R v Kendrick

[2025] QCA 32

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kendrick [2025] QCA 32

PARTIES:

R
v
KENDRICK, Nathan John
(applicant)

FILE NO/S:

CA No 55 of 2024
DC No 2333 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 5 February 2024 (Farr SC DCJ)

DELIVERED ON:

21 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2025

JUDGES:

Boddice JA, Bradley and Crowley JJ

ORDER:

Leave to appeal sentence be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a wide range of offending conduct – where the applicant was sentenced to an effective head sentence of 5 years’ imprisonment – where the applicant had served 360 days in pre-sentence custody – whether the sentencing judge failed to take in to account the applicant’s pre-sentence custody – whether the sentencing judge was erroneously affected by the listed maximum penalties – whether the sentence imposed was manifestly excessive

Corrective Services Act 2006 (Qld), s 184

COUNSEL:

W R P Prizeman for the applicant
R G Reid for the respondent

SOLICITORS:

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

1. BODDICE JA:  On 5 February 2024, the applicant pleaded guilty to 10 counts of stealing, eight counts of unlawfully using a motor vehicle, three counts of enter premises with intent to commit an indictable offence, 12 counts of breaking and entering premises and stealing, two counts of unlawfully using a motor vehicle with damage, three counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence, two counts of breaking and entering premises and wilful damage, two counts of entering premises with intent to commit an indictable offence, two counts of possessing a dangerous drug and one count of receiving tainted property.

2. On 5 February 2024, the applicant was sentenced to an effective head sentence of 5 years’ imprisonment.  The sentencing judge took into account, but did not declare 360 days in pre-sentence custody.  It was ordered that the sentence be served concurrently with an 11 year period of imprisonment the applicant was then serving, with a parole eligibility date set at 5 October 2025, being 20 months from his sentence date.

3. The applicant seeks leave to appeal his sentence.  Should leave be given, he relies on three grounds.

4. First, that the sentence was manifestly excessive.  Second, that the sentencing judge erred in failing to state in open court that the guilty pleas were taken into account in determining the sentence and take full account of the applicant’s pre-sentence custody.  Third, that the sentencing judge was led into error after receiving incorrect information about the maximum penalties.

5. The applicant’s offending was properly described as the commission of numerous offences as part of a crime spree, over a period of some 49 days, starting in December 2022.  They were committed in circumstances where the applicant had been released from custody, on parole, in late October 2022.

6. The first 17 counts were committed while the applicant was subject to parole.  The remaining counts were committed while the applicant was subject to parole suspension.  Each was committed in circumstances where the applicant was a mature age offender with a lengthy prior criminal history for offences of a like, or more serious nature.  Each was committed in circumstances where the applicant had been the recipient of a variety of sentencing outcomes in the past, including sentences designed to assist in his rehabilitation.  None of these had any deterrent effect or rehabilitative impact.

7. In sentencing the applicant, the sentencing judge referred to the fact that the applicant had pleaded guilty to a wide range of offending conduct.  Further, after outlining the circumstances of that offending conduct, the sentencing judge expressly referred to the fact that the applicant had entered “early pleas of guilty” to all of the charges, having pleaded guilty in the Magistrates Court at the committal stage.

8. The sentencing judge also set a parole eligibility date at substantially less than that which would apply under s 184 of the Corrective Services Act 2006 (Qld).

9. Against that background, there is no substance in a proposed ground that the sentencing judge failed to take account of the fact that the applicant had entered pleas of guilty to the offences.

10. In addition to those remarks, the sentencing judge expressly referred to the fact that the applicant had spent some 360 days on remand for the offences, but properly observed that the applicant was also serving a sentence at the same time and, further, that having regard to the applicant’s criminal history, general and specific deterrence were demonstrably very significant considerations on sentence.  The sentencing judge also observed that the applicant had caused much harm, including economic harm, to a variety of people as a consequence of his offending conduct.

11. Despite those relevant factors, the sentencing judge noted that given the applicant’s criminal history and the nature of the offending conduct and its aggravating circumstances, an overall sentence of 6 years’ imprisonment would have been appropriate, but having regard to the 360 days served in pre-sentence custody, which would be taken into account, but not declared, reduced the head sentence to 5 years’ imprisonment.

12. Against that background, there is no merit in a proposed ground of appeal that the sentencing judge failed to take into account the applicant’s pre-sentence custody.

13. There is also no substance in a proposed ground of appeal that the learned judge was led into error, after receiving incorrect information about the maximum penalties for some of the offences.  Whilst a majority of the offences had maximum penalties incorrectly listed as higher than the true maximum penalty, more serious offences were listed as having a substantially “lower” maximum, namely 14 years rather than life imprisonment.  Such an error strongly favoured the applicant, as the maximum penalty is a factor the court is to have regard to on sentence.

14. In any event, nothing in the sentencing remarks supports a conclusion that the sentencing judge was erroneously affected by the listed maximum penalties, in determining a global sentence for the applicant’s overall criminality.

15. Finally, when regard is had to the applicant’s deliberate and persistent criminality, in the face of being the beneficiary of a parole order, there is no merit to a proposed ground of manifest excess.  A sentence of 5 years’ imprisonment, to be served concurrently with an existing 11 year sentence, with parole eligibility after serving a further 20 months imprisonment, fell within a sound exercise of the sentencing discretion.  It does not evidence any misapplication of principle.  It was neither plainly unreasonable, nor unjust.

16. There is no merit in any of the proposed grounds of appeal.  Leave to appeal should be refused.

    Orders

17. I would order:

    1.Leave to appeal sentence be refused.

18. BRADLEY J:  I agree with the reasons and proposed order of Boddice JA.

19. CROWLEY J:  I agree with Boddice JA.