R v Couper[2003] QCA 429

SUPREME COURT OF QUEENSLAND

1. JERRARD JA:  The applicant was sentenced to three years imprisonment imposed in respect of his conviction after a trial for the offence of assault occasioning bodily harm whilst armed and in company.  He seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

2. The circumstances of the offence are that on 21 January 2001 the applicant, together with a man, Wayne Barben, and a woman, Stacey Lord, travelled to a house at Mt Mee where Barben's former de facto, Ms Lyndell Conn, was living.  This was for the purpose of retrieving Mr Barben's nine year-old daughter.

3. Also living at that house was the complainant, a Mr Steven Draper, Mr Draper's de facto partner and a number of other children.  Mr Barben entered the complainant's house in the middle of the afternoon armed with a length of steel waterpipe which Mr Barben had brought with him to the premises.

4. Mr Barben pushed the complainant, Mr Draper, up against a wall and held that waterpipe against Mr Draper's throat and demanded to know where Mr Barben's daughter was.  Mr Barben threatened Mr Draper that he would blow the heads off Mr Draper's four children, who were home at the time, if Mr Draper did not tell Mr Barben where his daughter was. Mr Barben told Mr Draper that he had a companion waiting in the garage who would come inside and start shooting.  That accomplice in theory was the applicant.  The complainant and Mr Barben wrestled and Mr Draper struggled free and Mr Barben called out the applicant's name since Mr Draper was getting the better of Mr Barben.

5. The applicant entered the kitchen and hit Mr Draper across the back, stomach, legs and back of the neck with a baseball bat which the applicant had brought to the premises with him.  Mr Draper was hit by Mr Couper four or five times before Mr Draper fell to the floor.  After he fell down, both the applicant and Mr Barben continued to attack Mr Draper, both employing the instruments already mentioned.  The complainant was struck a further six times before Mr Barben told the applicant to go and find Mr Barben's daughter.

6. Mr Draper got up and Mr Barben pinned him by the neck against the wall.  Mr Barben then further threatened Mr Draper.  Mr Draper heard children screaming and a woman, Ms Lord, ran into the house holding a baseball bat.  Mr Couper returned and Mr Barben used the bat to hit Mr Draper again.  Finally the attackers all left with Mr Barben's daughter. As a result of the attack Mr Draper had difficulty with his knee for a month.  He had pains to his liver, kidney, thigh muscles, shoulder and neck.  He had welts all over him.  He suffered cuts and scratches.

7. The woman, Lord, pleaded guilty on 17 January 2002 to one count of house-breaking whilst armed and in company and one count of wilful damage for which offences she received 18 months imprisonment wholly suspended for two years.

8. Mr Barben pleaded guilty that same day to one charge of house-breaking whilst armed and in company, one count of assault occasioning bodily harm whilst armed and in company and one count of wilful damage.  He was sentenced to two and a half years imprisonment and parole was recommended after 10 months.

9. Mr Couper was listed for sentence with Mr Barben and Ms Lord but Mr Couper failed to appear and a warrant was issued for his arrest.  After his apprehension on that warrant he came before a different judge in May 2003 and stood trial on three counts.  The result of the trial was that he was convicted of one count of unlawful assault occasioning bodily harm whilst in company committed upon Mr Draper, acquitted of a second count of assault, namely occasioning bodily harm whilst in company committed upon Lyndell Conn, and also acquitted of the count of having wilfully damaged Ms Conn's vehicle.

10. The house-breaking offence to which Mr Barben had pleaded guilty was discontinued against Mr Couper during the trial, as was another count of wilful damage alleged to have been caused to the car owned by Mr Draper's de facto wife, a Margaret Ivers.  All up, Mr Barben was convicted on his own plea, the count of aggravated house-breaking was withdrawn against the applicant, and both Mr Barben and Mr Couper were convicted of the same offence of having unlawfully assaulted Mr Draper with circumstances of aggravation. Mr Barben was also convicted on his own plea of the count of wilful damage to the car belonging to Margaret Ivers.  Their co-accused Ms Lord was convicted on her own plea of the offence of aggravated house-breaking and of wilful damage of Lyndell Conn's motor vehicle.

11. Before the sentencing Judge the Crown contended that Mr Couper should be sentenced to between three to four years imprisonment.  On behalf of Mr Couper a sentence of two and a half years imprisonment was urged.  In imposing the sentence of three years imprisonment, the learned sentencing Judge referred to the importance of the element of deterrence in offences involving home invasion.

12. His Honour also referred to the fact that the complainant was subjected to a cowardly and vicious attack while unarmed and in his own home and that Mr Draper was attacked so that he could not resist the objective Mr Barben and the applicant had, namely of removing the girl from her mother's side, the plan being that the applicant was to attend as a back-up if Mr Barben met resistance.

13. The learned sentencing Judge also referred to the fact that the applicant's trial was much delayed because he had decamped and that it was not appropriate to make any allowance in the applicant's favour for cooperation or remorse.  All of those observations by the learned sentencing Judge are accurate. His Honour held that while Barben had used more violence than the applicant did and had a worse criminal history, Mr Couper's co-offender had the benefit of a plea and was sentenced on "soft" facts which the learned Judge sentencing Mr Couper would not have accepted having heard sworn evidence on the trial.

14. His Honour indicated that those accomplices would have received substantially higher sentences if they had been sentenced with Mr Couper and that, but for the sentence imposed on Mr Barben and considerations of parity, Mr Couper's sentence would have been slightly higher. 

15. Mr Couper contends that his sentence was excessive when compared with that imposed on Mr Barben and that the learned sentencing Judge failed to give sufficient weight to principles of parity such that Mr Couper is left with a justifiable sense of grievance.  On behalf of Mr Couper a sentence of two and a half years is contended for as being that which should have been imposed.

16. It was submitted that the only matter referred to by the learned sentencing Judge concerning what was described as the "soft" facts which that Judge would not have accepted was the proposition that the child was in danger at the household.  The view taken by the learned trial Judge reached, as a result of the evidence given or not given during the trial of Mr Couper, was that that matter had not been established as a fact.

17. It was submitted in the appeal on Mr Couper's behalf that this feature alone was not of sufficient weight such as to reach the conclusion, given the other relevant matters, particularly Mr Couper's lesser use of violence and lesser criminal history, that Mr Couper should receive a higher head sentence than that imposed on Mr Barben and also no recommendation for any earlier release on parole.

18. The learned sentencing Judge who sentenced Mr Couper was clearly troubled by the circumstance that that Judge held a different view of the facts involved in the offences committed by Mr Barben and Ms Lord, having heard evidence on the trial of Mr Couper, from the view of those facts taken by a different Judge who had sentenced those other co-offenders.

19. This Court has been provided with a copy of the transcript of that earlier sentence proceeding and it is clear that the same conduct by those two co-accused was described by the Crown as was established at the trial of Mr Couper.  The more favourable view taken about the conduct of Mr Barben and Ms Lord resulted from the submission made on their behalf by their counsel that Mr Draper and Ms Conn "were running an amphetamine kitchen" and that Ms Conn was using Mr Barben's name as the stand-over man who would extract payment from Ms Conn's clients if it was not readily forthcoming. Misrepresentation to those clients was apparently being made without Mr Barben's prior knowledge or consent.

20. Mr Barben's counsel said that Ms Conn was further denying Mr Barben contact with her child and that she had done other things to unsettle and upset Mr Barben.  All of this was said to be occurring, or so it was submitted by Mr Barben's barrister, despite the fact that Ms Conn was actually the government paid carer for Mr Barben. I interpose that Mr Barben apparently suffers from a disability. The learned Judge who sentenced Mr Barben and Ms Lord did so on the express basis that, and I quote:

"You went there on the belief that Mr Barben's daughter was in danger due to the involvement of both her mother and the other complainant, Draper, in the production of amphetamines and activities related to that."

21. Although the learned Judge who sentenced Mr Couper clearly formed a different view about those allegations, which may be utterly false, during Mr Couper's trial, it is worth remembering that Mr Couper may have lacked knowledge of matters and details known to Mr Barben.  Thus while Mr Couper may have been unable to demonstrate any facts which would have justified those various serious assertions made and not made on oath at Mr Barben's sentence, that does not establish anything about their accuracy or inaccuracy, or that Mr Barben did not believe those matters to be true. It follows that the learned Judge who sentenced Mr Couper may have been a little unfair to Mr Couper in describing Mr Barben as having been sentenced on “soft” facts. 

22. One of the odd features of the case is that the Prosecution did not actually challenge those serious assertions about the complainant's conduct when they were being made during Mr Barben's sentence before that different Judge.  This lack of challenge, of course, may have been very unfair to both Mr Draper and Ms Conn.

23. The learned Judge who sentenced Mr Couper was clearly troubled as well by another facet of the proceedings.  This was that Mr Barben and Miss Lord had been sentenced by a different Judge. His Honour shared with the jury, immediately after their verdict was returned, his knowledge of the fact of Mr Barben's plea and sentence and Ms Lord's plea and sentence, and further the fact that the learned sentencing Judge had and I quote,

"Delivered papers on the topic that one Judge should deal with all people involved in an offence, or group of offences by the one Judge at the one time."

The learned Judge expressed the view to the jury that Mr Barben and Ms Lord should not have been sentenced until Mr Couper's trial had finished. 

24. While that view is entirely justifiable in many circumstances, it might have been difficult in this case to give effect to it since delaying sentence of the other two would have required their either being on remand, or on bail between January 2002 and May 2003, and for all they or anyone else knew, they might have been waiting much longer for Mr Couper's trial to be completed.

25. On this appeal the applicant emphasised the following matters.  He provides assistance to his 70 year old mother with whom he is in a close relationship.  He has a reasonably good work history and was in full time employment at the time of his sentence.  In addition, the injury to the complainant was not particularly serious and the offence did not occur at night. In this regard reference was made to the cases of R v Salmon; ex parte A-G (Qld) [2002] QCA 262; CA No 155 of 2002, 25 July 2002, and R v Fatnowna; ex parte A-G (Qld)[1999] QCA 492; CA No 259 of 1999, 25 November 1999.

26. The Crown argued that while the applicant had a slightly less serious history than Barben, the applicant's conduct could not be understood as a criminal over reaction to an emotional situation involving one of his offspring, rather the applicant was a willing participant in a plan which involves a recovery of a child from its mother and contemplated use of weapons if resistance was encountered.

27. The Crown thus contended while the head sentence imposed on Mr Barben was generous, it was explicable on the basis that he pleaded guilty and was dealt with on a view of the facts that became untenable in light of sworn evidence. Accordingly, it was argued the sentence imposed on Mr Barben could not control the sentencing Judge's discretion in this case. 

28. The Crown referred to the cases of R v Houghton and Grenrich [1998] QCA 137; CA Nos 425 and 426 of 1997, 26 February 1998, R v Palmer [1998] QCA 293; CA No 181 of 1998, 6 August 1998, and R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, as being comparable cases.

29. It was said that they demonstrated that the sentence imposed on Mr Barben, had the true facts been known, erred manifestly on the side of leniency and that the six month difference between that sentence and the sentence the applicant received cannot be said to give rise to any justifiable sense of grievance.

30. In the matter of Brelsford, a 27 year old offender pleaded guilty to one count of entering a dwelling house at night with intent and two counts of assault. A sentence of three years imprisonment with a recommendation for parole after 12 months was upheld on appeal.  That offender had a minor criminal history of no real significance.

31. The incident seemed to have been the result of alcohol and indignation on the part of Brelsford at the way the male occupant had spoken to his young nephew. The female occupant had answered the door and was thrust aside, sustaining a fractured rib. An argument ensued with the male occupant with Mr Brelsford saying he would return with a gun and kill the male occupant.  In fact, Mr Brelsford returned with a baseball bat and hit the male occupant around the head, causing bruising to the face, head and back.

32. Fatnowna concerned an Attorney's appeal against the sentences imposed after a trial in respect of a conviction for unlawful assault occasioning bodily harm and one count of entering a dwelling house with intent, in the night time, using actual violence and being armed. The sentences imposed of 18 months imprisonment suspended after four months on the first count, and three years imprisonment suspended after six months on the second count were not disturbed on appeal to this Court. 

33. The incident giving rise to those, which occurred after 1.00 a.m. in the morning, involved the offender entering the complainant's house armed with a wooden club and striking the complainant a number of times, breaking his nose and causing bruising to his arms and chest. Fatnowna had a co-offender who did not actually enter the house or assault the complainant and he was seeking to settle a score with the occupant. Fatnowna was acting to assist his co-offender.  Mr Fatnowna was aged 41, had a criminal history but not one of violence.

34. Thus, that case involved a man of mature age without the benefit of a plea whose conduct resulted in not particularly serious injuries and whose motive was misguided. The sentence imposed was described by this Court as light in so far as it was suspended after six months.

35. In Houghton and Grenrich those defendants had pleaded guilty to one count of house-breaking and one count of assault occasioning bodily harm in company whilst armed, and were sentenced to four years imprisonment with a recommendation for release on parole after 15 months.

36. Mr Houghton was aged 30 and had no criminal history and Mr Grenrich was 32 with one conviction for a similar offence.  The complainant was a 56 year old man living in a unit block.  He had complained to the body corporate of that unit block of Mr Houghton's de facto using the premises for prostitution. Those two applicants appeared at the complainant's door dressed as bikies and carrying a concealed wooden baton.  There was a threat made to use it by Mr Houghton and when Houghton and Grenrich were about to leave the situation was inflamed by a comment made by the complainant.

37. Mr Houghton lost his temper, hit the security door and attacked the complainant with the baton and with his fists. The complainant sustained a fractured left cheek bone, double vision, laceration and bruises.  More threats were made before those two assailants left. Mr Grenrich had supported Mr Houghton by entering the unit and he stood by during the assault knowing that Houghton was armed with the baton and using it.

38. In the matter of Salmon a sentence of 18 months imprisonment suspended after six months was imposed in an Attorney's appeal in respect of what this Court described as a serious case of home invasion. That defendant had originally been sentenced to 12 months of intensive correction.  He had pleaded guilty to one count of burglary with violence whilst armed and in company, two counts of assault occasioning bodily harm whilst armed and in company, and one count of child stealing. 

39. The purpose of the home invasion was to recover a child, but the defendant's principle purpose was to participate in bashing the complainant as part of his personal vendetta.  The members of the group were armed with pieces of wood.  The defendant was 24 years of age with convictions for break and enter, unlawful use of a motor vehicle and driving offences.

40. Those other sentences imposed by this Court suggest that while the facts of this matter have some similarity to those in Fatnowna on the basis that this applicant should have had the benefit of Mr Barben's asserted belief about the danger to which his daughter was exposed, that sentence, in Fatnowna itself appears light by comparison with the other sentences described.

41. The sentence of three years imprisonment imposed on this applicant absent the benefit of any such asserted belief about danger to the daughter, actually appears a relatively moderate sentence, or one more at the middle of the range than at its higher end. Nevertheless the difference between that sentence and the one imposed on Mr Barben is such that the observations of Williams JA in R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, at paragraph 49 are relevant.

42. His Honour there observed with respect to the decision in Lowe v The Queen (1984) 154 CLR 606 that that decision established that a sentence should be reduced where there was such a marked disparity as to give rise to a justifiable sense of grievance notwithstanding that the sentence being reduced was otherwise appropriate and within the permissible range of sentencing options.

43. I am of the view that when one takes into account matters of parity, the applicant's contention that he has a justifiable sense of grievance is made out. Bearing in mind that matter of parity, the applicant's level of participation, his criminal history and the comparative cases, I consider that the appropriate sentence is the one suggested, namely, two and half years imprisonment.

44. Accordingly, I would allow the application, grant leave to appeal and set aside the sentence of three years imprisonment and in lieu thereof impose a sentence of two and a half years imprisonment.

45. DAVIES JA:  I agree.

46. HOLMES J:  I agree.

47. DAVIES JA:  The order is as indicated by Justice Jerrard.