R v Drinkwater [2006] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION: R v Drinkwater [2006] QCA 82

PARTIES: R v DRINKWATER, John Charles (applicant)

FILE NO/S: CA No 216 of 2005 / DC No 149 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Ipswich

DELIVERED ON: 22 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 22 March 2006

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

ORDER: Application dismissed

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 – where the applicant was found guilty after a trial of extortion, wilful damage and attempted arson – where he was sentenced to six years’ imprisonment with terms of 12 months and three years to be served concurrently – where the applicant made lethal threats accompanied by physical violations of the complainant’s home – where at sentence it was acknowledged that the applicant had virtually no criminal record and a good work history – whether the sentence was manifestly excessive in all the circumstances / R v Coleman [1995] QCA 549 considered / R v Shambrook [1997] QCA 356 considered / R v Stokes [1993] QCA 467 considered / R v Stratton [1992] QCA 102 considered

COUNSEL: P Callaghan SC for the applicant / T A Fuller for the respondent

SOLICITORS: Boe Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I will ask Justice Keane to deliver his reasons first.

KEANE JA: On 26 July 2005, the applicant was convicted, by the verdict of a jury after a trial conducted in the District Court of Queensland, on one count of extortion, one count of wilful damage and one count of attempted arson. On 29 July 2005, the applicant was sentenced to six years imprisonment in respect of the extortion and concurrent terms of 12 months and three years for the wilful damage and attempted arson respectively. The applicant seeks leave to appeal on the ground that his sentence was manifestly excessive. The circumstances of the offence may be shortly stated.

At about 9.15 pm on 3 March 2004, the complainant was at his home when his attention was drawn to noises outside. He noticed the smell of fuel in his carport and saw that his car was dripping with petrol. He heard a car drive away, then he called the police.

On the following day, the applicant telephoned the complainant and asked for $50,000. It was apparent from the terms of the demand that the caller was claiming to act for business associates of the complainant. He warned the complainant that he could easily have set alight the complainant's car and that the complainant should pay up. The complainant called the police.

On the morning of 28 May 2004, eight petrol bombs were thrown at the complainant's house and diesel was poured over his fence. Some damage was done to the complainant's garden and garage, but there was no serious damage to the house and no one was injured. This incident was followed by further telephone calls to the complainant demanding $55,000. On one occasion it was said that, if the money was not paid, the caller would "go and see Natalie" (Natalie being the complainant's daughter).

Investigating police marshalled a strong circumstantial case against the applicant. Nevertheless, the applicant went to trial, although he did not give evidence. The applicant's motivation for these offences appears to have been financial, deriving from an association with a business connection of the complainant.

As to the applicant's circumstances, the applicant was born on 25 January 1960. He was 44 years of age at the date of the offences, and 45 years of age at the date of sentence. His criminal history was of a minor nature, consisting of a conviction in February 1986 for being unlawfully found in a dwelling house and aggravated assault on a female. He was discharged under section 657A of the Criminal Code 1899 (Qld) on his recognisance to be of good behaviour for two years. By reason of the terms of section 657A of the Criminal Code at the time of his earlier offending, no conviction was recorded.

The applicant has a good work history and a record of voluntary service within the community. He is married and supports a 15 year old son.

In passing sentence, the learned sentencing judge acknowledged that the applicant had virtually no criminal record and a good work history. On the other hand, the learned sentencing judge referred to the importance of both general and personal deterrence in this case of a “planned course of conduct over a protracted period” to extract money by acts of violence. Her Honour also referred to the absence of remorse and co-operation with the authorities on the applicant's part.

Victim impact statements were placed before the learned sentencing judge. These showed that the complainant and his family had suffered considerably from the applicant's terrifying conduct.

The applicant's contention is that the learned sentencing judge failed to consider the applicable range of appropriate sentences established by reference to decisions of this Court. It is argued that this range is such that six years imprisonment for extortion is at the very top of the range which could have been imposed, and that this level of the applicable range should be reserved for offenders with substantial histories of previous offending. Reference to the authorities upon which the applicant relied shows that this submission could not be made good.

In R v Coleman [1995] QCA 549, an extortionist with a bad criminal record for serious offences of violence was sentenced to five years imprisonment. In that case, however, the offender pleaded guilty. Further, there were only telephone threats, unaccompanied by actual demonstrations of violent behaviour directed to person or property. It should also be noted that the Court’s conclusion in that case was not that five years imprisonment was near the top of the range, but rather that it was not manifestly excessive.

The applicant also referred to the 1993 decision of R v Stokes [1993] QCA 467. In that case, the head sentence of five years had been imposed after a trial. Once again it was held that the sentence was not manifestly excessive. The offender, who had caused a shopping centre to be shut down with a bomb threat, there did have an extensive criminal history; but, once again, the dire threats made by the offender were not accompanied by physical attacks, much less dangerous and potentially lethal attacks on the victim's home.

The applicant principally relied upon the decision of this Court in R v Shambrook [1997] QCA 356. In that case, the offender was convicted on six counts of extortion and one count of wilful damage, which involved slashing the tyres of the victim's motor vehicle. The object of the extortion was to attempt interference with the course of justice. In that case the offender had, like the offender here, no prior criminal history. Davies JA described the sentence of effectively three years imprisonment as, "well within the range of a sound discretionary judgment" and said that the sentence was "towards the middle of” the range. It should also be said, once again, that although the threats were backed up by the slashing of the tyres on the victim's car, this conduct did not involve physical violations of the complainant's home, which were potentially lethal to persons then occupying the home as well as to the home itself.

In this case, the applicant engaged in dangerous acts of physical violation of the complainant's home as well as lethal threats to the persons within. This occurred on two occasions. It is this feature of the present case which leads me to the view that the authorities on which the applicant seeks to rely are not truly comparable with the present case and that they do not support the submission made on behalf of the applicant.

The decision of this Court in R v Stratton [1992] QCA 102 demonstrates that the top of the range for the offence of extortion was not five years, as submitted by counsel for the applicant. In that case, a sentence of nine years was reduced to seven years by this Court.

Having regard to the deliberate, brutal, planned and persistent criminality involved in the present case, and the terrifying effect which it must have had on the complainant and his family, I consider that the need for general and personal deterrence amply supports the sentence imposed. The objective criminality of the applicant's conduct, and his lack of remorse, are such that the circumstance that he has no criminal history is of comparatively little weight in striking a sentence which balances all relevant considerations. I would refuse the application for leave to appeal against sentence.

WILLIAMS JA: The dousing with petrol of the car in the carport on 3 March, 2004 and the throwing of eight petrol bombs towards the house on 28 May, 2004 make this offence a particularly serious example of the offence of extortion. I agree with all that's been said by Keane J and with the order he proposed.

DOUGLAS J: I agree with Keane JA and Williams JA and with the orders proposed.

WILLIAMS JA: The order of the Court is that the application is dismissed.