R v Kofoed

[2005] QCA 438

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kofoed [2005] QCA 438

PARTIES:

R
v
KOFOED, Charles Christian
(applicant)

FILE NO/S:

CA No 255 of 2005
DC No 252 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

25 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2005

JUDGES:

de Jersey CJ, McMurdo P and McPherson JA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where the applicant pleaded guilty to counts of burglary, assault and stalking – where the applicant was sentenced on each count to concurrent terms of two years imprisonment suspended after six months for an operational period of three years – where the applicant was 36 years old, had an extensive prior criminal history, had breached DVOs and had served extended terms of imprisonment – where the applicant contended the sentence was manifestly excessive because the applicant was responding to the complainant’s harassing behaviour, the Crown Prosecutor at sentencing had submitted to the Judge that a non-custodial sentence would be appropriate, there was delay in proceeding with the prosecution and the applicant was the primary carer of a young child – whether the sentence was manifestly excessive

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – where the sentencing Judge had imposed a custodial sentence notwithstanding the Crown Prosecutor had submitted that a non-custodial sentence would be appropriate – whether a Judge's sentencing discretion is fettered by concessions made by the Crown Prosecutor

COUNSEL:

A W Collins for the applicant
S G Bain for the respondent

SOLICITORS:

Purcell Taylor for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The applicant was on 8 September 2005 arraigned for trial on a count of burglary and assault committed on 17 May 2002 and a count of stalking with a circumstance of aggravation committed over the period 17 May 2002 to 25 February 2003.  He then pleaded not guilty but changed his pleas to guilty the following morning.  He was sentenced on each count to concurrent terms of two years imprisonment suspended after six months for an operational period of three years.  He seeks leave to appeal on the ground the penalty is manifestly excessive.

At the time of the offences the applicant was 36 years old.  He had an extensive and serious prior criminal history including convictions for burglary and violence.  He had breached domestic violence orders.  He had served extended terms of imprisonment. 

The applicant had been an employee of the complainant.  They shared a house for some time and the applicant became romantically involved with the complainant's niece whom the complainant had brought…