The Queen v Jones[2000] QCA 84

COURT OF APPEAL

PINCUS J A

DAVIES J A

Mc PHERSON J A

CA No 393 of 1999

THE QUEEN

v.

GEORGE EDWARD JONES   Applicant

BRISBANE

DATE 17/03/2000

JUDGMENT

DAVIES J A:  The applicant pleaded guilty in the District Court on 29 October last year to entering a dwelling house with intent to commit an indictable offence and armed robbery in company both on 14 September 1997.  On the same day he was sentenced to imprisonment for four years on the first of those offences and eight years together with a declaration that it was a serious violent offence in respect of the second.  He seeks leave to appeal against those sentences, effectively against the sentence of eight years together with a declaration.

At the time of the commission of these offences the applicant was 55 years of age and he is now 57.  Although he has no prior history of offences of violence, as the second of these offences undoubtedly was, he has a long criminal history mostly of offences of dishonesty from 1956 to 1989.  He was first imprisoned in 1960 and between then and 1989 he spent a good deal of his life in prison.  On that last occasion in 1989 he was sentenced to three years imprisonment for multiple offences of breaking, entering and stealing.  He has no criminal history between his release from prison in respect of those offences and the commission of the offences the subject of this application.

The victims of these offences were a married couple aged 61 and 53 who ran a service station at Hattonvale and who lived in an adjoining residence.  They had closed the station for the night and were returning to their home with the daily takings.  The appellant and his co-offender were lying in wait.  They were wearing balaclavas.  The applicant was armed with a sawn-off rifle and his co-offender was armed with a knife.  They had clearly planned and timed this invasion.

As the victims entered their home the two offenders ran in after them.  The male complainant attempted to fight off the applicant and during that struggle the rifle discharged although fortunately not in the direction of either of the victims.  During the course of the struggle between the applicant and the male victim, the applicant called on his co-offender to help him by knifing the victim, his co-offender having earlier urged the applicant to shoot him.

The offender with the knife did in fact assault the male victim upon which he dropped a torch which he was carrying.  The applicant then picked it up and struck the victim with it violently several times to the forehead causing him almost to lose consciousness.  This attack resulted in a sustained period of concussion and long-term effects which included dizziness two years later.

Meanwhile, the female victim had the knife of the co-offender pressed against her throat and at one stage during the course of the struggle received cuts to her hands in trying to grab the knife. 

There is no doubt from the victim impact statements that these events had a shattering effect on both of them.  The physical consequences to the male complainant were substantial and the emotional consequences to both are likely to be long standing.  So also are the financial consequences.  As a result of this episode they sold their business at a substantial loss. 

This was a very bad example of what now appears to be a prevalent offence involving an armed home invasion.  There was considerable sustained violence, the conduct of the assailants was frightening and the episode has had a devastating effect on the lives of both of the victims.

Notwithstanding the fact that the applicant was apprehended only a few hours later and was positively identified by DNA evidence he initially insisted on pleading not guilty and the matter was listed for trial on several occasions.  At no stage did he co-operate with the police and he has never identified his co-offender.

In the applicant's favour he did ultimately plead guilty and the committal by way of hand-up brief avoided the need for either of the complainants to give evidence.  This was of some importance in the consideration before the learned sentencing Judge because as it emerged, the victims understandably were anxious and distressed at the prospect of giving evidence and had even asked the Crown apparently not to proceed with the prosecution.

The applicant's guilty plea must of course be taken into account but there is no reason to think the learned sentencing Judge did not do so.  Indeed, his Honour said he did.  However, his Honour said correctly that it was inevitable that the applicant would have been convicted and his Honour thought that the applicant realised that.  His Honour said that he did not think the applicant's plea showed any great degree of true remorse.

Mr Moynihan for the applicant urged before this Court that the guilty plea demonstrated a degree of remorse and in his written outline refers to a statement in the joint judgment of the High Court in Signato v. The Queen (1998) 73 ALJR 162 at par [22] in which their Honours said that a guilty plea is usually evidence of some remorse on the part of the offender.

Whether it is in fact evidence of remorse or not is a question of fact.  I would doubt whether at least in this State a guilty plea is usually evidence of remorse.  More likely in most cases, it is evidence of an expectation on the part of an offender usually as a result of legal advice that a guilty plea will probably result in a reduced sentence.  That is a reasonable expectation because of the usual consequences of the application of section 13 of the Penalties and Sentences Act.

In the present case the learned sentencing Judge was in my view correct in his conclusion.  Indeed, I doubt whether the guilty plea was evidence of any remorse at all.  The case was as I have already indicated an overwhelming one against the applicant and he must have realised that.

Next it is said on the part of the applicant before us that the learned sentencing Judge failed to give sufficient regard to and apply the principles properly applicable in part 9A of the Penalties and Sentences Act.  To some extent it seems to me the question in this appeal depends on what was the appropriate range of sentencing for this offence allowing some discount for the guilty plea. 

On the applicant's behalf it was submitted that the range was six to eight years, on the respondent's behalf it was contended that the range was eight to 10 years.  On the former view if a declaration were to be made the appropriate sentence would have been six years.  On the other hand if the respondent's submission is correct the appropriate sentence with a declaration would have been eight years.  (See Bojovic CA4/99 judgment delivered 8 June 1999)

It is true that the applicant has no history of violence in the past at least so far as can be ascertained from his criminal history.  On the other hand, as has been conceded by Mr Moynihan on his behalf, the extent of violence involved in this case was very substantial.

I have had regard to the cases which have been referred to by both the applicant and the respondent in their written outlines.  The applicant's cases were Hammond [1997] QdR 195; Quinn , CA422/96 and Smith, CA113/93.  However, in none of these was there violence of the kind described here and those sentences really only give some guidance in respect of less serious offences than the present one.

On the other hand the respondent referred to Jewell, CA75/94; Haines, CA24/98 and Bradford, CA327/97.  In Jewell, in which a sentence of nine years imprisonment was upheld, there was no physical violence although a shotgun was discharged.  In Haines, which was a sentence of eight years, although no actual violence was involved, the applicant placed the muzzle of a weapon against the complainant's forehead causing the complainant, not unreasonably to believe he was going to be shot.  It caused him significant psychological damage.  In Bradford, which was an eight year sentence the complainant was hit on the head and elsewhere with the blunt end of a machete.  He required a number of stitches for his injury.

In none of the cases to which I have referred was there a declaration of the kind made here.  However, in none of them was the degree of violence as serious and as sustained as it was here.  Although none of those cases is closely comparable to this they tend to show that although the sentence imposed here when the declaration is taken into account was a high one it was not manifestly excessive and having regard to the seriousness of the violence involved here I think that the declaration was appropriate.  For those reasons I would refuse the application.

PINCUS J A:  I agree.

Mc PHERSON J A:  I agree.

PINCUS J A:  The application is refused.