R v Wentt [1995] QCA 613

He fell down outside the area of the mother's bedroom. The mother having previously retired, came out and tripped over him. The 53-year-old complainant then told him to get out. He said he was going and ran out of the flat bleeding and still naked. He was chased and ultimately caught by police. He was taken to the hospital where his wound was sutured. When questioned by police he said he did not really remember what had happened.

The matters which are referred to in his favour include the following. The bizarre conduct with which he is charged was out of character. Perhaps its occurrence becomes more understandable when one accepts that he took marijuana, to which he said he was unused, before the incident and felt as if he was in a dream during this time. It was submitted that because he was stabbed twice he has already been punished to some extent. That is a factor that can be taken into account in formulating the appropriate sentence. It should be remembered however that he was only in hospital overnight and there has been no serious or permanent aftermath to the injuries. It may also be accepted that he is unlikely to offend and that he exhibits remorse. He made an early plea of guilty. He was employed at the time of sentence and had a reasonable work history.

Countervailing factors include the circumstance that house-breaking is a serious, prevalent offence and that invasions of homes, particularly of women who live alone, are seriously regarded and such persons deserve the protection of the Courts. The Crown's submissions include the observation that self-induced intoxication is not a mitigating factor and that terror was caused to two elderly ladies. It was an aggressive invasion and the intention of the entry was to commit some form of sexual offence.

The cases suggest that offences of this character, which threaten the safety of persons in their own home, are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character. Reference was made to Haijk, CA 19 of 1984,

2 May 1984, where a 37-year-old offender was guilty of conduct not dissimilar to that here charged. The sentence, which was not disturbed on appeal, was two years with a recommendation for consideration of parole after six months. In Gibson, CA 121 of 1989, there was an early plea by a 20-year-old offender who had no previous convictions. When affected by alcohol he entered the house of a school teacher and assaulted her. The sentence upheld there was of seven years with a recommendation after two and a half years.

There are cases in which a non-custodial sentence has been upheld, namely O'Connell ex parte Attorney-General, CA number 188 of 1991, and Marama, CA number 328 of 1992, 3 February 1993. In the former case, which was an attorney's appeal, the Court mentioned that imprisonment would have been an appropriate sentence but declined to interfere with a

non-custodial sentence. In Marama there was an offender who was 16 years and 10 months old at the time of the offence whose personal circumstances may be regarded as somewhat special.

When one looks at the above cases, it is impossible to say that the sentence that was imposed by the learned sentencing Judge was beyond range or manifestly excessive. I would therefore refuse the application.