R v Hyland

[2004] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hyland [2004] QCA 81

PARTIES:

R
v
HYLAND, Darren John
(applicant)

FILE NO/S:

CA No 322 of 2003
DC No 286 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING
 COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

23 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2004

JUDGES:

Davies and Williams JJA and Philippides J

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

1.  Application for extension of time within which to seek leave to appeal against sentence dismissed

2.  Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - JUDGMENT AND PUNISHMENT -SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE – where applicant sentenced to 6 months imprisonment for breaking and entering, stealing and wilful damage – whether sentence manifestly excessive

COUNSEL:

The applicant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

DAVIES JA:  I will ask Justice Philippides to deliver her reasons first.

PHILIPPIDES J:  The applicant was convicted after trial of one count of breaking and entering premises and stealing and one count of wilful damage.  He was sentenced to six months imprisonment to be served.  The offences were committed during the operational period of a suspended sentence and the six months sentence was made cumulative upon the term of two years and three months, which had been previously suspended.

While the applicant initially desired to appeal both his conviction and sentence he no longer seeks to appeal his conviction and only seeks to appeal the sentence imposed on him.  The application for leave to appeal sentence was made some two months out of time, but an explanation was offered by the applicant.  The respondent does not object to the applicant being granted an extension of time, but contends that leave to appeal should be refused arguing that there are no reasonable prospects of an appeal against sentence succeeding.

The circumstances of the present offences are that the prosecution alleged that the applicant and another offender broke into a butcher shop and stole a set of scales, a gerni and a refrigerator.  The applicant was found in a vehicle near the scene and had been seen by persons who knew him at the shopping centre and was also seen to be carrying property to the vehicle.  In addition, an item of stolen property was found at a house at which the applicant resided.  The applicant admitted his involvement in the offence to a friend.

The applicant has an extensive criminal history. 

On 25 May 1998, the applicant was sentenced in respect of a count of unlawful use of a motor vehicle for which he was sentenced to 10 months imprisonment suspended after two months for an operational period of 18 months.  He was also sentenced to lesser concurrent periods for two counts of stealing. 

The applicant breached that suspended sentence when he unlawfully used a vehicle on 31 October 1998.  He was imprisoned for seven days on that offence and sentenced to the rising of the Court for breach of the suspended sentence. 

On 29 May 2000, the applicant was dealt with in respect of a number of serious property offences.  He was sentenced to three and a half years imprisonment for two counts of robbery with actual violence, one count of burglary and 15 counts of stealing.  Concurrent lesser terms were imposed for numerous breaking and entering offences.   The sentence of three and a half years was suspended after 15 months, for an operational period of three and a half years.  The applicant was on that occasion ordered to serve the whole of the previously suspended term of eight months imprisonment concurrently.

The present offences were committed some six and a half months into the operational period of the sentence imposed on 29 May 2000. 

The grounds upon which the applicant seeks leave to appeal against sentence are that his de facto spouse is sick, he did not offend while on bail and the disparity between the sentence he received and that imposed on his co-offender.  The applicant submits that in the circumstances a recommendation ought to have been made or the period of the suspended sentence activated ought to have been halved.

The applicant in his submissions has referred to the positive influence which his relationship with his de facto has had on him and it is commendable that the applicant has resolved to address his offending conduct by ceasing to associate with his former associates and by embarking upon rehabilitation.  The applicant's de facto suffers from endometriosis and depression, which in part is linked to the fact that the applicant is unable to be with her.  However, against those mitigating matters must be weighed the applicant's lengthy criminal history and the fact that the offences were committed when the applicant was the subject of a suspended sentence for other offences of a similar nature.  Further, the applicant does not have the benefit of a plea.

As to the issue of parity, the applicant points to the sentence imposed on his co-offender of 12 months imprisonment suspended after four months.  However, there were relevant matters of distinction between the applicant's case and that of his co-offender, which the learned sentencing Judge properly took into account.  The co-offender at 17 years of age had the benefit of being considerably younger than the applicant, who was 24 years of age at the time of the offences and 26 when sentenced.  In addition, the learned sentencing Judge took into account, as he was entitled to do, the view he formed that the applicant was the instigator and prime mover in respect of the present offences.  Furthermore, the sentence imposed by the learned sentencing Judge of six months on the applicant was clearly moderated by his Honour taking into account the fact that it was being imposed cumulatively upon the suspended sentence.  For that reason, the head sentence imposed on the applicant was less than that imposed on the co-offender.

In the circumstances, the applicant has not demonstrated that there are reasonable prospects of the appeal against sentence succeeding.  Accordingly, I would dismiss both the application for an extension of time and the application for leave to appeal against sentence.

DAVIES JA:  I agree.

WILLIAMS JA:  I agree.

DAVIES JA:  The application for an extension of time is dismissed.

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