R v Doolan [1998] QCA 386

About a week later - at about 3.00 a.m. on 8 February 1997, Drier was asleep in the lounge room of his high-set home. Janine was asleep in another room. Drier gave evidence that he was expecting that the applicant might come around again and he lay on the couch trying to keep awake. He fell asleep and awoke to see James Wood holding open the front door and holding a knife in one hand. Drier had known Wood for about three years.

Drier also saw the applicant running through the door straight at him saying words to the effect "I've got you." Drier jumped to his feet and swung the applicant bodily into a door.

Fearing for his safety because he had seen the two men, one with a knife, Drier, jumped over the balcony to the ground several metres below. He later found he had fractured his right ankle. The applicant and Wood followed Drier over the balcony but Drier despite his injury was able to re-enter the house and lock the doors.

The telephone was not working and Janine went next door to telephone the police. Drier told the applicant that Janine had gone next door to call the police. The louvre window was smashed and both offenders left with threats shouted by both sides.

Shortly afterwards the police found both offenders near a motor vehicle belonging to the applicant's mother. Both the applicant and Wood subsequently denied being involved in the incidents at Drier's house although at trial Wood gave evidence that he had gone alone to Drier's house and had there been attacked by Drier before he fled. In evidence, Wood denied having had a knife.

At trial medical evidence was called to prove that on the morning of 8 February Drier had attended the Townsville General Hospital presenting with a swollen right ankle on which he could not properly walk. X-rays showed a fracture of the distal fibula of the ankle.

The learned trial Judge when sentencing the applicant and Wood referred to the applicant having shown no remorse and to his having lied to the police about his involvement; to Drier's injuries having been caused by jumping from a highset house to the ground to avoid an assault by either the applicant or Wood such that the injury was caused indirectly by their conduct; the fact that "offences of this kind are becoming prevalent in the community" and the need for deterrence; to the applicant having planned the attack on Drier when Wood was armed with a knife and both having entered Drier's home at about 3 a.m. with a vehicle parked some distance away "obviously with a view to avoiding detection".

The learned trial Judge was satisfied that the applicant was the driving force behind the commission of the offence.

Addressing Wood in his sentencing remarks the learned trial Judge said, on page 204:

"I think your involvement came about largely as a result of misguided loyalty to Doolan and probably it seems as a result of some misinformation that was communicated to you as to the circumstances of an earlier altercation between Drier and Doolan. You will be treated much more leniently on that account and because of the fact that your history and references are much more favourable to you than your co-offender. You were given a false account of an earlier incident which no doubt encouraged your participation."

I turn to the applicant's prior criminal history. His Honour said in his sentencing remarks:

"There is a marked contrast in your criminal history; you, Doolan, having approximately 10 previous convictions for dishonesty, many breaches of Court orders, a number of offences relating to the use of cannabis, street offences for disorderly conduct and your record includes three previous convictions for assault occasioning bodily harm as well as the previous conviction for entering a dwelling house in the night-time with intent. You have served short periods of imprisonment for the last mentioned offences when convicted as a much younger man. You are now at an age when you have to accept greater responsibility for your conduct. You seem to me to have acted, despite your increased age, with great immaturity. After rejecting a peace offering in the nightclub and responding with a threat you engaged Drier in a fight in which he was not willing to participate."

The applicant, as I have said, has served some short terms of imprisonment and his criminal history shows regular appearances in Court between 24 February 1978 and mid-1997.

The learned trial Judge noted the marked difference in the criminal histories of Wood and the applicant. Wood had not previously been sent to gaol but a 1993 appearance in the Townsville Magistrates Court for possession of a pipe used in connection with smoking a dangerous drug and a 1994 appearance in the same Court on a charge of behaving in a disorderly manner appear in his criminal history.

The applicant has argued that the learned trial Judge erred in exercising his sentencing discretion in the following way:

1.Failing to give due weight and consideration to the applicant's lack of criminal convictions for recent comparable offences.

2.Failing to give due weight and consideration to the fact that the complainant's injuries were caused indirectly by the applicant.

3.Placing undue emphasis on the comparative sentence offered up by counsel for the prosecution.

4.Giving undue weight to the circumstances of the co-accused Wood to justify the disparity in sentences between the applicant and Wood.

5.Failing to consider properly the principles relating to parity of sentences.

I should say now the sentencing comments of the learned trial Judge do not disclose a failure to properly consider parity of sentencing and I see no reason to believe that there is any cause for a justifiable sense of grievance on the part of the applicant. In relation to Wood, when sentencing, His Honour had said:

"You have good references, a relatively good work history, and a past history of offences which I do not think are relevant for the purpose of the present sentence."

It has been argued that Wood was the man with the knife whereas Doolan did not have the knife; however they were both jointly charged and it was obviously a section 8 case and Doolan has to bear the same responsibility as Wood for having had the knife in his possession at the time.

The comparable sentence referred to the learned trial Judge was The Queen versus Tony Michael Frazer, CA 252 of 1997 in which judgment was given on 5 August 1997. This was a case in which Frazer had been sentenced to an effective term of imprisonment of four and a half years for one count of burglary and one of assault occasioning bodily harm committed in company and while armed.

Frazer had pleaded guilty. Frazer's convictions on these offences caused an earlier suspended sentence to be activated and served cumulatively to the four and a half year sentence. The offences which attracted the four and a half year sentence involved Frazer and a co-offender going to the complainant's house at night-time, shouting to his 14-year-old stepson to come out and throwing objects at the house.

The complainant, a 62-year-old pensioner, came to the verandah and Frazer and his companion forced their way into the home breaking a locked door. The complainant was knocked to the ground and kicked and struck with a rock weighing about four times more than a house brick.

Frazer was an instance of a home invasion, as was the present case, and in the judgment of Mr Justice McPherson, with whose reasons other members of the Court agreed, His Honour described home invasions as follows:

"An offence towards which the Courts have consistently adopted an attitude of some severity in terms of sentencing. All the worst features of such offences appear to be present here in that it was an attack that was motivated by an intention to take the law into their own hands in order to enforce what appears to have been a civil claim of a kind alleged to exist against a 14 year old stepson."

"One of the worst features of this kind of behaviour is that it involves very often a number of people assisting one of them to get square with someone else in a way that a single individual would probably not dare to do if he was on his own."

For a number of years now the Courts have regularly and consistently warned that home invasions will not be tolerated and will attract substantial sentences by way of deterrence.

I mention The Queen v. Daniels CA 159/90 judgment of the Court of Criminal Appeal of 17 September 1990; The Queen v. J F Anderson CA 134/95 judgment delivered 1 February 1996 and The Queen v. Inkerman CA 294/97 and CA 302/97 judgment delivered

29 August 1997 and The Queen v. Jackson CA 145/98 judgment delivered 16 July 1998.

In the present case, the applicant might well count himself fortunate that he was not more severely dealt with. In my opinion, the applicant has failed to show that the sentences imposed were manifestly excessive or that the learned trial judge erred in the exercise the sentencing discretion. I would refuse the application.

THE PRESIDENT: I agree the application should be refused for the reasons given by Mr Justice Shepherdson.

McPHERSON JA: I agree with what has been said and that the application should be refused.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.