R v Hardman - [2001] QCA 15

[2001] QCA 15

COURT OF APPEAL

McMURDO P
THOMAS JA
MULLINS J

CA No 312 of 2000

THE QUEEN

KEITH ARTHUR HARDMAN

BRISBANE

..DATE 06/02/2001

JUDGMENT

MULLINS J: The applicant applies for leave to appeal against the sentence imposed on 13 October 2000 for burglary by breaking, in the night, with threats of violence whilst armed and in company which was committed on 16 February 2000. The applicant pleaded guilty and therefore admitted the elements of the charge which included that he was armed with a knife and that he threatened to use actual violence.

The sentence was three and a half years imprisonment with a recommendation for consideration for parole after 16 months. The learned sentencing Judge also recommended that all appropriate anger management courses be made available to and undertaken by the applicant.

The applicant was 24 years old at the date of the offence. He and his co-offender, one Robinson, went to the complainant's residence in Goodna which was opposite Robinson's house after drinking together at a hotel. Robinson knew the complainant and wrongly believed he had a grievance against him, but the applicant did not know him.

At approximately midnight, the complainant heard noises coming from his front yard and observed the applicant and Robinson standing at the front of his house. Robinson was calling out threats. Approximately 15 minutes later, the complainant heard something smashing at his front door. Again, he heard Robinson calling out threats and saw there was a crack across the front door. A short time later, the complainant heard two voices at the front door.

He looked through the curtain and saw Robinson standing in front of the door and the applicant standing to one side holding a stick. He could hear the applicant saying to Robinson, "He's inside. He's laughing at you." And Robinson kept on repeating, "Come outside. I want to kill you. I want to finish you off."

The complainant stated that the applicant kept urging Robinson on repeating things such as, "He's laughing at you." The front door eventually broke, and one of the men tried to get through but was unable to do so and continued to kick the door. The complainant left his house through the back door, walked around the house and saw the front door had been kicked open and that Robinson had entered his house.

The complainant observed the applicant standing in the doorway. Robinson and the applicant eventually left, and the complainant telephoned the police. There was therefore no assault of the complainant.

Early in the morning of Friday, 17 February 2000, the police attended and arrested the applicant. He took part in a record of interview. He told the police he was affected by alcohol as he had consumed a 1.25 litre bottle of bourbon and had been smoking cannabis, but the interview proceeded at 3.45 a.m.

The applicant admitted to the police that he had a knife with him at the time of the offence and that he…

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 Hardman

Details

AGLC: R v Hardman [2001] QCA 15
Case: [2001] QCA 15
Decision Date: 6 February 2001

CaseChat Overview and Summary

The applicant, Keith Arthur Hardman, applied for leave to appeal against a sentence of three and a half years imprisonment with a recommendation for consideration for parole after 16 months, imposed on 13 October 2000 for a burglary committed on 16 February 2000. The applicant pleaded guilty to the burglary, which involved breaking and entering the complainant's residence at night with threats of violence while armed and in company. The applicant admitted to being armed with a knife and threatening to use actual violence. The case was heard in the Court of Appeal in Brisbane. The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive.

The court considered several factors in assessing the sentence's appropriateness. These factors included the lack of serious premeditation, the lack of surprise element, the applicant's role as an accomplice rather than the principal offender, the absence of actual violence or injury, and the applicant's intoxication during the offence. However, the court also weighed the applicant's lack of prior acquaintance with the complainant, his misguided desire to support his co-offender, the fact that he was armed with a knife, the fear caused to the complainant, and the applicant's subsequent offending while on bail. The court also noted the applicant's aggressive and remorseless behaviour during the police interview and his lack of remorse during sentencing.

The court found that the sentence was within the appropriate range for the offence and that the disparity in sentencing between the applicant and his co-offender, Robinson, could be explained by Robinson's lack of a criminal history for violence, the absence of a weapon, and the fact that Robinson had not previously been offered probation. The court further noted that the recommendation for early release on parole reflected some allowance for the applicant's cooperation and guilty plea. Ultimately, the court concluded that the sentence was not manifestly excessive and refused the application for leave to appeal.

The final order was that the application for leave to appeal was refused.

Orders