Attorney-General v Sagiba[1999] QCA 468

COURT OF APPEAL

McMURDO P

THOMAS JA

WILLIAMS J

CA No 281 of 1999

THE QUEEN

v.

FRANK CYRIL SAGIBA (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND (Appellant)

BRISBANE

DATE 05/11/99

JUDGMENT

THOMAS JA:  The respondent was convicted of a variety of offences and sentenced to concurrent terms, the longest of which was four years' imprisonment.

This is an appeal by the Attorney-General on the ground that the sentences were manifestly inadequate.  The offences were committed between October 1998 and April 1999.  During that period the respondent turned 19.  He was born in Thursday Island and educated in and around the Port Douglas and Mosman areas.  The offences were committed in those areas, most of them in Port Douglas.

Fifteen indictable offences were charged, involving the breaking and entering or attempted breaking and entering of nine separate premises.  In addition, there were nine summary offences, seven of which were of being found unlawfully in a yard.

The respondent has no previous convictions and was described as being from a good family, as having previously been a good worker and as having been a good productive member of the community. 

The offences were described by counsel for the Attorney-General as amounting to a six month spree of offending in and around Port Douglas.  The worst aspect of these offences is that during three of the burglaries, the respondent indecently assaulted the female occupant of the premises. Another feature is the persistence of the conduct in that while on bail for the first three burglaries and indecent assaults, he continued to offend.  In February he was dealt with in the Magistrates Court on some offences of entering premises and committing an indictable offence, and was granted probation for 12 months and ordered to perform community service.  However he continued to offend, notwithstanding the probation, and therefore fell to be resentenced on those matters as part of the present sentencing exercise.  The last offences in the series included the final three burglaries and five incidents of being unlawfully in a yard.  These were committed after he had absconded on bail.

The circumstances of the first offence are that a woman who lived in a unit with her 12-year-old daughter in Port Douglas went to sleep on the lounge.  The back door had been left open.  The respondent entered and lay on top of the complainant, simulating intercourse with a sheet between them.  When the complainant fully awoke, she reacted with shock and the respondent left.

A few weeks later, he broke into the house of a 22-year-old woman who lived with her husband and two young children.  She awoke to find the respondent fondling her pubic area on the outside of her clothing.  He kissed her on the cheek and neck.  Upon becoming fully awake, she realised that it was not her husband.  The respondent ran off, leaving behind a baseball cap.

A few days later, the respondent returned to the unit of the first complainant, this time gaining entry by tearing a flyscreen.  The complainant was walking to the toilet when the respondent took hold of her.  She struggled, and he momentarily touched her pubic region and tried to push her legs apart.  He fled when she screamed.  He had stolen $30.  When questioned about these matters, he confessed. 

The offences which are the subject of an ex officio indictment included the breaking and entering of an industrial shed and spraying a vehicle with black paint, stealing cigarettes from the patio of a residence and various burglaries in some of which money or jewellery to the value of up to $350 was taken.  Some of the complainants have suffered greatly as a result of the respondent's actions, and serious family repercussions have ensued. 

Counsel for the Attorney-General submitted that a term of four years' imprisonment does not adequately reflect the level of persistent criminality, or take account of the risk of reoffending.  The latter proposition however is at this stage quite speculative and distracts attention from the primary factors that should lead to the formulation of an appropriate sentence.  Major considerations include the need for general and specific deterrence.  The serious features of the respondent's conduct have already been stated and need not be repeated.

In the District Court, the Crown Prosecutor submitted that a term of six years' imprisonment would accommodate the factors of youth and cooperation.  It was submitted in this Court that the learned sentencing Judge would seem to have taken that figure as a starting point and then to have discounted to those same factors, resulting in a double reduction in arriving at the figure of four years.

Reference was made to Green, CA 190 of 1996, judgment given on 2 August 1996, in which a sentence of 10 years with a recommendation for parole after four years was regarded as an appropriate response to a series of offences by a 25-year-old offender.  The offences included his burglary of a convent and an indecent assault upon a Sister of Mercy.  In all respects, Green is considerably more serious than the present matter and it cannot be regarded as comparable.  He was 25 years old and had a substantial history of housebreaking offences committed over an extended period. In the offence involving the convent, he was armed with a knife with a six to eight inch blade and he engaged in persistent threats and misconduct.  His offences also included an armed robbery.

Counsel for the respondent has pointed out that in order to arrive at the sentence of six years, which is the sentence which counsel for the Attorney-General submits should now be imposed, one would have to justify a starting point of eight years' imprisonment in order to give proper account to his cooperation and his pleas, including a plea to offences on ex-officio indictment.  He submits that such a starting point is not appropriate to this 19-year-old offender who has no previous convictions and whose rehabilitation may be thought to have a better chance than some others that come before the Courts on like offences.  A sentence of eight years' imprisonment upon a young offender, he submits, would be more appropriate to a case of a significantly larger number of offences carried out over a longer period and exhibiting the hallmarks of professionalism, or involving property of substantially greater value than that involved in the present matters.

It is difficult to understand the motivation of the respondent and little explanation for it has been offered.  His conduct reveals strangely persistent and serious offending.  However no psychological or social insights are available other than that he drifted into bad habits.  The assaults within the homes of other persons are worrying despite the fact that there was no substantial violence.  The evidence however suggests that apparently remorse and shame exists on the part of the respondent and if this is so, it is at least an indicator of promise for the rehabilitative process.

In my view, the submissions of counsel for the respondent describing the type of conduct for which a young offender with no previous convictions will receive a sentence of eight years' imprisonment are substantially correct.  My view upon reading the papers was that perhaps a sentence of five years' imprisonment might have been a satisfactory response and might have been more appropriate than the four year sentence which was imposed, but that it was difficult to say the four years was manifestly inadequate.  Such a view is not one which satisfies the tests necessary for interference with a primary sentence upon an appeal by the Attorney-General.  Such an exercise is not one of substituting one discretion for another when the variation of opinion is not substantial.

The sentence was in my opinion perhaps low, but not such as to call for the intervention of this Court.  I would dismiss the appeal.

THE PRESIDENT:  I agree with Justice Thomas that the appeal should be dismissed and with his reasons.

I would only add that the facts suggest to me that the respondent has an alcohol problem which will need to be addressed if he is to be successfully rehabilitated.

WILLIAMS J:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed.