R v Hoffman[1999] QCA 35

COURT OF APPEAL

McMURDO P

McPHERSON JA

WILSON J

CA No 363 of 1999

THE QUEEN

v.

MATTHEW DANIEL HOFFMAN

BRISBANE

DATE 23/02/99

JUDGMENT

THE PRESIDENT:  Justice Wilson will give her reasons for judgment first.

WILSON J:  This is an application for leave to appeal against a sentence imposed by the District Court at Beenleigh on 14 September 1998. 

The applicant pleaded guilty to one count of the unlawful use of a motor vehicle with a circumstance of aggravation, that is, for the purpose of facilitating the commission of an indictable offence.  He pleaded guilty to one count of burglary with circumstances of aggravation, that is the use of personal violence whilst armed and in company; and he pleaded guilty to one count of assault occasioning bodily harm whilst in company.

In respect of each charge the Judge imposed a sentence of three years imprisonment and recommended that he be considered eligible for release on parole after serving nine months.  The sentences were to be served concurrently. 

The applicant contends that the sentence is manifestly excessive when compared to the sentence given to the co-accused Delaporte and to a lesser extent contends that it is otherwise manifestly excessive. 

He contends that the sentence which should have been imposed was three years with immediate release on the date of the appeal. 

In other words he is contending that the period after which it should be recommended that he be eligible for release on parole be reduced from nine months to the period already served, which is about five and a half months.

The applicant was born on 25 February 1973 and was aged about 24 when the offences were committed.  He and three others took part in a vigilante invasion of a private dwelling.  He assaulted the sleeping householders and stole from them. 

They had stolen a car to use in the escapade.  They wore balaclavas and were armed.   The applicant carried a knife. 

The co-offender, Lynch, had a curtain rod or pipe.  The female offender, Delaporte, had an aerosol spray and a fourth offender who has been identified as Andrew wielded a cricket bat.

The victims were Mr and Mrs Sapieja.  Andrew struck Mr Sapieja on the head while he was sleeping.  There was then a struggle between Mr Sapieja and the applicant.

In the course of the struggle the applicant produced the knife.  He sought assistance from the co-offenders saying, "Help me because he's going to grab the knife from me."  Andrew then used the bat, and Lynch the pipe, on various parts of Sapieja's body.

The applicant also used his knife on Mr Sapieja repeatedly hitting him.  At one point the applicant made the victims put their hands on the bed.  He displayed the knife saying, "I don't want to use a knife.  Tell me what money you've got, what stereos you've got and we'll go and leave."

Most of the demands for money were made by the applicant.  At one point he passed the knife to Andrew with the warning, "Don't do anything stupid because this guy's not going to hesitate to use the knife.  You saw him in action."

The applicant also said, "I think you have money.  If you have such a big house you must have some more money.  You have to give us $2,000 right now or say where it is."  When he was told there was a mortgage, he objected, "I don't think so.  When I come back in a minute I want $2,000."  Mrs Sapieja handed over some jewellery. 

Subsequently, the applicant organised Lynch to stand guard while he went through the house removing valuables.  It was he who was concerned about the length of time in the house and the risk of apprehension.  He urged the co-offenders to hurry.

In accordance with the plan, the Sapiejas' hands were tied to the bed.  The applicant also described keeping them hostage with the menace of his knife.  At any earlier stage, Delaporte had scuffled with Mrs Sapieja attempting to spray her eyes and kicking her face to cause a black eye. 

The incident lasted some time.  Police were alerted by a neighbour.  When they arrived the applicant told the others to run.  The stolen car was left at the front of the house with $2,790 worth of stolen property inside it. 

The applicant and Delaporte were located by a police dog.  The applicant dumped the knife as the police approached and gave a false explanation for their presence.  Mrs Sapieja's jewellery was found on Delaporte.

The injuries to Mr Sapieja included substantial bruising and abrasions to the chest, mid-back, lower back, elbow and left thigh.  He had a laceration to one hand caused by the applicant's withdrawal of the knife in the first struggle.

Mrs Sapieja had a black eye.  There have been substantial psychological and financial repercussions for the whole family.

In sentencing the applicant and Delaporte, the learned Judge took into account that they had both cooperated with the police, although the applicant more than Delaporte.  Delaporte pleaded guilty after a committal.  The applicant pleaded guilty to an ex officio indictment.  Neither of them had any previous convictions.

The applicant was sentenced to three years with a recommendation for eligibility for parole after nine months.  Delaporte was sentenced to four years with a recommendation for eligibility for parole after 12 months.

Lynch was described as probably the principal offender.  It was he who first had the idea of the escapade, although he did not seem to have any part in the actual assaults.  He, like Delaporte, was aged about 17 at the time and he faced additional charges with respect to the misuse of a motor vehicle.  He received five years with no recommendation for parole.  The fourth offender, Andrew, has not yet been apprehended. 

In considering the appropriate sentence for the applicant the learned Judge took as a starting point imprisonment for five years with a recommendation for parole after 18 months.  He then considered factors relevant to mitigation and to parity between the applicant and Delaporte. 

There was a disparity in their ages - the applicant 24, she 17.  He had been in steady employment and had been for several years.  She was unemployed.  The Judge considered that Delaporte's role was probably overall less than the applicant's although she had been an active and willing participant.

I have already referred to cooperation with the police.  The applicant cooperated in the identification of the fourth offender Andrew and he gave an undertaking pursuant to section 13A of the Penalties and Sentences Act to assist the authorities in testifying against Lynch.

The consequence of that has been that when he went into custody he was placed in protective custody.  There are concerns as to revenge likely to be perpetrated on him and his family and he has burnt his bridges with the co-offenders.

There was psychiatric evidence that the applicant has a schizophrenic illness.  It is a low grade illness, the natural history of which had been ameliorated by medication.  At the time of the offences he had been off the medication for some time and the effect of that condition on his behaviour seemed not to be great.  Although the psychiatrist who examined him said that it did have the effect of making him more easily led, on the night in question it seems he acted more as a leader than a follower.

In my view, the sentencing Judge took due account of the distinguishing features in imposing on Delaporte four years and the applicant three years as head sentences and in making recommendations for eligibility for parole in the case of Delaporte after 12 months and the applicant nine months.

Indeed, in my view, the sentencing Judge dealt with the applicant leniently.  This Court's role is not to re-sentence the offender but simply to see whether the sentence is within the applicable range.  I am not persuaded that the difference between the sentence imposed on the applicant and that imposed on Delaporte was, in all the circumstances, such as to warrant intervention by this Court, nor am I persuaded that the sentence is otherwise manifestly excessive.  Accordingly, I would dismiss the application.

THE PRESIDENT:  I agree.  The application should be refused for the reasons given by Justice Wilson.

McPHERSON JA:  I also agree.

THE PRESIDENT:  The order is the application is refused.