R v Green [1996] QCA 306

Court of Appeal (Qld)|1996-08-02|Before: Derrington J, MacKenzie J, White J

The applicant, who was armed with a knife with a six to eight inch blade, demanded money from her. The complainant told him the place was a convent and there was no money. Upon being asked about other occupants she told him that there were none. Then she remembered $60 in her wallet which she handed to the applicant. He responded by asking where the safe was and she said there was none.

The applicant then told the complainant to get into a cupboard which she did but after ascertaining that it could not be locked the applicant located the phone and tore its cord from the wall. The complainant was then told to get on the bed and when she sat there, the applicant told her to take her pants off. When she refused he said, "Do it or I'll kill you." She said it was not worth murdering her for $60.

He responded by trying unsuccessfully to block the doorway by moving the cupboard across it. The complainant took that opportunity to grab the arm in which the knife was held and manoeuvre herself into the hallway. She effected her escape to outside the building where she raised the alarm.

When the applicant was located after being identified from the fingerprints he denied doing any breaking and entering. However, he did indicate about a week later to the police that he was responsible.

It can be seen from what I have said that but for the resourcefulness and courage of the complainant the outcome might not have been so favourable. The applicant had previous convictions for house breakings - the trial Judge was told there were 22 - and for other offences of dishonesty. He was dealt with for separate series of offences in 1987, 1988 and 1989. He remained largely conviction free from 1989 until the present offences.

He was 25 at the time of the offences and on his behalf it was said that he was affected by amphetamines and Mogadon at the time of the incident. The appeal is really based on two propositions. The first is that a head sentence of 10 years' imprisonment is manifestly excessive having regard to a number of matters dealt with on other occasions.

The other is that a recommendation for release on parole should have been made in any event at an earlier time than that provided for under the statute. In my view it is not surprising that the learned trial Judge took a very serious view of the matter. It is true that the complainant did not suffer physical injury. However, the incident was undoubtedly disturbing to her.

Other bad features of the case are that he invaded a woman's bedroom in an institution usually sacrosanct from such intrusions. He was armed with the knife. He made threats to kill and his conduct would have engendered in the woman a reasonable fear that she would be sexually assaulted.

He also tried to prevent her from escaping physically and by blocking the door with furniture. Despite her resistance he persisted in his conduct rather than desisting. That all has to be viewed against the background of his history of house breaking and like offences.

Now, it seems to me that as I have said it was open to the learned trial Judge to take a very serious view of the matter and in my view a head sentence of 10 years' imprisonment was not manifestly excessive in all of the circumstances.

The learned trial Judge did say in his reasons that he had had regard to the fact that there had been a plea of guilty. Unfortunately, it is not easy to discern precisely how he approached the matter and one is left with the difficulty that if the head sentence is appropriate for this offence, it is difficult to see how it has been an adequate reflection of the plea of guilty having regard to all of the circumstances.

It is, in my view, not a case where a large discount is available to the accused. Nonetheless, the fact that he did plead guilty on ex officio indictment saving the State money and the complainant the stress of having to give evidence should be adequately reflected. In my view, a recommendation for consideration for release on parole after four years should have been allowed in the circumstances of the case and I would so order.

DERRINGTON J: The order of the Court is that the application for leave to appeal is granted. The appeal is allowed. The sentence is varied by adding a recommendation that the appellant be considered for parole after four years.

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