R v Mathieson[2001] QCA 45

COURT OF APPEAL

WILLIAMS JA

AMBROSE J

DOUGLAS J

CA No 34 of 2001

THE QUEEN

v.

DAVID CHARLES MATHIESON Applicant

BRISBANE

DATE 19/02/2001

JUDGMENT

DOUGLAS J:  The applicant was convicted on 10 November 2000 before a District Court Judge on the following offences:  one attempt to enter premises with intent; two serious assaults; one entering a dwelling with intent, and he was also dealt with because he had breached a suspended term of sentence which was being served at the time.

The sentencing Judge imposed a period of six months' imprisonment in respect of each serious assault, two years' imprisonment in respect of entering a dwelling with intent and 12 months imprisonment on the conviction for entering premises with intent.  The applicant was also convicted of a breach of bail in respect of which there was no further sentence imposed.

The applicant was one of two men who entered the dwelling house of a 72-year-old female complainant through a window. She found them in the home and chased them off with the help of neighbours.  The assaults occurred during attempts by neighbours to restrain them.  The injuries, however, were limited to scratches and bruises.  The elderly lady was not physically injured but was traumatised by the events and has become agoraphobic and scared when alone at home.

The applicant has an extensive criminal record which includes numerous convictions for offences involving violence and dishonesty.  However, he has had in his life a significant difficulty with alcohol and drugs.  It becomes clear that periods of imprisonment which have been imposed in the past have not operated as any apparent deterrent to his conducted and the criminal history includes behaviour with the same co-offender in the past and, as I have remarked earlier, the offences were committed when he was serving a suspended sentence.

The applicant's submission before us was that he appealed because he wished to have his sentence reduced to the same period which was imposed upon his co-accused Langton.  In fact, he was sentenced to the same effective term of imprisonment as Langton but the only difference is that the learned sentencing Judge activated the suspended sentence of nine months' imprisonment and made it cumulative upon the sentences otherwise imposed by him.  The learned Judge had no option but to activate the sentence and to impose a term of nine months' imprisonment.

It cannot be said that the overall sentence imposed upon the applicant is in any way excessive or outside the guidelines for punishment for offences of the type for which he was convicted.  In my view, bearing in mind his particularly bad history and the circumstances of this case, the application should be refused.

WILLIAMS JA:   I would add to what has been said by Justice Douglas, that by comparison with the applicant Mathieson Langton's criminal history, though extensive, was not as bad.  Langton had no convictions for offences involving violence.  The applicant primarily submitted that he wanted his sentence varied so that it equated that imposed on Langton.  Because of the differences in the criminal history and because of the impact of his being required to serve the suspended sentence I am of the view that there is no substance in the submission made.  I agree that the application should be refused.

AMBROSE J:   I agree.

WILLIAMS JA:   The order of the Court will be:  application refused.