R v Marumaru

[2005] QCA 332

SUPREME COURT OF QUEENSLAND

CITATION:

R v Marumaru [2005] QCA 332

PARTIES:

R
v
MARUMARU, Robert (Hoeroa Robert)
(applicant)

FILE NO/S:

CA No 120 of 2005
DC No 1106 of 2005
DC No 1107 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2005

JUDGES:

McMurdo P, Keane JA and Fryberg J
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 dismissed

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 was convicted after trial of two counts of assault and pleaded guilty to one count of wilful damage and five breaches of a domestic violence order - where acquitted of more serious charges - where time spent in custody on remand before trial exceeded the custodial sentence of 12 months imposed by the learned sentencing judge - whether the sentence imposed was manifestly excessive - whether an application for leave to appeal against sentence should be granted when the entirety of the sentence has already been served

Criminal Code 1899 (Qld), s 668E(3)

COUNSEL:

The applicant appeared on his own behalf

M J Copley for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

1. McMURDO P:  I agree with Keane JA's reasons for refusing the application for leave to appeal against sentence.

1. There were serious aspects to the offences of assault of which the applicant was convicted after a trial.  They were committed in the course of the breakdown of his relationship with the complainant in her home.  The offences breached a domestic violence order then in place.  The maximum penalty was three years imprisonment.  The applicant committed a further five breaches of a domestic violence order at about the time of the assault offences.  The applicant had shown no remorse and did not have the mitigating benefit of a plea of guilty or co-operation with the administration of justice.  The learned sentencing judge in determining the appropriate sentence rightly took into account the fact that the applicant had served a lengthy period in pre-sentence custody.  In all the circumstances the sentence imposed, which provided for the immediate release of the applicant, was well within a sound exercise of the sentencing discretion. 

1. KEANE JA: The applicant was convicted after a trial of two counts of assault. He pleaded guilty to one count of wilful damage. He pleaded guilty to five breaches of a domestic violence order. The offences were committed between 8 May and 28 May 2002. On 3 May 2005, he was sentenced to a total of 12 months imprisonment with 1,073 days declared as time served. He was also prohibited, pursuant to s 359F of the Criminal Code 1899 (Qld), from having any further contact with the complainant, who is his estranged girlfriend. The applicant seeks leave to appeal against this sentence on the ground that it is manifestly excessive. There is no attempt to appeal against the restraining order.

1. The applicant was remanded in custody between 27 May 2002 and the date of sentence for more serious offences of which he was acquitted.  The declaration of this period as time served meant that, given the length of the sentence which was imposed, he was eligible to be released immediately.

The circumstances of the offence

1. The assaults occurred at the complainant's house in breach of a domestic violence order.  The offence of wilful damage was committed when the applicant damaged a tail light on the complainant's vehicle.

The applicant's circumstances

1. The applicant was born on 4 December 1954 and was 50 years of age at the time of the sentence.

1. He has a relatively minor criminal history.  He was convicted of assault in 1998 for which he was fined.  In February 2002, he was convicted and fined for breaching a domestic violence order.

The application

1. The applicant complains that the sentence was manifestly excessive.  No reasonable argument was advanced to demonstrate a basis for that complaint.  It is apparent that the application for leave to appeal against sentence is quite misconceived.

1. To the extent that the applicant complains of the "veracity of the evidence supporting the charges", that complaint is irrelevant to the sentence imposed on the applicant.  The applicant has not sought to appeal against his convictions even though he was afforded the opportunity to seek to do so during the hearing of his appeal.

1. To the extent that the applicant complains of "inconsistencies in the basis of the penalties", his complaints have no basis; but in any event, there is no utility in the application since the applicant has already served his sentence as a result of his lengthy period of pre-trial custody.  It is inappropriate in those circumstances to substitute another sentence for that imposed on the applicant.  That being so, even if leave to appeal against sentence were granted, this Court would have no option but to dismiss the appeal.[1]

   [1]Criminal Code 1899 (Qld) s 668E(3).

Conclusion and order

1. I would dismiss the application for leave to appeal against sentence.

1. FRYBERG J:  I agree with the orders proposed by Keane JA and with his Honour's reasons for those orders.