The Queen v Andrews[1997] QCA 304

COURT OF APPEAL

McPHERSON JA

SHEPHERDSON J

WHITE J

CA No 209 of 1997 

THE QUEEN  

v. 

DARREN JASON ANDREWSApplicant

BRISBANE

DATE 07/08/97

JUDGMENT

McPHERSON JA:  The applicant for leave to appeal against sentence was convicted after a trial in the Supreme Court of the offence of attempting to strike with a projectile with intent to do grievous bodily harm.  He also pleaded guilty to an offence on the same indictment of extortion.  The sentences imposed for these offences were 12 years in each case, to be served concurrently.  The effective sentence was therefore one of that duration.

The story began when one of the complainants, a man named Barrett, discovered canine excrement in a box addressed to him at his home.  He reported the matter to the police.  He and his family were then subjected to a series of telephone calls from an unidentified caller, who adopted a threatening tone or language towards them.  A little while later a fire was set, using what appears to have been petrol as an inflammatory element, in the yard of the property of a friend of his, a Mr Baldwin, who is the second complainant, who lived near Barrett.  Baldwin then also received harassing telephone calls from an unknown caller.

The responsibility for these events or, at any rate, what is said to have been the main responsibility for them, rested with a man named Price, to whom the applicant admitted he was an accomplice in the crime of extortion.  An arrangement was made by Price and the applicant to ensure that Barrett and Baldwin, or one of them, dropped off a bag supposedly containing $30,000 at a place on the Bruce Highway.  In fact, the police, having been alerted to what was going on and having engaged in trying to solve the problem, were concealed at the place where the bag was dropped off.  In due course Price emerged and, one may assume, prepared to take what he believed to be the money.

The presence of the police was discovered and they were fired on by Price.  The police fired back and, in what seems to have been a shooting engagement, Price was wounded to such an extent that in the end he was unfit to stand trial.  The police found that Price, or Price and the applicant, had a .303 rifle and a shotgun, and that the applicant himself had a sawn-off .22 rifle.  The pair of them also had an explosive device with a destructive potential.

There was, it seems, evidence of involvement of a third person in the enterprise; but he could not be identified and the applicant has not assisted in identifying him if, in fact, he exists.  There were indications that the two conspirators, Price and the applicant, had fortified themselves for the encounter in which the shooting took place by using drugs of some kind.

The applicant is 28 years of age.  He has four previous convictions for possessing a dangerous drug and one for producing such a drug.  In respect of those offences, which were committed over a period of some years, he was sentenced on one occasion to imprisonment for six months.  He has had no prior convictions for violence in the past.  It appears that he has a recorded conviction in 1992 for being unlawfully at large, in respect of which a penalty of imprisonment for one month was imposed.

The offences were, it must be said, serious instances of their kind.  Two innocent men and their families were terrorised with a view to extorting money from them for no apparent reason.  The applicant and his co-offenders were evidently prepared to carry out their plan by using violence.  When they went to the drop-off place they were armed, and Price at least was prepared to open fire on the police, discharging some five shots at them.  In the absence of Price, the applicant has sought to minimise his part in the affair, or at least that was the view the learned sentencing Judge took of the matter.  He did not accept the applicant played, as he had claimed for himself, only a limited part or share in the events.  It is not possible to impugn His Honour's view in that regard.

His Honour also considered that the applicant was protecting someone else, who represented a third party in the enterprise to threaten and obtain money.  There is, as I say and as is conceded, no proper basis for disturbing those conclusions, findings or impressions which His Honour formed.  The offences were serious examples of premeditated and vicious lawlessness.  They were carried out over a period of some two weeks or so solely with a view to personal gain, and with what appears to be an amply demonstrated determination to use life-threatening violence, if necessary, in order to achieve the object they were pursuing. 

The maximum sentence for the offence of extortion under the Code is 14 years, and for striking with a projectile in what I will call, in a life threatening way, is life imprisonment.  The case is therefore one in which the Court has to consider not merely one but two serious offences, in respect of which, on one view of the matter, a sentence as severe as life imprisonment could have been imposed.  In regard to the projectile offence, reference has been made to the decision in R v. Leavitt (1985) 1 Qd.R 343, where a sentence of 10 years imprisonment was imposed in respect of the offence of striking with a projectile.

In the sentencing proceedings below it was conceded by counsel for the applicant that the proper range was eight to ten years imprisonment.  For my part, I think that when the two offences are put together, even allowing for the fact that the applicant may have been a lesser offender in respect of the projectile offence and that he pleaded guilty in respect of the extortion offence, the sentences imposed here, which were made concurrent, were by no means beyond the range of a proper sentencing discretion.  Obviously in cases like this the deterrent element has a great influence in determining the duration of the sentences.  I see no basis for intervention by this Court as regards the effective sentence imposed in the case of the applicant.

The matters relied on by way of mitigation were considered by the learned sentencing Judge.  They do, however, in my view, do little to lessen the seriousness of the conduct overall.  It follows from what I have said that I am of the opinion that the applicant for leave to appeal against sentence should be dismissed.

SHEPHERDSON J:  I agree with the order proposed by the learned presiding Judge and for the reasons which he has given.

WHITE J:  I agree also.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed.