The Queen v Suthern[1998] QCA 192

COURT OF APPEAL

de JERSEY CJ

HELMAN J

CHESTERMAN J

CA No 69 of 1998

THE QUEEN

v.

JASON GRAHAM SUTHERN Applicant

BRISBANE

DATE 17/06/98

JUDGMENT

HELMAN J:  This is an application for leave to appeal against sentences which the applicant contends were manifestly excessive. The applicant came before the District Court at Maryborough on the morning of 16 February this year charged with seven counts:  one of housebreaking with actual violence in company and armed with an offensive instrument, one of robbery, two of wilful damage to property, two of common assault, and two of assault occasioning bodily harm while armed with an offensive instrument and in company.

It was alleged that each offence was committed on 12 July 1997 at Maryborough. Two others were charged with the accused:  his younger brother Derek and Angelo Pintus. All three pleaded not guilty to all counts. A jury was empanelled but soon afterwards the case was stood down until the afternoon. When the Court resumed the hearing of the case a request was made on behalf of each accused that he be arraigned again on all but the count of robbery. Each accused thereupon pleaded guilty to each of the remaining six counts. The Crown entered a nolle prosequi in relation to the count of robbery and the accused were all discharged on that count.

His Honour imposed sentences of imprisonment on the applicant: three years for housebreaking and three months for each other offence, all to be served concurrently. Derek Suthern was sentenced to concurrent terms of imprisonment:  three years for housebreaking to be suspended after he had served six months with an operational period of four years, and three months for each other offence. Pintus was sentenced to a term of imprisonment:  three years for housebreaking wholly suspended with an operational period of three years. It is not clear from the transcript of the proceedings that his Honour sentenced Pintus for the other offences, although the endorsement on the indictment, which is probably erroneous, shows sentences of imprisonment for three months in each case to be served concurrently with the sentence imposed for housebreaking.

On the day in question the three went to a flat occupied by three people to two of whom the applicant had sold marijuana for which payment was overdue.  The object of the visit was to extract payment for the drug by force. The applicant and his two companions battered the front door of the flat in, damaging it, damaged another door and two bedroom lamps and assaulted all three occupants. The principal offender in relation to the common assaults was Derek Suthern. He did not strike the complainants, but in each case threatened to hit the complainant with a tomahawk. The applicant was the principal offender in relation to the assault occasioning bodily harm; he struck the complainant twice on the arm with a piece of plastic pipe about one metre long as the complainant shielded his head.

Nearly all of the incident was tape-recorded because one of the complainants telephoned the emergency police number soon after it began and did not replace the receiver. Shouting, demands for money, threats to kill and loud banging noises could be heard on the tape.

In sentencing the applicant and his accomplices his Honour referred to increasing community concern about home invasion offences and recent amendments to the law relating to such offences. His Honour also referred to the deterrent aspect of punishment. Those matters are among the purposes for which sentences may be imposed on an offender. Community denunciation is provided for in section 9(1)(d) of the Penalties and Sentences Act and deterrence in section 9(1)(c).

His Honour drew a distinction between the applicant and his accomplices. Although the applicant was young - he was born on 23 May 1976 - his brother was younger, having been born on 7 March 1979. Both committed the offences when subject to probation orders, but the applicant's criminal history was more extensive than his brother's. Pintus, too, was young - he was born on 23 July 1979 - and he had no prior criminal history. It is clear that the applicant was the instigator of the offences.

It has been argued before us that the sentences imposed upon the applicant were manifestly excessive in all the circumstances, taking into account that "no parole eligibility date was ordered", but it is clear that his Honour took into account the pleas of guilty in fixing the head sentence in each case and allowed a substantial discount for the pleas of guilty.  It has also been argued that whereas the applicant committed the assault to which he pleaded guilty with a plastic pipe, his co-offender, his brother, wielded a tomahawk in committing the assaults to which he pleaded guilty. But it is clear again from what was put before his Honour that Derek Suthern did not strike either complainant, whereas the applicant struck the complainant in relation to whom he was charged with assault.

In the result, I can see no proper basis for concluding that his Honour's discretion miscarried in sentencing the applicant. I should therefore refuse the application.

THE CHIEF JUSTICE:  I agree.

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  The application is refused.