The Queen v McGrade[1997] QCA 490

MUIR J:  The applicant pleaded guilty in the District Court to the following counts.  One, entering a dwelling house in the night-time with intent.  Two, assault occasioning bodily harm.  Three, stealing.  He was sentenced to the following terms of imprisonment.  Count 1, 18 months; count 2, six months; count 3, two months.  He appeals against those sentences on the grounds of disparity between them and those imposed on two other persons involved in the events which gave rise to the charges against him.

The other two persons, Hill and Scorgie, were charged with entering a dwelling house in the night-time with intent and assault occasioning bodily harm whilst in company.  They pleaded guilty and were each sentenced to a term of 18 months imprisonment wholly suspended with an operative period of two years.  The applicant was not dealt with at the same time as he did not appear and a bench warrant was issued for his arrest. 

The principle relied on by the applicant was discussed in Lowe and the Queen (1984) 154 CLR 606.  At page 609 Gibbs CJ observed:

"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."

Dawson J at pages 623-624 commented that:

"The interference of a Court of Appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done.  The differences between the sentences must be manifestly excessive and call for intervention of an Appellate Court in the interests of justice."

It is appropriate now to consider the circumstances in which the subject offences were committed and the respective roles of the applicant, Hill and Scorgie.  The learned sentencing Judge in his sentencing remarks observed:

"So far as the actual events are concerned whilst I accept that the accused Scorgie whilst he did not take as active a role certainly as far as assaults were concerned there seems to me to be little real difference between you and Hill so far as your actions within the house are concerned."

I note that the learned Judge who sentenced Hill and Scorgie did not hold the view that the applicant's role in the events were no greater in substance than those of Hill and Scorgie.  If the passage which I have quoted was intended to indicate a view held by the learned trial Judge that the applicant's role in the events in question were not greater in substance than those of his companions or at least that of Hill I do not share that view.  It seems clear to me that the applicant played a major role in assaulting the complainant.

The learned sentencing Judge, as one would expect, was pressed with the parity argument.  He rejected it for two principal reasons.  The first was that the age of Hill was rather less than that of the applicant, Hill being 21 years of age at relevant times and the applicant 27. 

He also rejected the argument on the grounds that the applicant's criminal history was rather more substantial than that of Hill's.

It is clear to me that the applicant's past criminal history is more substantial than that of Hill and importantly includes convictions or I should say a conviction for assault occasioning bodily harm whilst in company, a conviction for wilful and unlawful damage to property and a conviction for breaking and entering a dwelling house with intent.  The latter offence was committed in about October 1987 but the applicant was only convicted on 16 May 1994. 

Having regard to those considerations it cannot be said that the differences between the sentences is manifestly excessive.  I also consider it relevant that the sentences imposed on Hill and Scorgie appear to be rather light having regard to the fact that they were committed in the course of a home invasion. 

I would refuse the application.

DAVIES JA:  I agree.

de JERSEY J:  I also agree.

DAVIES JA:  The application is refused.