R v P; ex parte Attorney-General
[2002] QCA 69
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- R v P; ex parte Attorney-General[2002] QCA 69
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R v P; ex parte Attorney-General[2002] QCA 69
R v P; ex parte Attorney-General[2002] QCA 69
COURT OF APPEAL
McPHERSON JA
WILLIAMS JA
PHILIPPIDES J
CA No 20 of 2002
THE QUEEN
v.
PRespondent
and
ATTORNEY-GENERAL OF QUEENSLANDAppellant
BRISBANE
DATE 12/03/2002
JUDGMENT
WILLIAMS JA: The respondent pleaded guilty to six charges arising out of events which occurred on the 9th, 10th and 11th of March 2001.
There were two counts of assault occasioning bodily harm, one count of assault, one count of kidnapping, one count of attempted burglary with a circumstance of aggravation and one count of wilful damage.
On the charges of assault occasioning bodily harm, assault and wilful damage, a sentence of six months imprisonment was imposed. On the kidnapping and the attempted burglary charges, a sentence of three years imprisonment was imposed. The sentences were ordered to be served concurrently, and an order was made that they be suspended after the respondent had served 12 months of the period of imprisonment. From that sentence the Attorney-General has appealed.
The circumstances of the offences were as follows. They arose out of what could be described as a turbulent de facto relationship between the respondent and a woman named Jackson.
At the time they had a seven week old child; in addition, Jackson had a nine year old son named T by a prior relationship.
On the 9th of March 2001 the respondent and Jackson were in the process of moving residence. On the morning of that day, in the course of those activities, the respondent threw the complainant to the ground, kicked her above the buttock and on her arms, causing bruising, and dragged her about the house by her hair. Those events were the subject of count 1 on the indictment, a charge of assault occasioning bodily harm.
Later that afternoon there was an argument between the respondent, Jackson. She was sitting on the floor nursing the seven week old baby son. The respondent became abusive, inter alia saying, "I'm going to kill you if you don't get out of the room." He then grabbed her by the throat and began to choke her while she was still holding the baby. There was much yelling during the incident, including further threats that he was going to kill her.
Two other children aged 11 and 15 years were in the house at the time and they called on the respondent to stop the assault. Those events constituted count 2 on the indictment, another charge of assault occasioning bodily harm.
The following day, 10th of March, the respondent and Jackson were walking past some shops with the seven week old baby in a pram. The respondent asked the complainant to call her sister in order to obtain some drugs. She refused. The respondent then lifted the woman, Jackson, off the ground by the throat. A passer-by intervened. That was count 3 on the indictment, a charge of assault.
Then on the 11th of March, whilst they were in the process of moving furniture Jackson told the respondent that she would not be coming back to the house until he was gone. She left the house taking the baby with her.
Later that night the respondent told T, the nine year old boy, that he was going to kill Jackson, that is T’s mother.
The respondent then told T and his cousin to go and tell Jackson that. They went off, and returned after a period without finding Jackson. Thereafter, the respondent, who was holding a knife, grabbed T by the arm and asked him where Jackson was. He forced the boy, T, to show him the way to the unit in which the woman Jackson had taken refuge.
It is not clear from the material before the sentencing Judge how far away the unit was but one certainly gets the impression that it was a reasonable distance over which they walked. For the whole of that time the respondent held the knife and had T by the arm. When they arrived outside the unit the respondent grabbed T by the throat, placed the knife against his throat, and stated that he was the first one to die. Understandably, at that point of time, T became visibly upset and was screaming. The respondent asked Jackson, who was inside the unit, to let him in before he killed the child. It appears that the incident at the unit went on for some little time. That incident involving T was the kidnapping count on the indictment, count 4.
Immediately after, and really at the same time as those events were occurring, the respondent started to kick in the door of the unit and stabbed at the door with the knife. That constituted count 5 on the indictment, the attempted burglary. He then smashed a neighbour's window, that was count 6, the wilful damage charge. In the course of smashing the window he appears to have severely cut himself either on the glass in the window or from the knife that he had.
That seems to have caused the respondent to run off. Some bystander also approached at that time and T was able to escape. When T was found subsequently he was screaming, crying, shaking and distressed. I should say before leaving the events that a victim impact statement was before the sentencing Judge which indicated that the young boy has reacted adversely to that serious incident and has been receiving psychiatric counselling. It may well be that he will be affected by the events of 11 March for some time.
So far as the respondent is concerned he was aged 31 at the time of the offence and had been a drug addicted person for a period of time. A report from a psychiatrist was placed before the sentencing Judge which indicated that in the psychiatrist's opinion the respondent was suffering a dissocial personality disorder and from an amphetamine dependent syndrome. The psychiatrist made the observation that one of the features of those conditions is that the person exhibits a failure to learn from punishment or other adverse outcome.
Of more concern is the fact that the respondent has a significant prior criminal history. In his history, much of which was centred in Tasmania, there are 14 convictions for stealing, 18 convictions for burglary, two convictions for armed robbery, one for assault, one for arson and one for damage to property.
The armed robbery offences occurred when he was aged about 21. He was sentenced to two years and six months' imprisonment. It appears that in the company of other persons he was party to the robbing of a taxi driver. It was a co-offender who actually held the knife to the throat of the taxi driver. His most recent prior conviction was for arson on the 26th of March 1999 for which he received nine months' imprisonment. Again, it is of some significance that that arson offence was committed against a background of a domestic dispute.
The Crown Prosecutor, both before the sentencing Judge and again before this Court, asks for a serious violent offence declaration. There is some force in that submission but in the circumstances I would not myself at this stage impose such a declaration notwithstanding the gravity of the kidnapping offence. However, I am of the view that the learned sentencing Judge gave too much weight to mitigating factors relevant to the respondent in determining that the head sentence should be three years imprisonment suspended after 12 months.
It is true that between the commission of the offences and the respondent being sentenced on 14 December 2001 there had been some correspondence between Jackson and the respondent; but as the learned sentencing Judge noted Jackson had "very mixed views" about the respondent. She was a woman who had herself been drug dependent, but by December 2001 she had taken significant steps to become drug free. However she still found some attraction toward the respondent but that was not a circumstance which in my view called for a lenient sentence. The offences in question were made more serious because they did involve the nine year old T. Also it has to be said that in committing the earlier assaults the respondent did not show appropriate concern for his own seven week old child who was being held by Jackson when at least one of the assaults occurred.
I have come to the conclusion that the sentence imposed was, in all the circumstances, inadequate and that the appropriate head sentence should be one of four years' imprisonment for the kidnapping offence. The kidnapping offence carried a maximum penalty of seven years' imprisonment. The Crown was unable to put before the Court any comparable sentences under section 354 since it was amended; but in my view taking into account that this did involve the kidnapping of a nine year old boy, that a knife was held at his throat, and that demands were made that he reveal information as to the whereabouts of his mother, a sentence of four years' imprisonment was called for. That may even be regarded as on the light side.
In the circumstances, I would allow the appeal by the Attorney-General to the extent of setting aside the sentence of three years' imprisonment for the offence of kidnapping and imposing in lieu thereof a sentence of four years' imprisonment. I would also set aside the order which directed that the period of imprisonment be suspended after 12 months was served. Otherwise, the sentences should stand.
The Court was informed that the respondent has recently been released from custody and in consequence a warrant should issue for his arrest. I would therefore order that the appeal be allowed, the sentence of three years imprisonment for the offence of kidnapping be set aside and in lieu thereof impose a sentence of four years imprisonment. I would also order that the order suspending the sentences after 12 months be set aside. I would issue a warrant for the arrest of the respondent.
McPHERSON JA: I agree. The sentence now imposed in this Court should not necessarily be taken as an upper benchmark for offences of this kind. The offence here could have supported a declaration that it was a serious violent offence. However, as we are increasing a sentence on an Attorney's appeal it behoves the Court to proceed cautiously; also, we should not ignore completely the impression that the learned sentencing Judge formed of the respondent's misconduct and of his record. In the circumstances, the order should be in the terms stated by Justice Williams and, if Justice Philippides also agrees, there must be a warrant for the arrest of the respondent.
PHILIPPIDES J: I also agree with what has been said by Justice Williams and Justice McPherson and with the order proposed.
McPHERSON JA: The order will be as Justice Williams stated it and a warrant will issue.
...
McPHERSON JA: The view on the Bench is that the warrant should issue forthwith and we so order.