R v Moffett

SUPREME COURT OF QUEENSLAND

CITATION:	R v Moffett [2006] QCA 444
PARTIES:	R v MOFFETT, Travis Allan (applicant)
FILE NO/S:	CA No 216 of 2006 DC No 3613 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	3 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2006
JUDGES:	Jerrard JA, Mackenzie and Philip McMurdo JJ Separate reasons for judgment of each member of the Court, Mackenzie and Philip McMurdo JJ concurring as to orders, Jerrard JA dissenting
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 applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with circumstances of aggravation, unlawful assault occasioning bodily harm while armed with an offensive weapon and unlawful assault – applicant was sentenced to two years imprisonment suspended after six months – applicant committed offences in the company of two others – whether trial Judge accurately differentiated between the criminal responsibility in imposing sentence – whether applicant’s sentence was in proportion with co-offenders – where applicant instigated offences – where applicant had previous convictions for assault occasioning bodily harm – whether trial Judge overstated the seriousness of prior offending – whether sentence manifestly excessive R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376 of 2002, 28 February 2003, considered R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, considered Lowe v The Queen (1984) 154 CLR 606, cited Veen v The Queen (No 2) (1988) 164 CLR 465, cited
COUNSEL:	M J Byrne for the applicant D R MacKenzie for the respondent
SOLICITORS:	Hawthorne Cuppaidge & Badgery for the applicant Director of Public Prosecutions (Commonwealth) for the respondent

1. JERRARD JA:  In this application I have read the reasons for judgment and orders proposed by Mackenzie J, but have respectfully come to a different conclusion from His Honour.  That is because I do not think there are enough matters to justify giving Mr Moffett a head sentence twice as long as that of his co-offender Gary Jeppesen.  For that reason I think Mr Moffett has a justifiable sense of grievance at the sentence he received compared to Mr Jeppesen.

1. Mr Moffett does have two prior convictions for assault occasioning bodily harm, and he was the instigator of a retaliatory attack, after being warned by police not to retaliate.  But he was not the person carrying the weapon – that was Jeppesen – and he did not use a weapon in the house.  Jeppesen had prior convictions for drug offences, and assaulted the complainant with the weapon Jeppesen carried in.  Mr Jeppesen, who was 26, had good references and a good work history and received a sentence of 12 months imprisonment to be served…