DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 16 April 2004, the appellant was convicted at the Bundaberg Magistrates Court on his own pleas of guilty on four charges and sentenced as follows:

2. [2]
   The learned Magistrate ordered that the prison terms referred to above be served concurrently with each other, but cumulatively on the imprisonment the appellant was then serving for other offences (the balance of a period of four years’ imprisonment imposed in the Bundaberg District Court on 6 September 1991 for armed robbery, and a 3 month term of imprisonment imposed by the Bundaberg Magistrates Court on 23 March 1993 for three breaches of the Bail Act, which sentence was automatically cumulative pursuant to s. 33(4) of the Bail Act.)

3. [3]
   The appellant lodged a Notice of Appeal on 19 April 2004 on the grounds that the sentences were manifestly excessive. The respondent, pursuant to the initial Notice of Appeal, was specified as “Police”. As the outline of submissions filed on behalf of the respondent points out, the person concerned in upholding the decision is David Travers Tucker, and accordingly I order that the Notice of Appeal be amended to reflect the correct respondent as David Travers Tucker.

4. [4]
   The offences before the learned Magistrate were committed by the appellant when he was subject to a parole order. The appellant had been sentenced by the Bundaberg District Court to a term of four years’ imprisonment for armed robbery with the circumstance of aggravation on 6 September 1991. Having been released on parole and returned to custody a number of times, the appellant had, as at the date of the commission of the offences on which he was being sentenced by the learned Magistrate, some nine months left to serve on the armed robbery sentence.

 Facts

5. [5]
   At about 8:00am on 23 August 2003 the appellant, with another person, went to the residence of the complainants, Kerry and Steven Seguin. As well as Kerry and Steven Seguin, there was another adult female and seven children at the residence at this time. Kerry Seguin answered the door to the appellant’s companion, and in response to a query said that Steven Seguin was not at home. As this conversation took place, the appellant, wearing dark clothing with a hood over his head, sunglasses and black gloves, ran up the front stairs and pushed past Kerry Seguin to enter the house. After questioning some of the children about the whereabouts of Steven Seguin the appellant took a baseball bat from his pants and went to a bedroom where the third adult was sleeping. He threatened this adult with the bat and verbally abused her. A number of children were in the room at the time.

6. [6]
   As the threats and verbal abuse were occurring, Steven Seguin came out of the toilet opposite the bedroom and into the room. He was struck by the appellant several times around the shoulders and chest with the baseball bat. A struggle followed in which Steven Seguin, with the assistance of Kerry Seguin and the other adult woman, gained control of the baseball bat. The appellant continued to assault Steven Seguin, punching him to the head and body. Steven Seguin defended himself with the baseball bat, striking the appellant on the head and body. The appellant was seen to reach into his pants a number of times. Fearing that he was further armed, Steven Seguin hit the appellant’s arm with the baseball bat whenever the appellant seemed to be reaching for something. The appellant was detained by the three adults at the house until police arrived. When police attended, the appellant was taken to hospital where he required 60 to 70 stitches to his head for injuries inflicted by Steven Seguin using the baseball bat. A search of the bedroom where the incident took place located a loaded semi-automatic .22 calibre pistol and an electronic anti-personnel device under the mattress on which the appellant had been lying until police arrived.

7. [7]
   The appellant told police in an interview that he had only gone to the dwelling to talk to Steven Seguin about an assault in which Steven Seguin and the appellant’s father had been involved. The appellant claimed that as he walked into the bedroom, he was attacked from behind by Steven Seguin and repeatedly assaulted with the baseball bat. The appellant claimed that Steven Seguin had pulled out the gun. The appellant denied going to the house with the intention of assaulting anyone.

 Sentence issues

8. [8]
   At the commencement of the Magistrates Court sentence proceedings, the original assault occasioning bodily harm charge, which included a circumstance of aggravation of being armed, was amended to allow the matter to be dealt with by the learned Magistrate under the provisions of Criminal Code s. 552B(1)(e).  In respect of the enter with intent charge, the learned Magistrate could only deal with such a charge if the offence involved an intent to steal, or to destroy or damage property.  Given that the learned Magistrate elected to deal with the matter, I accept that the sentencing process before the Magistrates Court proceeded on the basis that both prosecution and defence accepted that when the appellant entered the house, his intent was a relevant intent within Criminal Code s. 552B(1)(e)(i), even though the appellant, after entering, assaulted occupants of the house.

9. [9]
   The appellant submits that the learned Magistrate, by referring in his sentencing remarks to a “home invasion”, was giving consideration in his deliberations to a crime of far greater gravity than that to which the appellant was charged and pleaded guilty. The appellant makes similar submissions with respect to a comment by the learned Magistrate to the offence constituting a “break and enter” rather than, as charged, “entering a dwelling with intent”. I do not consider that the (arguably) loose use of language by the learned Magistrate could be interpreted as indicating that the Magistrate had formed an incorrect view of the circumstances of the offences.

10. [10]
    The appellant submits, on this appeal, that various of the facts on which he was sentenced by the learned Magistrate were in dispute. However, I consider that the appellant’s opportunity to litigate any such factual disputes was during the sentence hearing before the learned Magistrate. Having elected not to proceed with a contested plea, the appellant cannot re-litigate those contested factual issues before this court in its appellate jurisdiction.

11. [11]
    The appellant submits that the learned Magistrate gave insufficient weight to the injuries inflicted on him by Steven Seguin. In my view, although this was clearly a significant factor on sentence, the learned Magistrate specifically took it into account, in particular by his recommendation for early release.

12. [12]
    The appellant submits that the learned Magistrate’s sentence should be interpreted as being a suspended sentence rather than a recommendation for post-prison community-based release. Although I accept that the learned Magistrate was (again) loose with his language, and should have been more explicit by stating that the recommendation was for post-prison community-based release, it is clear that the sentence imposed has none of the indicia of a suspended sentence. In particular, it does not impose an operational period. It cannot, in my opinion, be interpreted as a suspended sentence.

13. [13]
    The appellant submits that the learned Magistrate was in error in that he failed to take into account “street time” that the appellant had served in respect of the 4-year imprisonment imposed for the armed robbery offence in 1991. I accept the submission of the respondent that the appellant is mistaken as to the operation of s. 152 of the Corrective Services Act 2000.  It is clear, in my view, as a result of the decision in Psaila v Dept of Corrective Services [2005] QCA 16, that the learned Magistrate was correct in not making a declaration as to pre-sentence custody for the period 25 August 2003 until 16 April 2004, a period of time during which the appellant was serving the outstanding balance of his armed robbery sentence.  The learned Magistrate did properly take into account a period of six weeks “street time” between 7 April 2003 and the cancellation of parole on 28 May 2003 to which the appellant was entitled pursuant to s. 152 of the Corrective Services Act 2000.

14. [14]
    The appellant submits that the effective head sentence imposed by the learned Magistrate of three years gaol to serve 12 months was manifestly excessive. In my opinion, having regard to the seriousness of the offence and the appellant’s criminal history, the sentence was within a sound sentencing range and could not be described as manifestly excessive.

15. [15]
    The appellant has failed to demonstrate that the learned Magistrate was in error in respect of any of the matters referred to in paragraphs 9-13 above. The appellant has failed to demonstrate that the sentence was manifestly excessive. The appeal, therefore, is dismissed.