R v Hess [2003] QCA 553

SUPREME COURT OF QUEENSLAND

CITATION: R v Hess [2003] QCA 553

PARTIES: R v HESS, Raymond (appellant)

FILE NO/S: CA No 122 of 2003 / SC No 69 of 2003

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction & Sentence

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 12 December 2003

DELIVERED AT: Brisbane

HEARING DATE: 11 September 2003

JUDGES: Jerrard JA and Dutney and Philippides JJ / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: 1. Appeal dismissed / 2. Application for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where appellant entered guilty pleas very late – where no sign of genuine remorse – where limited prior criminal history – whether sentence manifestly excessive / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENTAND PUNISHMENT – SENTENCE – CONCURRENT SENTENCES – SENTENCES ON TWO OR MORE COUNTS – where appellant sentenced to four years imprisonment to be suspended after serving 18 months on one count – where appellant sentenced to concurrent three year terms on other two counts – where no provision made for suspension order in latter two sentences – whether failure to include suspension order constitutes an oversight by learned sentencing judge / Criminal Code (Qld), s 7, s 8 / R v Austin, Liddell & Townend; ex parte A-G (Qld) [1997] QCA 160; CA No 133-135 of 1997, 27 May 1997, considered / R v Couper [2003] QCA 429; CA No 213 of 2003, 25 September 2003, discussed / R v Gompelman & Gompelman [2002] QCA 191; CA No 72 and 73 of 2002, 28 May 2002, considered / R v Hobson [2003] QCA 67; CA No 373 of 2002, 21 February 2003, distinguished / R v Houghton & Genrich [1998] QCA 137; CA Nos 424 and 425 of 1997, discussed / R v Porter [2002] QCA 59; CA No 261 of 2001, 8 March 2002, considered / R v Zerafa [1992] QCA 61; CA No 344 of 1991, 24 February 1992, considered

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

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

1. JERRARD JA: On 4 March 2003 Raymond Hess pleaded guilty to three charges. One was that he committed the offence of burglary with James John Power when James John Power was armed with a dangerous instrument, and when James John Power used actual violence. The second count was one of unlawfully wounding Stephen John Gough, and the third of unlawfully assaulting Mr Gough and doing him bodily harm while he, Raymond Hess, was in the company of another person, namely James John Power. On 20 March 2003 Mr Hess was sentenced to four years imprisonment on the first charge, such imprisonment to be suspended after Mr Hess had served 18 months in prison, and the suspension to be for an operational period of five years. On the other two counts he was sentenced to concurrent terms of three years imprisonment and on 8 May 2003 the learned sentencing judge made further orders, clarifying that those sentences were also suspended after 18 months. On 17 April 2003 a document in form 26 was received in the Brisbane Registry of this Court, in which Mr Hess recorded that he wished to appeal against his conviction and sentence.

2. The grounds of appeal were that on the day of his sentence his counsel was not there on behalf of Mr Hess, and Mr Hess felt he was pushed into making a plea of guilty on charges of which he was not guilty. He did not specify any grounds for application for leave to appeal against his sentence. When the appeal was called on, Mr Hess told the court that he just wanted to appeal against the sentence, and argued that it was manifestly excessive; some of the arguments he presented were really assertions that he had not committed any offence at all. To asses the merit of those statements, and of the original grounds for appeal against his conviction, it is necessary to understand the case made for the prosecution and the circumstances in which he entered his late pleas of guilty.

The circumstances of the offence

3. Mr Hess was originally charged jointly on an indictment with Mr Power with offences of aggravated burglary (to which he subsequently pleaded guilty), attempted murder, unlawfully wounding with intent to do grievous bodily harm, unlawfully wounding, and assault occasioning bodily harm while in company. He ultimately pleaded guilty to those latter two charges as well. What was originally a trial on all counts commenced on 4 March 2003 in the Brisbane Supreme Court and evidence was called from a David Snelgrove, a witness to the critical event. Mr Snelgrove is the father of Andrea Snelgrove, whose home was burgled, and whose partner Stephen Gough was the victim of the unlawful wounding and assault occasioning bodily harm. Mr Snelgrove’s evidence was that he had travelled to Loganlea via Brisbane from Melbourne because his daughter was having a “pretty turbulent time” and he intended to suggest she return to Melbourne with him. On 8 January 2002 he was staying at her home, and his understanding was that the two children of her relationship with the co-accused James Power were at Mr Power’s home. At about 9.40 p.m. that night when Andrea and Stephen were in the main bedroom and the house was in darkness, two people entered it through the closed, but probably unlocked, rear door. One was Mr Power and the other Mr Hess. Mr Power had a large butchers’ knife and seized Mr Gough around the throat, saying words to the effect:

“I’m going to kill you, you bastard. I’m going to cut your head off.”

Mr Power was sawing Mr Gough’s throat with the butchers’ knife as he was saying this. Mr Snelgrove saw blood running onto the knife, and Mr Gough, who had been standing against a wall beside the bed, was released by Mr Power; and then Mr Hess began head butting Mr Gough, saying words to the effect:

“You’re going to die, mate, you’re going to die.”

4. Mr Power called out to Mr Hess:

“Come on. We’re going. We’re leaving. We’re getting out of here.”

and Mr Power left through the back door. Mr Hess followed him, but only after Mr Snelgrove had said:

“Go on, get out of here you are not wanted here. Get out.”;

to which Mr Hess replied:

“You will be next. You will be next.”;

and:

“You know why this happened, don’t you? That’s what Stephen gets for sleeping around with other people’s wives.”

5. Mr Snelgrove knew James Power, his daughter’s husband and previous partner, and she told him that Mr Hess was a friend of Mr Power’s. She identified Mr Hess as “that’s Raymond”.

6. It is obvious identity could not have been an issue in this case. The description Mr Snelgrove gave was of an entry at night by two persons, both of whom hurried up a hallway “really quickly” to enter the main bedroom in which Andrea Snelgrove and Stephen Gough were sleeping, and each of who attacked Mr Gough. Mr Snelgrove’s evidence demonstrated that Mr Hess and Mr Power entered the premises with the shared purpose of inflicting injury on Mr Gough because of his relationship with Andrea Snelgrove. Mr Power was obviously armed, and while Mr Hess did not physically assist in the assault with the knife, he was present in the bedroom whilst it was happening, and himself assaulted Mr Gough immediately after.

The plea

7. Mr Hess was represented by an experienced and competent counsel on that day, 4 March 2003. At the conclusion of Mr Snelgrove’s evidence in chief that counsel sought and obtained an adjournment. When the court resumed that afternoon when counsel was still present, Mr Hess and Mr Power were both re-arraigned at their request, and Mr Hess then pleaded guilty to the charges described. Mr Power pleaded guilty to the aggravated burglary charge, to unlawful wounding with intent to do grievous bodily harm, and to assault occasioning bodily harm while in company. The prosecution withdrew the count of attempted murder against both men.

The sentencing process

8. The Crown made its submissions on sentence that day, which included that Mr Hess should receive a head sentence of four years imprisonment, and Mr Power one of six years. The sentence was adjourned to allow victim impact statements to be received, and resumed on 19 March 2003. The learned counsel for the Crown made further submissions on sentence that day, and Mr Hess was represented by the same experienced barrister as on 4 March 2003. That counsel made submissions in mitigation on 19 March, which submissions included that he did not dispute the head sentence suggested by counsel for the Crown (at AR 41), and counsel suggested that the issue on sentence was at what point would the learned judge partially suspend that head sentence, in recognition of the plea of guilty. Partial suspension was sought by Mr Hess’ barrister, because that counsel’s experience was that “parole is generally not given” to applicants such as Mr Hess.

9. The late plea of guilty entered by Mr Hess was explained by his barrister as being because:

“… people with no real understanding of the legal situation can have some difficulty accepting that they are legally responsible for something that they haven’t done. That is that, you know, there was never any suggestion that he had cut the man’s throat so it was the difficulty of explaining the legal ramifications of what his involvement was that can make him guilty of the offence.” (sic)

10. Later that day as all waited for the victim impact statement to arrive, counsel for Mr Hess was excused further attendance, because his presence was required in another court. He had by that stage made all available submissions in mitigation for Mr Hess. Ultimately the matter was adjourned, and on 20 March 2003 it resumed when victim impact statements were finally provided. On that day there was no barrister representing Mr Hess. All that occurred that day was that the victim impact statements were received and read, and the learned judge confirmed details of pre-sentence custody and then imposed the sentences which had very largely been the subject of agreement.

The appeal against conviction

11. The grounds of appeal against conviction provided by Mr Hess show that he continues to suffer a lack of understanding of the basis on which he is responsible for the conduct of Mr Power, who was the person who actually cut Mr Gough’s throat. Mr Hess is responsible for that act, which unlawfully wounded Mr Gough, because he engaged in a criminal enterprise in common with Mr Gough. Section 7 of the Criminal Code provides:

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say –

(a) every person who actually does the act or makes the omission, which constitutes the offence;

(b) every person who does or admits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence. …”

An offence of cutting Mr Gough’s throat was actually committed by Mr Power. Mr Hess had entered the house unlawfully at night with Mr Power, obviously providing him with “back up”, and in those circumstances Mr Hess by his presence could be found guilty of that unlawful wounding. This is because a person who by his presence at the commission of a crime encourages and intends to encourage thereby the commission of an offence, is just as guilty as if he himself actually committed it. If there could be any doubt about why Mr Hess was present, and whether he was intending by his own presence to encourage Mr Power to attack Mr Gough, Mr Hess dispelled that doubt by what he said to Mr Snelgrove.

12. There is also s 8 of the Criminal Code. This provides:

“When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

In the circumstances of this case, the common intention that a jury could have found was a common intention that Mr Power would attack Mr Gough with the knife that Mr Power was carrying. It is inconceivable that Mr Snelgrove noticed a knife and Mr Hess did not. In those circumstances a jury could have found that the unlawful wounding of Mr Gough by cutting his throat was a probable consequence of the prosecution of the purpose described. Accordingly, each man was deemed to have committed at least the offence of unlawful wounding of Mr Gough.

13. Those same principles of our law explain why Mr Power was equally guilty of the offence committed upon Mr Gough by Mr Hess, when Mr Hess head butted Mr Gough. A jury would have been entitled to find that an assault committed by Mr Hess was a probable outcome of the agreement to enter Ms Snelgrove’s residence and assault Mr Gough. Both men committed the burglary, so each is liable for his own actions there, and the burglary was committed in circumstances in which one of them was armed with the knife. Once the jurors were satisfied that Mr Hess knew Mr Power had the knife when they unlawfully entered Andrea Snelgrove's home, then Mr Hess was equally guilty of having committed that offence of armed burglary.

14. Mr Hess argued the sentence imposed on him was excessive because he had gone to the premises with the sole purpose of getting a lift home from Andrea Snelgrove. He said he did not know Mr Power’s intentions, did not know Mr Power was armed with a knife, that he (Mr Hess) had spoken to Andrea Snelgrove through the window of her house, asking her for a lift home and had been told to go to the back door. That was why he entered the house. Mr Power had come in after Mr Hess and “…it all just happened and I had nothing to do with it.”¹ He said that “the head butt to Gough was an accident.”

15. Although those statements, if true, would mean that Mr Hess had not committed any offence at all, he showed no interest in re-enlivening his abandoned appeal against his conviction. Regarding that appeal, the onus lies on Mr Hess to establish that a miscarriage of justice took place when the court accepted and acted on his plea, and the essential question is whether the entering of those pleas of guilty should be regarded as attended by such unfairness as to warrant a new trial.² The appeal record discloses no basis for any finding that there was any unfairness to Mr Hess in entering those pleas of guilty, particularly when at all relevant times he was represented by counsel, and his plea of guilty appeared to have been an intelligent response to the evidence led against him. The submissions made on his behalf by his counsel did not challenge any of the facts observed and described by the Crown witness Snelgrove, and the claims Mr Hess made from the bar table on his appeal were entirely unconvincing when weighed against that unchallenged evidence. (The fact that a plea of guilty had been entered would not have prevented counsel from contesting relevant facts on a plea). The abandoned appeal against conviction should be dismissed.

The application for leave to appeal the sentence

16. Regarding the application for leave to appeal against the sentence, Mr Hess particularly pressed the argument that there ought to have been an earlier suspension of the imprisonment he must serve. He is anxious to rejoin his family and re-enter the life of his youngest child, who was only two months old when Mr Hess was sentenced to imprisonment. In support of his argument Mr Hess referred to a number of earlier decisions of this court and made submissions about those upon which the prosecution relied.

Sentences the applicant relies on

17. Turning to a consideration of other sentences, some were clearly special cases. That certainly applies to two decisions on which Mr Hess relied; one being a matter of R v Hobson³. In that matter that applicant had pleaded guilty to one count of burglary and one count of grievous bodily harm, and was sentenced originally to three years imprisonment on both counts. This court reduced that to a sentence of 12 months imprisonment on each, to be followed by a two year period of supervision by an authorised Corrective Services Officer. What made that a rather special case was that the applicant was 22 years of age when he offended, the complainant was then 15 years old, they had been in a relationship for the previous 12 months, and after the applicant had offended had since resumed that relationship and had a child whom they were raising together as a couple when that applicant was sentenced. They were living at that time with the complainant’s maternal grandmother.

18. That applicant has a prior conviction for assault in February 2000. The circumstances of the offences the subject of the application for leave to appeal were that Mr Hobson had visited the complainant’s home at Coen, to which the complainant and her family had returned after living for a period at Kowanyama, at about one o’clock in the morning. The complainant had heard the applicant calling our her name and found him standing in the lounge room. He appeared to be drunk, pulled her hair very hard and when she fell to the floor screaming, he began to kick her. Altogether he kicked her six to seven times before her mother intervened. The complainant suffered lacerations to her eyelids, tear drainage damage, haemorrhaging in her eyes, lacerations to her lips, and some facial bruising. Surgery to her right eye in the Royal Brisbane Hospital was necessary to prevent permanent cosmetic deformity and damage to her tear duct.

19. This court particularly relied on that applicant’s youth, his demonstrated capacity for rehabilitation, the fact of reconciliation between the applicant and the complainant, the applicant’s shared responsibility for upbringing their child, his timely plea of guilty, and the fact no weapon was used, in reducing that sentence of imprisonment. That case is very different from this one and does not help Mr Hess. Likewise the case of R v Gompelman & Gompelman⁴ does not help Mr Hess. In that matter 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. His sister pleaded guilty to one count of burglary and one of assault occasioning bodily harm whilst armed in company.

Sentences the Crown relied on

36. The Crown referred the court to the sentences imposed in R v Houghton & Genrich⁸ and in R v Hardman⁹. In the latter case the applicant Hardman was sentenced on his plea of guilty to a charge of burglary with threats of violence while armed and in company to three and a half years imprisonment, with a recommendation for consideration for parole after 16 months. His application for leave to appeal against sentence was refused. He and his co-offender, one Robinson, had gone to the complainant’s residence which was opposite Mr Robinson’s house, after they had been drinking together at a hotel. Mr Hardman did not know the complainant, but Mr Robinson did, and wrongly believed he had a grievance against him.

37. When those offenders arrived at the complainant’s residence, Mr Robinson called out threats, including a threat to kill the complainant when the latter stepped outside, as Mr Robinson invited him to do. Mr Hardman was then standing to one side holding a stick. Eventually the complainant left his house through the back door as some one was kicking open the front one. Mr Robinson then entered the premises but Mr Hardman did not. He admitted to the police that he had a knife with him at the time and declared that he had wanted to kill the complainant, even though he had no prior acquaintance with him. He also admitted having kicked the complainant’s door.

38. While on bail for that offence he committed an unlawful assault on his own neighbour, and then on a latter occasion wilfully and unlawfully damaged two windows and a door, that being that neighbour’s property. On that second occasion he also assaulted a police officer. He was sentenced for those offences at the same time as he was for the offence of burglary with threats of violence whilst armed and in company.

39. That applicant had prior convictions for assault, including aggravated assault, and for serious assault on a police officer. His convictions for earlier acts of violence were therefore more serious than those of Mr Hess, but that applicant did not himself use any force on that complainant, although he did kick the door and was armed. The fact that that complainant was not attacked at all makes the three and a half year sentence imposed on Mr Hardman comparable with the four year sentence imposed on Mr Hess.

40. The prosecution also relies on the decision in R v Houghton & Genrich, in which those defendants had pleaded guilty to one count of house breaking and one of assault occasioning bodily harm in company whilst armed. Both were sentenced to four years imprisonment with a recommendation for release on parole after 15 months. Those sentences are certainly comparable to that imposed on Mr Hess; those two offenders unsuccessfully applied for leave to appeal.

Footnotes

1. Transcript page 5. ↩

2. See R v Gadaloff [1999] QCA 286; CA No 24 of 1999, judgment delivered 24 September 1999. ↩

3. [2003] QCA 67; CA No 373 of 2002, judgment delivered 21 February 2003. ↩

4. [2002] QCA 191; CA No 72 and 73 of 2002; judgment delivered 28 May 2002. ↩

5. [1992] QCA 61; CA No 344 of 1991, judgment delivered 24 February 1992. ↩

6. [1997] QCA 160; CA Nos 133-135 of 1997, judgment delivered 27 May 1997. ↩

7. [2002] QCA 59; CA No 261 of 2001, judgment delivered 8 March 2002. ↩

8. [1998] QCA 137; CA Nos 424 and 425 of 1997, judgment delivered 26 February 1998. ↩

9. [2001] QCA 15; CA No 312 of 2000, judgment delivered 6 February 2001. ↩

10. [1995] QCA 594; CA No 301 of 1995, judgment delivered 14 September 1995. ↩

11. [1997] QCA 306; CA No 252 of 1997, judgment delivered 5 August 1997. ↩

12. [2003] QCA 429; CA No 213 of 2003, judgment delivered 25 September 2003. ↩