Court of Appeal (Qld)|1995-09-14|Before: Pherson JA, Thomas J, Williams J

The applicant, Bower-Miles, was only 19 years old at the time of the offence and 20 years at the time of sentencing. He was in employment as a furniture removalist and seems, from what one can gather, to have had a good record of employment, in the course of which he has been able to elicit favourable references which were produced at the hearing including a reference from at least one employer.

He has no previous convictions of any kind. His youth and other factors that I have mentioned may be thought to have justified a lower sentence than that imposed although it is right to say that the Judge plainly took those factors into account in the course of arriving at the recommendation for parole which he made in both cases.

At the time of sentencing, he was self-employed as a brick layer. He has two children, although he is not evidently living with their mother. He nevertheless is concerned about their welfare.

The requirement of parity is obviously relevant in this case but is not necessarily a dominant consideration when regard is had to the youthfulness of the co-offender Miles. On the other hand, Smith's part in the invasion seems to have been slightly less prominent, at least to the extent that it was Bower-Miles who used the baton with which to strike the blow that is the subject of the assault count in the indictment.

Carrying out an armed raid on a house in the peaceable possession of other people is a very serious offence. No one should under estimate its seriousness. The learned sentencing Judge clearly did not do so. He stressed the justified community concern at the prevalence of home invasions of this kind and, as I have already said, he took into account the applicant's remorse and early pleas of guilty although only, it would seem, to the extent of making a recommendation for parole after 12 months.

Having listened to a recitation of comparable sentences that were put before us on this appeal, I am in the end persuaded that the term of three and a half years for this offence was too severe. The injuries to Trevor Box were slight, and as far as one can gather, no one else sustained any injuries or, if they did, they were not made the subject of the charge.

The lacerations on the head of Trevor Box appear not to have left any noticeable sequelae of any kind and it was not so severe a cut as to require suturing. The serious element in the offences with which we are concerned here seems to me clearly enough to be the entry or intrusion into the dwelling house at night time.

However, viewed as an invasion of other persons' privacy and security, it must surely rank as one of the most unsuccessful escapades of its case. Bower-Miles was left unconscious and sustained two black eyes. It is not likely that he would go looking for a similar lesson at any time in the future.

Smith sustained a broken nose. There is therefore a basis for saying that, comparatively speaking, they received a considerable measure of punishment and one which, in the light of the injuries they reflect, might be regarded as not only merited but, in part, a return for the offence they committed.

The case is not one in which I consider it possible to ignore the outcome of the invasion that took place, or the fairly severe hiding which the assailants received. In those circumstances, I consider it right to allow the appeal. I would vary the sentence by reducing the term of imprisonment in each case of each applicant to two years in respect of each count in the indictment.

I would set aside the recommendation for parole in each case, and, in the case of the applicant Bower-Miles, suspend the sentence of imprisonment after he has served a term of six months, making the operational period of the sentence two years in his case.

In the case of the applicant Smith, the sentence should also be suspended after he has served six months of it, but, in his instance, it is my view that the operational period of the sentence should be three years. That is intended to reflect, at least in part, the difference in their ages and the consideration operating in favour of Bower-Miles that he is not only young but that he has no previous convictions and apparently good working record.

That is the order that I propose should be made in this case.

THOMAS J: I agree with what the learned presiding Judge has said but do not agree with the sentences that he would substitute. This was an ill-considered escapade aimed at discovering whether parts of the applicant's companions' motor vehicle was still in the house where the thief lived.

Unfortunately, they made their visit after a drinking session and took weapons with them. They were outnumbered and overpowered. They were not permitted to escape. They were given a severe beating. In this case, the victims have the satisfaction of having exacted their own revenge.

One is tempted to say that it served the applicants right, but the question is: how much more do the Courts need to do to them to satisfy community needs and expectations? It is trite to say that some home invasion cases are more serious than cases of armed robbery and some are less serious. This Court has given many decisions permitting non-custodial sentences with respect to young offenders to stand in armed robbery cases.

In my view, this case falls towards the less serious end of home invasion cases. Indeed, it is one where I have given serious consideration to a non-custodial sentence for this

19-year-old offender with no previous convictions, with a good work history, who made this single excursion into violence and who had already learned a very painful lesson before being sent to prison.

The reason why I think a custodial sentence is necessary is that it is important that the Court discourage vigilantism and self-helping or revenge-driven raids especially when weapons are taken.

However, in the present circumstances only a short custodial term is necessary. I do not think that a proper response from the Court demands that either offender should be required to serve more than three months before the sentence should be suspended.

Sufficient differentiation will be made between the proposed sentences between these two offenders by applying a longer operational period in respect of Smith. I would propose to set aside the sentences below and replace them with the following sentences: in Bower-Miles' case two years imprisonment suspended after three months with an operational period of two years on each count, and in Smith's case, a sentence of two years imprisonment suspended after three months with an operational period of three years on each count.

WILLIAMS J: The facts have been fully set out in the reasons for judgment of the learned presiding Judge. Because this was a home invasion carried out at night by at least two people who were armed with offensive weapons, I am of the view that a significant custodial sentence was called for.

That conclusion is reinforced by the fact that a potentially serious injury was inflicted on an innocent person. The two appellants had gone to the house for reasons of self-help or revenge directed against one Chris Martin who had stolen some motorcycle parts belonging to a friend of theirs.

In my view, it is difficult to differentiate significantly between the two appellants. Bower-Miles was aged 19 at the time and had no previous convictions. Smith was aged 29 and had a minor criminal history.

It follows that there is youth on the side of Bower-Miles and that is a factor which must be reflected in the sentence imposed; but on the other hand it was he who struck the blow which caused the bodily harm to Trevor Box.

I am of the view that the period of imprisonment to be served by each should be the same but that the youth of Bower-Miles should be reflected in a slightly longer operational period after the suspension of the sentences being imposed on Smith.

I agree with the sentences proposed by the learned presiding Judge.

McPHERSON JA: The order of the Court will be in the form I have stated in my reasons.

R v Bower-Miles & Smith [1995] QCA 453 (14 September 1995)

R v Bower-Miles & Smith [1995] QCA 453

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R v Bower-Miles & Smith [1995] QCA 453 (14 September 1995)