The Queen v Frazer[1997] QCA 306

COURT OF APPEAL

McPHERSON JA

DAVIES JA

WHITE J

CA No 252 of 1997 

THE QUEEN 

v. 

TONY MICHAEL FRAZERApplicant

BRISBANE

DATE 05/08/97

JUDGMENT

McPHERSON JA:  This applicant for leave to appeal was sentenced in the District Court at Townsville to an effective term of imprisonment of four and a half years for one count of burglary and one of assault occasioning bodily harm committed in company and while armed to which he pleaded guilty.

A period of 40 days pre-trial custody was recognised and allowed for in the sentence.  The sentences of four and a half years were imposed on each count but were ordered to be served concurrently.  Those sentences were imposed on 28 May 1997 but the effect of the applicant's conviction in respect of them was to activate an earlier but suspended sentence of 16 months and two weeks which His Honour ordered to be served cumulatively on the four and a half year sentence.

The total effect of sentence was therefore, once those two periods were added together, of the order of six years imprisonment, or a little less.  In addition, the learned sentencing Judge extended the time for complying with a compensation order made on 10 February 1997 until a period of seven years had elapsed from 28 May 1997 on which the subject sentences were imposed.

The details of the two offences for which he was sentenced to four and a half years imprisonment are as follows.  The applicant and a co-offender went to the complainant's house at night, and shouted at his 14-year-old stepson to come out, meanwhile throwing objects at the house.

The complainant himself came out on to the verandah of the house, and the applicant and his companion approached him and forced their way into the house by breaking a locked door.  The complainant, who is a 62-year-old pensioner, was attacked by both of the intruders using their fists.  He was knocked to the ground and kicked by both of them in various parts of his body.

One of the intruders was carrying a rock, which was described by the Judge as larger than a house brick and weighing about four times as much.  In leaving the complainant and the house one of them struck the complainant heavily about the head with the rock.  Although his identify is uncertain, it seems clear that it was the applicant who hit the complainant again with the rock, this time in the area of the hip.

The rock had been, as I have already mentioned, carried into the house by the applicant or by his accomplice. The complainant's wife had been so terrified by the intrusion that she had fled the house.  Fortunately, for everyone, the complainant's injuries arising from this assault were confined to a black eye, bumps and bruising, multiple cuts and abrasions, bruising to the face, a torn ear lobe, tenderness in the ribs, stomach and back and a cut on one thigh.

He was, not surprisingly, in significant pain for several days. The explanation given for the attack is said to have been that the companion of the applicant was owed money by the stepson of the complainant.  When they went to collect it, as I have already described, and were told that the stepson was not at home one of the two offenders responded to the effect, "You will do" and began beating the complainant.

The case is, on what I have already said of it, therefore one of home invasion, an offence towards which the courts have consistently adopted an attitude of some severity in terms of sentencing.  All the worst features of such offences appear to be present here, in that it was an attack that was motivated by an intention to take the law into their own hands in order to enforce what appears to have been a civil claim of a kind alleged to exist against the 14-year-old stepson.

The applicant has emphasised in submissions before us, and in those presented to the sentencing Judge below, that he was not the instigator of the offence; but I am not at all sure that that should be regarded as going in mitigation.  One of the worst features of this kind of behaviour is that it involves, very often, a number of people assisting one of them to get square with someone else in a way that a single individual would probably not dare to do if he was on his own.

The most that can be said in favour of the applicant in relation to this matter is that it does not seem, all matters considered, to have been an instance in which the attack on the complainant was one that was premeditated or planned in advance. 

The personal circumstances of the applicant are not such as to encourage one to look for reasons for upsetting the sentence imposed in this case. 

Although he was only 18 years old he has, since about 1995, been engaged in committing a variety of offences and in great number.  In 1995 the applicant came before the Children's Court for offences committed in 1994 and 1995.  On that and other occasions he has been sentenced to terms of detention but given the benefit of immediate release orders, which meant that he was not confined.  That happened on the first occasion; but he was back before the Children's Court again in August 1995 when he was ordered to undergo probation for two years. 

In consequence of that order, he went to live with relatives in New South Wales, and it must be said in his favour he did not offend again until late in 1996 when he came back to Townsville.  He then appeared in the Magistrates Court charged with a breach of bail offence and with possession of tainted property.  On that occasion he was fined and ordered to carry out 50 hours of community service.

In 1997 he appeared again in the District Court at Townsville for various offences in respect of which he was sentenced on 6 February 1997 and was placed on a good behaviour bond.  He was also sentenced to imprisonment for 18 months wholly suspended for three years.  In imposing this sentence, the learned sentencing Judge said that he was giving the applicant a chance to make good and not to come back before the courts again.  Unfortunately, on 26 February 1997 he was back before the District Court once more, charged on this occasion with wilfully damaging a cell door on 16 February 1997.

This offence, if not the others to which I will be referring, constituted a breach of the good behaviour bond, as well as a breach of the condition of suspension of the sentence.  Again, however, the learned sentencing Judge adopted a lenient attitude towards the applicant.  He had in the meantime committed two other offences for which he was dealt with in the Magistrates Court and for which he was sentenced to imprisonment for six weeks.  Before the District Court Judge again on the occasion mentioned he pleaded guilty to the two offences committed on 12 July 1997.  The Judge adjourned the hearing to 28 May 1997, and, after carefully considering the matter, imposed the sentences now under appeal.

There is no doubt that it was proper to send the applicant to prison.  There was no other way of dealing with him for offences of the degree of seriousness with which he was confronted on that occasion.  He has, as I have mentioned, an extensive previous record of criminal offences, including six prior convictions for assault, of which four were for occasioning bodily harm.  The matters in his favour are that he is young, and that there has been some indication in the past that, if he is taken away from the atmosphere in which apparently he exists in Townsville, he may not be induced to commit further offences.

He pleaded guilty in the proceedings before his Honour, although it must be said that the value of that plea in terms of mitigation is somewhat reduced by the fact that, from all one can see, he had little option but to do so. 

In the last resort, however, it must be said that a cumulative sentence of almost six years for an 18-year-old man, who has never previously been sentenced to imprisonment, is a heavy one.  The Judge to some extent took this into account in his sentencing observations by saying that, had it not been for the plea and other factors of the kind that I have mentioned, the applicant might have attracted a higher sentence than the term of four and a half years that was imposed.

All matters considered, however, it is my opinion that the accumulation of sentences in this case has resulted in a period of imprisonment which may fairly be regarded as extremely severe, and perhaps crushing, to the point of depriving the applicant and the community of any hope he will reform himself.  I am inclined to think that the case is one in which the Judge ought to have given more weight to the significance of an early parole recommendation in order to encourage the applicant, on what must surely be the final occasion on which the community can afford to try it, to reform himself in the future.

On this - and, it must be admitted, rather slender basis - I am inclined to consider that the case is an appropriate one in which a recommendation of that kind should now be added to the sentence.  In the result I would allow the appeal to the extent only of varying the sentence by adding a recommendation that the applicant be considered for parole after he has served two years of the sentence imposed on 28 May 1997 in respect of the two offences which were the subject of sentence on that occasion. 

That is to say, the offence of burglary and the assault committed in company whilst armed with an offensive weapon.  In other respects, including the order that the previously suspended sentence be served cumulatively on the sentence imposed for the two offences I have identified, there should be no variation in the sentence imposed.  I would propose that the order we make in this case be in the form in which I have suggested it.

DAVIES JA:  I agree.

WHITE J:  I agree.

McPHERSON JA:  The order will be as I have stated it.  That is to say, the appeal will be allowed to the extent of varying the sentence by adding a recommendation for parole after the applicant has served two years of the four and a half year sentence to which the previously suspended sentence has been made cumulative. 

Now, that means you now have what you called a "bottom" on your sentence.  Let me tell you, Mr Frazer, you had better not come back before the Courts again because on the next occasion there will almost certainly be no generosity or mercy.  You will be dealt with by whichever Court you come before in Australia in a very severe manner.  You have had all the chances you are ever going to get.  Do you understand?

APPLICANT:  Yep.

McPHERSON JA:  All right. 

The order will be as I stated it.