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R v SAN[2005] QCA 114

 

COURT OF APPEAL

 

McPHERSON JA

JERRARD JA

HELMAN J

 

 

CA No 400 of 2005

THE QUEEN

 

v

 

SAN

Applicant

 

BRISBANE

DATE 14/04/2005

 

JUDGMENT

 

APPLICANT conducted his own case

 

MR D MEREDITH (instructed by the Office of the Director of Public Prosecutions) for the respondent

 

McPHERSON JA:  I will ask Justice Helman to deliver reasons for judgment in this case.

 

HELMAN J:  This is an application for leave to appeal against sentences.  On 28 October 2004 the applicant came before the District Court at Ipswich.  There were three indictments before the court, nos 101, 157 and 305 of 2004 as well as a bench charge sheet alleging a summary offence.

 

It is convenient to mention the charges in the indictments in the order in which it was alleged the offences were committed.

 

On indictment no 305 of 2004 the applicant was charged with breaking and entering premises in Brisbane (a café) on 5 May 2003 and stealing in the premises.  He stole a quantity of alcohol, one measuring cup, and one pourer.  He pleaded guilty to that charge on 28 October 2004 and the learned judge sentenced him to imprisonment for six months. 

 

On indictment no 157 of 2004 the applicant was charged with three counts of wilful and unlawful damage to property (a glass display cabinet, a roller door, and a shop window), one count of stealing (two bottles of liquor), and one count of common assault on a security officer.  All offences were committed in June 2003 - three on the 18th, one on the 21st and one on the 24th - in Brisbane.  The applicant pleaded guilty to those charges on 28 October 2004 and for each he was sentenced to imprisonment for twelve months.

 

On indictment no 101 of 2004 the applicant was charged with assault with intent to rape, rape, and assault occasioning bodily harm - all offences committed on 28 June 2003 at Ipswich and all offences committed on the same of woman.  There was a typographical error in the last charge on the indictment, but no point has been taken about that.  The applicant had pleaded guilty to those charges on 12 July 2004 and on 28 October 2004 her Honour sentenced him to imprisonment for four years for the assault with intent to rape, seven years for the rape and four years for the assault occasioning bodily harm; the sentences to be served concurrently with each other but cumulatively upon the sentences imposed in respect of the charges on the other indictments.  Her Honour further ordered that the applicant be considered to be eligible for post-prison community-based release after he had served two and a half years.  She declared 323 days in pre-sentence custody to be time served under the sentences. 

 

On 28 October 2004 the applicant also pleaded guilty to a charge recorded on the bench charge sheet: possessing housebreaking implements on 18 June 2003 at Brisbane.  For that, her Honour sentenced him to imprisonment for one month.  In addition, the applicant was required to serve a six month suspended sentence imposed on him in the Hervey Bay Magistrates Court on 22 March 2002 for a breaking and entering offence committed on 15 March 2002.

 

The sentences pronounced on the charges in indictment no 101 of 2004 were ordered to be served cumulatively upon the other sentences so that the applicant is required to serve imprisonment for eight years, subject of course to his being eligible for post-prison community-based release. 

 

The applicant complains that the sentences imposed on him were manifestly excessive. 

 

The offences charged on indictment no 101 were clearly enough the most serious.  The applicant was in a group that included the complainant woman, drinking and sniffing paint.  At about 6.30 p.m. the complainant and the applicant went to the city mall to get something to eat.  They went into an alleyway and began drinking alcohol.  The applicant then attacked the complainant.  She struggled to escape.  He punched her a number of times, raped her, and grabbed her around the neck causing her to have difficulty breathing.  Three men came to her assistance and the applicant ran off.  He was at liberty with bail on other charges when he committed those offences. 

 

The applicant was born on 6 November 1984 and so was eighteen years old when he committed the offences.  He had, as her Honour noted, a substantial criminal history for a variety of offences including offences of dishonesty and a serious assault committed on 16 April 2003.  That history began in March 2000 and included many appearances in Magistrates Courts in Brisbane, Southport, Hervey Bay, Ipswich, and Inala and in the District Court at Brisbane and Maryborough.  He was sentenced to actual imprisonment a number of times, the longest term being six months for stealing imposed in October 2002, but other less severe punishments were also imposed on him: probation, community service, fines and suspended imprisonment.

 

Dr Michael Beech, psychiatrist, interviewed the applicant briefly in prison on 27 August 2004.  The applicant terminated the interview before it was finished, but Dr Beech was able to report on 30 August 2004 that he believed the applicant to be of low average intelligence with no evidence of psychosis.  Dr Beech reported that he believed “the diagnosis is of a young man with a conduct disorder which has developed into an antisocial personality disorder in the context of significant alcohol and drug disorders”.  Her Honour accepted that the applicant seemed to have “some previous mental health problems” that had yet to be “sorted out”.  The learned judge also accepted the applicant's plea was an early one.

 

At first the sentences could appear unduly severe for a youthful offender, but taking into account the applicant's lengthy criminal record and the violence of the attack on the woman I am not persuaded in the least that the sentences were excessive.  R v Basic, C.A. no. 11 of 2000 (3 May 2000) was a case of an attack on a young woman in a public place by a man aged 31 years who pleaded guilty to assault with intent to rape, indecent assault with a circumstance of aggravation and rape.  He was sentenced to imprisonment for two years, three years and eight years respectively and it was declared that he had been convicted of a serious violent offence.  His application for leave to appeal against his sentences on the ground that they were manifestly excessive failed.  Her Honour, McMurdo P, reviewed comparable sentences, and, in reasons concurred in by McPherson JA and Mackenzie J, observed that the appropriate range was from imprisonment for seven years to ten years in such a case.

 

This applicant is of course considerably younger than Basic, but his criminal history, the persistence and increasing gravity of the offences, and the violence of the sexual offences before her Honour demonstrate the sentences imposed on him were amply justified.

 

I should refuse his application.

 

McPHERSON JA:  I agree.

 

JERRARD JA:  I agree.  Mr SAN is a very young man but he can get himself out of prison in just under one and a quarter years from now if he takes all of the necessary steps to qualify himself for post-prison community-based release.  That is actually up to him.

 

McPHERSON JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.

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Editorial Notes

  • Published Case Name:

    R v SAN

  • Shortened Case Name:

    R v SAN

  • MNC:

    [2005] QCA 114

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Jerrard JA, Helman J

  • Date:

    14 Apr 2005

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC Nos 101, 157 and 305 of 2004 (no citations)28 Oct 2004Defendant pleaded guilty to 10 offences including property and sexual assault offences; sentenced to seven years' imprisonment, to be served cumulatively with separate sentences of six months' and 12 months' imprisonment
Appeal Determined (QCA)[2005] QCA 11414 Apr 2005Defendant applied for leave to appeal against sentence; application dismissed: McPherson and Jerrard JJA and Helman J

Appeal Status

Appeal Determined (QCA)

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