The Queen v Anderson[1997] QCA 366

COURT OF APPEAL

DAVIES JA

MOYNIHAN J

AMBROSE J

CA No 303 of 1997

THE QUEEN

v.

MATTHEW JOHN ANDERSON Applicant

BRISBANE

DATE 23/09/97

JUDGMENT

DAVIES JA:  I'll ask Justice Moynihan to deliver his reasons first.

MOYNIHAN J:  This is an application to appeal against a sentence for an offence of stealing with actual violence when in company. 

The sentence originally imposed after a plea of guilty was of three months imprisonment and two years on probation.  The applicant, however, offended while on probation and was brought up to be re-sentenced as a consequence.  He was sentenced to two years imprisonment. 

It is pointed out on his behalf that the three months imprisonment that he had served as a consequence of the imposition of the original sentence must be added to that.  So must a term of approximately another two months, I think, which cannot be brought into account against his sentence because he was in custody not simply for the being held under that authority hence being dealt with here but because he was in breach of bail.  The effect therefore is that the applicant will have spent something like two years and six months in prison as a consequence of the re-sentencing.

At the time that the applicant, who I should say was born on 13 January 1979, came to be re-sentenced the position was this.  The offence for which he was being re-sentenced was what is colloquially referred to as "mugging a tourist".  The tourist in question was making a telephone conversation when he was struck from behind.  The applicant and others were involved, his wallet was removed.  It might be mildly said in his favour that, the events having occurred, the applicant inquired as to the condition of the tourist and his wallet was returned after money had been extracted.

When he came to be resentenced the applicant had been sentenced in the District Court in Brisbane on 4 April 1997 for two offences which occurred on 25 May 1996, one of them being assault occasioning bodily harm while armed with an offensive weapon and the other assault simplicita.  In each of those cases he was sentenced to imprisonment for three months and 25 days concurrent to be suspended after serving 25 days, that being the period that he was certified as having been in custody in respect of the offences in question.

He was dealt with in the Magistrates Court in Cairns on 2 June 1997 for an offence which occurred on 21 March 1997, that was an offence of assault occasioning bodily harm while in company.  He was convicted and sentenced to four months imprisonment and ordered to pay compensation. 

That was the picture when he came before the Court on 21 July 1997 to be sentenced for the mugging of 12 July of the previous year.

In originally sentencing the applicant the trial Judge had been at some pains to explain the consequences of the sentence which was then imposed.  When he came to re-sentence he had a report by the community correctional officer responsible for the applicant's supervision while he was on probation.  The officer said that when inducted into probation the applicant had acknowledged that he understood each of the conditions of his probation.  Initially, it is said that his supervision was unproblematic, he reported as directed and appeared eager to address anger management issues which placed him as a person at risk and he undertook a course to deal with that. 

I might say that the offences of violence which he had by then been committing, other than that he was being re-sentenced for, appear to involve the consumption of alcohol and outside or involving nightclubs, as distinct from the mugging activity the sentencing Judge was concerned with.

The report of the community corrections officer noted concern as a consequence of the course of criminal conduct I have originally mentioned.  It pointed out that the offences were all offences of violence and that the applicant had appeared not to avail himself of the strategies that had been endeavoured to be imparted at the course which I have mentioned.

The initial sentence was characterised by the sentencing Judge at the time as lenient.  This was as a response to the applicant's behaviour.  He apparently indicated he had expected worse.  By the time of the re-sentencing there is no doubt that any time for leniency had passed.  There was a distinct pattern of the commission of offences of violence and a demonstrated inability or failure to take advantage of the opportunity that was offered in terms of probation.

There is a necessity to protect the community from the conduct of the kind that the applicant embarked on and to deter others from taking advantage of people who are using public facilities for example in tourist areas.

In the circumstances, in my view, no basis has been demonstrated for interfering with the sentence which was imposed and I would refuse the application.

DAVIES JA:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The application is refused.