R v Stinton [1999] QCA 15

Court of Appeal (Qld)|1999-02-05|Before: Jersey CJ, Murdo P, Pherson JA

McPHERSON JA: The applicant for leave to appeal against sentence was convicted in the District Court on guilty pleas to various offences and was sentenced as follows: count 1, burglary, imprisonment for 10 years; count 2 and 3, both of which were charges of deprivation of liberty, imprisonment for three years in each instance; count 4, unlawful possession of a motor vehicle, imprisonment for five years; and count 5, armed robbery in company, imprisonment for 10 years. The effective sentence overall was therefore imprisonment for 10 years and no recommendation for parole was made in the sentence.

The circumstances of the offences can be summarised as follows. On the night of 26 January 1997 the complainants, Mr and Mrs Brown, who were or are 63 and 59 years of age respectively, were at home in their house which is described as a residence on acreage. Mr Brown suffered back problems which affected his mobility or agility and caused him pain from time to time. On that evening the complainants had locked and secured their home at Geiseman Road, Black River, and they went to sleep, they said, at about 9.30 p.m.

The men were yelling words to the effect "Where's the money, Where are the takings?", over and over. The applicant remained in the bedroom for the whole or most of the time. The other two were going in and out of the bedroom, and they went through the house, ransacking it and looking for money or other valuable property to steal. The intruders remained in the house for approximately 40 minutes. During that time one of them asked Mr Brown if he had any guns in the house. Mr Brown replied no, but some guns were located in the house. The man then told Mr Brown that if he were to lie again he would kill him. The applicant, who was one of the intruders, searched through the bedroom looking for jewellery. He took all of Mrs Brown's jewellery with the exception of a couple of pieces of sentimental value.

When the ordeal of the complainants was almost over, one of the intruders tied Mrs Brown's legs together and then tied her arms to a bedpost. Mr Brown remained lying in bed throughout. His physical condition was such that he could not sit up in bed without experiencing great pain and difficulty. One of the intruders then cut the telephone wires in the house and they all took Mr Brown's Landcruiser to escape from the scene. On their leaving the house, they told Mr and Mrs Brown that an ambulance would be called to assist Mr Brown and that they would arrange for it to arrive at about 1 a.m., before which time the Browns were told not to move.

Shortly after the departure of the offenders Mr Brown struggled out of bed and obtained help from the house of the caretaker nearby as the telephone wires had been cut. The police arrived at about 1.30 a.m., no ambulance ever arrived and presumably none had been called. A total of approximately $25,000 worth of property was stolen, of which only about $5,000 has been returned or recovered.

At 5.40 a.m. on 27 January 1997 two vehicles carrying Barrie Stinton, Paul Banks and Steven Banks were intercepted by the police in Bowen. The police spoke to those persons and brought them back to the police station. Barry Stinton's wallet was searched and property belonging to Mr and Mrs Brown was found in it. The police also located property belonging to the complainants in the two vehicles. Barry Stinton is the brother of the applicant now before us. The applicant himself was not present in either of those cars. The three persons who were were arrested for major offences.

During interviews with the police, Barry Stinton eventually admitted to receiving the property found in his possession but was not prepared to say who gave it to him. It later transpired it was the applicant. From information received from one of those arrested, or someone associated with them, the police were eventually able to connect the applicant with the commission of these crimes.

His personal circumstances are that he is now 21 years of age having been about 19 years at the time of the offence, his date of birth being 15 August 1977. He has an extensive prior

criminal history. Between 1993 and 1995 he was convicted and sentenced for an assault occasioning bodily harm while armed, two counts of stealing, two of unlawful use of a motor vehicle, dangerous driving, breaking and entering with intent, wilful damage in the night, two other wilful damage offences and also of breaching bail on two occasions and breaching the conditions of his probation on two occasions.

Matters advanced in support of the application before us here are the youth of the offender - I have mentioned he was 19 at the time of the offence - and the fact that he pleaded guilty in circumstances where, as it appears to have been accepted by the learned Judge, the Crown case against him was relatively weak. The applicant, as I have said, was not apprehended in the company of the other accused, and committal proceedings took place without his being a party to them.

The evidence implicating the applicant emerged from a statement by his co-accused or accomplice, Steven Banks, who stated that he had passed a shotgun to the applicant for use in committing these crimes. There was, in fact, no other evidence of the applicant's being at the scene of the crime apart from admissions that were made by the applicant on a later occasion when he gave evidence in the course of the trial of one or more of his co-accused. Equally, there was no evidence that the applicant was armed with a knife other than the fact that he volunteered such a statement in the course of his evidence at one or both of those trials.

It was submitted on his behalf that those factors were indicative of genuine remorse and His Honour appears to have accepted this submission also. The applicant, it seems, was not the instigator of the offence and it is right to say that no physical harm was caused to the complainants. On the other hand, they have, as will emerge, suffered pretty seriously in other ways; and the absence of physical harm, though a mitigating factor, is by no means decisive in favour of the success of this appeal.

It is submitted that the sentence is manifestly excessive and, in particular, that His Honour erred in not making either a recommendation for early parole or in some other fashion recognising the importance of the plea of guilty.

The matters I have mentioned went in mitigation but there were various factors that tended to increase the sentence. In particular, the complainants were subjected to a frightening and terrifying reign of terror in their own home and one that lasted for quite some time. It has, inevitably, had an adverse effect on them and on their lives and it seems as if it has affected their outlook in a permanent way. Having regard to the manner in which the offences were conducted, it can fairly be regarded as a form of home invasion and one that falls into the more serious category.

As a result of their experience, the complainants have become afraid of being on their own. They, at first, tried to resolve their concerns by expending a large sum of money on installing security in the house; but eventually the memory of what had happened became too much for Mrs Brown and the couple have now felt obliged to put their home on the market.

The applicant, I have already said, had a significant criminal history and has had the benefit of community service and probation in the past without apparently achieving any improvement by virtue of it.

The Judge noted that the Court of Appeal in the case of

R v. Banks had suggested inferentially that the persons who entered the Browns' house and dealt with the couple in such a frightening way could well sustain a sentence of up to

nine years' imprisonment. His Honour took that into account in sentencing. It is right, overall, to say that the offences involved were very serious instances of their kind even if, as it happens, they were committed before the enactment or coming into force of the serious violence offences provisions of the Penalties and Sentences Act.

In that context reliance was placed, both here and in the Court below, principally on two decisions of this Court involving sentence appeals against similar, or somewhat similar, offences.

In R v. Green (1996), which is CA 190 of 1996, the Court of Appeal dismissed an appeal against a sentence of imprisonment for 10 years imposed on a 25-year-old man who broke and entered a convent in Rockhampton. He used a knife to threaten and terrify a 47-year-old Sister of Mercy forcing her to hand over money and making her remove her pants under threat of killing her. At one stage he forced her into a cupboard and tried to block the door; but she succeeded in escaping and raising the alarm. He was identified from fingerprints he left behind and, after about a week had elapsed, he confessed his responsibility for the crime under questioning by the police. He was a man who was on some form of drug or medication at the time and, like the applicants in this case, had an extensive record of convictions for housebreaking and other offences of dishonesty. As I think I have mentioned, he was, however, somewhat older than the applicant here.

The other decision of this Court to which reference has been made was R v. Steven Banks, CA 117 of 1998, which involved one of the co-accused of this applicant in relation to the sentence imposed on him. He had originally been sentenced to imprisonment for six years to be served concurrently with some other sentences sustained in the Magistrates Court; but his participation in the subject crime was, as I have already mentioned, limited to supplying the gun that was flourished by one of the intruders in the course of the robbery. He was not present at the Browns' house on the night in question and, of course, did not know the details of what was intended to be done by the victims, at least so far as the most serious aspects of their conduct were concerned.

Steven Banks also had an extensive record of convictions but the plea of guilty that he made and his assistance to the police in relation to a number of other matters attracted a lower sentence in his case.

On appeal, the Court of Appeal reduced the head sentence of six years to imprisonment for four and a half years with a recommendation for parole after only one and a half years. In giving reasons, the Court said that seven years would have been an appropriate starting point for sentencing Steven Banks, but they reduced the duration of the sentence because of his plea of guilty and his assistance to the police.

Somewhat similar factors prevail in the case of this applicant now before us. His plea of guilty was entered rather late, although there is an explanation of some kind for that delay, and the explanation is not altogether implausible. In addition, he twice gave evidence, it must be said on behalf of the accused, in the trials which they underwent. But in the course of cross-examination of those trials, he frankly admitted these offences by himself and volunteered information about his having had a knife on the occasion in question. His motive in giving evidence, he said, was to ensure that his brother was not wrongly convicted of the full range of offences, in which he had no active part apart from supplying the gun, but in which he stood in some danger of being wrongly convicted. The applicant was, he said, in the course of his evidence, also now being more realistic about his behaviour and about his future conduct and lifestyle.

As is shown by the reasons and the decision in Banks, this Court takes the view that guilty pleas are ordinarily to be encouraged and ordinarily to be acknowledged in the sentencing process by a reduction in the head sentence, or perhaps by the addition of a recommendation for early parole, and that such recognition should not be insubstantial.

The learned sentencing Judge in the present case acknowledged the presence of these features in the applicant's position, but gave little, if any, effect to them. He evidently regarded the applicant's criminal history and the need for general deterrence against offences of this kind as an overriding consideration which outweighed the matters I have mentioned.

The sentence here was, as it happens, higher than that of the nine years somewhat obliquely suggested in the case of Banks, and His Honour seems to have adopted a higher level of sentence because of the applicant's prior criminal record.

In my respectful submission, the sentence, and His Honour's sentencing remarks in that context, in the present case fail to reflect either sufficiently, or at all, the pleas of guilty made by the applicant in this case.

All matters considered, I think it would be right to allow the appeal and vary the sentence in relation to count 1 and

count 5 by reducing the sentences on each of those counts from 10 years to eight years. Otherwise, the sentences imposed should be affirmed or allowed to stand.

Mrs Clare, it was counts 1 and 5 that attracted the 10 year sentence, was it? It is rather important to get it right because I might ascribe it to the wrong one, but it is one and five, is it?

McPHERSON JA: They were burglary and armed robbery, I believe.

McPHERSON JA: Yes. I would, for my part, not make a recommendation for parole, the matter of the plea having been taken up in the reduction in the head sentence I have proposed.

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