Zwarts v Tucker

DISTRICT COURT OF QUEENSLAND

CITATION:

Zwarts v Tucker [2005] QDC 077

PARTIES:

VINCENT EDWARD ZWARTS
Appellant

v

DAVID TRAVERS TUCKER
Respondent

FILE NO/S:

2868 of 2004

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Bundaberg Magistrates Court

DELIVERED ON:

1 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2005

JUDGE:

Dearden DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Appeal against sentence.  Whether sentence imposed manifestly excessive

Cases Cited: Psaila v. Dept of Corrective Services [2005] QCA 16;

Legislation Cited: s. 152 Corrective Services Act 2000.

COUNSEL:

Mr M Hungerford-Symes (Respondent)

SOLICITORS:

Director of Public Prosecutions for the respondent

Background

1. On 16 April 2004, the appellant was convicted at the Bundaberg Magistrates Court on his own pleas of guilty on four charges and sentenced as follows:

(i)	Enter dwelling with intent to commit indictable offence	3 years’ imprisonment with a recommendation for post-prison community-based release (PPCBR) after one year
(ii)	Assault occasioning bodily harm	2 years’ imprisonment with a recommendation for PPCBR after eight months
(iii)	Possession of a weapon (two offences)	One month imprisonment

1. The learned Magistrate ordered that the prison terms referred to above be served concurrently with each other, but cumulatively on the imprisonment the appellant was then serving for other offences (the balance of a period of four years’ imprisonment imposed in the Bundaberg District Court on 6 September 1991 for armed robbery, and a 3 month term of imprisonment imposed by the Bundaberg Magistrates Court on 23 March 1993 for three breaches of the Bail Act, which sentence was automatically cumulative pursuant to s.33(4) of the Bail Act.)

1. The appellant lodged a Notice of Appeal on 19 April 2004 on the grounds that the sentences were manifestly excessive.  The respondent, pursuant to the initial Notice of Appeal, was specified as “Police”.  As the outline of submissions filed on behalf of the respondent points out, the person concerned in upholding the decision is David Travers Tucker, and accordingly I order that the Notice of Appeal be amended to reflect the correct respondent as David Travers Tucker.

1. The offences before the learned Magistrate were committed by the appellant when he was subject to a parole order.  The appellant had been sentenced by the Bundaberg District Court to a term of four years’ imprisonment for armed robbery with the circumstance of aggravation on 6 September 1991.  Having been released on parole and returned to custody a number of times, the appellant had, as at the date of the commission of the offences on which he was being sentenced by the learned Magistrate, some nine months left to serve on the armed robbery sentence.

Facts

1. At about 8:00am on 23 August 2003 the appellant, with another person, went to the residence of the complainants, Kerry and Steven Seguin.  As well as Kerry and Steven Seguin, there was another adult female and seven children at the residence at this time.  Kerry Seguin answered the door to the appellant’s companion, and in response to a query said that Steven Seguin was…