R v McDermott

[1994] QCA 568

[1994] QCA 568

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA DOWSETT J

CA No 396 OF 1994
THE QUEEN
v.

SCOTT WILLIAM McDERMOTT

BRISBANE
..DATE 18/11/94
THE CHIEF JUSTICE: The applicant seeks leave to appeal
against the sentence imposed upon him for three offences
committed in December 1993. The offences may be shortly
described as housebreaking, assault occasioning bodily harm
and wilful damage to property. A Judge of District Courts on
13 September, 1994 sentenced the applicant to what is
described as being, in effect, 12 months' imprisonment. That
is in respect of the three offences.
The applicant was born on 5 July 1974, so that he was a
20 year old but he already had a criminal history. The
applicant had been sentenced by another Judge of District
Courts to perform certain community service but he did not
comply with the requirements of that order and as a result he

came back to be dealt with for his breach in September 1994.

The facts which had resulted in the order for community
service and then when that order was breached the term of
imprisonment with which we are concerned, were as follows; the
applicant claiming to be motivated by hearing that the
complainant in the case in question was saying that the
applicant owed the complainant money for drugs, came to the
complainant's house and assaulted him while he was lying in
bed. The assault caused a number of abrasions to his face,
swelling to his lips and parts of his face. The applicant
kicked the complainant also when he was down on the floor. He
punched a hole in the bedroom door and damaged doors to the
flat.
For those offences to which he pleaded guilty he was ordered
to perform 240 hours of community service and to pay
compensation totalling $710 within 12 months. The applicant
was warned, at that time, in a way that would have conveyed to
him that that was his last chance.

Now, prior to that time, the application had previously been in trouble with the law and was, as a result, on probation which was continuing at the times with which we are concerned.

In February 1992 on charges of wilful and unlawful damage to

property in the night-time he was ordered to perform certain
community service and placed on probation for three years.

In February 1994, the offences with which we are more directly concerned were dealt with, further community service being ordered on that occasion. The offences of entering the dwelling house, assault and wilfully damaging property which were associated with it had occurred in December 1993.

At a somewhat earlier time, that is in November 1993, the
applicant as it later transpired broke and entered and stole
some item or other and in association with that had broken and
entered with intent, there being three charges. For those
offences in November 1993, he was dealt with by a Magistrate
in April 1994. That is, although those offences were earlier
than the subject ones he was dealt with in respect of them
after the Judge of District Courts had ordered the community
service to which reference has been made.
In April 1994, the Magistrate convicted the applicant and
ordered that he be sentenced to three months' imprisonment but
ordered that it be suspended for 15 months. In this situation
then the response of the applicant was disappointingly poor.
The community corrections coordinator's report was before the
sentencing Judge who dealt with the breach in September 1994.

It appeared that the applicant had failed to report for work on many occasions in response to the requirements of the community service order, had failed to attend on other occasions, failed to receive instructions or to comply with them for doing work that were issued to him in August 1994 and following that occasion had been intermittent also in his reporting to the community service centre.

In all, when the matter had to be dealt with for his breaches, the applicant had completed only 86 hours of the total of 240 hours of community service which he had been ordered to perform and although the amount of restitution which I have mentioned of $710, in total, was to have been paid at $65 a month commencing in March 1994 up to September he had paid no restitution at all. The report from the community corrections officer clearly displayed no confidence in the applicant's willingness to comply with orders made in respect of him.

The sentencing Judge who dealt with the matter in September of this year in stating his reasons for acting as he did mentioned that his view of the matter was that the applicant had simply thumbed his nose at the authorities. It is an inevitable conclusion that he took his obligation lightly. He just showed an inclination to disregard the Court's orders and he did not respond positively to the opportunities to improve his conduct that had been given to him.

The Judge said that had he been satisfied that the applicant had in any real way attempted to obey the spirit of the orders which had been made in February of this year, he would have suspended a sentence which he would otherwise have imposed. However, it is clear from the order that he did make that he felt himself forced to the conclusion that a term of imprisonment should be ordered and that suspension would be inappropriate.

In my opinion it cannot be said that he was unjustified in taking this view of the matter and I would further conclude that it cannot be said that the sentence which he did impose, namely one of 12 months' imprisonment, without any accompanying order for suspension or amelioration, was manifestly excessive, and I would refuse the application.

McPHERSON JA: I agree.

DOWSETT J: I also agree.

-----