Wayne v R
2 April 2001 - Angel J

On 6 December 2000 the applicant pleaded guilty in the Supreme Court at Alice Springs to the following charges:

1. aggravated unlawful entry (intent to steal; building a dwelling house; building occupied at time; occurrence at night time, armed with an offensive weapon)

2. aggravated unlawful use of a motor vehicle (vehicle having a value greater than $20,000.00)

3. stealing

4. aggravated assault (victim suffered bodily harm; victim threatened with offensive weapons, namely, iron bar and axe).

The applicant requested the sentencing judge to take into account when passing sentence on him one further offence of unlawfully using a motor vehicle.

At about 9.30 pm on 26 April 2000 the applicant and a co-offender entered a dwelling house at Alice Springs. Both had been drinking alcohol. They had with them an iron bar and an axe. They started to push an unlocked vehicle out of the yard. The sole occupant of the house, a 58-year-old man, heard the noise and went outside to investigate. He saw the applicant pushing the vehicle onto the road and shouted out to him. The applicant and the co-offender ran away. The victim retrieved his vehicle and went into the house to telephone the police.

The applicant returned to the house with the iron bar, smashed his way through some glass paneling and entered the kitchen of the house. The victim became involved in a fight with the applicant. The co-offender entered the premises and swung an axe through the door towards the victim who ducked and rolled away.

The victim was struck a number of hard blows on his back and on the back of his head. He asked his attackers to stop. One of the co-offenders picked up a carving knife and threatened to cut his throat. The co-offenders demanded his car, some money and beer. He told them that the keys were in the ignition, gave them money out of his wallet and told them that there was beer in the fridge. The co-offenders then left taking the car. The victim summonsed help and was hospitalised until 5 May with a fractured skull, fractured ribs and lots of bruising and cuts. When apprehended by the police the co-offenders declined to answer any questions. The sentencing judge found that the victim had suffered serious physical and substantial psychological and emotional problems which were continuing at the time of sentence.

The applicant was 19 years at the time of the offence and had seven previous convictions for stealing, four for criminal damage, two for unlawful entry, one for assault, six for unlawful use of a motor vehicle, one for resisting police, seven traffic matters and three breaches of bond.

On counts 1, 2 and 3 the applicant was sentenced to an aggregate sentence of four years imprisonment. He was sentenced to two years imprisonment on count 4. It was ordered that the sentences be served cumulatively. The total effective sentence therefore was six years imprisonment. A non-parole period of three years was fixed to commence after the applicant had served a mandatory sentence of 14 days applicable to the property offences comprising counts 1, 2 and 3.

The applicant subsequently applied to the Court of Criminal Appeal for leave to appeal against severity of sentence on the grounds that the learned sentencing judge erred:

1. in imposing a sentence which was manifestly excessive in all the circumstances of the case and of the applicant

2. in not giving sufficient weight to the applicant's age, past disadvantage and plea of guilty

3. in ordering that count 4 be served cumulatively on counts 1, 2 and 3

4. in discounting the applicant's prospects of rehabilitation.

The application for leave to appeal was considered by a single judge exercising the powers of the Court of Criminal Appeal pursuant to rule 86.14 of the Supreme Court Rules. The application was determined on written arguments in the absence of the parties. On 2 April 2001 Angel J refused the applicant leave to appeal.