R v Mullen - [2006] QCA 317

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mullen [2006] QCA 317

PARTIES:

R
V
MULLEN, Todd Kenneth
(applicant)

FILE NO/S:

CA No 175 of 2006
DC No 3220 of 2005
DC No 1341 of 2006
DC No 1512 of 2006
DC No 1513 of 2006
DC No 3637 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

28 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2006

JUDGES:

McPherson and Holmes JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS WHEN REFUSED – GENERALLY - where applicant pleaded guilty to a number of offences – where applicant was on bail at the time of the offences – where applicant was sentenced to three years imprisonment for each offence of serious assault, burglary and stealing – where all other offences received lesser penalties – where sentences were imposed cumulatively upon the sentence he was then serving – where applicant submitted it was more appropriate to impose a concurrent sentence – whether it was appropriate that a concurrent sentence be imposed

R v Anderson [2004] QCA 74; CA No 64 of 2004, 6 August 2004, considered
R v Perrem [2000] QCA 339; CA No 119 of 2000, 18 August 2000, considered

COUNSEL:

A J Rafter SC for the applicant
R G Martin SC for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McPHERSON JA: I will ask Justice Atkinson to deliver her reasons in this matter.

ATKINSON J: The applicant was convicted on his own plea of guilty on four separate indictments on eight counts of receiving, four counts of fraud, six counts of burglary and stealing, one count of unlawfully possessing a motor vehicle to facilitate the commission of an indictable offence, one count of attempted burglary, one count of burglary by breaking and one count of serious assault.

He also pleaded guilty to two summary offences being one charge of possessing tainted property and one of possessing things suspected of being stolen.

The offences took place between 2 July 2004 and 15 December 2004. During that time he was on bail and there were constant breaches of that bail.

He was sentenced on 25 May 2006 to three years imprisonment for the serious assault and each of the counts of burglary and stealing. All of the other offences attracted lesser concurrent terms of imprisonment. The sentences were declared to be cumulative upon the sentence he was then serving. A declaration was made that he had served 143 days in custody as part of the sentence imposed from 13 June to 2 November 2005. It was recommended that he be considered eligible for a post-prison community-based release order…

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.

Continue reading R v Mullen

Details

AGLC: R v Mullen [2006] QCA 317
Case: [2006] QCA 317
Decision Date: 28 August 2006

CaseChat Overview and Summary

The appellant, Mullen, was convicted of several offences including serious assault, burglary, and stealing. Mullen was on bail at the time these offences were committed. The trial judge sentenced Mullen to three years imprisonment for each offence, to be served concurrently with a sentence he was already serving. Mullen appealed against his sentence, arguing that it was more appropriate for the sentences to be imposed concurrently rather than cumulatively.

The legal issue in this case was whether the trial judge erred in imposing the sentences cumulatively rather than concurrently. Mullen's argument was that the cumulative sentences were unduly harsh, particularly given his status as a person on bail at the time of the offences. The Court of Appeal considered whether the trial judge had correctly exercised their discretion in imposing the sentences.

The Court of Appeal held that the trial judge had not erred in imposing the sentences cumulatively. The Court found that the trial judge had appropriately considered the seriousness of the offences, Mullen's history of offending, and the need for deterrence and protection of the community. The Court rejected Mullen's argument that a concurrent sentence was more appropriate. The Court found that the cumulative sentences were justified and dismissed the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Mullen [2006] QCA 317
PARTIES:	R V MULLEN, Todd Kenneth (applicant)
FILE NO/S:	CA No 175 of 2006 DC No 3220 of 2005 DC No 1341 of 2006 DC No 1512 of 2006 DC No 1513 of 2006 DC No 3637 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	28 August 2006
DELIVERED AT:	Brisbane
HEARING DATE:	28 August 2006
JUDGES:	McPherson and Holmes JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS WHEN REFUSED – GENERALLY - where applicant pleaded guilty to a number of offences – where applicant was on bail at the time of the offences – where applicant was sentenced to three years imprisonment for each offence of serious assault, burglary and stealing – where all other offences received lesser penalties – where sentences were imposed cumulatively upon the sentence he was then serving – where applicant submitted it was more appropriate to impose a concurrent sentence – whether it was appropriate that a concurrent sentence be imposed R v Anderson [2004] QCA 74; CA No 64 of 2004, 6 August 2004, considered R v Perrem [2000] QCA 339; CA No 119 of 2000, 18 August 2000, considered
COUNSEL:	A J Rafter SC for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent