R v Howell [2021] QCA 89

ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 15 November 2019 (Richards DCJ)

DELIVERED ON: 5 May 2021

DELIVERED AT: Brisbane

HEARING DATE: 20 November 2020

JUDGES: Fraser and McMurdo JJA and Henry J

ORDER: The application for leave to appeal against sentence is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to eight years imprisonment for a number of offences – where the primary judge imposed a cumulative sentence – whether the primary judge used, and misapplied, the Nagy principle such that the applicant was punished twice / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered

COUNSEL: M J Jackson for the applicant S Bain for the respondent

SOLICITORS: Owens & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. FRASER JA: I agree with McMurdo JA’s reasons and the order proposed by his Honour.

2. McMURDO JA: On 15 November 2019, the applicant was sentenced in the District Court for a number of offences, resulting in a period of imprisonment of eight years with a parole eligibility date after three and a half years. A total of 305 days was declared as presentence custody.

3. The applicant was convicted of one of the offences after a trial. That offence was armed robbery in company, committed on 31 December 2018, in which the applicant wounded the victim. For that offence, he was sentenced to a term of five years’ imprisonment. He makes no challenge to that sentence.

4. At the same time, the applicant was sentenced for an offence on another indictment, together with two summary offences. That other indictable offence was committed on 14 January 2019, when he and another person entered a dwelling and stole various items, including a laptop, computer equipment, a wallet and its contents, a jewellery box and its contents and a camera.

5. The summary offences were committed in March and May 2018 and were, respectively, an offence of threatening violence and one of wilful damage to property. For each of those summary offences, he was sentenced to a term of 12 months imprisonment, to be served concurrently with the five year term. He makes no challenge to those sentences.

6. The applicant’s challenge is to the sentence for the burglary and stealing offence committed in 2019, which was one of three years’ imprisonment to be served cumulatively upon the five year term. The stated ground of his proposed appeal is that the sentence is manifestly excessive. However, it is also argued that there was an identifiable error in the judge’s reasoning, in that herHonour effectively increased that sentence for the fact that the applicant had committed the summary offence of threatening violence. As I have said, the sentence for that summary offence was ordered to be served concurrently with the five year term. The argument is that the judge effectively punished the applicant twice by treating it as an aggravating factor in fixing the term of three years which is challenged.

7. Although the five year term is not challenged, it is necessary to say something about that offence. The applicant and two co-offenders went to pick up the complainant, intending to steal his jewellery which the judge described as fairly valuable. One item which was taken was valued at $13,000, and another was valued at $6,600. The applicant confronted the complainant, producing a knife and stabbing him in the chest. The complainant had to be taken to hospital and received two stitches, in what the judge described as an incident which must have been very frightening.

8. The other indictable offence was committed only two weeks later. In the early hours of one morning, the applicant and another person went to a house occupied by the complainant, who was then at home with her five year old son and her sick father. She was awoken by the barking of her dogs and went to the front door, where she was confronted by the applicant standing with what appeared to be a firearm across his body. She shut the door and ran to call the police when she realised that her back door was open. By the time she reached that door, the applicant’s co-accused was there, carrying a baseball bat. The complainant then fled through the front of her house and ran towards a nearby hospital where police were called. At the same time, the applicant and co-accused removed a large number of items from the house.

9. The offence of threatening violence was committed by the applicant when he went to aconstruction site, armed with a baseball bat, and demanded to see a certain person working there. He made several threats against that man, including threatening to break his legs, whilst swinging the bat at a large metal canister inside the site office. The other summary offence involved the applicant kicking an electronic ticket machine in a carpark, causing damage to it.

10. In her sentencing remarks, the judge began by recording that the applicant was a 34 year old man with a criminal history in three States. The history in Queensland was described by her Honour as inconsequential, but in New South Wales and Victoria the applicant had committed offences involving violence.

11. The judge described the subject offending as being “quite serious, particularly the two indictable matters” adding that “the threatening violence was also fairly serious”. It all demonstrated, she said, that the applicant was a man who “seeks to solve problems with violence”.

12. After recording the facts of the 2019 offence, herHonour noted that the applicant had been found later that morning at a place where most of the stolen property was discovered. He had been in custody from that day. HerHonour said that the offence must have been terrifying for the complainant, who lost control of her bladder during the invasion of her house, and the complainant must have been very worried about her son and her father who remained in the house when she ran to get the police.

13. HerHonour continued:

“It is, in my view, very serious offending. I’m told that you had developed an addiction to crystal methamphetamine in the six months prior to the offending, and that, perhaps, explains your behaviour to an extent, but it certainly doesn’t excuse the way you behaved. You have a good work history, and that’s in your favour. And it seems that you’re working productively in the jail, and that’s also a positive thing.

However, as I’ve already indicated, in my view, this very serious behaviour by a mature man with previous convictions for violence, and a sentence of six years in total, which is what counsel have submitted, in my view, simply doesn’t reflect the overall criminality of the conduct. I accept that five years is the appropriate sentence for the robbery. In my view, five years is also the appropriate sentence for the burglary, but I will reduce that burglary sentence, because I’m going to make it a cumulative sentence. The sentence I imposed cumulatively on the burglary will also take into account what, in my view, is a serious offence, threatening violence, and it will be absorbed into the overall sentence.

So in relation to the armed robbery, you’re sentenced to five years imprisonment. In relation to the threatening violence and wilful damage, 12 months imprisonment. Those terms are to run concurrently. In relation to the burglary and stealing, you’re sentenced to three years imprisonment. That term of imprisonment is to run cumulatively upon the five years imprisonment. Taking into account and recognising your plea of guilty in relation to the burglary and stealing and threatening violence and wilful damage, I will reduce the parole eligibility date to something less than half.”

(emphasis added)

14. The applicant’s argument is based upon the statement which is emphasised in that passage. It is common ground that herHonour was there referring to the summary offence of threatening violence. The applicant’s argument is that the judge’s statement reveals that she imposed a heavier sentence for the burglary and stealing offence because of the offence committed in March 2018 (the threatening violence offence).

15. The applicant argues that the judge was sentencing according to the approach endorsed by this Court in R v Nagy.¹ It is suggested that the judge fixed a higher sentence for the subject burglary and stealing offence than would be appropriate if it stood alone, in order to take into account the “overall criminality” involved in a number of offences. The argument seeks to apply this passage, from the judgment of Williams JA in Nagy:²

“Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open. One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality. But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders. That list is not necessarily exhaustive. Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

16. However, it cannot be accepted that the judge in this case was sentencing, or was intending to sentence, by the Nagy methodology. HerHonour imposed distinct and substantial sentences for the summary offences, and ordered that they be served concurrently with the five year term. The subject sentence was then accumulated with the five year term. Unambiguously, herHonour reasoned that for the subject offence alone, a term of five years was “the appropriate sentence”, but that it should be reduced because it would be a cumulative sentence. It was the totality principle which warranted a reduction of the sentence to a term of three years. This was because the applicant’s overall criminality, considering all four offences, made it appropriate that the total period of imprisonment be no more than eight years. In that way, the particular criminality involved in the offence of threatening violence counted against the applicant. However, there was no error in that reasoning, and it cannot be accepted that the applicant was punished twice.

17. It is submitted for the applicant that herHonour must have inflated the sentence for the subject offence, because her starting point of a five year term was outside those which were open to the judge for that offence standing alone. The submission refers to R v Leu & Togia³ where Fraser JA said:

“[t]his examination of broadly comparable decisions leads me to conclude that for these applicants, whose premeditated home invasion at night in company with each other included a robbery and the use of weapons by both in an assault that caused relatively minor bodily harm to an occupant who was in dispute with one of the applicants related to the complainant’s supply of drugs, the sentencing range falls between about three and five and a half years imprisonment.”

It is submitted that the absence of any bodily harm to the complainant makes this case less serious than that described by Fraser JA, thereby indicating that a starting point of five years was outside the permissible range in the present case. That argument cannot be accepted. As the High Court said in Hili v The Queen,⁴ the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”.

18. A sentence of five years for this offence, if it stood alone, was open. In turn, the sentence which was imposed, after allowance for it being a cumulative sentence, was open. Indeed, had the applicant demonstrated a specific error by the sentencing judge, Iwould not have resentenced the applicant more favourably.

19. For these reasons, I would refuse the application for leave to appeal.

20. HENRY J: I agree with the reasons of McMurdo JA. The application for leave to appeal should be refused.