R v Bain[2000] QCA 121

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

THOMAS JA

[R v Bain]

CA No 440 of 1999

THE QUEEN

v.

ADRIAN GLEN BAINApplicant

BRISBANE

..DATE 10/04/2000

JUDGMENT

THOMAS JA:  This is an application for leave to appeal against sentence by an 18-year-old applicant.  He pleaded guilty to a variety of offences on two indictments. 

The first indictment charged one count of burglary.  The second indictment charged one count of grievous bodily harm, seven of entering premises and stealing, four of burglary, one of receiving, two of entering with intent, two of stealing, one of unlawful use of a motor vehicle, one of burglary with circumstances of aggravation, one of attempted burglary in the night with circumstance of aggravation, one of wilful damage and four of serious assault.

The offences in question were committed between November 1997 until 16 July 1999.  Nearly all of them were committed between October 1998 and July 1999, over which period they could be described as a stream of offences.

At various points over that period, he was granted bail, but apparently continued reoffending.  He was sentenced to three years' imprisonment with a recommendation that he be considered for parole after serving ten months.  A declaration was made in relation to 68 days as time already served under those sentences.

He has a prior criminal history.  In 1997 he was convicted of entering premises.  In March 1998 a Court granted him probation on a number of matters of entering premises with intent.  Apparently, following that, he committed crimes that are subject of the present matters, was bailed, committed more crimes, was bailed again and committed more crimes.

On 27 April 1999 a suspended sentence of twelve months was imposed, of which he was ordered to serve one month, this being in respect of an offence of breaching bail.  He was then arrested on the present matters in July 1999.  Shortly after his arrest, he was required to serve the one month suspended sentence to which I have just referred.  Following that, he served 68 days, which brought him up to the time of the present sentence in the District Court.

The offence of grievous bodily harm involved a fight between the applicant and his brother.  The applicant used a knife.  The incident arose from an argument followed by a fight, in which the complainant gained the upper hand.  The applicant was on the ground and was being kicked and the complainant dropped his knee into the accused's head.  The applicant told police that he took a butter knife from his back pocket and stabbed his brother in the leg with it.  He told police he was aiming for his brother's chest and conceded that he did not warn his brother that he had a knife.  The brother fell to the ground clutching his leg and apparently, the applicant claimed to a witness that he had used scissors.  In any event, the stab was a very serious one, severing muscles down to the bone and caused a wound 15 centimetres in length.  There was also a superficial laceration to the side of the abdomen.

The learned sentencing Judge noted that the offence was committed in circumstances where the brother was substantially getting the better of the applicant and took that into account.  His Honour also noted that there were a number of very serious property offences involving six homes, three garages attached to homes, three businesses, two cars, one school, two stealings of bicycles and one of attempted unlawful use of a motor vehicle.  The total value of property involved exceeded $13,000.00.  His Honour also noted that many of the offences were committed whilst the applicant was on bail and subject to probation orders.

The mitigating factors relied on by Mr Alcorn include the applicant's significant cooperation with police and the time and expense that have been saved by his plea upon an ex officio indictment.  Reference was also made to the applicant's age and what was said to be his remorse.

Reference was also made to his poor family background and limited education, and, in particular, to the effect that imprisonment had had on him by the time he was sentenced.

I note that the learned sentencing Judge was told that prison had been a learning experience for him, that he had gained weight and become healthier, and had, of course, ceased using methylamphetamine, which had driven him to commit many of the crimes that were charged.  It was also submitted that his drug and alcohol problems were largely responsible for the commission of the offences, however, that is not a matter of mitigation.

Counsel for the applicant conceded that a sentence of three years for these matters was within range.  I note that his Honour did not discriminate between the various offences, apparently having selected an appropriate head sentence and imposing the same sentences on all matters.

The submission is that a partly suspended sentence would have been more appropriate than a recommendation for release on parole.  That, however, would remove the applicant from supervised control by the authorities.  In my view, the sentence imposed was appropriate and by no means stifling or inappropriate, having regard to the applicant's age and other matters mentioned.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

DAVIES JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.