R v AC[2001] QCA 56

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I have read the reasons for judgment of Mackenzie J.  I agree with those reasons and with the orders he proposes.

2. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment prepared by Mackenzie J, and I agree with all that he has said.  The orders should be as proposed in those reasons.

3. MACKENZIE J:  This is an application for leave to appeal against concurrent sentences of 7 years imprisonment for entering a dwelling house and committing an indictable offence, 6 years imprisonment for robbery with circumstances of aggravation and 4 years imprisonment for unlawfully using a motor vehicle with a circumstance of aggravation.

4. The applicant pleaded guilty to these offences but went to trial on two counts of rape allegedly committed during the same incident. He was acquitted of one of those counts but convicted of the other. He was sentenced to 10 years imprisonment for that offence, but the conviction was subsequently quashed and a new trial ordered, principally on the ground that a Domican direction should have been given (R v Domican (1992) 173 CLR 555)).  The Director of Public Prosecutions subsequently decided not to proceed with the retrial.

5. The incident giving rise to the charges was a home invasion where the victims' motor vehicle was taken to carry away the proceeds. The applicant and an accomplice, Hooper, entered the dwelling house in question at about 4am. The applicant had a knife and led the occupants to believe that he was also armed with a gun.  However, the basis of the plea of guilty was that he had a knife and a piece of pipe, not a gun.

6. The fact that the applicant had also been found guilty by a jury of raping the female occupant in the course of the incident is a complicating factor for reasons which will become apparent.

7. In his sentencing remarks the learned trial judge referred extensively to the rape and its consequences, especially because of his conclusion that the motivation for the rape was to inflict indignities on the occupants in the course of robbing them rather than simple sexual gratification, and because of the catastrophic consequences of the incident on the complainants' lives detailed in a victim impact statement.

8. The learned trial judge cannot be criticised for his approach in that regard since in the circumstances as they then stood the verdict of guilty on the count of rape was a circumstance which seriously aggravated the incident.

9. However, having regard to the successful appeal and subsequent discontinuation of proceedings the application must be dealt with on the basis that the applicant is to be sentenced only for the three offences to which he pleaded guilty, although the trauma referred to in the victim impact statement would have been much the same even if there had merely been the home invasion and robbery.

10. When the applicant and his accomplice entered the home in the hours before dawn they were wearing balaclavas. They woke the occupants up and demanded money and property from them. The applicant told them he was a "bounty hunter" and made demands and threats upon them. He later told the police, after initially denying it, that he had been procured by another person to break into the house and recover money which that person claimed he was owed. That person has not yet been tried, although the applicant has given evidence at committal proceedings against him.

11. The fact that the applicant has given an undertaking under s 13A of the Penalties & Sentences Act 1992 to give evidence against the other person was a factor which was taken into account by the learned sentencing judge.  However, in doing so there was non-compliance with s 13A(7).  It requires that the sentence which would otherwise have been imposed be stated.  A specific sentence is required so that resentencing may occur with certainty if that becomes necessary.  Instead of doing so, His Honour expressed the reduction in terms of "approximately" how much longer the sentence would have been but for the reduction.  Accordingly, this Court has to correct that aspect of the sentence in any event.

12. Returning to the narrative of events, the male occupant of the house was tied up and gagged. He was placed lying down upon a bed. When he had trouble breathing, the gag was adjusted. During the incident he was struck a number of times. The applicant directed the female victim around the house at knife point and made her point out property of value, which was then stacked up for removal. The complainants' credit cards and pin numbers were demanded and attempts were subsequently made to access those accounts with little success. Some of the possessions taken included irreplaceable personal items of sentimental value.

13. The incident continued until about 5.30 am when the female victim convinced the applicant and the accomplice that other persons were expected. The keys of the complainants' vehicle were demanded and the offenders loaded the property into the car and left. The applicant made threats that they would be killed if they attempted to leave the house or contact the police.

14. The accomplice who was accepted to have played a lesser role had entered a plea of guilty at committal to the same offences as the applicant is now convicted of and was sentenced by another judge to 4 years imprisonment with a recommendation that he be eligible for parole after 12 months.

15. The applicant's counsel raised the question of parity between Hooper's sentence and the applicant's. The sentencing remarks concerning Hooper show that the District Court Judge who sentenced him took the view that the offence was out of character for him. He had only one minor drug offence. She also accepted that he became involved in the incident believing only that there would be a theft, not violence, and that his participation in the violence was limited and largely under the direction of the applicant. She took into account all of these factors in deciding that his was a lesser role in the offence, and also recognised that making allowance for them might cause some to say that the sentence was a light one. Given the differentiation between the roles of the applicant and Hooper, I am not persuaded the applicant could have the legitimate sense of grievance necessary to justify a reduction of a sentence which would otherwise be justified on the ground of lack of parity with Hooper.

16. When the applicant was sentenced the focus was on the appropriate sentence for rape in association with home invasion. For that purpose the learned sentencing judge was referred by the Crown Prosecutor to cases of violent home invasion in connection with his submission that the appropriate level of sentence was in excess of 10 years.

17. Reliance was placed on three particular authorities, R v Green [1996] QCA 306; CA No 190 of 1996, 2 August 1996, R v Stinton [1999] QCA 15; CA No 289 of 1998, 5 February 1999, and R v Awai, Rapana and Rapana [1994] QCA 252; CA No 118 and CA No 136 and CA No 137 of 1994, 15 June 1994.

18. In Green a head sentence of 10 years was held to be not manifestly excessive in a case where an applicant with a bad criminal history used a knife to terrorise a nun in a convent and hold her captive while threatening sexual assault on her.  However, a non-parole period of 4 years was added to allow adequately for his plea of guilty on ex officio indictment.

19. In Stinton a sentence of 10 years was set aside and 8 years substituted in a case where the accused had a bad criminal history including offences of violence but also gave evidence against a co-offender.  Effectively, the sentence was reduced to 8 years to take into account mitigating circumstances rather than specify a non-parole period.

20. In Awai Rapana and Rapana youthful offenders who committed serious assaults and indignities upon the victims had a sentence of 10 years imprisonment reduced to 8 years because of parity issues where co-offenders had been sentenced by another judge.  However, it is apparent from the reasons of Macrossan CJ that but for the parity issue it was unlikely that the head sentences would have been disturbed.

21. The applicant relied on several authorities in support of a lower range of sentence. In R v Mullins and Kluck [2000] QCA 150; CA No 387 and CA No 388 of 1999, 2 May 2000, the applicants received 7 years imprisonment with a non-parole period of 3 years.  They were young offenders with some but not very extensive previous convictions.  It was held that the sentence was not manifestly excessive.  In R v Grogin [1998] QCA 361; CA No 198 and CA No 233 of 1998, 27 August 1998, the sentence was effectively 6½ years with a recommendation for parole after 2½ years but an attempt by the sentencing judge to allow for pre-sentence custody by reducing the head sentence had miscarried.  A sentence of 5 years 9 months with a recommendation after 21 months was substituted.

22. Individual circumstances influence the level of sentence imposed. The applicant has only a minor criminal history none of which relates to offences of violence. He was 26 at the time of the offence. However, the protracted duration of this offence, the tying up and assaulting of one of the victims and the forcing of the female victim while she believed she was under threat from a knife and a firearm, to assist in identification of valuable property makes the present case slightly worse than, for example, Mullins and Kluck.

23. Before the sentencing judge reliance was also placed on R v Stawicki and Meier [1996] QCA 51; CA No 483 and CA No 493 of 1995, 23 February 1996, where sentences of 5 years with recommendations of 12 months and 18 months respectively were imposed and R v Doolan [1998] QCA 386, CA No 175 of 1998, 8 October 1998, where a sentence of 4½ years with a recommendation after 2 years was imposed.  In each case it was held that the sentences were not manifestly excessive, although in Doolan it was observed that he was fortunate not to have been dealt with more severely.  Those cases were not as bad as the present case.

24. Counsel for the Crown was prepared to concede that the appropriate range for sentencing was 5 to 7 years with the further submission being made that, considering the very serious features of this case, a sentence towards the top of the range would be appropriate.

25. For my part, I am not persuaded that the learned sentencing judge was incorrect in setting a higher starting point. The applicant inflicted a protracted and terrifying ordeal on the complainants. It extended for about an hour and a half. A knife was used and they were made to believe that the offenders had a firearm. The male complainant was tied up, gagged and assaulted. It would be inappropriate, however, to exceed 8 years as the starting point because to do otherwise would involve increasing the sentencing range used by the trial judge in circumstances where there has been no appeal by the Attorney-General. I would therefore adopt 8 years imprisonment on Count 3 as the starting point for consideration of the other relevant factors in the case.

26. The applicant is entitled to a significant discount for co-operation in return for the undertaking to give evidence against the person he claims to be the instigator of the offence. He will be subject to re-sentencing if the undertaking is not fully complied with. This reduction should be reflected in the level of head sentence imposed.

27. Counsel for the Crown submitted that the discount should be modest. He submitted that a reduction of only 1 year should be made. One of the reasons advanced was, in effect, that the applicant was an offender giving evidence against another person he had implicated as being involved in his own offence. It was submitted that the discount in such a case should be less than in a case where the evidence was to be given as a result of the person implicating another offender for an unrelated offence or offences. There is no compelling reason why, in general, this should be so. There is as much public interest in having a person who procured the commission of a serious offence, and who would otherwise have escaped detection and conviction but for the accomplice's evidence, dealt with as in having persons who have committed other distinct offences convicted on such evidence.  There is no appreciable difference in public benefit, nor in the personal risk to the person who agrees to give such evidence.

28. It was also submitted to the learned sentencing judge that because the applicant first denied that the alleged instigator was implicated but later said that he was, the weight of the applicant's evidence would be open to attack on the ground that he had given inconsistent stories. Nevertheless, the Crown has, by proceeding against the alleged instigator, accepted that the applicant's evidence is of sufficient worth to justify relying on it. However, there is nothing in the record to suggest in the present case that the applicant's preparedness to give evidence is not bona fide. (c.f. R v Thompson (1994) A Crim R 75) Indeed, he has already given evidence at committal.  (c.f. R v Banks [1998] QCA 218; CA No 117 of 1998, 31 July1998).   In those circumstances there is no reason to devalue his co-operation by reason of the way it developed.

29. Further allowance should be made for the fact that the applicant confessed and pleaded guilty to all the offences for which he was convicted. This might be reflected by further reducing the head sentence or by making provision for eligibility to apply for release on parole at an earlier time than he would otherwise be able to do. In a case where allowance for co-operation under an undertaking under s 13A of the Penalties & Sentences Act 1992 is also involved it is generally likely to be less confusing if ordinary mitigating circumstances are reflected in a parole recommendation.

30. The learned sentencing judge did not specify any non-parole periods for the present offences, no doubt because it would have been futile because the sentence of 10 years automatically activated the limitation on serious violent offenders applying for parole before 80% of the term has expired (s 166(1)(c) Corrective Services Act 1988 (Qld)).  Since the Crown did not ask for a declaration that the applicant was a serious violent offender before this Court for the remaining offences, it will be necessary to consider what allowance for mitigating factors is appropriate.

31. With regard to the reduction of sentence under s 13A, in Williams v Queensland Community Corrections Board [2000] QCA 75; CA No 6237 of 1999, 17 March 2000, the following passages appear in the judgment of the court:

"Courts have, on numerous occasions, emphasized the need to recognize and reward the public benefit of assistance such as this, given at considerable personal risk, in the apprehension and conviction of a dangerous criminal.  It may often involve the court in extending 'a degree of leniency which would otherwise be quite unjustified'."

...

"In cases of this kind there will almost always be two competing public interests.  On the one hand, in the present case, there is the interest in apprehending, convicting and imprisoning offenders as dangerous to human life and safety as Wilkie and consequently in encouraging others, who may find themselves in a position similar to the appellant's, to co-operate in his apprehension and conviction, even at the risk of personal violence to themselves.  On the other hand there is the public interest in imposing on the appellant a sentence of imprisonment which is commensurate with his serious offending and substantial previous criminal history and which ensures that he serves that sentence in such manner as to best minimize the risk to the community of his offending again on his release.  And often in such cases - the present case is one of these – the first of these public interests so outweighs the second as to require, as mentioned earlier, such a degree of leniency in sentencing as would otherwise be quite unjustified."

32. Cases such as Thompson (supra) and Banks (supra) demonstrate that a person who agrees to give evidence under a s 13A undertaking is entitled to a substantial discount on sentence although the actual level may vary according to the circumstances of the case.

33. In the present case a head sentence of 5½ years adequately reflects the degree of co-operation envisaged by s 13A for count 3. On count 4, 4 years 9 months is appropriate and count 5, 3 years 3 months.

34. Such a sentence for count 3 would by operation of law, entitle the applicant to apply for parole after serving 2 years and 9 months which, coincidently, is almost exactly the time he has spent in custody already.  We were informed that he was in custody prior to the original sentence, in circumstances entitling him to have such time taken to be time served, for 408 days.  At the date of hearing the appeal, he had served 1,008 days.

35. An order for immediate eligibility to apply for parole in the particular circumstances is somewhat illusory for two reasons. The first is the time it will take for the application actually to be considered. The second is that no further reduction of the non-parole period can be made so that his co-operation by confessing to and pleading guilty to the charges of which he was convicted can be made to reflect that co-operation.

36. The only way in which a benefit could be given for those factors is by further reducing the head sentence, despite the fact that it seems generally better to reflect them in a reduced non-parole period.  Even a further reduction of the head sentence allows for no tangible benefit unless the applicant is not granted a parole for valid reasons or, for other reasons, he has to serve the unexpired portion of the sentence.  In those eventualities, he would receive some benefit.

37. Nevertheless, in principle the reduction should be made so that there is at least recognition of the factors it represents. On that basis an appropriate head sentence would be 5 years for count 3 with a recommendation that the applicant be eligible to apply for release on parole from the date of the making of the order of this Court. It follows from what has been said that there should also be a consequential adjustment to the other sentences.

The orders are as follows:

1. Leave to appeal is granted.

2. The appeal is allowed and the sentences on counts 3, 4 and 5 are set aside.

3. In lieu thereof the following sentences are substituted:

1. on count 3 a sentence of 5 years imprisonment;

2. on count 4 a sentence of 4 ½ years imprisonment;

3. on count 5 a sentence of 3 years imprisonment.

In each case it is recommended that the applicant be eligible to apply for release on parole immediately upon the making of this order.

4. In each case, the sentence shall be taken to have been imposed on 17 June, 1999 with 408 days custody prior to that date being taken into account as time already served.  The dates of such custody are 3 May 1998 to 1 October 1998 and 5 October 1998 to 17 June 1999.

5. The sentences referred to in para 3 have been reduced for the reasons mentioned in s 13A of the Penalties & Sentences Act 1992 to the extent stated in paragraph 33 of the reasons for judgment.

6. Otherwise the sentences imposed would have been the following:

1. Count 3 – 8 years with a recommendation that the applicant be eligible to apply for parole after serving 3 years;

2. Count 4 – 7 years imprisonment with a recommendation that the applicant be eligible to apply for parole after serving 2 years 8 months;

3. Count 5 – 4 years 9 months imprisonment with a recommendation that the applicant be eligible to apply for release on parole after serving 1 year 9 months.