R v Beauchamp[2002] QCA 238

WILLIAMS JA:  On the 30th of April 2002 the applicant pleaded guilty to two counts on an indictment which had been presented to the District Court, Townsville.  Count 1 was in these terms:  that on the 20th day of October 2001 at Townsville he entered the dwelling house of Helen Flora Kedub with intent to commit an indictable offence and was armed with a dangerous weapon.  The second count was that on that date he unlawfully assaulted Helen Flora Kedub.  

Thereafter counsel appearing for the prosecution outlined the circumstances of the offence to the learned sentencing Judge.  In the course of doing that he did not expressly identify the indictable offence which the Crown alleged the applicant intended to commit when he entered the dwelling.

The circumstances of the offence as outlined by the prosecutor were as follows:  a house had been divided into two separate units, the applicant residing in one and the complainant in the other.  They had little contact and could not be regarded as close neighbours.  There was an agreement that the applicant would mow the lawn in return for the use of the complainant's washing machine.  Apparently the washing machine broke down and was not fixed.  In consequence the applicant began mowing only his side of the residence.  That created some tension between them.

The offence occurred relatively early in the morning but it appears that the applicant had been drinking quite heavily. The complainant had risen early to feed some of her pets and then returned to bed leaving her back door ajar.  She was awoken by feeling something on her bed.  She saw the applicant sitting on the bed.  At that stage he touched her on the right shoulder.  

That was identified by the prosecution as the offence of unlawful assault.  She was startled and scared.  She rolled out of bed and at that stage saw that the applicant was naked and was holding a large black‑handled knife with a curved blade.  She screamed.  The applicant then walked out of the flat with a small towel wrapped around his waist.  As he was leaving he apparently said words to the effect, "Your door was open.  Why don't you let me use your washing machine and I'll mow the whole lawn?"

When counsel for the applicant outlined the circumstances of the offence from the applicant's point of view he indicated in very clear terms that the applicant's plea was on the basis his intent in entering the complainant's residence was to steal some detergent.  

The sentence in fact imposed was 18 months' imprisonment suspended after six months with an operational period of two years.  That sentence was imposed on count 1.  On count 2 there was a sentence of three months' imprisonment with no recommendation.

The remarks of the sentencing Judge did not clearly indicate what offence he considered the plea of guilty related to so far as count 1 was concerned; he did not identify the offence which the applicant intended to commit when entering the dwelling house.

In cases of this kind it is, in my view, desirable that the offence in question be clearly identified because that can have a very significant effect on the sentence.  The learned sentencing Judge did expressly say that the applicant did not threaten the complainant with the knife and that was a matter of some importance.  That does, to my mind, indicate that the learned sentencing Judge was accepting that the intent that the applicant had when he entered the unit was not to effect some assault with the knife.

It does seem, and this was effectively the submission put forward today by counsel for the applicant, that having the knife and being clad only in a towel wrapped around his waist were no more than indicia of the applicant's state of intoxication at the time.  The offences were, nevertheless, serious in that they did involve entering a dwelling house whilst a woman therein was in bed asleep, or at least half asleep.

I should also say that the applicant was aged 46 at the time of the offence and is now aged 47.  He did have some criminal history but the last entry was some 22 years prior to the commission of this offence.  Apart from some relatively minor property offences the most serious offence was that of unlawful wounding in 1979 for which he received three years' imprisonment with a recommendation for parole after 12 months.

As I have said, the learned trial Judge did not indicate that he was sentencing on a basis other than that the relevant intention of the applicant was to steal some detergent.

In my view, looked at in that light, the sentences imposed were manifestly excessive and should be adjusted accordingly.

Taking into account the fact that the applicant was heavily intoxicated at the material time I am of the view that a custodial sentence of some short duration was called for.

On the 24th of May 2002 the applicant was granted bail pending the hearing of the appeal.  That meant that he had served 24 days in custody under the sentence imposed.  Whilst that is a very brief period it would, in my view, be unjust to send him back to gaol for a short additional period.

In all the circumstances of this case I would vary the sentence with respect to count 1 by ordering that it be suspended after serving 24 days in custody.  And with respect to the sentence for the common assault I would set aside the period of imprisonment for three months and in lieu thereof order that he be imprisoned for a period of 24 days.

In the circumstances therefore I would grant leave to appeal, allow the appeal, vary the sentence on count 1 by deleting the provision that the sentence be suspended after serving six months and in lieu thereof order that it be suspended after serving 24 days.  And with respect to the sentence on count 2 I would set aside the order that he be imprisoned for three months and in lieu thereof order that he be imprisoned for 24 days.  Otherwise the sentences should stand.

DAVIES JA:  I agree.  Ordinarily in a case like this where a man has entered a woman's flat clad in the way he was and bearing a knife a sentence of the order which was imposed by the learned sentencing judge would plainly have been justified.  It is only in the most unusual circumstances of this case that, in my opinion, this Court should interfere with a sentence of that kind.  

Those unusual circumstances are that the facts upon which the applicant was sentence included that his only relevant intent was to take some detergent.  It followed from this that the learned sentencing Judge did not and could not have sentenced on the basis that the applicant had any intent to do any harm to the complainant or to threaten her.

His state of dress, that he was clad only in a towel, and the existence of a knife were irrelevant to that.  They are explicable only by the fact that he was extremely intoxicated.  It is in those unusual circumstances that this Court, as I have said, is justified in interfering with the sentence which was imposed and I agree with the orders proposed by Justice Williams.

JERRARD J:  I agree.  I consider that the critical matter is the concession made by the Crown that the learned sentencing Judge appears not to have drawn the inference that there was any intent in the appellant to assault the victim when he entered her premises.

I endorse the remarks by his Honour Justice Williams that it is important that parties specify the intent admitted by a plea on charges of this nature.  I have nothing else to add. DAVIES JA:  The orders are as indicated by Justice Williams.