R v Cutter[2000] QCA 52

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I have had the advantage of reading the reasons for judgment of Thomas JA and Wilson J.  Their Honours have set out at some length the facts relevant to this appeal and the argument of counsel for the applicant.  Except in one respect I shall not add to what their Honours have said in this respect.

2. With great respect I disagree with their Honours’ conclusion. In my opinion the sentence imposed on the applicant was manifestly excessive.

3. There are two reasons why, in my view, that is so. The first is that it fails sufficiently to distinguish between the seriousness of the totality of the applicant's conduct and that of the other offenders (apart from Lindsay Horton) whose offences and sentences are referred to by their Honours. The second is his extreme youth, when compared to any of the other offenders, and a lack of any parental guidance combined with the fact that other offenders in the first and most serious of his groups of offences included his father, his uncle and his older brother.

4. It is important to emphasize that all of the other offenders were involved in two other groups of offences on the night of 29 March 1999, each of them more serious than the one to which the applicant was a party. The one to which the applicant was a party is described in the reasons of Thomas JA and Wilson J at [21].  Unsurprisingly, it seems as if the applicant's father was the leader of this enterprise and it was he who made the threat to Bryant, referred to in this paragraph.  It is necessary to make some reference to the other offences committed by the other offenders that night because it is only by seeing the seriousness of those that a fair assessment can be made of the relative criminality of the applicant and the other offenders.

5. Having been unsuccessful in finding Tony McKewin at the Bryant's caravan, the others decided to go to the residence of McKewin's family. Again it appears that the applicant's father led this enterprise. This involved a drive of approximately 36 kilometres.

6. Mr McKewin senior had been forewarned of their arrival. He had therefore closed his front gate, turned on his external light and armed himself with a hoe. They arrived shortly after 11.00 pm and drove up to the house. The applicant's father, Lindsay Horton and Paul Mahoney went to the front door. Mahoney was armed with a chain which had been removed from the Bryant's caravan. Jason Cutter went around to the back of the house.

7. Mahoney swung the chain at the screen door, hitting Mr McKewin senior on the hand causing him injury. Mr McKewin managed to close the front timber door and ran inside to ring the police. By the time he arrived at the phone however they had smashed open the door and Jason Cutter ripped the phone from the wall.

8. During the course of a further altercation Jason Cutter, by then armed with the chain, put it around Mr McKewin's throat from behind and started to strangle him. He desisted when his father told him to. Mr McKewin, who was also severely shocked by the episode, had soft tissue injuries and abrasions to his neck and grazing to his hand, shin and elbow. Some items of property were stolen.

9. Failing to find Tony McKewin they then returned to the Bryant caravan. What their purpose was, other than to harass the Bryants further, is unclear. When they arrived they came upon Karl Bryant, Ronald Bryant's son whereupon the applicant's father directed that he be placed in the boot of the car. During the process Bryant was punched and kicked and threatened with death. On two occasions he managed to unlock the boot from the inside but on each of them one or other of the group returned and assaulted him, on one occasion with a wheelbrace. On the third occasion he managed to roll out of the boot and escape, again, however, being assaulted in the process. He suffered rib fractures and general bruising.

10. The worst of these groups of offences on the night of 29 March was that involving Mr McKewin. His home was vandalised and damaged; he required counselling, no longer felt safe at night and moved to another State; and his wife, who was also present, suffered shock. He was still on medication for his nervous condition at the time of sentencing. But Mr Karl Bryant's experience in being severely assaulted, placed in the boot of a car and fearing death was also terrifying.

11. The other offences with which the applicant was charged, referred to in [23] of Thomas JA and Wilson J's reasons show considerable verbal aggression on the part of the applicant. On the other hand he did not in any way follow through on his threats and there is no evidence that those to whom he made them were in any way intimidated by them.  They were far less serious offences than either of the groups of offences, already referred to, in which the other offenders, but not the applicant, took part.

12. It is true that the applicant had a worse criminal record than any of the other offenders. He had been convicted of offences involving dishonesty in November 1998 and March 1999 and of wilful damage in April 1999. But he had never before been convicted of offences involving injury or threats of injury to other people and he had never before been sent to gaol.

13. In assessing the relative seriousness of the applicant's conduct it must be borne in mind that he was a youth of only just 17 years of age with an Attention Deficit Disorder and a total lack of parental guidance. Indeed his participation in the most serious of the offences in which he was involved was a family enterprise led by his father and his uncle.

14. When to that is added the distinction which I think must be made between the totality of the seriousness of his offences and the totality of the seriousness of the offences committed by the others, mostly family members, who were sentenced at the same time, I think there was a sufficient lack of parity in his sentence as to justify interference by this Court. I would accordingly grant the application, allow the appeal, set aside the sentence imposed below in respect of count 1 and impose in lieu a sentence of three years imprisonment with a recommendation for eligibility for parole after serving 12 months of that sentence. I would not interfere with the sentences imposed in respect of counts 3, 4 and 5.

15. THOMAS JA and WILSON J:  The applicant was sentenced in the District Court on six counts contained in two indictments.

16. The four counts on the first indictment arose out of the applicant's involvement in an incident on 27 December 1998 when he and other members of his family visited the Gympie Caravan Park bent upon doing injury to one Tony McKewin. The applicant pleaded guilty to one count of burglary with a circumstance of aggravation, two counts of stealing and one of making threats. These charges related to conduct directed against Karl and Ron Bryant who were thought to be harbouring or to know the whereabouts of Mr McKewin.

17. The second indictment relates to the applicant's conduct on 29 March 1999 when in two separate incidents while armed with a machete he made serious threats against other persons. He was convicted of going armed so as to cause fear and of threatening violence.

18. On the aggravated burglary count in the first indictment he was sentenced to four and a half years imprisonment with a recommendation for consideration of release on parole after 20 months. On the stealing and making threats counts he was sentenced to concurrent imprisonment for lesser terms, namely 3 months and 2 years respectively, with the same recommendation for release. On the second indictment he was sentenced to concurrent imprisonment of 12 months on each of the counts. The applicant had spent 37 days in pre-sentence custody but the learned sentencing judge decided to make no specific declaration concerning this, noting that he had taken them into account in calculating the recommendation for release on parole.

19. The applicant is now 18, but at the time of the first offences was only one day over 17 years. He has a prior criminal history. One month before his commission of the offences in the first indictment he was convicted of 25 offences of housebreaking and unlawful use of motor vehicles, all committed over the preceding 12 months. On each charge he was sentenced to probation for 18 months. At the same time he was sentenced to 3 months detention subject to an immediate release order for offences of arson and stealing. The offences were described as involving property of considerable value. Prior to this he had been subject to three probation orders and one community service order. In addition he has been convicted of breach of bail and of further offences of wilful damage, stealing and unlawful use of a motor vehicle committed in October 1998 and of wilful damage committed on 30 March 1999 which was the day after the offences charged in the second indictment.

20. The first group of offences were committed while he was on probation and during the currency of the immediate release order. The second group of offences were committed when he was on bail for the first group of offences.

21. The circumstances the subject of the first indictment are that he was one of five persons described as a vigilante family group who went to the Gympie Caravan Park to "sort out" a person named Tony McKewin. They first went to the caravan in which Ronald Bryant and his son resided. Three persons including the applicant entered the caravan in which Mr Bryant was sleeping. McKewin was not present. Mr Bryant who awoke was assaulted by being pushed back onto his bed and then having his arm bent against the steel edge of the bed causing him considerable pain. Money was demanded. One of the offenders eventually told the person bending Mr Bryant's arm to stop as he was an old man. During the incident a vacuum cleaner, a fishing rod and reel, a tow chain and $10 were stolen. Mr Bryant was ordered to go to another caravan to find McKewin, and told to come back "because if you don't I'll kill you". The person who made that statement was the applicant's father. The threat was made while the applicant was present. Of his own volition the applicant took the vacuum cleaner and fishing rod.

22. The applicant was not involved in further offences that night. However the remaining co-offenders took part in further serious criminal activity to which they pleaded guilty. They visited McKewin's residence and a series of aggressive acts ensued resulting in invasion of his premises, malicious damage to the premises, removal of property and some minor injury to Mr McKewin and his father. They then revisited the caravan park and committed further violence upon Mr Karl Bryant including imprisoning him in a car boot. He suffered left rib fractures and other bruising.

23. The offences subject of the second indictment reveal dangerous aggression on the applicant's part. On 29 March 1999 one Shaun Whatnall was in his front yard when the applicant and another person drove past in a motor vehicle. As they did so the applicant "gave the finger" to Whatnall who then responded in similar vein. The car stopped and the applicant emerged armed with a machete which he held above his head while he shouted "You fucking dog. I'm going to chop your head off for giving me the fucking finger". He moved closer and repeated the threat, before being bundled into a car by a companion who drove him away from the scene. In a separate incident later on the same day the applicant made further threats against another man while armed with a machete, this time at the home of a woman and her children aged 7, 10 and 14 years. Repeated threats were made such as "Get that fucking dog out here. I want to cut his head off".

24. The main ground relied upon by Mrs McGinness on behalf of the applicant is alleged disparity between the applicant's sentences and those of his co-offenders. These persons were dealt with by the same sentencing judge on an earlier occasion on which he adjourned the charges against the applicant for later consideration. Briefly stated, the operative sentence imposed against EJ Cutter (the father) for the offences of 27 December 1998 was six years imprisonment with consideration of parole after two years and a declaration that 213 days spent in pre-sentence custody be taken as time already served.  Wayne Cutter (26 years of age) was also sentenced to six years imprisonment with a recommendation for consideration of parole after two and a half years and a declaration concerning the 213 days spent by him in pre-sentence custody.  Paul Mahoney (20 years old) was sentenced to five years imprisonment with consideration of parole after two years accompanied by a declaration in relation to 165 days spent in pre-sentence custody.  Jason Cutter (20 years of age) was sentenced to five years imprisonment with a recommendation for consideration of parole after serving 20 months.  Another offender (Lindsay Horton) who had no previous criminal history was sentenced to four years imprisonment with the recommendation for release on parole after 15 months.  There were however special considerations attaching to his sentence and it was not suggested that any disparity arises by reason of this particular sentence.

25. It is unnecessary to make a point by point comparison of all relevant sentencing matters applicable to each of these co-offenders. All of them except Horton had criminal records, but none of them had committed as many offences as the applicant. All of them pleaded guilty. Extensive details are contained in Mrs McGinness's written outline and schedules. In the end it is impossible to make tidy comparisons between them but the learned sentencing judge seems to have attempted to adjust all sentences to the varying circumstances of each offender.

26. The applicant was co-operative in volunteering the commission of his 1998 dishonesty offences. He was the product of an unfortunate background and he suffers attention deficit disorder making him prone to impulsive actions. The learned sentencing judge stated that he had considered making cumulative sentences in relation to the offences the subject of the two indictments but had decided to make a recommendation for parole after a longer period than he otherwise would have done, in order to take into account the matters on the second indictment, and that the credit that he would otherwise receive in relation to the 37 days spent in pre-sentence custody would also be taken into account in the recommendation for parole.

27. The argument on the applicant's behalf suggesting disparity tended to focus largely upon the circumstances the subject of the first indictment, with particular emphasis on the fact that he did not participate in the additional serious violence committed by the other offenders on 27 December. However the second indictment must not be overlooked. It shows the present applicant to have been involved in serious acts of violence three months later in which his co-offenders were not involved.  The totality of criminal conduct of the respective offenders is what needs to be measured and compared.  When this is done, and other comparisons are made of antecedents and other factors, it is difficult to hold that the learned sentencing judge was bound to have made a greater distinction than he did in favour of the applicant.  His Honour carefully framed the sentences upon the applicant so that the operative sentence was imposed with respect to the major count on the first indictment and so that relatively light concurrent sentences were imposed on the two counts of the second indictment.  His Honour could have framed the sentences differently but it was quite appropriate for him to proceed in this way.

28. The operative sentence is lower than those of the co-offenders, although not by a great margin. The reduction is however sufficient to take account of the special factors operating in the applicant's favour. These points are principally that he is younger than the others and that he may have greater problems than the others by reason of his attention deficit disorder. However this latter factor is not by any means a weighty consideration in the present context. All the offenders come from an unsavoury and disadvantaged background. The main concern is his youth. As against this he has been given repeated opportunities by past courts, and his offences have continued to grow more serious.

29. We do not consider that there is disparity in the sentences imposed sufficient to give rise to a legitimate sense of grievance.

30. So far as the level of sentence is concerned, the fact that the applicant was on probation and in the course of an immediate release order when the first offences were committed and on bail when the second group of offences occurred are aggravating features. General and specific deterrence were relevant factors justifying a higher sentence than might otherwise be thought appropriate in relation to a 17 year old offender. Mrs McGinness referred to a number of cases to support a submission that the sentence was in any event too high for conduct of this kind. Reference was made inter alia to Wilkins^[1] and Bunney^[2] however in our view neither of these cases affords a helpful benchmark in the complex combination of circumstances with which the court below was faced.  The sentences imposed on the other offenders do not appear to be out of range for the commission of consecutive home invasions.  The sentences imposed upon the present applicant would seem to be towards the top of the available range having regard to his criminal conduct involving three separate incidents about three months apart.  However when his conduct is considered along with his antecedents we do not consider that the operative sentence was beyond the range of a proper sentencing discretion.

31. The application should therefore be refused.