312 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEMPORE ON:

6 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2006

JUDGES:

McMurdo P, Keane JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY - where applicant pleaded guilty to one count of assault occasioning bodily harm whilst armed with a dangerous instrument – where applicant sentenced to two years' imprisonment - where 169 days already spent in custody was declared time already served – where applicant had extensive criminal history including previous convictions for assault - where applicant claims that trial judge erred in failing to appreciate the effect of s 76 and s 134 Corrective Services Act 2000 (Qld) – where applicant claims that sentence was manifestly excessive in all the circumstances – whether trial judge should have awarded sentence of more than two years thus making applicant eligible for conditional early release

Corrective Services Act 2000 (Qld) s 76(1), s 134(1)

R v Tufuga and Kepu; ex parte Attorney-General (Qld) [2003] QCA 171; CA Nos 74 and 75 of 2003, 2 May 2003, distinguished
R v Turner [2002] QCA 79; CA No 364 of 2001, 15 March 2002, cited

Veen v The Queen [No 2] (1987-1988) 164 CLR 465, cited

COUNSEL:

A Boe (sol) for the applicant
M J Copley for the respondent

SOLICITORS:

Boe Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT:  The applicant pleaded guilty by way of ex officio indictment in the District Court at Rockhampton to one count of assault occasioning bodily harm whilst armed with a dangerous instrument on 17 June 2005.  He was sentenced to two years' imprisonment.  One hundred and sixty-nine days spent in pre-sentence custody was declared to be time already served under the sentence.  He applies for leave to appeal against his sentence contending that the learned sentencing judge erred in failing to adequately appreciate the effect of s 76 and s 134, Corrective Services Act 2000 (Qld) ("the Act") and that in any case the sentence was manifestly excessive.

The applicant was 29 at the time of the offence and at sentence.  He had an extensive criminal history in his home State of New South Wales.  He was first convicted in November 1998 of four counts of common assault, placed on a two-year recognisance and fined.  In December that year he breached the recognisance when he was convicted of malicious damage and…