R v Cherrie [2006] QCA 491

FILE NO/S: CA No 256 of 2006 DC No 3567 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 24 November 2006

DELIVERED AT: Brisbane

HEARING DATE: 20 November 2006

JUDGES: Williams and Keane JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: 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 applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage and was sentenced to two years imprisonment, suspended after six months for an operational period of two years – the applicant possessed a relevant criminal history – whether the sentence was manifestly excessive in all the circumstances / Lowe v The Queen (1984) 154 CLR 606, cited

COUNSEL: The applicant appeared on his own behalf M J Copley for the respondent

SOLICITORS: The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1. WILLIAMS JA: On 22 August 2006 the applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage. He was sentenced on that date for the two offences of assault occasioning bodily harm in company to two years imprisonment, suspended after six months for a period of two years. Shorter, concurrent sentences were imposed with respect to the other offences. He seeks leave to appeal against the head sentence on the ground that in the circumstances it was manifestly excessive.

2. The charges arose out of events which occurred on 12 February 2005. A few months prior to that, the first complainant had ended his relationship with a woman who then began a relationship with the applicant's co-offender, Wells. When the relationship ended, the woman kept possession of a motor vehicle owned by the first complainant. His request for the return of the vehicle was not complied with. The first complainant became aware on 12 February 2005 that the vehicle was at a shopping centre. He went with a friend (who was the complainant to the second count of assault occasioning bodily harm) to the shopping centre and retrieved the vehicle. He took it back to his home where he put it up on blocks and locked it in the garage.

3. Later that day the applicant, Wells, and a third man (who has remained unidentified) went to the first complainant's house. They did not leave when asked to do so. After some conversation the applicant punched the first complainant in the head, and Wells also punched the first complainant twice in the head. The applicant continued to punch the first complainant until he fell over; he was then punched in the back of the head as he tried to get up.

4. Then the applicant grabbed the second complainant around the neck forcing him to fall down; the applicant then punched and kicked the second complainant several times. After that the applicant returned to the first complainant and punched him again.

5. The foregoing is a brief outline, but by no means a complete description of the altercation. Three other men were seen waiting outside in the driveway.

6. The first complainant suffered two fractured ribs, a fracture to a bone in his right hand, a swollen left cheek, a bloody nose and a displaced tooth. The second complainant sustained tenderness to the skull, kneecap and shoulder, and he found it painful to breathe.

7. The sentencing judge concluded that the applicant was the principal protagonist. He also noted that the applicant was well and truly able to look after himself, but Wells was "a person who could not really fight". It appears that the complainants got the better of Wells in the course of the altercation.

8. The applicant was born on 4 May 1978, making him 26 years old when the offences occurred and 28 years old at the time of sentence. He had a criminal history. Significantly he was convicted in the District Court on 24 June 1998 of robbery with actual violence. He was aged 19 when that offence was committed and then only had a very minor criminal history. He was sentenced to imprisonment for four years, suspended after one year, for a period of five years; a declaration was made that he had been convicted of a serious violent offence. To justify that sentence, given his then youth, the circumstances of the offence had to be particularly serious.

9. The suspended sentence was breached by the commission of the offence of stealing in April 2000; he was then ordered to perform 60 hours unpaid community service. Subsequent bail offences resulted in the applicant being imprisoned for two months. His most recent offence was in May 2000 when he was dealt with for possessing dangerous drugs and possessing tainted property.

10. Wells, who was aged 47 when the offences occurred, pleaded guilty to the same charges as the applicant. The sentencing judge concluded that Wells could not be regarded as the protagonist when compared with the applicant, and in addition he stated it was significant that Wells had no previous criminal history.

11. The sentencing proceeded on the basis that neither the applicant nor Wells entered the dwelling house with the intent to unlawfully assault the applicants; the assaults were the culmination of verbal disputation with respect to the motor vehicle.

12. The sentencing judge also recorded that there were a number of references from "good citizens" speaking well of the applicant. That was also the case with Wells.

13. The experienced sentencing judge was well aware of the necessity to ensure that there was no disparity between the sentences imposed upon the applicant and Wells. He referred to the decision of the High Court in Lowe v The Queen (1984) 154 CLR 606. But he went on to say that in the instant case there had to be "differentiation of sentence" as between the applicant and Wells. That differentiation was clearly necessary because of the applicant's prior criminal conviction for robbery and because the applicant was regarded as the principal protagonist.

14. The applicant received the sentence referred to above, and on the two counts of assault occasioning bodily harm in company Wells was sentenced to imprisonment for 12 months, wholly suspended for a period of three years.

15. The applicant appeared on his own behalf in support of his application. His principal complaint was that there was no parity between the sentence imposed on him and that imposed on his co-offender Wells. However, in my view, the conviction for robbery with actual violence in 1998 provided a clear basis on which the applicant was to be distinguished from Wells.

16. The applicant also referred to the fact that there was some provocation from the complainants which led to the altercation. As the sentencing judge noted, the first complainant was not blameless, but importantly the applicant was the instigator of the assaults.

17. Given that this was a type of home invasion, the fact that the applicant had a significant criminal conviction necessitated the imposition of an actual custodial sentence. The applicant's case can be clearly differentiated from that of Wells as indicated above. In the circumstances the sentence in fact imposed was well within the applicable range and the applicant has not demonstrated any basis calling for interference by this Court.

18. The application should be dismissed.

19. KEANE JA: I agree with the reasons of Williams JA and with the order proposed by his Honour.

20. CHESTERMAN J: I agree with Williams JA.