R v Neuendorf

[1999] QCA 284

99.284

JULIAN JOHN NEUENDORF	Applicant
..DATE 26/07/99 JUDGMENT

COURT OF APPEAL

de JERSEY CJ McPHERSON JA WHITE J

CA No 199 of 1999
THE QUEEN
v.

BRISBANE appeal against sentence appears on his own behalf. He was convicted on his own pleas of guilty of two counts of assault occasioning bodily harm in company on 11 May 1999 and sentenced to two years' imprisonment on each offence cumulative on the sentence of eight years for armed robbery which he was then serving.

The applicant filed his application on 15 June, just under a week out of time. If there is merit in his application then it seems to me that the explanation which he has given for the delay is satisfactory: it relates to what might be described as administrative shortcomings. The applicant says that he gave instructions immediately upon being sentenced for an application for leave to appeal against sentence but the paper work was delayed in getting to him in the prison. He filled out the form on the last day but contrary to an undertaking of another person it was not faxed to the Court of Appeal on that day and not until

15 June.

The assaults occurred on 27 May 1998 at Woodford Prison. According to the Crown's outline the applicant attended upon a custodial corrections officer named Jellyman to collect some pre-ordered goods. He apparently became agitated when the order could not immediately be located and overturned the serving table and entered the room where the officer was carrying out his duties. This was a place where he was not permitted to be. He was accompanied by other prisoners.

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The applicant punched Jellyman in the head and other prisoners participated in this assault. Another officer came to Jellyman's aid and he, too, was punched a number of times in the face. That officer suffered bruises to his face, a sore neck and headaches. Jellyman suffered an injury to an eye which left him with a temporary loss of vision. The learned sentencing Judge noted that the applicant felt some grievance, as he thought, at being singled out for harassment by the officer, and had lost control.

As the learned sentencing Judge noted the applicant has an extensive criminal history involving violence. He is now aged 25 and was 24 at the time of the offences. On consideration of his criminal history his first recorded offence involving violence was an assault occasioning bodily harm in 1989 when he was aged 15 years. Thereafter, he was convicted of a number of offences involving violence which were punished by terms of imprisonment.

In July 1994 he was convicted of taking part in a prison riot and sentenced to two years' imprisonment cumulative on his then existing sentence. The armed robberies for which the applicant was serving a term of imprisonment when these offences took place occurred on 17 May 1997. He was sentenced on 19 February 1998. A recommendation was made that he be eligible to be considered for parole after

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serving three years and three months of that sentence and
278 days between 17 May 1997 and 19 February 1998 were
declared days served under the sentence.

The present sentences of two years are to commence on the expiration of that sentence. The full-time date therefore is 19 February 2006 for the armed robberies and the full-time discharge date taking these two sentences into account is 19 February 2008. The learned sentencing Judge imposed a new parole date eligibility at 17 June 2001.

The applicant complains that the sentence is manifestly excessive. He contends that other sentences for similar offences attract penalties in the range of about 12 months although he says because of a prison shut-down he had been unable to research comparable sentences.

Misconduct of the kind which occurred here requires
punishment which will deter both the individual offender and
other prisoners from engaging in such activity in prison.
The applicant had engaged in such activity before according
to his criminal history. Against his serious criminal
history alone in my view two years imprisonment is not too
severe. It was necessary to make the punishment cumulative
on the sentence already being served otherwise it would have
no deterrent effect. By fixing the fresh parole date at
17 June 2001 the learned sentencing Judge said that he gave

due recognition to the plea of guilty.

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In my view he did not impose a sentence which was too crushing in all the circumstances and I would decline to grant the application for an extension of time because in my view there is no likelihood that an application for leave to appeal against sentence would be successful.

THE CHIEF JUSTICE: I likewise would refuse the application for the reasons expressed by Justice White.

McPHERSON JA: I agree with the reasons and the order proposed.

THE CHIEF JUSTICE: The application is refused.

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JUDGMENT