R v Hadland[2000] QCA 182

COURT OF APPEAL

de JERSEY CJ

McMURDO P

DUTNEY J

CA 368 of 1999

The Queen

v.

MARK JOHN HADLANDApplicant

ROCKHAMPTON

DATE 16/05/2000

JUDGEMENT

DUTNEY J:  The applicant was convicted by a jury of the offence of assault occasioning bodily harm in Bundaberg on 4 October 1999.

Judge O'Sullivan, the sentencing Judge, sentenced him to four years’ imprisonment cumulative on an existing three year sentence and declared him to be a serious violent offender.  The applicant had served 12 months of the three year sentence and had been on parole only six days when the offence was committed.

The applicant had been sentenced in the Bundaberg District Court on 1 June 1998 to two years and three months for assault occasioning bodily harm.  That offence having been committed on 23 March 1997 and subsequently in the Rockhampton Magistrates Court on 15 December 1998 to a further nine months cumulative for common assault committed on 2 April 1998.  These offences collectively made up the three year term.  Each carried a recommendation for early parole making up the 12 months actually served. 

It was a term of the parole that the applicant reside with the complainant with whom he had formed a relationship while in custody.  The assault was a particularly vicious one involving, among other acts of violence, striking the complainant on the side of the head with sufficient force to cause a ruptured ear drum. 

The learned sentencing Judge described the assault as systematic and sustained.  On the facts that description seems warranted.  The injuries were serious. 

The applicant had a history of assaults on women and in fact the offence of which the applicant was convicted in the Bundaberg District Court in June 1998 had been an extremely violent assault on a woman with whom he had had a short term relationship.

In my view, for the reasons set out by the learned sentencing Judge in her remarks and in view of the history of the applicant for offences of a similar nature, the sentence of four years cumulative was within the limits of the learned Judge’s proper sentencing discretion. 

It has been submitted that because a declaration that the applicant was a serious violent offender has been made, a lower sentence was called for.  There are two errors, it seems to me, in this submission.  The first is that the sentence of four years which was imposed for the offence was at the top end of the range for an offence committed in the circumstances here and with the history exhibited by the applicant.

The second is that it seems to me that merely because a declaration has been made a lower sentence is called for.  While it has been recognised in Bojovic No 4 of 1999, delivered on 8 June 1999, that a sentencing Judge might properly in the exercise of his discretion impose a sentence at the lower end of the applicable range.  It seems to me that that is not necessarily the case and in each cases must be considered in the exercise of the proper discretion.

In my view nothing has been indicated or demonstrated that suggests to me that the learned sentencing Judge’s discretion has miscarried in any way.  And in my view the application should be dismissed.

THE CHIEF JUSTICE:  I agree, adding only that there was specifically no challenge to the making of the declaration on this application.

THE PRESIDENT:  I agree with the orders proposed and with the reasons of Justice Dutney.

THE CHIEF JUSTICE:  The application is refused.