R v Mackenzie - [2002] QCA 279

[2002] QCA 279

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

CA No 45 of 2002

THE QUEEN

SCOTT ALICK MACKENZIE Applicant

BRISBANE

..DATE 31/07/2002

JUDGMENT

DAVIES JA: The applicant pleaded guilty in the District Court on 7 February this year on two counts of entering premises and stealing, four of unlawful use of a motor vehicle, two of assault occasioning bodily harm whilst armed, one of wilful damage, one of stealing and one of dangerous operation of a vehicle whilst affected by an intoxicating substance. He was sentenced to an effective term of five years imprisonment suspended after 20 months for an operational period of five years.

The applicant was 25 years of age at sentence and 24 when he committed these offences. He has a number of prior criminal convictions, the most serious being one of stealing with actual violence in company, breaking and entering, assault occasioning bodily harm, deprivation of liberty, extortion and unlawful wounding for which he was sentenced to five years imprisonment. This occurred in 1995. The sentence was accompanied by a recommendation for parole after two years. However whilst in prison he was sentenced to a year's cumulative imprisonment for supplying drugs within a correctional institution. In the result he served an actual term of six years and five weeks imprisonment and it was only shortly after he was released from prison that he committed these offences. He also has convictions in 1999 and 2000 for supplying and possessing dangerous drugs.

The subject offences were all committed on the same day in company with another offender Walsh. He first entered a Franklins store at Mudgeeraba by climbing over a wire fence and stole a quantity of toiletries and confectioneries. He then unlawfully used a car at Broadbeach driving it to near Boonah where it broke down. Together with Walsh he then accepted a lift by generous passers-by who also assisted them to push their car out of harm's way. When the car stopped in Boonah he assaulted the driver and the passenger with a wheel lock with a view to gaining possession of their car. He grabbed one of them by the throat and threatened to kill him. The driver and the passenger sensibly ran off and the offenders took the car. It was later found abandoned near Toowoomba with some items missing, including the stereo in the car. They then took a third car in Toowoomba which was found near the Plainlands Hotel broken down. At Plainlands Hotel the applicant stole a purse from the laundry area. He and Walsh then took a fourth car when the owner, having filled it with petrol, went inside to pay leaving the keys in the ignition. The applicant then proceeded to drive it in a dangerous manner in order to elude police who at one stage took up chasing him. This included speeds up to 140 kilometres an hour in an 80 kilometre zone, turning into oncoming traffic, travelling on the wrong side of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Mackenzie [2002] QCA 279
Case: [2002] QCA 279
Decision Date: 31/07/2002

CaseChat Overview and Summary

In the case of R v. Mackenzie, the applicant, Scott Alick Mackenzie, appealed against his sentence in the District Court, which had imposed an effective term of five years imprisonment suspended after 20 months for an operational period of five years. The applicant had pleaded guilty to multiple offences, including entering premises and stealing, unlawful use of a motor vehicle, assault occasioning bodily harm while armed, wilful damage, stealing, and dangerous operation of a vehicle while affected by an intoxicating substance. The applicant had a significant criminal history, including a five-year prison sentence for various serious offences, which he served along with additional time for supplying drugs within a correctional institution. The subject offences were committed shortly after his release from prison, in company with another offender. The District Court had considered various factors, including the applicant's youth, expression of remorse, dysfunctional family background, and descent into drug abuse, as well as the seriousness of the offences, the number of offences committed in a short period, and the applicant's criminal history, including the fact that these offences occurred shortly after his release from prison.

The Court of Appeal considered whether the sentence imposed by the District Court was manifestly excessive. The Court noted that the applicant's criminal history and the commission of these offences so shortly after his release from prison were significant factors. The Court also compared the case to R v. Burnham, which involved an assault occasioning bodily harm in company, but where the offender was not armed, and had a minor criminal history. The Court of Appeal found that the sentence imposed in this case, though not a like one, was not manifestly excessive.

The Court of Appeal dismissed the applicant's appeal against his sentence. The judges, Davies JA, McPherson JA, and Williams JA, all agreed with the dismissal of the application. The Court's decision was that the sentence imposed by the District Court was not manifestly excessive, and the applicant's appeal was dismissed.

Orders