R v See

[1997] QCA 368

[1997] QCA 368

COURT OF APPEAL
DAVIES JA
MOYNIHAN J

AMBROSE J

CA No 298 of 1997
THE QUEEN
v.

JASON WILLIAM AH SEE

BRISBANE
..DATE 23/09/97
230997 T14/IK29 M/T COA213/97
DAVIES JA: The applicant was convicted and sentenced in the
District Court on 11 July of this year on one count of
breaking and entering a dwelling house with the intent there
to commit an indictable offence and one of assault occasioning
bodily harm. These offences were committed on 13 February
1993. He was sentenced to two years imprisonment in respect
of the assault count and six months on the break and entering
count, the latter to be served cumulatively on the former.
Both were, however, ordered to be served concurrently with a
sentence of 15 months imprisonment which the applicant was
then serving and which had been imposed on him on 19 December
1996.

The applicant is 27 years of age, having been born on 19 July 1970. He was therefore 22 at the date of commission of these offences. He has a very extensive criminal record both before and after the commission of these offences but, of course, before the date of the imposition of the sentence in respect of which this application is made.

His criminal history commenced in 1984 when he was a child.
Since that date he has been sentenced on 29 occasions on many
of them for multiple offences. Most of these were offences of
dishonesty, breaking entering and stealing and such like but
on several occasions he was convicted of assault, including on
two previous occasions assault occasioning bodily harm.
Whilst a child he was committed to an institution on several
occasions for periods up to two years. As an adult he has
been sentenced to prison on no less than 11 occasions, on
230997 T14/IK29 M/T COA213/97
several of them for periods up to 12 months and on one
occasion for two years. Many of these were sentences imposed,
as I have said, since the commission of these offences. I
shall return to this aspect of the matter a little later.
The circumstances with respect to these offences were as
follows. On 13 February 1993 Mrs Button returned to her
residence to find the applicant with his hand inside her
handbag which was just inside the kitchen door. She called
out for her husband who then pursued the applicant along the
street. Nothing had been taken from the bag.
Mr Button, who was a senior constable of police, caught the
applicant and attempted to arrest him. During the course of
several struggles the applicant punched Mr Button to the face
on a number of occasions causing two deep lacerations to the
left side of his face and breaking his nose. The applicant
then escaped. He was, however, able to be identified from
photographs. Mr Button had to undergo surgery to correct his
broken nose and the surgery was unsuccessful. He has
continued to suffer pain and discomfort and at the time of
sentencing by the learned sentencing Judge he required, but

had still not undergone, a further operation.

There does not appear to be any satisfactory explanation to
the delay in dealing with the applicant for these offences.
He had been sentenced to 18 months imprisonment in September
1995 for breaking entering and stealing, receiving and
assaulting police. Whilst he was in Bathurst prison for these
offences he made inquiries with a view to having the subject
offences dealt with promptly so that, as was put to the
230997 T14/IK29 M/T COA213/97
learned sentencing Judge in the present matter, "he would have
a clean slate". However, nothing came of this and there is no
explanation for why it did not.

The sentence imposed on the applicant on 19 December 1996, with which the sentence for assault imposed in this case was made concurrent, was imposed primarily for offences committed in 1992. The effective sentence was, as I have indicated, one of 15 months. It is not entirely clear whether the applicant had any or any substantial period of freedom between the sentence imposed in September 1995 and that imposed on 19 December 1996 but if there was any period of freedom it is likely to have been a very short one. Nor is it clear when, during the earlier of those sentences, the applicant sought to have the present matter dealt with. However had the present matters been dealt with some time in 1996, even as late as 19 December 1996, it is unlikely that the sentence imposed on 19 December 1996 would have been a great deal longer than two years imprisonment.

It follows from what I have said that His Honour was correct
in sentencing the applicant in respect of the assault count by
imposing a sentence which was concurrent with that which he
was already serving. However there was no justification, in
my view, for imposing a sentencing cumulatively upon that
imposed for the assault count in respect of the breaking and
entering count. They were part of one escapade and should
have been dealt with together. Two years was, in my view, an
appropriate sentence for the totality of the applicant's
criminality.
230997 T14/IK29 M/T COA213/97

Indeed there is some substance for the submission, which the applicant makes, that a sentence of two years, albeit concurrent, commencing on 11 July 1997 is in the circumstances excessive having regard to the totality principle and the fact that the applicant had sought to have these offences dealt with earlier. However it is necessary to bear in mind the appalling criminal history of the applicant. In those circumstances, it seems to me, a sentence of an effective term of two years concurrent with the sentence imposed in 1996 would be an appropriate punishment for these offences. I would therefore grant the application, allow the appeal and set aside the sentence of six months imprisonment imposed for breaking and entering only to the extent of removing the requirement that it be served cumulatively upon the sentence of two years imprisonment imposed for the assault count.

MOYNIHAN J: I agree.

AMBROSE J: I agree.

DAVIES JA: The order is as I have indicated.

-----