R v Kilmartin

[2003] QCA 471

SUPREME COURT OF QUEENSLAND

CITATION:	R v Kilmartin [2003] QCA 471
PARTIES:	R v KILMARTIN, Dale Anthony (applicant)
FILE NO/S:	CA No 175 of 2003 DC No 217 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING  COURT:	District Court at Ipswich
DELIVERED EX	29 October 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	29 October 2003
JUDGES:	McMurdo P, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction abandoned Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – PURPOSE OF SENTENCE – DETERRENCE - where applicant convicted of four counts of deprivation of liberty and several property offences – where applicant sentenced to an effective sentence of six years imprisonment with recommendation for post prison community based release order after serving 2 ½ years of sentence - whether sentence manifestly excessive in all the circumstances
R v Willersdorf [2001] QCA 193; CA No 333 of 2000, 3 May 2001, considered
COUNSEL:	K M McGinness for the applicant L J Clare for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant was convicted after a five day
trial held on 22 May 2003 in the District Court at Ipswich of

four counts of deprivation of liberty, two counts of armed
robbery, one count of unlawful use of a motor vehicle, four
counts of demanding property with menaces and one count of
fraud. The offences occurred between 1 February and 3
February 2002. He was sentenced to five years' imprisonment
for the counts of armed robbery and to lesser concurrent
sentences for the offences of deprivation of liberty and
unlawful use of a motor vehicle. He was sentenced to a
further 12 months' imprisonment for the counts of demanding
property with menaces and fraud, this sentence to be served
cumulatively. Sixty days spent in presentence custody was
deemed to be time already served under the sentence. The
applicant was recommended to post-community based release
after serving two and a half years of his sentence. In making
that recommendation the learned sentencing Judge took into
account the further 99 days or about three months the
applicant had spent in presentence custody which could not be
subject to a declaration under s 161 of the Penalties and
Sentences Act 1992 Queensland. All this means the
effective sentence imposed is one of six years' imprisonment

with a recommendation for parole after two and a half years.

The applicant was 32 at sentence and 31 when he committed the consideration are as follows. The complainants Westhead and Howie, who were about 26 and 27 years old, worked as cleaners. On their way to work, some time after midnight, they stopped at the Biala Clinic to obtain some needles to inject amphetamine. The applicant, who did not know the complainants, approached them when…