Court of Appeal (Qld)|2002-07-25|Before: Davies JA, White J, Wilson J

The applicant was aged 20. He was involved in the sale of drugs and his motive for taking part seemed to be pay-back for the complainant's supposedly having informed on the ring-leader. He had a criminal history of drug offences as well as stealing and attempted false pretences. This offence was committed whilst on probation. The ring-leader received two and a half years, another offender aged 20 received probation. The applicant's participation was limited and he did not carry a weapon. The sentence of two years imprisonment with no recommendation for early eligibility for parole was reduced to 18 months.

The next case to which we were referred was Bower-Miles and Smith, CA 278 and 279 of 1995, 14 September 1995. They pleaded guilty to entering a dwelling house with intent at night and assault occasioning bodily harm with a weapon. It, too, was a home invasion case. The two applicants went with a third person to confront the occupants about a car that had been stolen and parts taken from it. Bower-Miles carried a wooden baton, Smith a broken pool cue and the third one two torches.

The sentencing Judge sentenced them both to three and a half years imprisonment with a recommendation after 12 months. That was set aside. In each case the sentence was reduced to two years suspended after three months, the operational period in Bower-Miles' case being two years and in Smith's case three years.

Brelsford, CA 301 of 1995, 14 September 1995, pleaded guilty to one count of entering a dwelling house at night with intent, two counts of assault. His sentence of three years with a recommendation after 12 months was upheld on appeal. He was aged 27 with a minor criminal history of no real significance.

In that case the female occupant answered the door. She was thrust aside sustaining a fractured rib. The male occupant got out of bed. There was an argument with the applicant who said he would return with a gun and kill the male occupant.

In fact he returned with a baseball bat and hit the male occupant around the head causing bruising to the head, face and back. There was a struggle in which the applicant ended up sitting on top of the male occupant. The incident seems to have been the result of alcohol and some self-righteous indignation on the part of the applicant at the way the male occupant had spoken to his young nephews.

There were two other cases to which we were referred, the first of them Fatnowna, CA 259 of 1999, 25 November 1999. That was an Attorney-General's appeal against the sentence imposed on conviction after trial. The offences were one count of unlawful assault occasioning bodily harm and one count of entering a dwelling-house with intent in the night-time using actual violence and being armed. The sentences imposed, 18 months suspended after four months on the first count and three years suspended after six months on the second, were not interfered with on appeal.

The incident occurred after 1 a.m. The respondent entered the complainant's house armed with a wooden club. He struck the complainant a number of times breaking his nose and causing bruising to his arms and chest.

He had a co-offender who did not actually enter the house or assault the complainant. In fact it was the co-offender who was attempting to settle a score with the occupant and the respondent was helping as a friend. The respondent was aged 41. He had a criminal history, but not of violence. The history related to property and driving offences. The sentence was described by the Court of Appeal as being not heavy but within range.

Finally, Houghton and Genrich, CA 424 and 425 of 1997, 26 February 1998: they pleaded guilty to one count of housebreaking and one count of assault occasioning bodily harm in company whilst armed. They were both sentenced to four years imprisonment with a recommendation after 15 months. That was upheld on appeal.

Houghton was aged 30 with no criminal history, Genrich 32 with one conviction for a similar offence. The complainant was a 56-year-old man living in a unit block. He had complained to the body corporate of Houghton's de facto using the premises for prostitution. The two applicants appeared as bikies at the door with a concealed wooden baton. There was a threat by Houghton. They were about to leave when the situation was inflamed by something the complainant said. Houghton lost his temper, bent the security door and attacked the complainant with the baton. The complainant sustained a fractured left cheekbone, double vision, laceration and bruises. There were more threats before they left. Genrich supported Houghton by entering the unit and he stood by during the assault knowing Houghton was armed with a bat.

Well, turning to the present case against that background, probably the most disturbing feature of it is the child stealing which was not a feature of any of the comparable cases to which we have been referred. Deterrence must be a substantial factor in setting the appropriate sentence in such a case. It would be wrong to suggest that deterrence is any less important in the context of a quasi family feud than it is in the context of a home invasion by strangers intent on robbery. The contexts are quite different, but equally serious.

The respondent's own primary motivation was to settle a personal score with Mr McAvoy, but he was a party to all that happened. The community must understand that even where there is a family feud, home invasion for the purpose of child stealing or simply to settle some score will not be tolerated.

The respondent was quite young and I would not regard his criminal history as of great significance in the circumstances.

He was properly given the benefit of early pleas of guilty.

While a risk of suicide if incarcerated is always a matter for serious concern, I think the sentencing Judge erred in the respondent's favour in taking it into account in the absence of evidence. There was nothing on which he could be satisfied on the balance of probabilities that there was a real risk, and it might well have been better for him to have adjourned the sentence until the matters put before him from the Bar table were investigated. At any rate, there is no evidence before this Court that the risk was real.

Burchell's sentence, 18 months suspended after three months, was, I think, a lenient one, even having regard to the fact that it seemed to be based on the respondent having played a more central role in the incident than was put forward in the respondent's case.

As Chief Justice Gibbs observed in Lowe v. The Queen (1984) 154 Commonwealth Law Reports 606 at 609:

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal and such matters as the age, background, previous criminal history and general character of the offender and the part which he or she played in the commission of the offence have to be taken into account."

Even where other things are more or less equal, an appellate court will not interfere to reduce a sentence where the consequence would be two inappropriately low sentences instead of one; see Dale Cox (1991) 55 Australian Criminal Reports 396 at 401 per Justice Thomas.

It is difficult to form a clear view of the respective roles of the respondent and Burchell. As the sentencing Judge acknowledged, Burchell seems to have been sentenced on a somewhat different factual basis from that put before him.

Their motives were different, but they were equally serious. In this case it seems that persons other than the respondent engaged in arguably worse physical violence. Whether those others included Burchell and to what extent is not clear. The respondent's counsel submitted, in effect, that there was no significant difference in the roles they played.

However, Burchell had a worse criminal history. It was a long criminal history including assaults on the police and it had resulted in imprisonment. This respondent's history involved only four months in prison for default in the payment of a fine.

I think the proper approach is to assess the appropriate range within which the respondent should have been sentenced having regard to the version put before the sentencing Judge. If the sentence was outside that range, is there any reason why this Court should not intervene?

In my view, an actual custodial term was warranted, and I think the range was 18 months to two years suspended after six to eight months.

The respondent has actually served three months of the intensive correction order, apparently satisfactorily. In Solway, CA 164 of 1995, 22 August 1995, an Attorney-General's appeal, a non-custodial term (namely a suspended sentence) had been imposed. It was submitted on appeal that a short term of actual imprisonment was called for. The Court of Appeal declined to interfere, Fitzgerald P and Pincus JA expressing reluctance to send an offender who was at large to prison for a relatively short period.

Also in Bazeley, Court of Appeal 220 of 1997, 5 August 1997, Davies and McPherson JJA said:

"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. The Queen (1994) 181 Commonwealth Law Reports 295 at 299. A case such as this in which 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 The Queen v. Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Queensland Reports 186 at 190 by saying that especially where liberty is at stake the Court is sometimes less reluctant in an appeal by the 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."

So it is necessary to balance this Court's reluctance to interfere where someone's at liberty, the fact that this is an Attorney-General's appeal, and the fact that time has already been served under the intensive correction order against the seriousness of the offence.

I am ultimately persuaded that this Court ought to interfere.

I would allow the appeal, set aside the sentence imposed and impose a sentence of 18 months imprisonment to be suspended after six months.

DAVIES JA: Notwithstanding the restrictions which this Court has accepted in interfering with sentences which have been opposed where the appellant is the Attorney-General, were it not for two factors which I am about to mention, I would have increased the sentence imposed in this case to at least two years imprisonment without any suspension of that term.

The first factor is the need to achieve some parity with the sentence imposed on Burchell and as Justice Wilson has already pointed out it is difficult to see in the circumstance of this offence whose conduct was worse. So unless a sentence similar to that imposed on Burchell were imposed in this case it would be correct that the respondent would have a justifiable sense of grievance. The second factor, also mentioned by Justice Wilson, is the satisfactory compliance so far with the intensive correction order.

For those reasons I agree with the orders proposed by Justice Wilson and substantially with the reasons which she has given.

WHITE J: I agree with the orders proposed and I also agree for the reasons expressed by the learned presiding Judge and by Justice Wilson.

DAVIES JA: The orders are as indicated by Justice Wilson.

MR RUTLEDGE: Could I ask for a warrant for the arrest as well in case we end up needing it?

MS McGINNESS: I ask that the warrant lie for seven days.

R v Salmon; ex parte A-G (Qld) [2002] QCA 262 (25 July 2002)

R v Salmon; ex parte A-G

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R v Salmon; ex parte A-G (Qld) [2002] QCA 262 (25 July 2002)