R v Shepherd[2001] QCA 224

COURT OF APPEAL

THOMAS JA

MUIR J

ATKINSON J

CA No 76 of 2001

THE QUEEN

v.

JOHN EDWARD SHEPHERD(Applicant)

BRISBANE

DATE 06/06/2001

JUDGMENT

THOMAS JA: Justice Atkinson will deliver the first judgment.

ATKINSON J: The applicant was sentenced after being convicted on his plea of guilty to one count of wilful damage, one count of break and enter and committing an offence, one count of common assault, and one count of serious assault. The learned sentencing Judge sentenced him to two years imprisonment with a recommendation for parole after serving nine months on the count of break and enter and committing an offence, and nine months imprisonment to be served concurrently on each of the other offences.

The offences occurred during the night of 1 and 2 September 1998. At about 11 p.m. on 1 September the lounge of the Northern Australian Hotel in Bowen was closed, but at that time the applicant had put, he claimed, $6.00 into the jukebox and it had not played all of his music. The applicant became aggressive and swore at Helen Egan, the part-owner of the hotel.  He called her, amongst other things, a slut, an arse-hole, and a moll.  Unsurprisingly, he was ejected from the hotel.

At about 3.40 a.m. in the early hours of 2 September 1998 Ms Egan heard the applicant abusing her from outside the hotel. She called out to him that the hotel was closed and that he should go home and she then made a call to the police. At this stage she could hear the applicant kicking in a glass panel at the front of the hotel.  She went to the bar and found the applicant had gained entry to the hotel. She then saw him move quickly, grab a bar stool, and throw it in her direction. It missed her.

At this point Phillip Thompson came to her assistance by attempting to keep the applicant away from her. The applicant then picked up another bar stool, raised it above his head, and hit Mr Thompson on the back of his shoulders. There was a struggle between the applicant and Thompson. The applicant desisted and was chased from the hotel. 

The police arrived shortly afterwards and noted the damage to the hotel.  They also saw the applicant running from the scene and chased him.  They caught up with him when he attempted to climb onto the roof of the hotel. One of the police officers, Sergeant Cameron, attempted to stop him from climbing onto the roof.  The applicant kicked out and struck Sergeant Cameron in the arm and chest and his legs, causing him to lose his footing and fall backwards, hurting his shoulder, arm, and fingers.

The applicant then climbed onto the roof where he was later detained. He declined to be interviewed. He was released on bail but not located again until January 2001. Between January and March 2001 the applicant spent time in custody for his breach of parole and nine days in pre-sentence custody. Over a year later he came to be sentenced on 22 March 2001.

The applicant has appealed on the ground that his sentence was manifestly excessive and that the sentence discretion miscarried.  A victim impact statement by Mrs Egan was tendered without objection at the sentence hearing. It gives a very vivid account of the devastating impact the incident had on her. 

The applicant is a 34 year old man who was born on 10 February 1967. His criminal history shows he was first convicted in 1984 for possessing an unlicensed concealable firearm. In 1986 he was convicted of break and enter, stealing, possession of a utensil used in connection with smoking a dangerous drug, unlawful use of a motor vehicle, and entering a dwelling-house with intent. In 1990 he was charged with breaching a probation order. 

In 1992 he was again convicted of breaking and entering, stealing, and possessing a concealable firearm whilst not the holder of the licence, breaching the Bail Act, possessing a dangerous drug, and possession of a utensil used in connection with smoking a dangerous drug. On the break, enter, and steal charges he was sentenced to 27 months imprisonment and recommended to be considered eligible for release on parole after serving nine months.

In August 1993, whilst on that parole, the applicant was convicted of obscene language and resisting police. That, however, is the end of his criminal record.

The applicant argues that the sentencing discretion has miscarried because the sentencing Judge failed to discount the appropriate head sentence as distinct from a recommendation for parole to effect a discount for the matters of mitigation.

The matter in mitigation was the plea of guilty after a full hand-up committal, which, as the applicant submitted, saves the community and courts time and financial resources, assists in the expedition and efficient administration of justice, and may demonstrate some degree of remorse. It should not, however, be ignored that the case against the applicant here was an overwhelming one.

As the applicant has submitted, the discount given to the sentence may be reflected in either a reduction in the appropriate head sentence, an early recommendation for parole, or a combination of the two. However, the applicant submitted that in this case the discount should have been reflected in the head sentence, whereas the sentencing Judge reflected the discount in the recommendation for consideration for release on parole.

The applicant submits that this discount is illusory because the applicant has no or limited prospects of being granted early parole because of a history of breaching parole.  It is submitted on appeal that the applicant twice breached parole and was subject to a cancelled parole order when apprehended and returned to custody on these offences on 29 January 2001. It is submitted that there was a miscarriage of the sentencing discretion because that fact was not known to the sentencing Judge.

The applicant was, however, not necessarily entitled, because of his previous breach of parole, to a reduction in the appropriate head sentence for a plea of guilty rather than an ameliorating accompanying order such as a recommendation for early release on parole. A sentencing Judge has the discretion whether or not to reduce the head sentence, or to make an early recommendation for parole, or a mixture of the two.

The sentence of 24 months' imprisonment with a recommendation for parole after serving nine months was not manifestly excessive and does not disclose a miscarriage of the sentencing discretion. In all the circumstances I am of the view that this application for leave to appeal on the sentence should be refused.

THOMAS JA: I agree.

MUIR J: I also agree.

THOMAS JA: The order of the Court is application for leave to appeal against sentence refused.