R v Watkins[2003] QCA 437

SUPREME COURT OF QUEENSLAND 

THE PRESIDENT:  Justice Davies will deliver his reasons first.

DAVIES JA:  The applicant pleaded guilty in the District Court on 29 May this year to six offences all committed on 14 July 2002.  These offences were burglary, two of assault and three of assault occasioning bodily harm whilst armed and in company.  All arose out of the one episode.  He was sentenced to two years and nine months imprisonment on the burglary offence and twelve months imprisonment concurrent with the first sentence in respect of each of the other counts.

On 23 July the applicant filed a notice of application for extension of time within which to appeal against those sentences and this is the hearing of that application. As appears from what I will say and what I have said so far, the delay in filing the application was short and the explanation which the applicant gives for it, that it was the failure of his solicitors to file the application within time notwithstanding his prompt instructions to do so, has been accepted by the respondent as satisfactory.  I agree with that.

However, that is not the end of the matter.  There is no point in granting the application to extend time if an appeal against a principle sentence of two years and nine months has no real prospect of success.  In order to determine that question it is necessary to say something of the circumstances in which these offences were committed.

This was what is commonly called a home invasion.  Mr Mende,  an acquaintance of the applicant’s, told him that a person owed Mende $1000 for a car motor which Mende had sold him.  He did not tell the applicant the name of that person but told him where the person lived.  He invited the applicant to accompany him to that address to extract the money.  Mende took with him a baseball bat and the applicant was armed with a curtain rod.  It is unclear what the curtain rod was made of.  The applicant's counsel on the hearing described it as a plastic conduit pipe.  No doubt the learned sentencing judge addressed the sentence on that basis.

So armed, Mende and the applicant entered the house identified by Mende.  It was occupied by Mr and Mrs Peters and Mr Barrett.  As it turned out, Mr and Mrs Peters had never purchased a motor from Mende and there was nothing to indicate that Barrett had.  His Honour then sentenced the applicant on the assumption that Mende has mistaken the premises for those of his debtor.  However I do not think it matters whether this was so or not.  Certainly the applicant knew none of the occupants and had no personal interest in recovering Mende's debt.

After entering the house, Mende pushed Mrs Peters back into a chair.  Barrett, who was a youth of only 17, tried to ring 000 whereupon Mende told the applicant to hit him.  The applicant refused so Mende hit Barrett in the ribs with his baseball bat. 

Mr Peters then produced two baseball bats, one of which he gave to Barrett and shortly the course of events turned against Mende and the applicant. However, Mende hit Mr Peters on the arm with the bat which broke the bat, fortunately, however, causing Mr Peters only a swollen and bruised arm.  Mr Peters managed to retain Mende but Mende struggled free and as he left the house, pushed Mrs Peters into some furniture which caused her bruising of the shoulder.

The applicant and Mende then ran from the house and Mr Peters pursued them.  The applicant swung his weapon at Mr Peters but missed.  Mr Peters hit the applicant in the leg with his bat.  The applicant again tried to hit Mr Peters but again missed.  They then left in a car.

There is no doubt that, in all of this, Mende was the prime mover.  It was he and not the applicant who assaulted Mr Barrett, and both Mr and Mrs Peters and the applicant refused to assault Barrett when asked to by Mende.  On the other hand, however, as Mr Copley has pointed out, the applicant, by his presence and consequent encouragement, has taken part in this frightening invasion of the sanctity of the home of innocent people.

Unsurprisingly, it has affected all of the complainants psychologically and this was a matter to which, understandably, the learned sentencing judge, gave considerable weight.  Referring to their victim impact statements his Honour said that they were still suffering from this home invasion; that their lifestyle and routine had changed and that they were not the same people as they were before the offences were committed.

The learned sentencing judge also rightly referred to the seriousness and prevalence of offences of this kind and the consequent need to deter them by imposing condign punishment.  The principle sentence which he did impose, one of two years and nine months imprisonment, must be seen as a sentence imposed for this whole course of conduct. Moreover it was one imposed after taking into account the applicant’s prompt plea of guilty, no further discount being made by way of recommendation for post prison community based release.

The applicant has a quite substantial criminal record though none, it seems, for offences of violence.  He has been convicted of a number of drug offences and a number of offences of dishonesty which have resulted in one wholly suspended sentence of imprisonment and several short periods of actual imprisonment. 

The comparable sentences referred to by the learned sentencing judge and the comparable sentences referred to this Court, R v Kennedy [2000] QCA 48, R v Palmer [1998] QCA 293 and R v Houghton and Genrich [1998] QCA 137 in my opinion show that the sentence imposed in this case was not outside the range of appropriate for offences of this kind. Indeed, so much appears to have been conceded by the applicant in his written outline.  Nevertheless it was contented on his behalf here that because he refused to be involved in assaulting any of the complainants while in their house, and did so only in retreating, he pleaded guilty at the earliest opportunity and he had no previous criminal record for violence, this case was materially different from those comparable cases.

It is unnecessary, in my opinion, to discuss those cases in detail.  Some of them, it is true, were more serious than this but they resulted, also, in higher sentences.  When compared to those cases the sentence imposed in this case was not, in my opinion, manifestly excessive, and, consequently, there would be no point in granting an extension of time within which to appeal.  I will, therefore, dismiss the application.

THE PRESIDENT:  It is clear, the learned sentencing Judge here recognised the mitigating factors, primarily, the early plea of guilty in reducing the head sentence, instead of giving an earlier recommendation for parole or an early suspension of the sentence.  This was a course open to his Honour and as Davies JA has demonstrated in his reasons, the sentence was within the appropriate range.  I agree with the orders proposed by Justice Davies and with his reasons.

MACKENZIE J:  I agree.

THE PRESIDENT:  That is the order of the Court.  The application is refused.