R v Blenkinsop ; R v Blenkinsop [2007] QCA 181

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where the applicants carried out a home invasion in part to gather information about a supposed paedophile ring - where they were convicted, on pleas of guilty, of one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing - where the first applicant was sentenced to five and a half years on the burglary count and two years concurrent on each of the remaining counts - where the first applicant also pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was sentenced to two years on each count, to be served concurrently with the sentences on the first indictment - whether the sentence imposed was excessive

[2]

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - where the second applicant was sentenced to four years imprisonment, suspended after 12 months with an operational period of five years, on the burglary counts and concurrent sentences of two years imprisonment, suspended after 12 months with an operational period of five years, on the remaining counts - whether, given the second applicant's youth, lack of previous convictions and prospects for rehabilitation, the sentence imposed was excessive

[3]

R v Cockfield [2006] QCA 276; CA No 159 of 2006,

[4]

R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376 of 2002, 28 February 2003, distinguished

[5]

R v Sailor; ex parte A-G (Qld) [2003] QCA 227; CA No 55 of 2003, 26 May 2003, distinguished

[6]

R v Taylor [1999] QCA 323; (1999) 106 A Crim R 578, applied

[7]

Director of Public Prosecutions (Queensland) for the respondent

[8]

[1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Holmes JA and I agree with all that is said therein. Indeed, in my view, it could be said that, given the criminal history of Aaron Blenkinsop, the sentence imposed on him was moderate. I agree with the orders proposed by Holmes JA.

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[2] JERRARD JA: I have read the judgment of Holmes JA and respectfully agree with the reasons and orders proposed by her Honour.

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[3] HOLMES JA: The applicants for leave to appeal against sentence are brothers and co-accused who pleaded guilty to one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing. Tony Blenkinsop was sentenced to four years imprisonment, suspended after 12 months with an operational period of five years, on the burglary count and concurrent sentences of two years imprisonment, suspended after

[11]

12 months for an operational period of five years, on the remaining counts. Aaron Blenkinsop was sentenced to five and a half years, with a recommendation for parole after two years, on the burglary counts and two years concurrent on each of the remaining counts. He also pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was sentenced to two years on each count, to be served concurrently with the sentences in respect of the first indictment. Both applicants had nine days already spent in custody declared as time served on those sentences.

[12]

[4] The Blenkinsop brothers were part of a group of four men, the others named Forrest and Kiernan, who carried out a home invasion on the night of 14 February 2006. Aaron Blenkinsop was heard talking to the others in the party earlier in the evening, alleging that P, a man whom he claimed to have been watching for some months, was a paedophile. He proposed that the group go and "sort P out" and also search his residence at a warehouse premises for a box of money he was supposed to have. He drew a map on a piece of paper and explained how the party would get into the premises and where they could park their car. They carried out the plan at about 10.30 pm, but went to the wrong part of the premises: a unit above the warehouse occupied, not by P, but by two other men, S and W. P lived elsewhere on the warehouse grounds.

[13]

[5] The four offenders, wearing masks and surgical gloves, burst in on the two men in the unit. They took with them three weapons: an Asian-style sword or long knife, a steak knife, and baseball bat. They also wielded a fourth implement, found at the unit; it was something called a "muddle stick" which, it seems, is of the nature of a pestle. Aaron Blenkinsop, who carried the sword, behaved as the leader of the group, yelling directions at the other three. On his instructions, Tony Blenkinsop, who carried the steak knife, moved S from one room into another. Again, on Aaron Blenkinsop's instructions, the others in the group bound W's and S's hands and feet with electrical tape. Aaron Blenkinsop accused S and W of paedophile activity, disregarding W's protestations that they had the wrong people. He asserted that there had been a complaint to the police about the paedophile ring, but the police had failed to act, so they proposed to collect the evidence and take it to the Federal Police.

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[6] Aaron Blenkinsop told the others to search everything, including the computer, and asked S where the money was. The group ransacked the unit, taking two land line telephones, two mobile phones, a digital camera and a packet of cigarettes. Aaron Blenkinsop informed the two men that Forrest, who was holding the baseball bat, was crazy and "schizo" and would hurt them if they did not do as they were told. At one point Forrest held a knife close to S's neck and told him not to move, that he would get cut if he did, and also threatened to hit him with the baseball bat. S asked that the tape on his hands be loosened because his hands were numb; Tony Blenkinsop took the tape off and the fourth offender, Kiernan, replaced it with more tape. Aaron Blenkinsop said that they would "take the computers and everything. If we've got it wrong, I'm sorry and we'll return everything".

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[7] Meanwhile P, who from his home had seen the intruders in the unit, had called the police, and ran to the gate to open it for them. Forrest saw him do so and warned the others. They hurried to put the phones and camera they had taken into a bag together with their weapons. S said he would not tell anyone they had been there, to which Aaron Blenkinsop replied "I know you won't because if you do we'll come back and finish it and really hurt you, fuck you up." The four offenders were apprehended by police in the warehouse yard. S identified Aaron Blenkinsop as the ringleader, to which Blenkinsop responded "You're finished. You're fucking dead."

[16]

[8] Forrest and Kiernan took part in records of interview; the Blenkinsops did not. Forrest said that they had gone to the premises to get evidence that P was a paedophile. Kiernan said that he had seen P giving alcohol to young girls; that a girl who lived on the streets had alleged P had raped her; and that on another occasion a homeless girl had said that P had held her against her will. He believed P took photos on his mobile phone of girls he met, so his plan was to check the computer and a mobile phone for such photographs.

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[9] Forrest and Kiernan pleaded guilty to the same counts as the Blenkinsops, but in their case it was by way of ex-officio indictment. Kiernan also pleaded to one count of common assault committed a month earlier. Kiernan had served 225 days in custody which could not be declared, although the judge regarded them as appropriately taken into account on sentence. He also, according to a psychiatrist's report, had what was described as a "precarious and debilitating mental state". He was sentenced to four and a half years imprisonment suspended after 18 months with an operational period of five years. Forrest, who had some criminal history, but not one containing any serious or violent offences, was sentenced to five and a half years imprisonment with a recommendation for release on parole after serving two years imprisonment.

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[10] The dishonesty offences to which Aaron Blenkinsop pleaded guilty were detected on 18 October 2005, when a hire vehicle he had used was searched by police and a quantity of property stolen in burglaries three days prior was found; more stolen property was found at his home. The stolen property consisted of items such as an "X box" console, a video camera, jewellery, clothing, a watch, radio scanners, mobile phones, a laptop computer, two digital video cameras, a stereo system, and night vision binoculars. The fraud charge involved use of four credit cards to buy groceries and petrol to the value of $400. In addition, he was dealt with for summary offences of possessing small amounts of cannabis sativa, methylamphetamine and lysergide, possessing two stolen cheque books, three charges of unlicensed driving and contravening a direction. He was on bail at the time he committed the home invasion offences.

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[11] The Blenkinsop brothers were brought up by their father, their mother having died when they were nine and four years old respectively. It was said that their father was a heavy drinker and was abusive to both boys. Aaron Blenkinsop was 23 years old at the time of the offences, Tony Blenkinsop 18 years old. Aaron Blenkinsop had completed an apprenticeship as a solid plasterer before he was first incarcerated. He had a criminal history which included convictions for entering premises and committing an indictable offence and unlawful entry of a vehicle with intent to commit an indictable offence; but by far the most serious count on it was one of robbery with actual violence while armed and in company, the circumstances of which bear a disturbing resemblance to the home invasion in this case.

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[12] In October 2001, when he was 19, Aaron Blenkinsop had gone with his co-accused, Beacham, to the premises of a man who Beacham asserted was a paedophile. While Beacham was subduing the victim, Blenkinsop collected some of his property and put it in a bag. The victim was left in a semiconscious condition and died of asphyxiation. On 4 November 2005, Blenkinsop pleaded guilty to the robbery offence and was sentenced to five years imprisonment suspended for five years after 1,165 days, which he had already served on remand.

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[13] Tony Blenkinsop, in contrast, had no criminal history and had only minor traffic offences recorded against him. His counsel said that he had completed an apprenticeship as a baker; he had a wife and young family; and he was in employment as a pool builder. He had moved to Cairns to renew contact with his brother.

[22]

The submissions on Aaron Blenkinsop's application

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[14] For Aaron Blenkinsop, it was submitted that the sentence was excessive, having regard to the totality principle, which required that consideration be given to the combined effect of the sentences imposed in respect of the current indictment and the sentence imposed on 4 November 2005, since that sentence remained operative. At the time of sentence he had served approximately 10 months in custody which could not be declared; so that with that period added to the five and a half years imprisonment imposed on him, he was subject to six years and four months imprisonment with a recommendation for release on parole, which was, in effect, after he had served two years and 10 months. Also to be taken into account were the 1,137 days he had already served for the offence for which he was sentenced in November 2005. He had, by the time of the appeal, been dealt with for the breach of suspended sentence: although the breach was found, he was not ordered to serve any part of the suspended period.

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[15] Counsel relied on decisions in three matters which he said were comparable: R v Cockfield,[1] R v Denham; ex parte A-G (Qld),[2] and R v Sailor; ex parte A-G (Qld).[3] In R v Cockfield, the 22 year applicant, who had some minor criminal history, was convicted of one count of burglary and one of armed robbery in company with personal violence. He and a couple of friends happened to be passing a house and noticed a young man smoking a cigarette at the front door. The three entered the house, which was occupied by a group of young people and demanded money and drugs. The applicant pretended to have a gun in his pocket. He stole some mobile phones. There is no suggestion that any of the complainants suffered any ill effects. The case involves co-operation in terms of s 13A of the Penalties and Sentences Act 1992 (Qld), obviously not a feature here, but counsel relied on a passage in which the President (with whom I and the other member of the Court agreed) observed that the appropriate starting sentence was in the range of two and a half to three years imprisonment, with an early recommendation in that case to recognise the significant mitigating factors.

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[16] In Denham the respondent pleaded guilty to burglary, assault occasioning bodily harm and breach of a domestic violence order and was sentenced to 12 months imprisonment to be served by way of an intensive correction order. He and his former partner were in dispute over custody and access to their small child. In the breach of the domestic violence order the respondent went to the home of his former partner's father, pushed his way inside and engaged in a physical fight with the father, in the course of which he punched and kicked him, breaking a couple of ribs. He claimed to have been motivated by concern about his son's welfare. Denham had only minor prior convictions. An Attorney-General's appeal against sentence was dismissed.

[26]

[17] Finally, in Sailor the respondent pleaded guilty to burglary with a circumstance of aggravation, assault occasioning bodily harm whilst armed and in company and wilful damage. The longest of the sentences imposed on him was 12 months imprisonment. He, like the applicant and respondent in Cockfield and Denham, had some minor criminal history. He, with two co-offenders, had tried to get into a house which they believed to be unoccupied. A friend of theirs, who had been murdered, had once lived there. They disturbed the occupant, who confronted them. One of them smashed a window; Sailor kicked open a door and entered the house and then assaulted the complainant with a piece of wood, probably a fence paling. He took the complainant for another person he believed to have been responsible for the death of the friend who had originally lived at the property. Once he realised his mistake he showed remorse and co-operated with the police. The Attorney-General's appeal was dismissed. Counsel submitted that those and other cases involving more serious offences supported a view that the range was around the three year mark.

[27]

[18] None of the three cases cited in detail appears to me to bear any resemblance to the present, in terms either of the applicant's background or the criminality of what was involved. Cockfield and Sailor both involved spur of the moment decisions to enter a property; in Sailor's case in the belief that it was unoccupied. Denham's offence occurred in the context of a marital breakdown and was driven by a genuine, if misplaced, concern about a child. Neither Denham nor Cockfield was in fact armed; Sailor had a piece of wood. None of them had the sorts of lethal weapons involved in this case; there was no element of pre-planning; there was none of the paraphernalia of masks and gloves, nor was there any tying up of the occupants, factors which must have caused additional fear in the victims. The applicant and respondents in Cockfield, Denham and Sailor had minor criminal histories.

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[19] Aaron Blenkinsop, on the other hand, had a criminal history which, significantly, included a home invasion type offence which had resulted in a fatality, although it was not of his making. One can only conclude, however, from his involvement in the present offence while still subject to the suspended sentence for the earlier offence, that he had learned nothing from that incident. And there is an indication that his motives were not entirely those of the wrongheaded vigilante in the references to looking for money. It may also be noted that the fraud and receiving offences were committed when he was on bail prior to being dealt with for the 2001 robbery, and the home invasion related offences were in turn committed while he was on bail on the fraud and receiving charges. There was an abundance of factors to take him well beyond the three year range for which counsel argued.

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[20] I do not consider that a head sentence effectively of six years and four months imprisonment (five and a half years for the burglary plus 10 months served but not declarable) was manifestly excessive, considering the seriousness of the circumstances of the home invasion charges, the additional criminality of the receiving and fraud charges, and the fact that all offences occurred in breach of bail and the home invasion charges in breach of a suspended sentence, taken against the background of the applicant's criminal history, particularly the 2001 robbery previous conviction.

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[21] So far as the totality principle is concerned, it was not necessary, in my view, that the learned judge make any assumptions about what might occur in respect of the suspended sentence on the 2001 robbery; that fell to the province of the judge dealing with the breach of suspended sentence, and, as matters eventuated, no part of it was activated. The prospect of a further breach by the applicant at some time during the operational period is not something which now needs to be taken into account. Again, should any such breach occur, it will be a matter for the judge dealing with it as to what the interests of justice dictate. The 1,137 days in declared pre-sentence custody had been completed in November 2005, three months before these offences; it is difficult to see why the totality principle required their being factored in.

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[22] The sentence was not manifestly excessive. I would dismiss Aaron Blenkinsop's application for leave to appeal against sentence.

[32]

The submissions on Tony Blenkinsop's application

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[23] For Tony Blenkinsop, it was said that he should not have been required to serve actual custody having regard to his youth, his lack of previous convictions, his plea of guilty, his prospects of rehabilitation and his work history. It was not to be inferred, counsel submitted, from amendments to the Penalties and Sentences Act repealing s 9(4) (which prohibited imposition of a sentence of imprisonment on a first time offender under the age of 25 years unless the Court had considered all available sentences and taken into account the desirability of not imprisoning a first time offender) that the desirability of not sending young offenders without convictions to prison was no longer a relevant factor: R v Taylor.[4]

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[24] The learned sentencing judge accepted that Tony Blenkinsop's involvement was limited to his presence, his movement of S from one room to another and his releasing of the tape around S's wrists when the latter complained of its tightness. His role was, it is clear, very much different from Aaron Blenkinsop's and his antecedents bore no resemblance to his brother's. The seriousness of the offences he was involved in makes it difficult to accept that actual custody was not appropriate, notwithstanding his youth; but the comparable sentences referred to by counsel have greater force in his case, and considerations of parity with his brother's sentence would indicate that the head sentence ought to have been somewhat lower.

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[25] I would allow the application for leave to appeal, set aside the sentence of four years imprisonment imposed in his case on the burglary count and substitute one of three years. The learned sentencing judge intended his release after he had served a quarter of the head sentence. That ratio should be maintained, given the significant mitigating factors in his case; but having regard to his youth there is much to be said for the supervision entailed in parole rather than a suspended sentence. Accordingly, I would fix a parole release date in respect of all the sentences imposed on him after he has served nine months which, allowing for his having been in custody since 24 January 2007, should be set at 24 October 2007.

[36]

Application for leave to appeal against sentence dismissed.

[37]

1. Application for leave to appeal against sentence allowed.

[38]

2. Set aside the sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at 24 October 2007.

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3. On the remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of 24 October 2007.

[40]

[1] [2006] QCA 276.

[41]

[2] [2003] QCA 74.

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[3] [2003] QCA 227.

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[4] [1999] QCA 323; (1999) 106 A Crim R 578, at 587-588.