R v Hardman[2001] QCA 15

COURT OF APPEAL

McMURDO P

THOMAS JA

MULLINS J

CA No 312 of 2000

THE QUEEN

v.

KEITH ARTHUR HARDMAN

BRISBANE

DATE 06/02/2001

JUDGMENT

MULLINS J:  The applicant applies for leave to appeal against the sentence imposed on 13 October 2000 for burglary by breaking, in the night, with threats of violence whilst armed and in company which was committed on 16 February 2000.  The applicant pleaded guilty and therefore admitted the elements of the charge which included that he was armed with a knife and that he threatened to use actual violence.

The sentence was three and a half years imprisonment with a recommendation for consideration for parole after 16 months. The learned sentencing Judge also recommended that all appropriate anger management courses be made available to and undertaken by the applicant.

The applicant was 24 years old at the date of the offence.  He and his co-offender, one Robinson, went to the complainant's residence in Goodna which was opposite Robinson's house after drinking together at a hotel.  Robinson knew the complainant and wrongly believed he had a grievance against him, but the applicant did not know him.

At approximately midnight, the complainant heard noises coming from his front yard and observed the applicant and Robinson standing at the front of his house.  Robinson was calling out threats.  Approximately 15 minutes later, the complainant heard something smashing at his front door.  Again, he heard Robinson calling out threats and saw there was a crack across the front door.  A short time later, the complainant heard two voices at the front door.

He looked through the curtain and saw Robinson standing in front of the door and the applicant standing to one side holding a stick.  He could hear the applicant saying to Robinson, "He's inside. He's laughing at you."  And Robinson kept on repeating, "Come outside.  I want to kill you.  I want to finish you off." 

The complainant stated that the applicant kept urging Robinson on repeating things such as, "He's laughing at you."  The front door eventually broke, and one of the men tried to get through but was unable to do so and continued to kick the door.  The complainant left his house through the back door, walked around the house and saw the front door had been kicked open and that Robinson had entered his house.  

The complainant observed the applicant standing in the doorway.  Robinson and the applicant eventually left, and the complainant telephoned the police.  There was therefore no assault of the complainant.

Early in the morning of Friday, 17 February 2000, the police attended and arrested the applicant.  He took part in a record of interview.  He told the police he was affected by alcohol as he had consumed a 1.25 litre bottle of bourbon and had been smoking cannabis, but the interview proceeded at 3.45 a.m. 

The applicant admitted to the police that he had a knife with him at the time of the offence and that he wanted to kill the complainant even though he had no prior acquaintance with him.  He said he wanted to do so, "because I stuck by one of my mates."    He also admitted with exaggeration to kicking the complainant's door. When asked in the interview, "How many times did you kick the front door," he answered, "About 20 million times."

At the time of the sentencing, the prosecutor read verbatim from the record of interview between the applicant and the police without objection by the applicant's counsel although the applicant's counsel did draw to the sentencing Judge's attention the exaggeration that was evident on the part of the applicant.

While on bail for this offence, the applicant on 19 June 2000 committed an unlawful assault on one Grice.  Grice was the applicant's neighbour.  On 15 July 2000, the applicant wilfully and unlawfully damaged two windows and a door, the property of Grice, and on the same day assaulted a police officer who was acting in the execution of her duty when the police endeavoured to arrest the applicant for the wilful damage offence. 

These three charges were dealt with by way of ex officio indictment at the same time as the sentencing for the subject charge of burglary. On each charge on the ex officio indictment, the applicant was sentenced to 18 months imprisonment.

The applicant had a relevant criminal history for offences of violence.  He was convicted of two charges of assaulting police on 31 August 1993; he was convicted of an unlawful assault which occurred on 12 February 1994 and an aggravated assault on a female on the same day; he was convicted of a serious assault which occurred on a police officer on or about 27 March 1994 for which he was sentenced to an intensive correction order for nine months which he breached and therefore served a term of imprisonment for nine months; he was again convicted of assaulting police on 28 January 1995 and of wilful and unlawful damage to property in the night time on 30 January 1995; he was convicted of serious assault on a police officer which took place on 19 June 1996.

Robinson, who was 21 years old at the time of the offence, had no prior convictions for offences of violence.  He was sentenced for the burglary committed with the applicant to a term of imprisonment of six months and probation for a period of three years.  The learned sentencing Judge indicated that he was reducing what he would otherwise have regarded as the appropriate head sentence for Robinson to the term of six months which was the maximum term of imprisonment with which probation could be incorporated as part of the sentence.

Two aspects of the learned sentencing Judge's sentencing remarks were the basis of a submission by counsel for the applicant that they were inaccurate.  Reference was made by the sentencing Judge to the applicant's "threatening to kill" the complainant.  The evidence relied on by the prosecution, however, was that the applicant was urging on Robinson who was threatening to kill the complainant.

The sentencing Judge also referred to the violence by the applicant in kicking the complainant's door open as showing a persistence which was of concern.  The complainant did not identify the applicant as the one who kicked his door open, but the applicant admitted to police that he had kicked the door.  It was therefore submitted that the sentencing Judge should have proceeded on the basis of the complainant's evidence or statement and gave undue weight to the statements made by the applicant in the interview with the police.

Any inaccuracy in the sentencing remarks does not determine this application. The question is whether the sentence is manifestly excessive.  It was submitted on behalf of the applicant that the learned sentencing Judge failed to give any or any sufficient weight to the lack of serious premeditation; the lack of the element of surprise; that the principal offender was Robinson with the applicant   providing encouragement; the applicant stayed at the doorway whilst Robinson entered the complainant's home; there was no actual violence or injury caused to any person; and the intoxication of the applicant was an explanation though not an excuse for his conduct.

This list overlooks that weight must also be given to the applicant's having no prior acquaintance with the complainant; there was no motivation for the applicant's conduct other than his misguided desire to support Robinson; the fact that only the applicant was armed and was armed with a knife; the applicant believed the complainant was inside his home; the fear that the incident caused the complainant even though he was not actually assaulted; the worrying aggression and lack of remorse shown by the applicant in the interview with police even allowing for the intoxication of the applicant; the applicant's subsequent offending which was the subject of the ex officio indictment; and the lack of remorse shown by the applicant's behaviour in Court during the sentencing.

The learned sentencing Judge did not expressly deal with what reduction in sentence was attributable to the applicant's co-operation with authorities and guilty plea although he referred to "a timely plea justifying an allowance".  The recommendation for early release on parole reflects some allowance.

It is submitted on behalf of the applicant that the sentence which should have been imposed on the applicant was two years imprisonment with a recommendation of parole after nine months. 

At the time of sentencing, however, counsel who appeared for applicant submitted that a sentence of two and a half to three years would be the appropriate sentence. 

The learned sentencing Judge was referred to R v. Cutter [2000] QCA 52, CA 300 of 1999, 3 March 2000 which was a more serious offence but where the offender was 17 years old and by a majority the sentence of four and a half years imprisonment with a recommendation for release on parole after 20 months was upheld, and R v. Houghton and Genrich, unreported, CA 424 and 425 of 1997, 26 February 1998 where there was a severe beating of the occupant of the home by one of the two offenders and on the count of assault occasioning bodily harm whilst armed each was sentenced to four years imprisonment with a recommendation for eligibility for parole after serving 15 months and that sentence was upheld.

In the course of delivering reasons in R v. Houghton and Genrich, his Honour Justice Davies stated:

"The importance of deterrence in cases of this kind in my view cannot be over-emphasised.  Judging by the number of cases which come before this Court, offences of this kind appear to be prevalent and involving as they do the intrusion into the privacy of a person's home, often at night, involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved."

Although there was no actual assault by the applicant in this matter, these comments otherwise remain apposite to the circumstances of the applicant's offence allowing for the threats to use actual violence which the applicant admitted by his plea.

These cases and those referred to by counsel for the applicant on the hearing of this application support a range for the head sentence for the applicant for which three and a half years was not the maximum, even allowing for the fact that there was no actual assault of the complainant who escaped his house.

The fact that the head sentence is within range and not at the absolute end of the appropriate range taking into account all the circumstances surrounding the offence may reflect some allowance for the co-operation and guilty plea of the applicant.  As referred to earlier in these reasons, the recommendation for early release on parole certainly reflects some allowance.

The disparity with the sentence imposed on Robinson is explicable by Robinson's lack of a criminal history for violence; Robinson was not armed; and Robinson had not previously been offered probation in relation to his prior convictions.

The sentencing discretion would not have precluded a more generous recommendation for early release on parole than that made by the learned sentencing Judge.  A submission was made on the hearing of this application that the recommendation for early release on parole was unlikely to be acted on because of the nature of the offence and the applicant's history.  No such submission was made to the learned sentencing Judge.

Taking all matters relevant to the offence and the applicant's history and character into account, I cannot conclude that the sentence imposed on the applicant was manifestly excessive.  I therefore would refuse the application.

THE PRESIDENT:  I agree.  Were this the only offence to which the applicant pleaded guilty, there may be something in this application but the 24-year-old applicant had prior convictions for violence and whilst on bail for this serious offence committed other serious offences of actual violence.  This does not suggest that his prospects of rehabilitation are promising. 

Like Justice Mullins, I am not satisfied the sentence was manifestly excessive nor that the substantial disparity between the sentences imposed on this applicant and his co‑accused demonstrated an appearance of injustice warranting this Court's interference.  I agree that the application should be refused.

THOMAS JA: So far as the burglary count is concerned, it is true that no physical harm resulted to the victim.  However, extreme aggression was revealed in the applicant's conduct.  Standing alone, however, this conduct would not have justified the sentence under appeal. 

There were, however, additional offences of 19 June 2000 whilst the applicant was on bail.  These resulted in physical harm to another neighbour who had not offered provocation and against whom the applicant had developed a hatred.  Perhaps the circumstances of those additional offences should briefly be stated.

The neighbour was apparently walking down the street when he was confronted by the applicant who for no apparent reason struck him to the face with his fist.  He was knocked to the ground where he was beaten and kicked by the applicant.  He suffered a fractured nose, black eye and cuts to his face.  He was a 36 year old man, and the incident took place in front of his de facto wife and young daughter.

This was followed by an incident not long after outside the house of the complainant where the applicant called him to come outside and made threats including, "Get outside.  No one is going to save you this time."  When the police were called, the applicant was at his house and in the course of the arrest the applicant kicked the police officer.

When these circumstances are taken into account, one sees separate eruptions of violence which are not accounted for by a sudden loss of control or any understandable provocation.  Each was a deliberate attack apparently preceded by some kind of brooding aggression. 

The total criminality is sufficiently serious to support the overall sentence although, in my view,  it is at the higher end of what could be justified.  I agree that the application should be refused.

THE PRESIDENT:  The order is the application is refused.