R v Kewley

[1992] QCA 194

COURT OF APPEAL [1992] QCA 194

PINCUS JA DAVIES JA DEMACK J

CA NO 57 OF 1992

THE QUEEN

v.

JASON JOHN KEWLEY	Applicant
BRISBANE ... DATE 4/6/92

JUDGMENT
PINCUS JA: This is an application for leave to appeal against
sentence. The applicant, Mr Kewley, was convicted on his own
pleas of an offence of robbery: i.e. having on 3 May 1991 stolen
from a certain person with actual violence a wallet and contents,
a set of keys, cigarettes and a lighter, the property of that
person; and the charge, in addition, included the elements that
he was in company with another person and that he used personal
violence (s. 411 of the Code).

The sentence imposed by His Honour Judge Noud was of two years and four months. The applicant's previous criminal history includes four offences, two offences of breaking, entering and stealing, one of unlawful using and one of being in the possession of a concealable firearm. As to the last, Mr Kewley says, and I accept, that there was in fact no firearms but merely a short blade which he used in the course of his work.

Mr Kewley also points out that one of the breaking and entering offences related to an attempt on his part, successful as it appears, to regain property which he claimed to be his own.

The circumstances relating to the offence are set out in some detail in the record but a summary of them should be given. The complainant was at a nightclub. He had taken drink and he was approached by the applicant and another person with a demand for his wallet and P.I.N. number so that access could be obtained to money he had in the bank. The complainant was subsequently moved into an enclosed staircase where an eyewitness observed that he was being punched and kicked on the body and the head. The applicant took his wallet and ran off. There were some moderate injuries to the complainant. The case is therefore one of what appears to be an innocent citizen being set upon by two people and beaten for the purpose of financial gain and it is trite to say that it is an important function of Courts to discourage this sort of behaviour.

The circumstance that, at the time of commission of the offence, the applicant was on probation appears to me to be an aggravating factor. He had been in custody for a short time and so the sentence of two years and four months imprisonment which was imposed was equivalent to two years and six months.

Mr Kewley has presented the court with some information which the Judge below did not have There is what amounts to a reference from an acquaintance, a lady who is the mother of his girlfriend and also a fairly impressive reference from a Mr Carlton, a landlord; the Court has had the advantage of these documents, which Judge Noud did not have.

The impression created is that the applicant, Mr Kewley, is a man without promise. It is to be hoped, and may indeed be expected, that he will manage to shake off troubles which have come upon him and to overcome the disadvantage which he says, and I accept, was incurred by his rather unfortunate childhood.

Taking that into account however, I have reached the conclusion that the sentence which was imposed by the learned primary Judge was within the permissible range of the exercise of the Court's discretion and should not be interfered with.

In my opinion, the application for leave to appeal against sentence should be refused.

DAVIES JA; I agree.

DEMACK J: I agree.

PINCUS JA: The order of the Court will be the applicantion for leave to appeal is dismissed.

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