Court of Appeal (Qld)|2003-05-26|Before: McMurdo, P, Davies JA and Jones J, Separate reasons for judgment of each member of the, Court, each concurring as to the order made
McMurdo, P, Davies JA and Jones J, Separate reasons for judgment of each member of the, Court
Catchwords
CRIMINAL
LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
- APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL
OR OTHER CROWN LAW
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL- APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERALOR OTHER CROWN LAWOFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where respondentpleaded guilty to burglary, assaultoccasioning bodily harm and wilful damage -where respondent sentenced to imprisonment for three months, 12 months and 12monthsrespectively to be served by way of intensive corrective order - whererespondent showed remorse - where respondent served four monthsof intensivecorrection order satisfactorily by time of appeal - whether sentence manifestlyinadequateR v Bazley and Attorney-General of Queensland [1997] QCA 238CA No220 of 1997, 5 August 1997, appliedR v Brelsford [1995] QCA 594CA No 301 of 1995, 14 September1995, distinguished
R v Frazer [1997] QCA 306
CA No 252 of 1997, 5 August 1997,
distinguished
R v Salmon
ex parte Attorney-General of Queensland [2002] QCA 262
CA
No 155 of 2002, 5 February 2003, considered
R v Williamson [1996] QCA 548
CA No 392 of 1996, 1 November 1996,
distinguished
Judgment (34 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for appellant
[2]
JONES J: This is an appeal by the Attorney-General against the leniency of a sentence imposed on the respondent who pleaded guilty to three offences on the 6th of February 2003.
[3]
For the offence of burglary with circumstances of aggravation the respondent was sentenced to three months' imprisonment; for the offence of assault occasioning bodily harm whilst armed and in company, 12 months' imprisonment; and for wilful damage, 12 months' imprisonment.
[4]
The sentences were to be served by way of an intensive correction order in the community and not in prison. He was ordered to pay $619 restitution for the damage he caused.
[5]
The circumstances were that in the middle of the night of the 9th of December 2001 the respondent, in company with two friends, broke and entered a residence in suburban Cairns. Sometime prior to this evening the residents had been in the home of one Christopher Sailor and one Jimmy Baker. Christopher Sailor is alleged to have killed Baker and was remanded in custody on a charge of murder.
[6]
The complainant in this case is the half-brother of Christopher Sailor. The deceased, Baker, was a close relative of the respondent. The respondent is, in fact, a cousin of the deceased, but the two were brought up as brothers. There is some tension between the two families. Despite the similarity of surnames, there is no close relationship between Christopher Sailor and the respondent.
[7]
The complainant, who normally resides in Ipswich, came to Cairns to care for the house whilst his half-brother was on remand. Also living in the house at the time was the complainant's wife and their three young children. On the evening in question the family had retired for the evening and the complainant had secured the house.
[8]
The respondent and his two co-offenders, all of whom had been drinking for some hours, decided to go to get more alcohol. In the course of doing this, when walking past the house, they made a decision to enter it for the purpose of "reminiscing and paying some respects" to the deceased, Baker. They believed the house to be unoccupied at that time.
[9]
When attempting to gain entry, the respondent and his co-accused disturbed the complainant who then confronted the intruders. One of the co-accused had a piece of concrete which he then used to smash a window. The respondent kicked open the door causing it to splinter. The complainant attempted to phone the police, but as he was doing so the respondent entered the house and commenced to assault him with a piece of wood which was most likely a fence paling. It was approximately two metres long. The complainant was struck a number of times and sustained injury to his head and to his right forearm. He required treatment at the Cairns Base Hospital.
[10]
The complainant and other members of the family were traumatised by this experience as was detailed in the victim impact statements.
[11]
The respondent, as I have mentioned, believed the house to be unoccupied. When he saw the complainant in the darkened house he assumed it was Christopher Sailor and was angered that Sailor should have been released from custody pending the hearing of the murder charge. He claims it was this factor that caused the loss of control leading to the assault and damage to the property.
[12]
One of the co-accused has been dealt with and was fined $1500. The other co-accused was sentenced to nine months' imprisonment to be served concurrently with a term of imprisonment for an unrelated offence which he was then serving.
[13]
When the respondent was apprehended by police he cooperated fully with them, and soon thereafter indicated an intention to plead guilty. He has shown remorse for his actions once he realised his error in identification. He has some minor criminal history including an assault occasioning bodily harm which occurred some two years earlier. For that offence he was ordered to do 150 hours community service. There was some breach of the terms of that order, but he gave an explanation for that breach which apparently satisfied the learned sentencing Judge.
[14]
The applicant contends that as a case of home invasion, mistakenly targeting innocent people, the appropriate sentence ought to have included some period of actual custody. In fact, the learned sentencing Judge made reference to a likelihood of a term of imprisonment for the respondent in the event that he did not meet the requirements of the intensive correction order.
[15]
The applicant draws the Court's attention to three cases of home invasion, where the Court of Appeal has considered actual custody as being appropriate. The first of these is the matter of R v Williamson [1996] QCA 548; CA No 392 of 1996. In that case the accused person and another went to the residence of persons with whom they had a grievance. They went with the intention of "fixing up" the occupants. The idea was that the co-accused was simply going along with him, but the house was broken and entered, some contents were destroyed and even the car of a babysitter was damaged.
[16]
There, the charges of burglary and two counts of wilful damage were laid. The accused contested all charges and when convicted was sentenced to four years' imprisonment. The co-accused who pleaded guilty was sentenced to three years' imprisonment with consideration for parole after nine months. On the appeal it was argued on behalf of Williamson that there was sufficient disparity to justify interference with his sentence by the Appeal Court. That argument was successful and the penalty was reduced to three years, but without any recommendation.
[17]
The circumstances of that case reveal a more deliberate and planned home invasion than applies here. The accused also had a "significant criminal history" and he was found guilty after a trial.
[18]
The second case to which we referred is R v Brelsford [1995] QCA 594; CA No 301 of 1995. There, the accused was convicted of burglary and two counts of assault occasioning bodily harm. This again was a planned home invasion for the purpose of inflicting harm on a man who was thought by the assailant to be a child molester. In fact, the man had been convicted of the offence of indecent dealing some years earlier and given a suspended sentence.
[19]
In considering whether the sentence of three years was excessive, Justice McPherson made reference to the "vigilante action" and the often unintended serious consequences it occasions. The conduct of the accused there was premeditated and far more serious than that of the respondent here.
[20]
The third case, of R v Frazer [1997] QCA 306; CA No 252 of 1997, was a home invasion by two young men intent upon recovering a debt from a 14 year old boy. When advised that the teenager was not at home the two, without any cause, set upon the teenager's elderly stepfather, inflicting upon him blows to the head and kicks to his body, finally hitting him with a rock which they had brought to the home as a weapon.
[21]
A sentence of four and a half years which had to be added to a one and a half year sentence previously suspended was imposed. Having regard to the totality principle the Court of Appeal varied this sentence to provide for eligibility for parole after serving two years of that four year term. In this case the level of criminality was far higher than the case of the respondent here.
[22]
The features of the present case which really distinguishes it from each of those cases is the lack of premeditation, spur of the moment decision which was alcohol-induced, the expectation that the house was unoccupied and the fact that when someone was found to be in occupation that sparked a false assumption which enraged the respondent and his co-accused.
[23]
The respondent of course draws attention to those differentiating features and argues that the circumstances in R v Salmon; ex parte Attorney-General of Queensland Court [2002] QCA 262; CA No 155 of 2002, are more comparable, though much worse because it did involve premeditation and involved child abduction and personal vendetta. The accused in that case was sentenced to 12 months' imprisonment to be served by way of intensive correction order. The Court of Appeal, however, took the view that the penalty was in the range of 18 months to two years with suspension after six months, but then had to consider the effect of sending an offender to prison for a short period when that offender had already embarked upon a course which aided his rehabilitation.
[24]
It is evident from the learned sentencing Judge's remarks that he was conscious of the seriousness of the offence. Indeed, he made reference to the prospect of the respondent having to go to gaol or having a sentence of two years' imprisonment if he in any way breached the requirements of the intensive correction order. But in his remarks the learned sentencing Judge gave emphasis to the rehabilitative design in his order. At page 19 of the record he said this:
[25]
"I ought to send you to gaol. I am satisfied that you regret what you did. I am satisfied you are sorry for what you did to Mr Sayers and his family and I think that your surrender to the police and your early plea of guilty have properly demonstrated that. You are still only a young man and although you have had problems with the law before they do not seem to be overly serious and you have been keeping out of trouble in recent times. I expect that finding a partner and settling down to domestic life has probably contributed to that."
[26]
The respondent has not previously been in gaol. His breach of a prior community service order was explained to the sentencing Judge's satisfaction. The applicant has shown remorse and has amply demonstrated those other redeeming features to which I have referred. He also has good work prospects and he is in a stable relationship. The learned sentencing Judge was justified in coming to the view that he had good prospects of successful rehabilitation. The sentencing tasks thus required a balancing of the seriousness of the offence and the desire to achieve rehabilitation for this young offender, 21 years of age at the time of the incident.
[27]
But the question is whether in this task insufficient weight was given to the seriousness of the offence. Before the Court today the learned Crown Prosecutor has tendered a Court progress report from which it appears that the respondent is satisfactorily performing the requirements of the intensive correction order. He has already completed three months of that program.
[28]
In R v Bazeley & Attorney General of Queensland [1997] QCA 235; CA No 220 of 1997, in the joint judgment of Davies and McPherson, Justices of Appeal, the following remarks appear:
[29]
"It has long been accepted that an appeal against sentence by the Attorney-General cuts across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed, Everett v. R [1994] HCA 49; (1994) 181 CLR 295 at 299. A case such as this in which, in consequence of the sentence imposed below the offender has not been put in actual custody, illustrates the difficulty facing the Attorney in such an appeal. This Court made that point in R v. Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186 at 190, by saying that, especially where liberty is at stake the Court is sometimes less reluctant in an appeal by an offender to alter the sentence imposed below. In any event it will not do so in an Attorney's appeal unless the sentencing judge has erred in principle either because an error was discernible or demonstrated by a manifest inadequacy of sentence."
[30]
In my view, the learned sentencing Judge properly took into account all the relevant considerations. In my view also, there has been no error of principle demonstrated in this instance, and nor has the sentencing Judge's discretion miscarried.
[31]
DAVIES JA: In view of the seriousness of these offences, this was very much a borderline case. As the learned sentencing judge recognised, actual custody could have been imposed and minds may differ as to whether it should have been. However, the learned sentencing judge was obviously impressed with the respondent, and with his prospects of rehabilitation in particular.
[32]
His Honour's impressions seem so far to have been justified. The respondent, as Justice Jones has already pointed out, has performed it seems nearly four months of that intensive correction order in a satisfactory manner. There is also the fact that a sentence of actual imprisonment may have harmed those prospects, dependent as they were on his relationship with a young woman and his employment.
[33]
In view of those circumstances, as well as those relied upon by his Honour, Justice Jones, with whose reasons I agree, I would also dismiss the appeal.
[34]
THE PRESIDENT: The order is the appeal is dismissed.