R v Sinden

[1997] QCA 25

COURT OF APPEAL

[1997] QCA 025

FITZGERALD P
DAVIES JA

FRYBERG J

CA No 476 of 1996

THE QUEEN

v.

DEREK SINDEN

BRISBANE

..DATE 06/02/97

JUDGMENT
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FRYBERG J: On 9 October 1996 the applicant was convicted by a

jury after a two-day trial of one count of stealing a cash

register and another of assault occasioning bodily harm whilst

armed with a rock. He was serving a period of imprisonment at

the time of the conviction, and at that time his expected

discharge date with remissions was 17 November 1996.

The learned District Court Judge sentenced him to three years

imprisonment on each count. He ordered that those terms of

imprisonment be served concurrently with each other but

cumulatively upon the period of imprisonment already being

served. He made no recommendation in relation to parole. The

applicant now seeks leave to appeal against those sentences on

the ground that they were manifestly excessive. It was not

suggested in argument before us that there should have been any

parole recommendation.

On the night of the offences the applicant and his girlfriend,

Orcher, were drinking at a hotel at South Brisbane. They left

the hotel before closing time, leaving a bag behind. After the

hotel closed the applicant approached staff with a request to

retrieve his bag. He appeared to be alone. He was escorted to

the bag and then from the premises. Shortly afterwards,

apparently by chance, he was seen in a nearby street by a

member of the hotel staff with Orcher and a cash register from

the hotel's reception area. The staff member obtained help and

a search was instigated. The applicant and Orcher were found

under the boardwalk near Southbank with the cash register in

pieces.
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A verbal altercation then occurred between a staff member and

the applicant. The applicant threw two rocks, one of which hit

a member of the staff causing a chip fracture to his shin bone

and leaving a five centimetre wound. The applicant then

entered the river and swam off. Orcher was detained by the

staff and police were called.

Later that evening police apprehended the applicant near the

museum. He was wet and agitated. He denied any offence and

gave a false name, address and explanation for his condition to

the police. He was taken into custody but escaped from the

police car en route to the police station. A subsequent search

with the dog squad found him hiding under a nearby house. He

refused to be interviewed by the police about the matter.

Although the sentencing Judge regarded the assault as the more

serious offence, it seems that the penalty of three years was

designed to reflect the total criminality of the two offences.

His Honour described the shin injury caused by the applicant

as significant and observed that the applicant had shown no

remorse. The applicant, who was an aborigine, had a very

disturbed upbringing and few opportunities. His Honour was told

these facts and took them into account.

He also took into account the applicant's attempts to

rehabilitate himself in prison. However, he referred to the

need to deter other likeminded offenders and he seems to have

been influenced very considerably by the applicant's appalling

criminal history. That history dated back 10 years, although

the applicant was still under 27 years of age at the time of
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sentencing. It included offences of dishonesty and violence.

The applicant had been given chances. At the time he committed

the subject offences he was under a suspended sentence, on

probation and supposed to be performing 150 hours community

service. Apparently he was released on bail for on 9 January

1996 he was convicted in the Magistrates Court on one charge of

receiving and another of dangerous driving committed four days

earlier. On those charges he was sentenced to six months

imprisonment and, as a result of them, the suspended sentence

was subsequently activated. The applicant's co-offender,

Orcher, who had a much less serious criminal history than the

applicant, pleaded guilty to stealing the cash register and was

sentenced to 14 months imprisonment, wholly suspended.

On behalf of the applicant, it was submitted to us that the

penalty for the stealing charge was the maximum for that charge

imposed in circumstances where the maximum was not warranted.

As to the assault, it was submitted that the penalty was out of

proportion to the circumstances. It was said that the sentence

was excessive when compared with other sentences imposed for

the same offence with circumstances of aggravation.

The penalties which are to be imposed must take into account

the applicant's bad criminal history. The fact that the

offences occurred while the applicant was on probation and

performing community service is a disincentive towards

discounting the sentences, as is the complete absence of any

remorse shown by the applicant. On the other hand, there is

force, in my view, in the submission that, in regards to the

stealing charge, the penalty was the maximum penalty in
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circumstances where stealing an empty cash register would not

seem, on any view of things, to justify such a sentence. In my

view that sentence should be set aside and a sentence of 12

months imprisonment substituted.

The assault is the more serious of the offences the subject of

the application. It is true that the assault was committed in

attempting to evade apprehension and was productive of a

significant injury to a member of the public. It was, however,

an assault which was neither sustained nor calculated in

advance to cause serious injury. More importantly, it seems to

me that the penalty which was imposed of three years

imprisonment is out of line with the line of authority in this

Court. Those authorities indicate that a sentence of that

magnitude is appropriate in cases of considerably greater

seriousness than the present case. In my view, the application

should be allowed also in respect of that penalty. The

sentence should be set aside and a penalty of two years

imprisonment should be substituted. In both cases, therefore,

I would allow the application, set aside the penalties imposed

and substitute the periods of imprisonment to which I have

referred.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The application is granted, the appeal allowed.

The sentences imposed below are set aside and in lieu the

sentence of imprisonment for 12 months is imposed in respect of
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the offence of stealing, and a sentence of imprisonment for two

years is imposed in respect of the assault occasioning bodily

harm whilst armed, the sentences to be concurrent. While the

sentences are concurrent with each other, they are to be served

cumulatively upon the sentence which the applicant was

undergoing at the time when he was sentenced in the District

Court for the two offences the subject of the present

application.

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6   JUDGMENT