R v Palmer[2000] QCA 15

THE CHIEF JUSTICE:  The applicant is a 29-year-old man.  He pleaded guilty to a series of offences attracting various terms of imprisonment, the most substantial being 11 years coupled with a declaration that he was convicted of a serious violent offence.

The difficulty about the case is that the Judge appears to have taken the view, into which he was apparently led by the prosecutor, that the declaration would automatically follow for that offence were he sentenced to more than 10 yeas imprisonment.  That was incorrect.

The applicant was relevantly charged under section 419 subsection 4 of the Criminal Code with entering a dwelling while in company and armed and stealing from an occupant with actual violence.  The schedule to the Penalties and Sentences Act, to which part 9A relates, does not specify an offence under section 419 subsection 4.  It refers most nearly to an offence of burglary under section 419.3B.

Section 419.1 establishes the basic offence of burglary, entering a dwelling with intent to commit an indictable offence.  Subsection 3B adds circumstances of aggravation which, if established, elevate the maximum level of penalty to life imprisonment.  But subsection 4 then goes on to create a quite separate offence in which the actual commission of an indictable offence following entry is involved.

The point of distinction was recognised in Miles, Court of Appeal 96 of 1999.  The prosecutor addressed the Judge on the basis that for a sentence in excess of 10 years imprisonment the 80 per cent requirement would automatically apply.

The Judge's statement in sentencing the applicant, "It goes without saying that I must make the declaration" under part 9A, should probably be seen in that light.  That is the basis upon which the Crown has responded to this application.  Counsel for the Crown submitted now, however, that the penalty and declaration should, in any event stand.

The applicant contends that the sentences imposed upon him were manifestly excessive.  He received three years' imprisonment for unlawfully wounding a fellow drinker at a hotel in Cairns.  Taking offence at something the victim said the applicant broke off the end of a pool cue and thrust it into the victim's throat.

Three months later the applicant carried out the armed robbery of a service station terrorising a family and a service station attendant.  He fired shots from a gun.  That attracted seven years imprisonment.

The 11 year term was imposed for entering the dwelling house and committing an armed robbery in company.  That occurred a month after the robbery at the service station.

The applicant forced his way into the house of a 70-year-old widow.  Also present were her daughter and a nine-year-old grand-daughter.  He had an accomplice who entered later.

As asserted at the sentencing, the applicant entered by pressing a knife to the throat of the widow and otherwise manhandling her.  He threatened the occupants in graphic terms.  He destroyed their property.  Also, it was asserted at sentencing he actually broke the skin of the back of the widow victim with the knife.  He would now deny both of those actual injuries.

The applicant eventually decamped in the daughter's vehicle.  The residual effect on the victims was, in this case, profound, prolonged, in fact, devastating.  They suffered serious psychological harm.  There were related lesser offences which need not be covered.

Eleven years imprisonment on the basis that 80 per cent be served was a justified response to crime of this magnitude allowing for the pleas of guilty and the applicant's personality disorder which led to the Judge's recommending psychiatric care in gaol.

The Judge referred to the totality principle and the need to make proper allowance for the plea of guilty in the circumstances that 80 per cent would be served.  It could not be said that the penalty he imposed was manifestly excessive. 

The apparent irregularity in the course of the proceedings does not in the end invalidate the result which should therefore stand. 

I would dismiss the application.

THE PRESIDENT:  I agree.

BYRNE J:  I agree.