SUPREME COURT OF QUEENSLAND CITATION: R v Mullen [2006] QCA 317 PARTIES: R V MULLEN, Todd Kenneth (applicant) FILE NO/S: CA No 175 of 2006 DC No 3220 of 2005 DC No 1341 of 2006 DC No 1512 of 2006 DC No 1513 of 2006 DC No 3637 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Sentence Application District Court at Brisbane DELIVERED EX TEMPORE ON: 28 August 2006 DELIVERED AT: Brisbane HEARING DATE: 28 August 2006 JUDGES: ORDER: CATCHWORDS: McPherson and Holmes JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made Appeal dismissed CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS WHEN REFUSED GENERALLY - where applicant pleaded guilty to a number of offences where applicant was on bail at the time of the offences where applicant was sentenced to three years imprisonment for each offence of serious assault, burglary and stealing where all other offences received lesser penalties where sentences were imposed cumulatively upon the sentence he was then serving where applicant submitted it was more appropriate to impose a concurrent sentence whether it was appropriate that a concurrent sentence be imposed R v Anderson [2004] QCA 74; CA No 64 of 2004, 6 August 2004, considered 1
R v Perrem [2000] QCA 339; CA No 119 of 2000, 18 August 2000, considered COUNSEL: SOLICITORS: A J Rafter SC for the applicant R G Martin SC for the respondent Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent McPHERSON JA: I will ask Justice Atkinson to deliver her reasons in this matter. ATKINSON J: The applicant was convicted on his own plea of guilty on four separate indictments on eight counts of receiving, four counts of fraud, six counts of burglary and stealing, one count of unlawfully possessing a motor vehicle to facilitate the commission of an indictable offence, one count of attempted burglary, one count of burglary by breaking and one count of serious assault. He also pleaded guilty to two summary offences being one charge of possessing tainted property and one of possessing things suspected of being stolen. The offences took place between 2 July 2004 and 15 December 2004. During that time he was on bail and there were constant breaches of that bail. He was sentenced on 25 May 2006 to three years imprisonment for the serious assault and each of the counts of burglary and stealing. All of the other offences attracted lesser concurrent terms of imprisonment. The sentences were declared 2
to be cumulative upon the sentence he was then serving. A declaration was made that he had served 143 days in custody as part of the sentence imposed from 13 June to 2 November 2005. It was recommended that he be considered eligible for a postprison community-based release order on 3 November 2007. The applicant was in prison at the time of sentencing as a result of sentences which had been imposed upon him previously in the Supreme Court, the District Court and on two different occasions in the Magistrates Court. On 3 November 2005 he was sentenced by the Supreme Court to six months imprisonment for supplying a dangerous drug with a circumstance of aggravation. That offence occurred while he was serving a term of imprisonment at Sir David Longland Correctional Centre. On 24 February 2005 during two noncontact visits with his girlfriend the applicant instructed her to obtain a drug and smuggle it in to him. One month later, on 3 December 2005, he pleaded guilty to two counts of armed robbery in company and two counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence. Those offences occurred between 21 and 29 November 2003. Money was stolen from a service station and from a 7-Eleven store while one of the offenders was armed with a gun. He was sentenced in the District Court to two years six months imprisonment to be served cumulatively upon the sentence imposed on 3 November 2005. 3
On 24 January 2006 the applicant was sentenced in the Brisbane Magistrates Court on one count of unlawfully using a motor vehicle and one count of possessing tainted property. Those offences occurred on 23 October 2004. He was sentenced to six months imprisonment to be served concurrently with the sentences to which he was then subject. On 6 February 2006 he was sentenced on 27 counts of entering a dwelling and committing an indictable offence and one count of attempting to enter a dwelling with intent. Those offences were committed between 3 November 2003 and 1 August 2004. The value of the property stolen was in excess of $90,846. He was sentenced to two years and six months imprisonment also to be served concurrently. His full time release date would therefore nevertheless remain at 2 November 2008 with an eligibility for release on post-prison community based release on 2 May 2007. His full time release date after sentences which are the subject of this appeal would be 3 November 2011 with an eligibility for post-prison community-based release on 3 November 2007, only six months later than his previous eligibility date. The circumstances of the offences. The many counts of burglary with breaking involved numerous occasions where the applicant used force to get into a home or home unit, usually when the occupier was not present, and 4
ransack the premises. He stole items which included computers, a lawn mower, digital cameras, mobile telephones, jewellery, cash, alcohol, DVDs, a television set, a DVD-VCR player, travel bags, Christmas presents, clothing, CDs, a video game console, video games, watches, tickets to major events, perfume, a Walkman, a DVD player, shoes, handbags, spectacles, key rings, money boxes, foreign currency and travellers cheques and various other household items. The fraud charges relate to the applicant, in concert with his de facto partner, trading many of the stolen goods at a Cash Converters shop in return for cash. The count of serious assault occurred during the course of one of the occasions of burglary by break in. A woman returned to her townhouse through the front door and heard a loud noise coming from upstairs. She saw the applicant walking down the internal stairs carrying four backpacks which belonged to her or her flatmate. The complainant questioned him as to whom he was; but he did not answer and kept walking down the stairs. She was standing between him and the front door so he used his body weight to try to push past her, his chest and shoulder coming into contact with her chest. She pushed him with both hands preventing him from leaving via that exit. He then ran to the rear sliding door into the courtyard area. She ran after him telling him to drop the goods. He ran to the left of the yard and became cornered by a large fence. She yelled for help and told him to stop and drop the stolen property. She shoved him with her hands and he did not fall over. The 5
applicant then pushed the complainant with his hands with such force that she fell to the ground. At this point he dropped two of the four backpacks and ran out of the yard and escaped. He was chased along the street by the complainant's neighbours. He dropped the remaining two backpacks and escaped. Inside the three backpacks belonging to the complainant and her flatmate was property belonging to them both. Their bedrooms had been ransacked. Inside the remaining backpack was a large yellow screwdriver, a small crowbar, and a mobile phone which had previously been stolen. She suffered scratches and abrasions to both her legs and feet, right elbow and shoulder area. The foot was swollen and sore as a result of the fall. She was able to identify the applicant in a photoboard. These offences occurred on 4 December 2004. The many receiving and the two summary counts related to property which was believed to have been stolen which was found in the applicant's possession. One count of receiving related to a mobile telephone that was stolen from a property at Greenslopes. The applicant's mother located the phone in his belongings when he went to prison in late 2004. This was sold for $20. Another count of receiving related to what occurred on 22 June 2004. A digital recorder was stolen from a Paddington 6
property at about midnight on the same day the applicant's vehicle was intercepted by police for a breath analysis and licence check. The digital recorder was found in the vehicle. The learned sentencing judge referred to comparable decisions in R v Perram [2000] QCA 339, and R v Anderson [2004] QCA 74. They show that the sentence imposed for such an intractable offender, who had additional features of two armed robberies and a drug offence committed whilst in prison, was within the proper range. It was submitted in the written outline that the difficulty the applicant would have in obtaining parole as a result of his conviction on 3 November 2005 for aggravated supply of dangerous drugs in a correctional facility would suggest that it was more appropriate to impose a concurrent sentence. That is not a circumstance which suggests that a concurrent sentence was more appropriate and as the sentence was within range the application for leave for appeal must fail. McPHERSON JA: I agree. HOLMES JA: I agree. McPHERSON JA: The order is the application for leave to appeal is dismissed. ----- 7