R v Dougherty[1999] QCA 73

COURT OF APPEAL

McMURDO P

McPHERSON JA

MUIR J

BRISBANE

DATE 17/03/99

JUDGMENT

THE PRESIDENT:  These are applications for leave to appeal from a term of imprisonment of eight years imposed on the applicants for the offence of armed robbery in company with personal violence.  The offenders were declared serious violent offenders pursuant to section 161B(3) of the Penalties and Sentences Act 1992. 

They also pleaded guilty to one offence of housebreaking, one offence of assault occasioning bodily harm whilst armed in company, one offence of unlawful use of a motor vehicle, and one offence of possession of amphetamine with a circumstance of aggravation.

The facts, which are extremely serious, are as follows.  The complainants lived on a 10 acre property at Boreen Point with the three children aged 8, 11 and 14.  In an adjacent shed John and Sue Browning resided.  It appears that John Browning had been manufacturing amphetamine. 

The Crown case is that the Summers family were ignorant of the presence of drugs.  This fact was not disputed at sentence, and in any case is largely irrelevant, although today the applicant Dougherty claims that Summers was involved in the drug scene. 

The  applicants came to the property with an unidentified accomplice in search of money and drugs.  All three were dressed in dark clothing and balaclavas to avoid identification.  They were armed with loaded weapons, namely a rifle, a sawn-off shotgun, and a long-barrelled pistol.  Mr Summers arrived home with his 14-year-old son at about 8.15 p.m. 

Because the offenders were so heavily disguised it was impossible for the Crown to particularise who did what.  It seems, from remarks made at the sentence, that Doyle had the sawn-off weapon and the un-named offender held the pistol, because it was the un-named offender who, on defence counsel's instructions, was with the family when the offences occurred.  Dougherty's counsel at the sentence submitted that Dougherty did not inflict the violence, but the facts were not disputed at the sentence.

Mr Dougherty seeks to dispute those facts now, although he accepts that this Court must act on the facts as given below.  As Mr Summers walked towards his home one offender yelled out, "Stop, you fucking cunt.  Get down on your knees."  The complainant thought it was a joke, but was then struck on the head with the butt of a gun and ordered to do as he was told.  He was again assaulted and brought to his knees.  He was then hit in the face with the rifle.

The rifle barrel was then put in his face with a threat to all seven occupants of the property.  The threat was then reinforced by another offender who pointed the sawn-off weapon and said, "Anyone move and I'll blow your fucking head off."  The offender with the rifle drove Mr Summers' head to the ground with the barrel of the rifle.  Mr Summers was then bound with duct tape.

The person with the rifle then put the barrel under Mr Summers' chin and forced him to stand up, demanding money and drugs.  Two offenders marched Summers into the house and the third offender stayed with the other adults and the children.  This offender, who was probably neither applicant, kept the other adults and children at gun-point and threatened to "blow their fucking heads" off if they looked up.

The applicants took Mr Summers to a wall safe.  The picture covering the safe had already been removed and he was forced to open the safe.  He was repeatedly hit in the head.  The barrel of the rifle was put in his mouth and the bolt was cocked, with the threat, "If you don't open the fucking safe I'll splatter your brains all over the wall."  The gun was pointed in his face by one offender as another emptied it.

One offender, with the rifle pushed in Mr Summers' face, escorted him to the upstairs area, demanding money and speed.  He threatened to shoot Mrs Summers and pointed the rifle at Mr Summers' chest.  The offender with the sawn-off shotgun then joined the other with a bin full of property.  He pushed the barrel of his gun into Mr Summers' eye and said, "Where's the rest of it?  I'll blow your fucking head off." 

The offender with the rifle repeated the demand for drugs by again putting the weapon in Mr Summers' mouth.  He rammed it in so hard Mr Summers gagged.  The offender said, "If you keep looking into my eyes I'm going to splatter your brains on the wall." 

Another offender then appeared saying, "We've got it."  Demands were made for Mr Summers' keys to his van and when he couldn't find them quickly he was further threatened.  As the offenders left the offender with the pistol pointed at all the complainants and threatened, "If you call the cops we'll be back.  You'll be dead, including the kids." 

Mr Summers' 14-year-old son managed to contact police on a mobile telephone.  The police intercepted the van and the three robbers ran.  The Dog Squad located these applicants but the third offender has not been apprehended.  The weapons were found loaded and all in working order.  The rifle had a bullet cocked in the chamber ready to fire.  Jewellery, $1000 worth of cash, and 81.65 grams of methylamphetamine worth $160,000 were recovered.

The applicants refused to be interviewed by police.  The submissions at sentence were that they were introduced to the third offender to solve financial problems and he provided them with guns, telling them that they would be obtaining property from a drug dealer at Boreen Point.  They said they were too frightened to reveal his name.

The victim impact statement, which was not disputed at the sentence by the applicants, who were then represented, reveals that Mr Summers and the family remain traumatised by the violent invasion of their home, described by the learned sentencing Judge as "a family's worst nightmare".

It states that Mr Summers suffered three broken ribs, a split chest cartilage and bruising and scarring on his face and chest.  The applicant Dougherty now disputes that these injuries were suffered.  Certainly photographs that were tendered at the sentence show cuts to the face and neck of Mr Summers and bruising on his arms and body.  The other injuries are not ones that one would expect to be revealed in a photograph. 

Dougherty, in his notice of application for leave to appeal, claims the sentence is manifestly excessive.  Doyle, in his notice, also claims that the sentence was manifestly excessive but further submits that the sentencing Judge acted on wrong principles in imposing a harsher sentence because he failed to implicate the third co-offender.

The applicants have represented themselves today, and it seems their complaint now is largely limited to a complaint against the declaration made under section 161B(3) of the Penalties and Sentences Act 1992.  It should be said, however, that there is nothing in Her Honour's sentencing remarks to suggest that she has imposed a harsher penalty because of the lack of cooperation of either applicant.  Cooperation with authorities is a mitigating circumstance, but non-cooperation does not result in a harsher penalty. 

The learned Judge's sentencing remarks are consistent with that proper approach.  Her Honour was entitled to note that their lack of cooperation was relevant to the extent of their remorse.  Her Honour was largely concerned in her sentencing remarks with the extreme seriousness of the offences.  Whilst the sentencing remarks themselves make it plain that Her Honour has not acted on any wrong sentencing principle in respect of the applicant's lack of cooperation, this approach is confirmed, if that be necessary, in the report of the learned sentencing Judge.

The applicant Dougherty is 54 years old.  He has some prior convictions spanning a period from 1970 to 1995, including offences for stealing and drug offences and driving under the influence of liquor.  Doyle, who is 35 years of age, has a worse criminal history.  He has prior convictions for dishonesty, assaulting police, drugs and, notably, in 1991 was sentenced to 12 months imprisonment for trafficking.

It can be said that neither applicant has any prior convictions for offences of violence, although the extent of violence on this occasion was very great indeed.

Dougherty, it seems, had had a good work history despite a past drug addiction, and references were tendered on his behalf.  In the circumstances of the offences to which he had pleaded guilty these references obviously were of limited use.  Doyle is an insulin-dependent diabetic and suffers from Hepatitis B.  References were also tendered on his behalf but, again, have limited relevance. 

A large number of comparable sentences have been handed up by the applicant Dougherty and the respondent has also referred the Court to a number of comparable sentences.  Comparable sentences of R v. Awai, Rapana and Rapana, CAs 118, 136 and 137 of 1994 delivered 15 June 1994, and R v. Stinton, CA 289 of 1998, delivered 5 February 1999, make it plain that the head sentence of eight years is not manifestly excessive, by any means.  In some ways these offences were more serious than those in Stinton and Awai. 

The real complaint of the applicants relates to the declaration pursuant to section 161B(3) of the Penalties and Sentences Act, declaring the offenders to be convicted of a serious violent offence as part of the sentence.  These offences constituted a very high level of violence.  Threats were made to all members of the complainant's family, including quite young children, that if the police were called the applicants would return and kill them.  Mr Summers was physically assaulted to a significant degree.

On the disturbing facts of this case it was plainly within Her Honour's sentencing discretion to make these declarations.  The applicants have not shown any error on the part of the learned sentencing Judge, nor have they demonstrated that the sentence or the declaration was manifestly excessive.  I would refuse both applications.

McPHERSON JA:  I agree.  Far from being excessive the sentences imposed here for offences of the degree of seriousness committed in this case are, to my mind, if anything, at the lower end of the scale of penalties for this type of home invasion.  I am, however, not prepared to part from this application without adverting to one other matter that has become one of real concern to me.

It is the nature and terms of some of the character references tendered at the sentencing hearing.  One of them, which is from the sister of the applicant Doyle, describes him as "a very kind person" and one "who has a caring and loving nature".  Only the blind affection of a close relative or a complete ignorance of the character of the offences in which the applicant Doyle had taken part could possibly account for the use of descriptions like that.

Participating in the sustained beating of an innocent man in his own home, leaving him with three broken ribs, a split chest cartilage, bruising and scarring to his face, and all the time terrifying his wife and children with the use of firearms and repeated threats of death over such a lengthy period is not the action of a kind person with a caring or loving nature.

In the light of what he did, that description is simply absurd, as also is that of a family friend who speaks of him as a kind and gentle father, brother and son, and also of the applicant's "deep remorse".  That friend ascribes Doyle's conduct to his having got in with bad company, but it is noteworthy that Doyle has an extensive record of criminal convictions, many of them connected with drugs.  Drugs in the form of amphetamines were found in the car in which the offenders tried unsuccessfully to escape in this case. 

Whatever the explanation for the terms of these references, this and other character references to similar effect were placed before the Judge at the sentencing hearing.  Presumably it was done on the instructions of the applicant himself after he had seen them.  To my mind his action in allowing them to go forward not only demonstrates a complete insensitivity to the sufferings of his victims, but also shows a transparent lack of any genuine remorse whatsoever on his part for the inhumane actions in which he participated.  His actions were intended to further a criminal enterprise and were directed, as it now turns out, at quite the wrong people.

Calculated, as they are, to do no more than provoke outrage, I find it nothing short of incredible that such statements should have been produced and relied upon at the hearing as going in mitigation of this offence.  I suggest that in future those who advise and act for offenders in this position be more circumspect about matters of this kind because, on the face of it, they do not establish anything favourable to the applicant in question but tend, on the whole, to have the opposite effect.  That is all I wish to add in addition to what has been said by the President.

MUIR J:  I agree with the reasons given by the President and with the order she proposes.

THE PRESIDENT:  The order is that each of the applications is dismissed.