Attorney-General v Austin[1997] QCA 160

COURT OF APPEAL

DAVIES JA

MOYNIHAN J

de JERSEY J

BRISBANE

DATE 27/05/97

JUDGMENT

DAVIES JA:  These are three appeals by the Attorney-General against sentences imposed in the District Court on 12 March this year.  The respondents are Gary John Townend, Russell William Liddell and William John Austin.

Townend, was convicted after a trial of entering a dwelling house with intent to commit an indictable offence and assault occasioning bodily harm in company both on 1 February 1996.  He was also convicted of burglary and assault occasioning bodily harm in company on 4 February 1996.  He pleaded guilty to burglary and assault occasioning bodily harm on that date but not guilty to the circumstance of aggravation.  He was sentenced to 12 months' imprisonment on the first of the offences committed on 1 February and two years' imprisonment on the second of those offences, eighteen months on the first of the offences committed on 4 February and three years' imprisonment on the second of those offences.  All sentences were wholly suspended for a period of four years. 

Liddell was also convicted after a trial of the offences of entering a dwelling house with intent to commit an indictable offence and assault occasioning bodily harm in company both on 1 February 1996.  He was sentenced to 12 months' imprisonment in respect of these offences both being wholly suspended for two years.

Austin was convicted of the offences of burglary and assault occasioning bodily harm in company whilst armed with an offensive weapon namely a nunchaku which is a pair of sticks joined by a chain used as a weapon in martial arts.  He pleaded guilty to the first of these offences and in respect of the second to assault occasioning bodily harm but not guilty to the circumstances of aggravation.  Having been convicted of both offences including the second with the circumstances of aggravation he was sentenced to 18 months' imprisonment on the first and two and a half years on the second; both again being wholly suspended for four years.

Both sets of offences, that is, those on 1 February and those on 4 February, involve an invasion of the home of the complainant Wayne Duckett and two violent assaults on him.  On both occasions he was unarmed and defenceless. Duckett was acquainted with Liddell and Austin but not Townend.

It is not entirely clear what led to the events on 1 and 4 February.  However, it appears that a young woman called Michelle Frahme who arrived with Townend and Liddell on the first occasion was the complainant's former girlfriend.  Earlier that night Michelle's mother, who had been sharing accommodation with the complainant, left after an argument with him.  It was within an hour of this that Townend, Liddell and Michelle Frahme entered the complainant's unit. 

Both Townend and Liddell told the complainant they wanted to bash him.  Townend began to poke at his chest.  The complainant ran from the unit.  Townend caught him, threw him down the stairs and then sat on him choking and shaking him.  The complainant said he almost passed out.  Liddell encouraged Townend and ignored the complainant's pleas for help.  Michelle Frahme also hit the complainant.

When interviewed by police Liddell said he wanted to kill the complainant for fighting with Michelle's mother and that he would have killed him if Townend had not fought him.  Townend said he lost this temper. 

Townend, Liddell and Frahme were arrested on the offences to which I have just referred and released on their own undertaking.  Frahme subsequently absconded and has not since been found.

On the following day, 2 February, Liddell and Austin collected Mrs Frahme's belongings from Duckett's unit.  They asked him to withdraw his complaint and Austin threatened to hospitalise him if he did not.  He told Duckett's landlady that he had come from the Sunshine Coast to Airlie Beach specifically to sort Duckett out.

On 4 February at about 10.30 p.m. all three of them returned to the complainant's unit.  Liddell, through a locked screen door, asked Duckett if he intended to withdraw the charges.  At the same time Townend scratched a side window to frighten him.  Duckett panicked and locked the wooden door.  Nevertheless, they entered it by breaking it from its hinges.

Austin was the first to attack the complainant.  He did this with a nunchaku.  Townend then joined him and the complainant was knocked to the ground. Townend jumped on top of him, punching him around the head. Austin continued to punch, kick and hit him with the nunchaku. Duckett, understandably, feared for his life. 

Mrs Swift, the complainant's landlady, arrived and bravely hit the offenders with her broom stick.  However, Austin continued to kick at the complainant and Townend hit him.  Even after Austin left Townend continued to assault the complainant, laughing at Mrs Swift's pleas to stop.  Mrs Swift described the attack as "beating the living daylights out of him".  Townend was out of control she thought.  Austin was more in control and less bold, according to her.

No satisfactory explanation was given by Townend for his conduct given that he did not even know the complainant.  However, he said to the police that if he was going to get into trouble he would "go all the way".  This appears to be a reference to the fact that having been arrested and given bail he was determined to continue with an even more serious beating of the complainant.  He said he felt better for committing the second assault.

Austin told police that he had not intended to do anything to Duckett until the latter slammed the door.  But he also claimed to the police that the nunchaku was Duckett's whereas two independent witnesses had seen him with the weapon before entering the unit.  He expressed regret that he did not "hit him properly".

Given the ferocity of the assaults, particularly the second of them, it is surprising that Duckett was not more seriously injured than in fact he was.  He had welts across his back, bruising and abrasions to his upper body, bruising and swelling to his head, lacerations to his forehead and injuries to his mouth and hands.  His most serious injury was to his nose which had been completely flattened and will require surgical reconstruction.  Unsurprisingly he continues to live in fear of further attack.  By the time of trial he had moved six times in six months.

During the course of sentencing the respondents the learned sentencing Judge made a number of remarks which are difficult to comprehend, let alone justify.  In remarks which appear to be addressed to all offenders his Honour said:

"Based on the evidence these are very serious offences, but I think it is a mistake to be overly influenced by what is, when properly analysed, a very superficial degree of criminality reflected by the offences.  It is an easy matter to answer your conduct by substantial sentences of imprisonment and that is probably what the community, reading a brief newspaper report about the offences, would probably expect.  Such readers would not, however, have heard about all of the circumstances surrounding the offences or be aware of your individual, personal circumstances.  Likewise, they would not have had the opportunity which I have had over the past seven days to observe you." 

The first statement in this passage which I found surprising is that after properly acknowledging the seriousness of these offences, his Honour could say that, when properly analysed, they reflected a very superficial degree of criminality.  On the contrary they appear to me to involve serious criminality which particularly in the case of Townend's offences of 4 February required an appropriate deterrent sentence.

Secondly, his Honour referred to the circumstances surrounding the offences as if there were something in those circumstances which reduced the gravity.  On the contrary, the circumstances, involving as they did in each case an invasion of the privacy of a person's home and, in the second, offences committed almost immediately after arrest in respect of almost identical offences, increase rather than diminish the seriousness of the offences.  Moreover, not only were they intentional and cowardly assaults upon a defenceless man, but in Townend's case, the second was committed with a full knowledge of the consequences of committing them after having been arrested in respect of similar offences.  Moreover, he appears to have enjoyed committing them.

Finally, with respect to the passage I have quoted, I find it impossible to comprehend how observing the offenders over the seven days of their trial, when they didn't give evidence either at their trial or on their sentence hearing, could possibly have assisted his Honour in determining what was an appropriate sentence.  Yet it appears to have been partly in reliance upon this observation that his Honour had the "feeling", as he put it, that they would be unlikely to re-offend.

Three other remarks by his Honour I find equally difficult to comprehend.  The first of these is that, in respect of each of the offenders, "the offences displayed an element of misguided juvenile bravado".  On the contrary, as I have already indicated, they appear to me to display cowardly and vicious conduct, persisted in by Townend, and to a lesser extent Austin, after Townend and Liddell had been arrested and charged with the conduct only a few days before, and as Mr Justice de Jersey pointed out during the course of argument, Austin was also in breach of his bail because of previous offences.

Nor can I accept, as his Honour did, that "the fact of bail in the heat of the moment and in the short period of time involved, may not have had time to properly register on you" -  remarks which he addressed to Townend.  On the contrary, Townend's statement, to which I've already referred, indicated that because of his arrest he felt freer to go on with an even more serious assault.

And finally, I have difficulty in understanding how his Honour could say that the pleas of not guilty did not indicate lack of remorse.  On the contrary, I would have thought that the pleas of guilty did not indicate remorse, but rather, an acceptance of the inevitable.  The pleas of not guilty seem to have been made in every case in which it was judged there might be some possibility of success.

These remarks, or at least some of them, may have misled his Honour into taking a rather too favourable view of the respondents and their conduct, in the case of Townend in particular, unduly so.

There are nevertheless some things which must be said in favour of each of the respondents.  None of these relate to the circumstances of the offences which do not seem to, in any way, assist the respondents.  But their personal circumstances do.

Liddell, who was 25 years of age at the time of the commission of these offences, had no prior criminal history.  Austin, who was 27 at the time, had a number of prior convictions including one for unlawful use of a motor vehicle and two of stealing but had not previously been sent to gaol.  Townend, who was only 22 at the time, had only one prior conviction for unlawful use of a motor vehicle for which he had undergone probation only.  Townend was an apprentice mechanic and several references tendered on his behalf spoke highly of him.  He also appears to have had an unfortunate family history involving alcohol abuse and violence by his father in the home.  He says that this has affected him.  He also complained of claustrophobia which might affect him in prison.  Austin too had a most unfortunate upbringing; he was unemployed at the time of these offences.  Little was said about Liddell's personal history.

The learned sentencing Judge was correct in concluding that, of the three offenders, Liddell was the least culpable, and Townend was, by far, the most serious offender. 

An appellate Court is always more constrained in reviewing sentences on an appeal by the Attorney than where the appeal is by the offender because, as the High Court noted in Everett, (1994) 181 CLR 295, appeals against sentence by the Attorney cut across the time-honoured concepts of criminal administration by putting in jeopardy, for the second time, the freedom beyond the sentence imposed.  This may be especially so where, as in this case, sentences imposed at the first instance allowed the offender to return to the community, and the Attorney is asking for a sentence which would involve a period of actual imprisonment.

Nevertheless, this Court must not be deterred from imposing a sentence where a manifest inadequacy is demonstrated.  Cases involving home invasion, especially where that results in a severe beating of the home occupier, are cases in which public deterrence is an important element.  In cases of this kind, this Court must, notwithstanding an offender has been returned to the community, impose an appropriate deterrent sentence.

As to Townend, notwithstanding his personal factors to which I referred in his favour, and the fact that because of his age a Court should be reluctant to impose a sentence of imprisonment for the first time, I think that the circumstances involved in these offences, to which I have also referred, required the imposition of a period of actual custody.  Moreover, having regard to the fact that he committed the second group of offences within a few days of his arrest on the first group, and his remark that if he was going to get into trouble he would go all the way, I think that the second group of sentences should have been imposed cumulatively on the first group.  The sentences imposed were therefore, in my view, manifestly inadequate in his case. 

So also, in my view, are the sentences imposed on Austin.  It must be borne in mind that, in his case also, not only did he travel to Airlie Beach specifically to "sort Duckett out", but he must have known when he involved himself in the assault on Duckett on 4 February that Townend and Liddell had already been charged with offences on Duckett on 1 February.  Moreover on 2 February Austin had threatened to hospitalize Duckett unless he withdrew his earlier complaint.

Liddell was present on all three occasions, 1 February, 2 February and 4 February.  However, his involvement was much less serious than the others.  Moreover, he has no previous criminal history.  Nevertheless, in my view, his sentence also was manifestly inadequate.

In the case of Townend, I would vary the sentences imposed on him to the extent of making those in respect of the offences committed on 4 February cumulative upon those imposed in respect of the offences of 1 February, set aside the order suspending those sentences, and in view of the personal factors to which I have referred above, order that the respondent be eligible for consideration for parole after serving one and a half years of his sentences.

In the case of Austin, I would vary his sentence only to the extent of setting aside the order suspending their operation, and in lieu, in view of his personal factors to which I have referred, order that he be eligible for consideration for parole after serving 12 months of those sentences.

In the case of Liddell, I would vary his sentences only to the extent of setting aside the order suspending their operation, and in lieu order that he be eligible for consideration for parole after serving six months of those sentences.

MOYNIHAN J:  I agree.

de JERSEY J:  I agree.

DAVIES JA:  The orders are as I have indicated.  The sentence which was imposed on Liddell was of course one of 12 months and he would be eligible for parole after six months in any event, and I just mention that to indicate that the Court was conscious of that in imposing a sentence and making the recommendation for eligibility after six months.