R v Gompelman [2002] QCA 191

Court of Appeal (Qld)|2002-05-28|Before: Murdo P, Cullinane J, Jones J

THE PRESIDENT: The applicant, Robert Gompelman, pleaded guilty to one count of burglary, one count of assault occasioning bodily harm in company, one count of perpetrating a bomb hoax and one count of unlawful entry of a motor vehicle with intent.

The applicant, Brooke Gompelman, pleaded guilty to the offences of burglary and assault occasioning bodily harm whilst armed in company.

Robert was sentenced to an effective term of imprisonment of two and a half years, suspended after 12 months for three and a half years, and, Brooke, to 12 months' imprisonment, suspended after two months for 18 months. They each contend that the sentences imposed were manifestly excessive.

The facts of the offences according to the submissions at sentence were as follows. Slightly different versions were given by the protagonists and by a neighbour of the complainant who became involved.

The complainant was the stepfather of the applicants. On the 23rd of February 2001, the complainant said he was alone in his caravan. He went to bed at about 10.30 p.m. and some time later fell asleep. He was awoken by noises outside. He went back to sleep but was again awoken by a sudden pain in his forehead. He tried to get up out of bed and felt a pair of hands around his throat. He turned on a light and kicked off his attacker whom he recognised as the applicant Robert Gompelman. Robert said he was going to kill him. The complainant also noticed that the applicant Brook Gompelman was in his van. She was holding a steel pipe about 60 centimetres long. The complainant turned to face Robert when he was struck on the back of the neck. He fell to his knees and was struck in the head, neck and leg area about 10 to 15 times by what he later concluded was a part of his sound system. He felt Brooke hitting him around the legs with the pipe.

A neighbour, Mr Howe, came into the van and pulled Robert outside. Brooke followed. Mr Howe stood in the doorway and prevented the applicants from entering the van.

Mr Howe's account was that he saw Brooke holding what he thought was an aluminium tent pole and noticed she had blood on her shirt. He grabbed Brooke around the waist and carried her out of the caravan. He dragged Robert out of the caravan by placing him in a headlock. Robert re-entered the van and pushed Howe aside. Robert punched the complainant in the head and hit him in the head with a car radio. Howe again managed to pull Robert out of the van and prevented him from

re-entering the van. Mrs Howe called police and ambulance.

The complainant was taken to the Townsville General Hospital about 3.30 a.m. He was immobilised in a spinal collar but neurological examination of the upper limbs was normal and there was no cervical tenderness. He had multiple lacerations to the skull and his hair was matted with blood. His left arm was tender over the mid shaft radius. His scalp was cleaned. One laceration was three centimetre full thickness; the second, two centimetre full thickness; and the third, one centimetre partial thickness. The first and second lacerations were sutured. The complainant was given a head injury advice sheet and discharged home to his neighbour.

Brooke was interviewed by police on 24 February 2001, the next day. She said she was sitting outside her mum's place reading when her brother Robert arrived and said, as he did every so often, "I want to go over and bash Dave." She said, "No, don't do that," but reluctantly agreed, Robert practically dragging her out of the door and into his car. Robert got out of the car and handed her what she thought was half a broomstick or something like that. Robert knocked on the caravan door and when the light was turned on and the door opened, he pushed his way in. By the time she entered the caravan, Robert and the complainant were fighting and Robert was bashing him around the legs with the stick, calling him a paedophile, a woman basher and a child basher. The complainant denied these allegations. Whilst Robert held him down and bashed into him, she bashed the complainant's legs. The next thing she knew, Robert was dragged off the complainant by an unknown person, apparently Mr Howe. The complainant went to hit her and she blocked his hit and hit him with her right hand. Robert re-entered the van again and attacked the complainant. She left the van. Mr Howe again grabbed Robert. Robert entered the van a third time. She eventually said, "Come on, let's go home." Robert calmed down and agreed. Prior to the incident she had drunk three glasses of rum and coke.

Robert Gompelman was also interviewed by police on 24 February 2001. He said he was sitting with Brooke talking about the things that had happened during the 12 years of the marriage of his mother and the complainant. He became more and more angry and dragged his sister out of the mother's caravan. They drove to Bohle to the complainant's van. He knocked loudly on the door, waking the complainant. When the complainant answered, he pushed his way into the van and in his words, "started beating the shit out of him". He had two sticks, a long one and short one, and gave one of the sticks to his sister. He had drunk the best part of a bottle of rum beforehand. He threw a cup and a saucer at the complainant's head. He thought he hit the complainant 30 or 40 times. A neighbour tried to restrain him on a number of occasions and after a while he cooled down and they left.

Although there were different versions as to the details of the commission of the offences, these differences were not significant. There can be no doubt that the complainant was violently assaulted in his own home by the two applicants who were each armed with some sort of stick.

The facts of the bomb hoax were as follows: two days later at about 9.50 p.m. on Monday, 26 February 2001, the complainant telephoned police complaining that he had received a threatening phone call from a male person who told him to check his vehicle. Police observed what appeared to be a container of fuel and an explosive device located on the front seat of the complainant's vehicle. The car was approximately 20 metres from the fuel and gas reservoirs of the Caltex Bohle Service Station which is adjacent to a home and caravan park in which a substantial number of people resided.

The area was cordoned off and the surrounding residences evacuated. Police declared a State of Emergency. A bomb technician and an army ordinance expert diffused the article which was found to be a hoax. It consisted of a rope, a cardboard cylinder, tape and milk bottle and raspberry cordial made to look like fuel. It was made by Warren Millington, the current partner of Robert's mother. Millington admitted to police that he placed the fake bomb in the vehicle to frighten the complainant.

Robert was interviewed by police on 28 February 2001. He said Millington was obsessed with scaring the complainant and came up with the idea of the bomb. He eventually agreed to drive Millington to the complainant's caravan park where Millington placed the replica bomb in the complainant's car. Millington then phoned the complainant and told him there was a bomb in the car. Millington and Robert went to a nearby pub and Millington phoned the complainant from there. Millington pleaded guilty to perpetrating a bomb hoax and received six months' imprisonment suspended for two years. He had no prior criminal convictions.

The applicants' counsel, Mr Lynham, emphasises that both applicants entered pleas of guilty at an early stage, and contends that the learned sentencing Judge failed to expressly state that the pleas of guilty were taken into account in determining the sentence.

The learned sentencing Judge referred to the pleas of guilty in his sentencing remarks, although he did not specifically state that he took into account the guilty plea in determining the sentence imposed, as required by section 13(3) of the Penalties and Sentences Act 1992 (Qld). (See also R v Mallon, CA No 480 of 1996, 21 March 1997). But this does not make the sentence invalid. (See section 13(5) of the Penalties and Sentences Act 1992 (Qld)). The real issue here is whether the sentences imposed sufficiently took into account the early pleas of guilty and the other mitigating factors, and whether the sentence was manifestly excessive in all the circumstances.

The applicants' counsel at sentence detailed a long history of family conflict involving the complainant who married the applicants' mother in September 1989. They separated in March 1996. In addition to the stepchildren, the applicants in this case, there were three daughters of the marriage, so that the complainant and the applicants' mother remained in contact following their separation. Their relationship remained one of conflict. Robert claimed to have been physically and mentally abused by the complainant, and Brooke claimed that the complainant had touched and fondled her breasts.

In a letter tendered to the Court, which was not challenged by the Prosecutor, the applicants' mother claimed that the complainant had assaulted, stalked and threatened her over a lengthy period. She had domestic violence orders taken out against him which had been breached. The complainant was charged with stalking and pleading guilty to the charge of threats with violence in the District Court on 25 September 2000. She outlined the sexual and physical abuse she was subject to at the hands of the complainant. What finally caused her to separate from him in 1996 was a complaint from her three and a half year old daughter that he had rubbed her vagina. The complainant was charged and committed for trial but the case did not proceed because of the very young age of that complainant. The complainant here then commenced a period of stalking and harassing the mother, forcing her to move towns. The complainant obtained her address by pretending to her sister that he was a police officer. He then followed her to Nanango. She obtained a domestic violence against him which was not served by police for some time. This did not deter him. She rang the police constantly and felt she did not get the assistance she needed. The police advised her to move out of town.

The complainant obtained a site in the same caravan park in which the mother was living. Her son, Robert, came up from Victoria and he and Brooke took on a protective role towards her. They started to harass the complainant to make life difficult for him. She and her children moved to Hughenden. The complainant commenced proceedings in the Family Court to have contact with his three children. Counselling had the result that he agreed to see the girls on a supervised basis in her home and in her presence. This worked for three weeks until a major disturbance erupted. Robert and Brooke went to Victoria in Christmas 1997 and stayed there for a time. In November 1998, the complainant was charged with stalking. In mid-September 2000, he pleaded guilty to threatening violence and received 100 hours community service and 12 months' probation. She obtained an interim domestic violence order on 23 January 2001 which was made final on 4 April 2001. Ongoing counselling did not resolve their difficulties and the matter was listed on a number of occasions in the Family Court. In the mother's view, her children acted out of frustration, believing the system had not protected their mother and her children from the complainant's conduct. She nevertheless acknowledged that the applicants had done wrong. The evening before the sentence, she received a phone call from the complainant in which he laughed over the phone saying, "Your kids are going to gaol. They're out of the way. Now watch your place burn."

The complainant has an extensive criminal history for offences of dishonesty, and offences of assault on a female, (commencing in 1973). His relatively minor criminal history continued through 1978 to 1998 with some driving convictions, street offences and a conviction for unlawfully carrying a loaded firearm. In April 2000, he was convicted of offences of assault occasioning bodily harm and was placed on 18 months' probation with special conditions that he attend and complete a parenting course and an anger management course conducted by Centacare, Townsville and that he submit to and undertake the anger management program conducted by the Department of Corrective Services. He breached that order on 15 June 2000. As has been noted, in September 2000, he was convicted of threatening violence by words or conduct, the complainant being the applicants' mother.

The complainant's victim impact statement records that the complainant suffered violent head pain and throbbing back pain following the attack. He spent 24 hours at the Townsville General Hospital and had massive bruises over his head, neck and left leg area.

For a fortnight after the attack he had difficulty walking because of the bruising to his leg. He had trouble moving his neck to the right. His neck still aches when he moves his head to the right. He was 53 at the time of the assault and is a pensioner. He has moved to another area and is now much more security conscious. He is now uncomfortable in a group of people and rarely socialises.

The unusual feature of this case is that on the material before this Court it was claimed that the complainant had perpetrated domestic violence and abuse upon the applicants and their mother and family. Of course, those allegations have not been fully investigated, but they were not disputed by the prosecution, and, importantly, that was the belief of the applicants when they committed the offences. The complainant's criminal history gives the claims some support. It seems that these offences were committed out of a misguided sense of loyalty by the applicants to their mother and half-sisters who had been victims of the complainant's unlawful behaviour, and also because of their own unpleasent experiences with the complainant.

But in offences of this type, offenders often claim some sort of justification for their actions, and justification is not necessarily a sound reason to impose a lenient sentence. It is true the applicants did not have significant criminal histories and that they pleaded guilty at an early stage. They were also very young. The Courts, however, cannot condone the conduct of those who would, fuelled by alcohol, take the law into their own hands as it seems the applicants did here. Salutary deterrent penalties must be imposed to deter those who would think of taking such a course, otherwise the criminal justice system and civilised society would decay. (See, for example, the comments in R v Brelsford CA No 301 of 1995, 14 September 1995 at page 4).

It was an aggravating factor that two armed offenders were involved. This created the real potential for more serious injury or even death to be inflicted upon the victim. It is fortunate that his injuries appear to have been relatively minor and that he has largely recovered. On the other hand, the particular facts of this case do not suggest the applicants are likely to be repeat violent offenders.

There can be no doubt that the applicant Robert Gompelman's conduct was more serious than that of Brooke. He encouraged and cajoled her to become involved in the offences. Robert then committed the bomb hoax after he had been charged and apparently placed on bail. He was older, stronger and had a more significant criminal history and was more involved in the violence of the offences.

The sentence imposed upon Robert Gompelman, whilst not lenient, was not in my view manifestly excessive. (Compare R v Brelsford to which I have already referred). A substantial actual period of custody had to be imposed in this case to deter those who would seek revenge by invading the home of and assaulting another, destroying his property and whilst on bail terrorising him with a bomb hoax placed in his car. Robert Gompelman's application for leave to appeal against sentence should be refused.

Brooke Gompelman is in a different category. She was only 17 at the time she committed these offences, and, as I have noted, was importuned to do so by her older brother who was more proactive in the offending. Although I am not persuaded that the sentence originally imposed by the sentencing Judge was in itself manifestly excessive, her circumstances have changed since sentence and the prosecution concedes that this Court should look at those changed circumstances.

At sentence she was five and a half months pregnant. Had she served her two months actual imprisonment she would have been released prior to having the baby. She was granted bail pending appeal after she had served 32 days and she had the baby on the 13th of May 2002, she is now a young mother. Those changed circumstances, combined with the other ameliorating factors in this case, mean that the sentence imposed at first instance is now manifestly inappropriate and therefore excessive. Her sentence should be suspended forthwith.

In respect of Brook Gompelman, I would allow the application for leave to appeal against sentence to the limited extent of suspending the sentence forthwith so that no further term of actual imprisonment is required to be served. I would otherwise confirm the sentence imposed below.

CULLINANE J: I agree with the orders proposed by the President and the reasons she has given.

JONES J: The circumstances of the relationship between the complainant and the applicants and their mother and siblings give rise to consideration of mitigation. The extent to

which and the manner in which this would reduce the penalty is a matter on which minds may well differ.

Mr Lynham argues that by suspending the sentence for assault occasioning bodily harm imposed on Mr Robert Gompelman after 12 months where the parole may have been expected after 15 months did not make sufficient allowance for those mitigating circumstances.

Those mitigating circumstances may well have been taken into account by the learned sentencing Judge in formulating the head sentence. It is the total impact of the orders and the end result that must be considered. Whilst it cannot be said that the sentence is in any way lenient, at the same time I do not regard it as being manifestly excessive, and I would agree therefore with the reasons and the order imposed in respect of Robert Gompelman, and indeed with the applicant Brooke Grace Gompelman.

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