R v Phillips, Bolger & Williamson; ex parte Attorney-General
[2001] QCA 544
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Phillips, Bolger & Williamson; ex parte Attorney-General[2001] QCA 544
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R v Phillips, Bolger & Williamson; ex parte Attorney-General[2001] QCA 544
R v Phillips, Bolger & Williamson; ex parte Attorney-General[2001] QCA 544
COURT OF APPEAL |
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de JERSEY CJ |
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McMURDO P |
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WILLIAMS JA |
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CA No 229 of 2001 |
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CA No 230 of 2001 |
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CA No 231 of 2001 |
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THE QUEEN |
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v. |
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JASON PETER PHILLIPS |
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PAUL CHRISTOPHER JAMES BOLGER |
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NIK WILLIAMSON | Respondents |
and |
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ATTORNEY-GENERAL OF QUEENSLAND | Appellant |
BRISBANE |
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DATE 28/11/2001 |
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JUDGMENT |
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THE PRESIDENT: The respondents pleaded guilty in the District Court on 8 August this year to a large number of offences.
Phillips pleaded guilty to one count of entering premises and stealing, one count of unlawful use of a motor vehicle, four counts of attempted armed robbery in company, one count of burglary at night whilst armed and in company with actual violence, one count of burglary and stealing and one count of stealing.
Williamson pleaded guilty to one count of entering premises and stealing, two counts of stealing, four counts of attempted armed robbery in company, one count of burglary at night whilst armed and in company with actual violence, one count of wilful damage and one count of assault.
Bolger pleaded guilty to two counts of attempted armed robbery in company and one count of burglary at night whilst armed and in company with actual violence.
Phillips' offences occurred between 6 April and 18 May 2000. Williamson's offences occurred between 6 April and 6 May 2001. Bolger's offences related to a single incident on 13 May 2000.
The learned sentencing Judge imposed various terms of imprisonment for the various offences, the most significant being, in the case of each respondent, for the offences of attempted armed robbery committed on 13 May 2000, namely four years' imprisonment suspended forthwith with an operational period of five years. All other terms of imprisonment imposed were also suspended forthwith, with lesser operational periods.
The appellant, the Attorney-General of Queensland, submits the sentences were manifestly inadequate in that they failed to reflect the gravity of the offences to take sufficiently into account the aspect of general deterrence and that the sentencing Judge gave too much weight to factors of mitigation.
The circumstances of the offences are as follows.
On 6 April 2000, Williamson and Phillips broke and entered a nursery business and stole computer equipment and a fax machine which they placed in nearby bushland before selling it to an unnamed person. The property, valued at $3204, was not recovered.
On or about 18 April 2000, Phillips unlawfully used a vehicle valued at $1000 and drove it to Bellbowrie where he abandoned it. The vehicle was recovered, apparently undamaged.
On 4 May 2000, the complainant's daughter invited Williamson to attend a barbecue at her home. Whilst there, Williamson stole jewellery valued at $9500, which has never been recovered.
On 9 May 2000, at about 6.50 p.m. in a suburban street in Toowong, Phillips produced a knife and demanded money from a 32 year old woman whilst Williamson stood behind her. She feared for her life, ran into the middle of Sylvan Road, Toowong, and shouted for assistance. A vehicle stopped and the offenders fled.
Also on that date, Phillips approached a 19 year old man walking with two friends along a suburban street in Toowong, touched the complainant on the shoulder and said, "I saw you talking on your phone. I don't want to hurt you." He produced a knife and held it in front of him. Williamson stood behind the complainant. The complainant turned and ran away.
On 13 May 2000, at 9.20 p.m. all three respondents were on their way to a party. They observed the complainants in their home and decided to enter the home and steal from them. All three respondents had been drinking. They entered the home of the complainants, a retired couple aged 66 years and 56 years. The male complainant was reading a magazine in the kitchen, listening to the radio, whilst the female complainant was watching television in the lounge room.
The three respondents entered through a closed door and they did not know the complainants. Phillips rushed at the female complainant whilst holding a Swiss Army knife. Phillips was wearing sunglasses and had the hood of his jacket over his head. He grabbed the female complainant on the shoulder and waved the knife around, saying, "Shut up and you won't get hurt, just give us your money."
She tried to stand up and break free. Phillips yelled, "Where's your fucking money?" She managed to stand up and Phillips slapped her across the face several times and pushed her, shouting "Where's the fucking money?" He pushed her to the floor, she stood back up and pulled off the sunglasses Phillips was wearing. She tried to get past him, because she was conscious of the commotion in the kitchen and was concerned for her husband. Phillips grabbed her and threw her to the floor again. She made her way to a telephone in the lounge room.
Meanwhile, Williamson and Bolger yelled at the male complainant in the kitchen, "Give us your cash and you won't get hurt." Williamson was armed with a serrated-edged knife with a 10 inch blade. One of the offenders was holding a piece of rope that had been cut from the complainant's rear clothes line. Bolger was not armed. Williamson directed the knife in the direction of the male complainant's face and neck as they demanded money.
Both Williamson and Bolger then punched him in the head and face. In the ensuing struggle, the male complainant was cut on the lower right cheek with either the knife or some scissors. He feared for his life. He grabbed the blade of the knife and bent it over, snapping it. He said, "Now I've got the knife and I'm after you guys." Williamson and Bolger turned and ran out of the kitchen door and fled. The male complainant went to the assistance of his wife. He picked up a broom handle and struck Phillips as he struggled with the female complainant. Phillips then fled through the front door.
The male complainant received a superficial laceration to his right cheek, abrasions to his forehead, a black right eye, a bruised chest and upper leg area, minor cuts to two fingers, a split lip and a loosened tooth. The tooth was subsequently removed. He was treated at, but not admitted to, hospital.
The female complainant received a graze across her forehead and bruising to her jaw.
Phillips had dropped a bag at the scene containing his identification. Later that evening, Phillips committed the further offences of burglary and stealing by breaking into a nearby house and stealing cash and property valued at $1041.50, none of which has been recovered.
Phillips and Williamson fled to Gladstone in a stolen vehicle and were located by police and interviewed. Meanwhile Bolger had returned to his home.
Phillips and Williamson made admissions and implicated Bolger in these offences, and all three respondents made full admissions and cooperated with the authorities.
On or about 18 May, Williamson and Phillips stayed at a motel and stole a blanket and sheet.
On 6 May 2001, whilst on bail for these offences, Williamson approached a man waiting for a bus, put his arm around his neck and held a knife against his cheek with threats.
It is clear from this summary of the relevant facts concerning these offences that Williamson and Phillips were involved in a number of serious offences involving personal violence, but the most serious offences involved all three offenders and concerned the home invasion in which they all participated. Bolger's participation, though extremely significant, was perhaps slightly less than his co-offenders, but very little distinction can be drawn between their involvement in the offences surrounding the home invasion.
On 27 May 2000, Phillips and Williamson pleaded guilty to unlawfully using a motor vehicle to avoid capture for the home invasion and possession of a drug utensil and stealing and were sentenced to two months' imprisonment in the Magistrates Court at Gladstone.
At around about this time all three respondents were charged with these offences. Williamson committed some other offences subsequently. On 6 June 2000 he wilfully damaged perspex panels on a door in the new Gladstone Watch-house causing $6,000 damage, and on 20 April 2001 he was convicted of an assault committed on 2 March 2001 and was fined $200.His offence of 6 May 2001 has already been noted.
It is clear that in Williamson's case he has continued to offend since his involvement in these offences. Neither Phillips nor Bolger have committed offences subsequent to these offences.
Williamson was 18 at sentence and 17 at the time of his offending behaviour. He spent 92 days in pre-sentence custody and, as has been noted, served two months' imprisonment for the offences committed after the home invasion. He had a significant criminal history commencing in 1998 in the Children's Court, when he was convicted of entering a dwelling-house with intent, stealing, and street offences. He was given a community based order. In February 1999 he was found guilty of further street offences and placed on 12 months' probation. In July 1999 he was convicted of serious assault and other less significant offences and was placed on a further one year probation order. He was, therefore, on probation when he committed these offences.
A report from psychologist, Mr Peter Perros, described Williamson as an alcoholic addicted to cheap cask wine and that this addiction was responsible for his offending behaviour. Williamson migrated with his mother from England in 1994. He missed his grandparents and his biological father and had difficulties relating to his stepfather. Mr Perros considered that Williamson had poor control of aggressive impulses, with a propensity to engage in quite aggressive assaultive behaviour when inebriated. He is in need of professional assistance for his alcohol addiction and needs to develop more appropriate skills for dealing with stress and inter-personal conflicts. He has prospects of obtaining employment in a lawn mowing business which would give him a better chance of doing something worthwhile with his life.
Bolger was 20 at sentence and 19 at the time of the commission of the offences. He had no previous or subsequent criminal history apart from this very serious offending behaviour. He was drunk on the night of the offences and had been drinking with Phillips and Williamson most of the day. They were on their way to a party and decided to commit this offence as they walked past the unfortunate complainants' home.
Bolger comes from a caring family and has no history of alcohol or drug addiction, although he was intoxicated on the night. He is in steady and continuing employment with a blacksmith, who provided an excellent reference as to Bolger's work ethic, his trustworthiness as an employee, and his remorse. A letter from Bolger's parents and references from others reported his good qualities and stressed that the offences were out of character.
Phillips was 21 at sentence and 19 at the time of the offences. He, too, had no prior criminal history. Like Williamson, he was sentenced to two months' imprisonment for the offences he committed after the home invasion. He has received voluntary treatment for his heroin addiction from 20 August 1999. He has taken Naltrexone for three months and has had regular urine drug screens, most recently before sentence in July 2001 which showed he was opiate free. A report from the Alcohol and Drug Service recorded that Phillips had experimented with drugs from 14 years of age, and by 17 was dependent on amphetamines, and heroin dependent at 18. He was able to withdraw from heroin in 1999 but resumed his daily use of alcohol and cannabis. He moved out of the family home and his parents had great difficulty coping with his increasing chaotic behaviour and its effect on the family unit. When he was released from prison on 12 July 2000 he was reviewed. By August 2000 he had obtained full-time employment with a reduction in his alcohol use. On 24 July 2001 he was reassessed. His parents described a significant improvement in his behaviour and demeanour, especially after the last six months. This history reflects an adolescent who appears to be maturing out of drug and alcohol use with the support and assistance of his parents. He has made significant progress in rehabilitation. Further contact with support agencies is recommended.
Phillips' parents, too, prepared a letter for the Court, confirming his improved behaviour since his release from gaol and his obtaining employment with a tree lopper in August 2000. He has now turned his life around, they say, and has shown remorse for his previous conduct. References from his employer and others also spoke favourably of Phillips and affirmed his continuing rehabilitation.
All three respondents pleaded guilty at an early stage by way of ex officio indictment. They indicated an intention to plead guilty in June 2000. The request for the ex officio indictment was made in July 2000, but, through no fault of the respondents and for some apparently unknown reason, the ex officio indictments were not presented until August 2001. This is a very considerable and undesirable delay in the life of young offenders, especially those who have committed serious offences like this, which the prosecution would submit require salutary deterrent sentences.
All offenders were cooperative with the police and made full and frank admissions.
The offending behaviour of the respondents, especially in relation to the home invasion, was most serious. It must have been an absolutely terrifying event for this retired couple, enjoying a quiet Saturday evening in what should have been the sanctity of their own home. They were subjected to frightening, unprovoked violence from these young drunken thugs. This has had the expected significant effect on the lives of the complainants, as is demonstrated in their victim impact statement.
Even young first offenders can ordinarily expect to face custodial sentences for involvement in such criminal conduct. See R v. Perks and Jaggard, CA Nos 256 and 264 of 1997, 29 August 1997, where Perks, an 18 year old first offender, who played a substantially lesser role in the offence than these offenders, was sentenced to three years' imprisonment with a recommendation for parole after 12 months. This sentence was not regarded by this Court to be manifestly excessive. Perks and Jaggard also pre-dated the amendments to s 9 Penalties and Sentences Act 1992 (Qld). See also R v. Mullins and Kluck, CA Nos 387 and 388 of 1999, delivered 2 May 2000.
Offences of this kind warrant salutary penalties to deter these offenders and others who might contemplate such conduct. Sentencing in this case was particularly difficult because of the competing interests of general and personal deterrence on the one hand, and the mitigating factors, especially the rehabilitation undertaken by the offenders, primarily Phillips and Bolger, on the other.
The learned sentencing Judge, whilst recognising that deterrence was a significant factor here, was finally persuaded that the rehabilitative and other factors justified the lenient sentence he imposed. In doing so his Honour imposed a sentence upon Phillips and Williamson which was manifestly inadequate and which did not reflect the seriousness of their behaviour.
There are circumstances in this case which now justify the sentence that was imposed in Bolger's case but the facts of this case necessitated that Williamson and Phillips be sentenced to a substantial term of imprisonment involving a period of actual custody. In coming to this conclusion I recognise that the Attorney-General is only successful in appeals of this sort in the unusual cases where there is an issue of principle at stake, including manifest inadequacy of sentence or inconsistency in sentence by any standard: Everett v. R, Phillips v. R (1994) 181 CLR 295.
The Court of Appeal is generally reluctant to alter a sentence on an Attorney's appeal where liberty is at stake, particularly where the offender has not been put in actual custody by the sentencing Court: R v. Melano ex parte Attorney-General [1995] 2 QdR 186, R v. Hoffmann ex parte Attorney-General (1997) 98 A Crim R 177, R v. Bazley ex parte Attorney-General, CA No 220 of 1997, 5 August 1997.
There is no doubt that youth and the lack of prior convictions remain a mitigating factor, even for serious offences of violence such as the home invasion in this case: see R v. Lovell [1999] 2 QdR 79, 83 and R v. Taylor and Napatali (1999) 106 A Crim R 578. These offences were, however, much more serious even than those in Taylor and Napatali.
The prior taste of imprisonment given to Williamson and Phillips for offences subsequent to but loosely connected to this episode of offending was not sufficient to reflect the community's abhorrence of these offences of violence, especially in the context of Williamson and Phillips' involvement in so many other offences, including other offences of violence.
Phillips, although he had no prior or subsequent convictions, was involved in a much greater number of offences than Bolger, including other offences of violence, and he committed offences for which he was sentenced to imprisonment immediately after the home invasion. He does, however, appear to have good prospects of rehabilitation.
Although Williamson was the youngest of the three offenders, his case was the most serious because of the large number of offences in which he was involved, the fact he was on probation at the time, his significant criminal history, the fact that he committed further offences, including offences of violence, whilst on bail and his active role in the commission of the offences. He has spent 92 days in pre-sentence custody and he was sentenced to two months' imprisonment on related but different offences.
Bolger was deserving of the most leniency because he had no prior convictions, no subsequent convictions, was involved only in the one episode of offending behaviour, played a slightly lesser role in that offence and has the best prospects of rehabilitation. When these matters are combined with his plea of guilty and his cooperation with the authorities, the delay in listing the proffered guilty plea and the fact that his rehabilitation has continued whilst at liberty pending this appeal, the sentence imposed on Bolger by the learned trial Judge cannot be said to be inadequate.
In increasing the penalties imposed upon Phillips and Williamson I am imposing a sentence at the lower end of the appropriate range to reflect the fact that this is an Attorney's appeal, that the respondents (especially Phillips) have made significant efforts towards their rehabilitation and they have had the threat of an Attorney's appeal against their sentence hanging over them since early August this year. I am also taking into account in their favour their cooperation with the authorities, their early pleas of guilty by way of ex officio indictment which, through no fault of theirs, was unable to be dealt with for some 15 months. The sentences also reflect the different considerations applicable to each of the respondents because of their antecedents, the number of offences committed by them and their respective roles in those offences.
I propose the following orders. I would refuse the appeal in respect of Bolger. I would allow the appeal in respect of Phillips and Williamson and, instead of the sentences imposed on counts 7 and 8, sentence Williamson to five years' imprisonment, suspended after 12 months with an operational period of five years. Instead of the sentences imposed on counts 7 and 8 in Phillips's case, I would sentence Phillips to four years' imprisonment, suspended after nine months with an operational period of five years.
I would otherwise confirm the sentences imposed below. Is it necessary to make a declaration, Mrs Clare?
MRS CLARE: The declaration was already made‑‑‑‑‑
THE PRESIDENT: So if I simply confirm the sentence imposed below, that would be the order that was necessary?
MRS CLARE: That - so that would be covered. I will just confirm that, your Honour.
THE PRESIDENT: Thank you. It would also be necessary to order warrants to issue for the arrest of the respondents Phillips and Williamson.
THE CHIEF JUSTICE: I agree. I wish strongly to emphasise my view that it should only be the most unusual case in which the perpetrator of a violent home invasion such as this, may properly avoid substantial actual incarceration. The respondent Bolger does only because of special circumstances, especially delay in the presentation of the ex officio indictment, notwithstanding urgings from the defence, which confronted the learned sentencing Judge. But that feature could not mean that the more serious offenders - the respondents Williamson and Phillips - should now escape incarceration completely.
The delay and the nature of this appeal have, however, in their case led, to the imposition, on appeal, of substantially lesser terms than they should otherwise have been required to serve. It will be important in other subsequent cases that this judgment of the Court be seen very clearly in that light.
WILLIAMS JA: I agree with what has been said by each of the other members of the Court and with the orders proposed.
THE CHIEF JUSTICE: Do you wish the warrant to lie in the Registry or not?
MR HARRISON: Yes, for a week, your Honour.
THE CHIEF JUSTICE: There is no problem with that, Mrs Clare, is there?
MRS CLARE: No.
THE CHIEF JUSTICE: Well, the warrant will issue for the arrest of the respondents Jason Peter Phillips and Nik Williamson but it will lie in the Registry of the Court for seven days pending execution.
MR HARRISON: Thank you, your Honour.
THE CHIEF JUSTICE: The orders are otherwise as indicated by the President.