The Queen v Palmer[1998] QCA 293

COURT OF APPEAL

THOMAS JA

MACKENZIE J

HELMAN J

CA No 181 of 1998

THE QUEEN

v.

PHILLIP FREDERICK PALMER Applicant

BRISBANE

DATE 06/08/98

JUDGMENT

MACKENZIE J: The applicant was one of six men who engaged in a home invasion which resulted in charges of burglary and assault occasioning bodily harm. The house invaded was occupied by a man, two women and a small child. 

The incident had its origins in a phone call by the male occupant of the house to one of the men who eventually took part in the incident, John Fleming Robertson. He was the father of two of the other accused, one of whom features later in these reasons.  The phone call was indisputedly abusive and probably threatening. It concerned a debt owed by another person. 

Mr Robertson contacted the police and complained. When he threatened to go around to the house he was warned by the police officer not to. However, subsequently the six men, including the applicant, went to the premises and forced their way in by smashing down a door.

The male occupant who had apparently picked up a machete was disarmed and beaten and kicked. He was hit once with a baseball bat by the applicant who had taken it with him to the house. It also appears not to be disputed that he also used the bat to smash a telephone as it was being used by a female occupant to dial triple 0. 

The applicant's counsel said, and the sentencing Judge accepted, that the applicant had consumed a considerable amount of alcohol during the day. He was 37 years of age at the time of the incident and, as the matter was presented to the sentencing Judge, had only one previous conviction for which he was imprisoned in 1986, that being for a sexual offence.

Mr Smith, having become aware of a wider range of convictions, properly set in train events which resulted in a larger criminal history of the applicant being brought to our attention. It includes an offence of sexual assault and a penalty of five years imprisonment was shown to have been imposed for that.

There was some discussion as to what use we should put this further information to. For my part I can dispose of the issues in the appeal without needing to have resort to the full details of that document. Suffice it to say that it appears that the information before the sentencing Judge that there had been a conviction for a sexual offence is corroborated by the information that has been put before us. The sentencing Judge said that the conviction, in any event, did not attract weight for sentencing purposes. 

There was also some information put before the sentencing Judge that the applicant had been involved in a serious motor vehicle accident some years before and had sustained injuries. It was said that he had problems with alcoholic dependence and depression.

The sentencing Judge accepted that four years imprisonment should be the starting point for determining the effective sentences to be imposed. 

He sentenced the applicant to three years imprisonment on the basis that he should get a 25 per cent discount for pleading guilty. The main complaint made today was that a recommendation for early release on parole should have been made. It was submitted that there was a disparity between the sentence received by the applicant and Peter Robertson who had gone to trial and had been sentenced to four years imprisonment with a recommendation for release on parole after 12 months.

It was submitted that, effectively, the applicant who had pleaded guilty had been treated more severely than a co‑accused who went to trial. Robertson was only 20 years of age and had no previous convictions. The trial Judge fixed the short non-parole period on that basis, and it should be noted also that the head sentence imposed on him is longer.

The applicant's head sentence is well within range for an offence of this kind. It was not, in my view, incumbent upon the sentencing Judge to reduce the statutory non-parole period for any of the other reasons that were before him. 

The issue of disparity, in my view, is disposed by a consideration of the relative obligations of the applicant and Peter Robertson. While it is true that the applicant cannot apply for parole as soon as Peter Robertson may, and there is of course no guarantee that a person necessarily gets parole on the due date, the early non-parole in Robertson's case is justified by his youth and conviction-free status prior to the incident in question.

Further, the head sentence was four years compared with three for the applicant. To be exposed for one year longer to the consequences of any breach of the law is not an insubstantial burden, in my view, and I have some difficulty in seeing that when a balance is made between the two dispositions that there is any disparity of such a kind as to call for correction.

I should mention that there were some other matters mentioned in the outline related to the mental state of the accused and a number of other personal factors. Except to the extent that the desire of the applicant to be released as soon as possible to care for his children was referred to, those matters were not explored in detail. In any event, I am satisfied on reading the record that those matters do not vary in any way what I have said.

In my view the application for leave to appeal should be refused.

HELMAN J: I agree.

THOMAS JA: I agree. The order is application refused.