[1]  JERRARD JA:  On 4 March 2003 Raymond Hess pleaded guilty to three charges.  One was that he committed the offence of burglary with James John Power when James John Power was armed with a dangerous instrument, and when James John Power used actual violence.  The second count was one of unlawfully wounding Stephen John Gough, and the third of unlawfully assaulting Mr Gough and doing him bodily harm while he, Raymond Hess, was in the company of another person, namely James John Power.  On 20 March 2003 Mr Hess was sentenced to four years imprisonment on the first charge, such imprisonment to be suspended after Mr Hess had served 18 months in prison, and the suspension to be for an operational period of five years.  On the other two counts he was sentenced to concurrent terms of three years imprisonment and on 8 May 2003 the learned sentencing judge made further orders, clarifying that those sentences were also suspended after 18 months.  On 17 April 2003 a document in form 26 was received in the Brisbane Registry of this Court, in which Mr Hess recorded that he wished to appeal against his conviction and sentence. 

[2] The grounds of appeal were that on the day of his sentence his counsel was not there on behalf of Mr Hess, and Mr Hess felt he was pushed into making a plea of guilty on charges of which he was not guilty.  He did not specify any grounds for application for leave to appeal against his sentence.  When the appeal was called on, Mr Hess told the court that he just wanted to appeal against the sentence, and argued that it was manifestly excessive; some of the arguments he presented were really assertions that he had not committed any offence at all.  To asses the merit of those statements, and of the original grounds for appeal against his conviction, it is necessary to understand the case made for the prosecution and the circumstances in which he entered his late pleas of guilty.

The circumstances of the offence

[3] Mr Hess was originally charged jointly on an indictment with Mr Power with offences of aggravated burglary (to which he subsequently pleaded guilty), attempted murder, unlawfully wounding with intent to do grievous bodily harm, unlawfully wounding, and assault occasioning bodily harm while in company.  He ultimately pleaded guilty to those latter two charges as well.  What was originally a trial on all counts commenced on 4 March 2003 in the Brisbane Supreme Court and evidence was called from a David Snelgrove, a witness to the critical event.  Mr Snelgrove is the father of Andrea Snelgrove, whose home was burgled, and whose partner Stephen Gough was the victim of the unlawful wounding and assault occasioning bodily harm.  Mr Snelgrove’s evidence was that he had travelled to Loganlea via Brisbane from Melbourne because his daughter was having a “pretty turbulent time” and he intended to suggest she return to Melbourne with him.  On 8 January 2002 he was staying at her home, and his understanding was that the two children of her relationship with the co-accused James Power were at Mr Power’s home.  At about 9.40 p.m. that night when Andrea and Stephen were in the main bedroom and the house was in darkness, two people entered it through the closed, but probably unlocked, rear door.  One was Mr Power and the other Mr Hess.  Mr Power had a large butchers’ knife and seized Mr Gough around the throat, saying words to the effect:

“I’m going to kill you, you bastard.  I’m going to cut your head off.”

Mr Power was sawing Mr Gough’s throat with the butchers’ knife as he was saying this.  Mr Snelgrove saw blood running onto the knife, and Mr Gough, who had been standing against a wall beside the bed, was released by Mr Power; and then Mr Hess began head butting Mr Gough, saying words to the effect:

“You’re going to die, mate, you’re going to die.”

[4] Mr Power called out to Mr Hess:

“Come on.  We’re going. We’re leaving.  We’re getting out of here.”

and Mr Power left through the back door.  Mr Hess followed him, but only after Mr Snelgrove had said:

“Go on, get out of here you are not wanted here.  Get out.”;

to which Mr Hess replied:

“You will be next.  You will be next.”;

and:

“You know why this happened, don’t you?  That’s what Stephen gets for sleeping around with other people’s wives.”

[5] Mr Snelgrove knew James Power, his daughter’s husband and previous partner, and she told him that Mr Hess was a friend of Mr Power’s.  She identified Mr Hess as “that’s Raymond”.

[6] It is obvious identity could not have been an issue in this case.  The description Mr Snelgrove gave was of an entry at night by two persons, both of whom hurried up a hallway “really quickly” to enter the main bedroom in which Andrea Snelgrove and Stephen Gough were sleeping, and each of who attacked Mr Gough.  Mr Snelgrove’s evidence demonstrated that Mr Hess and Mr Power entered the premises with the shared purpose of inflicting injury on Mr Gough because of his relationship with Andrea Snelgrove.  Mr Power was obviously armed, and while Mr Hess did not physically assist in the assault with the knife, he was present in the bedroom whilst it was happening, and himself assaulted Mr Gough immediately after. 

The plea

[7] Mr Hess was represented by an experienced and competent counsel on that day, 4 March 2003.  At the conclusion of Mr Snelgrove’s evidence in chief that counsel sought and obtained an adjournment.  When the court resumed that afternoon when counsel was still present, Mr Hess and Mr Power were both re-arraigned at their request, and Mr Hess then pleaded guilty to the charges described.  Mr Power pleaded guilty to the aggravated burglary charge, to unlawful wounding with intent to do grievous bodily harm, and to assault occasioning bodily harm while in company.  The prosecution withdrew the count of attempted murder against both men.

The sentencing process

[8] The Crown made its submissions on sentence that day, which included that Mr Hess should receive a head sentence of four years imprisonment, and Mr Power one of six years.  The sentence was adjourned to allow victim impact statements to be received, and resumed on 19 March 2003.  The learned counsel for the Crown made further submissions on sentence that day, and Mr Hess was represented by the same experienced barrister as on 4 March 2003.  That counsel made submissions in mitigation on 19 March, which submissions included that he did not dispute the head sentence suggested by counsel for the Crown (at AR 41), and counsel suggested that the issue on sentence was at what point would the learned judge partially suspend that head sentence, in recognition of the plea of guilty.  Partial suspension was sought by Mr Hess’ barrister, because that counsel’s experience was that “parole is generally not given” to applicants such as Mr Hess.

[9] The late plea of guilty entered by Mr Hess was explained by his barrister as being because:

“… people with no real understanding of the legal situation can have some difficulty accepting that they are legally responsible for something that they haven’t done.  That is that, you know, there was never any suggestion that he had cut the man’s throat so it was the difficulty of explaining the legal ramifications of what his involvement was that can make him guilty of the offence.” (sic)

[10]  Later that day as all waited for the victim impact statement to arrive, counsel for Mr Hess was excused further attendance, because his presence was required in another court.  He had by that stage made all available submissions in mitigation for Mr Hess.  Ultimately the matter was adjourned, and on 20 March 2003 it resumed when victim impact statements were finally provided.  On that day there was no barrister representing Mr Hess.  All that occurred that day was that the victim impact statements were received and read, and the learned judge confirmed details of pre-sentence custody and then imposed the sentences which had very largely been the subject of agreement. 

The appeal against conviction

[11]  The grounds of appeal against conviction provided by Mr Hess show that he continues to suffer a lack of understanding of the basis on which he is responsible for the conduct of Mr Power, who was the person who actually cut Mr Gough’s throat.  Mr Hess is responsible for that act, which unlawfully wounded Mr Gough, because he engaged in a criminal enterprise in common with Mr Gough.  Section 7 of the Criminal Code provides:

“(1)  When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be     guilty of the offence, and may be charged with actually committing    it, that is to say –

(a) every person who actually does the act or makes the omission, which constitutes the offence;

(b) every person who does or admits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)  every person who aids another person in committing the offence;

(d)  any person who counsels or procures any other person to commit the offence.
…”

An offence of cutting Mr Gough’s throat was actually committed by Mr Power.  Mr Hess had entered the house unlawfully at night with Mr Power, obviously providing him with “back up”, and in those circumstances Mr Hess by his presence could be found guilty of that unlawful wounding.  This is because a person who by his presence at the commission of a crime encourages and intends to encourage thereby the commission of an offence, is just as guilty as if he himself actually committed it.  If there could be any doubt about why Mr Hess was present, and whether he was intending by his own presence to encourage Mr Power to attack Mr Gough, Mr Hess dispelled that doubt by what he said to Mr Snelgrove. 

[12]  There is also s 8 of the Criminal Code.  This provides:

“When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

In the circumstances of this case, the common intention that a jury could have found was a common intention that Mr Power would attack Mr Gough with the knife that Mr Power was carrying.  It is inconceivable that Mr Snelgrove noticed a knife and Mr Hess did not.  In those circumstances a jury could have found that the unlawful wounding of Mr Gough by cutting his throat was a probable consequence of the prosecution of the purpose described.  Accordingly, each man was deemed to have committed at least the offence of unlawful wounding of Mr Gough.

[13]  Those same principles of our law explain why Mr Power was equally guilty of the offence committed upon Mr Gough by Mr Hess, when Mr Hess head butted Mr Gough.  A jury would have been entitled to find that an assault committed by Mr Hess was a probable outcome of the agreement to enter Ms Snelgrove’s residence and assault Mr Gough.  Both men committed the burglary, so each is liable for his own actions there, and the burglary was committed in circumstances in which one of them was armed with the knife.  Once the jurors were satisfied that Mr Hess knew Mr Power had the knife when they unlawfully entered Andrea Snelgrove's home, then Mr Hess was equally guilty of having committed that offence of armed burglary.

[14]  Mr Hess argued the sentence imposed on him was excessive because he had gone to the premises with the sole purpose of getting a lift home from Andrea Snelgrove.  He said he did not know Mr Power’s intentions, did not know Mr Power was armed with a knife, that he (Mr Hess) had spoken to Andrea Snelgrove through the window of her house, asking her for a lift home and had been told to go to the back door.  That was why he entered the house.  Mr Power had come in after Mr Hess and “…it all just happened and I had nothing to do with it.”[1]  He said that “the head butt to Gough was an accident.”

[15]  Although those statements, if true, would mean that Mr Hess had not committed any offence at all, he showed no interest in re-enlivening his abandoned appeal against his conviction.  Regarding that appeal, the onus lies on Mr Hess to establish that a miscarriage of justice took place when the court accepted and acted on his plea, and the essential question is whether the entering of those pleas of guilty should be regarded as attended by such unfairness as to warrant a new trial.[2]  The appeal record discloses no basis for any finding that there was any unfairness to Mr Hess in entering those pleas of guilty, particularly when at all relevant times he was represented by counsel, and his plea of guilty appeared to have been an intelligent response to the evidence led against him.  The submissions made on his behalf by his counsel did not challenge any of the facts observed and described by the Crown witness Snelgrove, and the claims Mr Hess made from the bar table on his appeal were entirely unconvincing when weighed against that unchallenged evidence.  (The fact that a plea of guilty had been entered would not have prevented counsel from contesting relevant facts on a plea).  The abandoned appeal against conviction should be dismissed.

The application for leave to appeal the sentence

[16]  Regarding the application for leave to appeal against the sentence, Mr Hess particularly pressed the argument that there ought to have been an earlier suspension of the imprisonment he must serve.  He is anxious to rejoin his family and re-enter the life of his youngest child, who was only two months old when Mr Hess was sentenced to imprisonment.  In support of his argument Mr Hess referred to a number of earlier decisions of this court and made submissions about those upon which the prosecution relied. 

Sentences the applicant relies on

[17]  Turning to a consideration of other sentences, some were clearly special cases.  That certainly applies to two decisions on which Mr Hess relied; one being a matter of R v Hobson[3].  In that matter that applicant had pleaded guilty to one count of burglary and one count of grievous bodily harm, and was sentenced originally to three years imprisonment on both counts.  This court reduced that to a sentence of 12 months imprisonment on each, to be followed by a two year period of supervision by an authorised Corrective Services Officer.  What made that a rather special case was that the applicant was 22 years of age when he offended, the complainant was then 15 years old, they had been in a relationship for the previous 12 months, and after the applicant had offended had since resumed that relationship and had a child whom they were raising together as a couple when that applicant was sentenced.  They were living at that time with the complainant’s maternal grandmother. 

[18]  That applicant has a prior conviction for assault in February 2000. The circumstances of the offences the subject of the application for leave to appeal were that Mr Hobson had visited the complainant’s home at Coen, to which the complainant and her family had returned after living for a period at Kowanyama, at about one o’clock in the morning.  The complainant had heard the applicant calling our her name and found him standing in the lounge room.  He appeared to be drunk, pulled her hair very hard and when she fell to the floor screaming, he began to kick her.  Altogether he kicked her six to seven times before her mother intervened.  The complainant suffered lacerations to her eyelids, tear drainage damage, haemorrhaging in her eyes, lacerations to her lips, and some facial bruising.  Surgery to her right eye in the Royal Brisbane Hospital was necessary to prevent permanent cosmetic deformity and damage to her tear duct.

[19]  This court particularly relied on that applicant’s youth, his demonstrated capacity for rehabilitation, the fact of reconciliation between the applicant and the complainant, the applicant’s shared responsibility for upbringing their child, his timely plea of guilty, and the fact no weapon was used, in reducing that sentence of imprisonment.  That case is very different from this one and does not help Mr Hess.  Likewise the case of R v Gompelman & Gompelman[4] does not help Mr Hess.  In that matter Robert Gompelman pleaded guilty to one count of burglary, one count of assault occasioning bodily harm in company, one count of perpetrating a bomb hoax, and one count of unlawful entry of a motor vehicle with intent.  His sister pleaded guilty to one count of burglary and one of assault occasioning bodily harm whilst armed in company.

[20]  The relevant sentence for any purpose of comparison is the one imposed on Robert Gompelman.  That sentence was two and a half years imprisonment, suspended after 12 months for three and a half years.  This court did not disturb that sentence on appeal.  The circumstances of the offences committed by him and his sister were that together they visited late one night their stepfather when he was alone in his caravan, which both applicants entered, and in which they quite severely assaulted that stepfather.  Brooke Gompelman had weapon of some sort with which she hit the complainant around the legs, and Robert Gompelman grabbed the complainant by the throat and also hit the complainant on the head, neck, and leg with a weapon.  The complainants described it as part of his own sound system, and Robert Gompelman said it was a stick.  When a neighbour intervened and dragged Robert Gompelman out of the caravan, Robert Gompelman pushed the neighbour aside, re-entered the caravan and punched the complainant in the head, as well as hitting him on the head again with a weapon.  The complainant suffered a number of lacerations to his skull, of which the longest was three centimetres and of full thickness.

[21]  Those offenders explained that behaviour on the basis of their experience of the complainant as a stepfather, and their counsel detailed a long history of family conflict to the learned sentencing judge, which included complaints of physical and mental abuse by Robert Gompelman and of sexual abuse by Brooke Gompelman; as well the complainant having assaulted, stalked, and threatened their mother over a lengthy period.  The complainant had pleaded guilty on 25 September 2000 to a charge alleging that he had threatened violence to the applicant’s mother, and he had an extensive criminal history for offences of dishonesty and for offences of assault on females.  He was convicted of assault occasioning bodily harm in April 2000, and breached an order that he attend and complete a parenting course and an anger management course conducted by Centacare in Townsville. 

[22]  This court considered that those applicants had committed their offences out of a misguided sense of loyalty to their mother and half sisters, whom they believed had been victims of the complainant’s unlawful behaviour, and also because of their own unpleasant experiences with the complainant.  The male applicant’s offending behaviour regarding the bomb hoax was that he had induced his mother’s then de facto partner to place a “make believe” bomb in the complainant’s car, and to then telephone the complainant and tell him he had a bomb.  It looked realistic enough for police to cordon off a considerable area, and for the police to acquire a bomb technician and an army ordinance expert to examine it.

[23]  The belief those applicants had that that complainant had been guilty of perpetrating domestic violence and abuse upon their mother and other family members, as well as of their own experience, explains the considerably more lenient sentences imposed in that case.  Despite those mitigating features Robert Gompelman was still sentenced to an actual term in custody of 12 months, the same minimum term this applicant now seeks.  That sentence, on which Mr Hess relies, supports the sentence actually imposed rather than the application to overturn it by Mr Hess, but he gets more support from some other cases in which he relies.

[24]  In a matter of the R v Zerafa[5] that applicant was convicted of one count of burglary and one account of assault occasioning bodily harm while armed with a dangerous weapon, namely a rifle.  He had gone to his neighbour’s residence just before midnight one night, knocked on the front door, opened it, pointed a fire arm at the male occupant, demanded to know where (the applicant’s) dog was, demanded the male occupant get the applicant’s dog (which the male occupant had sold the applicant some six months earlier and which had gone missing); and that applicant had fired a shot when outside the house and before entering it, and a second shot when he and the male occupant were both outside it.  He had also threatened that if the dog were not immediately produced by the male occupant that the applicant would “take one of the kids with me”.  When the male occupant pushed the barrel of the gun away from him, that applicant hit that complainant on the left side of the chest with the rifle butt, causing a large bruise, and fired a third shot into a tree about a metre away from that complainant.  He then left.

[25]  He was sentenced to two years imprisonment and this court upheld the sentence.  Compared to the sentence imposed on the applicant it appears a light one, but that complainant received minimal injuries from the use of the rifle as a club, and that offender acted alone.

[26]  Mr Hess referred the court to a matter of R v Austin, Liddell & Townend; ex parte A-G (Qld).[6] In that matter there had been a trial after which Mr Townend was convicted of entering a dwelling house with intent to commit an indictable offence, and of assault occasioning bodily harm while in company, those offences being committed on 1 February 1996; and also convicted of burglary and assault occasioning bodily in harm in company committed on 4 February 1996.  He was originally sentenced to two years imprisonment for the 1 February 1996 offences, and to a concurrent three year sentence for the 4 February 1996 offences; and on an appeal against sentence by the Attorney-General was ordered to serve those two sentences cumulatively, making a five year sentence, and it was recommended that he be eligible for consideration for parole after serving one and a half of those five years.

[27]  The applicant Liddell, who was originally sentenced to 12 months imprisonment entirely suspended, was ordered on the Attorney’s appeal to serve that 12 months, with a recommendation that he be eligible for parole after serving six months; and the respondent Austin, who had been sentenced to two and a half years imprisonment (for burglary and assault occasioning bodily harm in company while armed), and who was originally sentenced to two and a half years imprisonment entirely suspended, was sentenced on appeal to serve that two and a half years imprisonment, and to be eligible for consideration for parole after serving 12 months of it.

[28]  The offences for which Liddell was convicted (entering a dwelling house with intent and assault occasioning bodily harm in company) were committed on 1 February 1996, and the offences for which Austin was convicted were committed on 4 February 1996.  On 1 February 1996 the respondent Townend, the respondent Liddell, and a Michelle Frahme went to the complainant’s unit, where the complainant had been sharing accommodation with Ms Frahme’s mother.  Michelle Frahme was the complainant’s former girlfriend.

[29]  When those visitors arrived at that unit both Mr Townend and Mr Liddell told that complainant they wanted to bash him.  Townend then began to poke at the complainant’s chest, and when the complainant ran from the unit Townend caught him, threw him down the stairs, and then sat on him choking and shaking him.  Mr Liddell encouraged Mr Townend and ignored the complainant’s pleas for help.  Townend, Liddell, and Frahme were all arrested and released on bail.  The next day Mr Liddell and Mr Austin collected Mrs Frahme’s belongings from the complainant’s unit, and asked the complainant to withdraw his complaint to the police.  Mr Austin threatened to hospitalise the complainant if the latter did not; and on 4 February, at about 10.30 p.m., Mr Townend, Mr Liddell and Mr Austin visited the complainant’s unit again.  They forced their way in and Mr Austin attacked the complainant with a nunchaku.  Mr Austin and Mr Townend knocked the complainant to the ground, and Mr Townend then jumped on top of him and in addition punched him around the head.  Austin punched him, kicked him, and hit him with the nunchaku.  When the complainant’s landlady intervened and attacked the three offenders with a broom stick, Austin and Townend continued to kick and hit the complainant respectively, and even after Austin left, Townend continued to assault the complainant.

[30]  Mr Townend did not even know the complainant, could give no satisfactory explanation for his own conduct, but said he felt better for committing the second assault.  Mr Townend had only one prior conviction, for unlawful use of a motor vehicle; Mr Liddell had none, and Mr Austin had a number of prior convictions, including one for unlawful use of a motor vehicle and two for stealing.  The sentences imposed on Mr Townend are more severe than those imposed on Mr Hess, but Mr Townend’s offending behaviour was much worse.  Austin, who used a weapon after taking part in what was a home invasion, received a lesser sentence than Mr Hess, as did Mr Liddell, who did not use any weapon and did not commit any offence on the second occasion. 

[31]  I assume that Mr Hess particularly relies on the comparison between Mr Austin’s sentence and his own.  Mr Hess does have a more significant criminal history than Mr Austin did, since Mr Hess has convictions for breaking and entering, (committed on the 24 January 1990 and 8 April 1990) burglary (committed on 13 May 1991), assault occasioning bodily harm on a female (two offences, both committed on 6 November 1992), receiving stolen property (committed on 9 July 1996) and two convictions for producing dangerous drugs (committed on 9 July 1996 and on 29 August 2000).  However, that is not a particularly serious criminal history, and does not really explain the disparity between his sentence and Mr Austin’s.  What might explain it are the greater number of offences for which Mr Hess was sentenced.  I note that Mr Austin told the police that he regretted that he had not “hit him properly”, meaning the complainant.  That complainant suffered extensive bruising, lacerations and swelling to his head, injuries to his mouth and hands, and a flattened nose requiring surgical reconstruction.

[32]  Mr Hess also relied on a matter of R v Porter[7]. In that matter that applicant had pleaded guilty to offences of burglary and of assault occasioning bodily harm while armed with a metal bar.  He had been sentenced to two years imprisonment cumulative upon a seven and a half month sentence already being served, with a recommendation that he be eligible for post prison community based release after serving 15 and three quarter months of the total sentence.  This court interfered with the sentence to the extent of recommending that he be so eligible after he had served 12 months of that total of two years, seven and a half months.

[33]  That applicant had lived next door to the complainant for some months before committing those offences, and there was animosity between them.  The sentencing judge was told that the complainant had a lengthy criminal record, which included convictions for assault, and that approximately three weeks before the offences were committed by the applicant the complainant had attacked the applicant with a cricket bat in the course of an argument.

[34]  On the day the offences were committed the applicant was moving his possessions out of his premises and went to the complainant’s dwelling at about 10.00 p.m. that evening, requesting a drink of water.  The complainant invited the applicant into the house and there the applicant picked up a piece of iron pipe which was on the verandah and hit the complainant some 10 to 15 times with it.  He also punched the complainant.  He told the court on the hearing of the appeal that he did so because he was in fear of the complainant and had delivered what he considered a pre-emptive series of blows.  That applicant had what was described as an appalling record of traffic offences and convictions for minor drug offences, and a conviction on 5 November 1997 for breaking and entering a dwelling house and for assault occasioning bodily harm.  Those last offences were committed when he went to premises where he had previously lived in a de facto relationship with the complainant in those offences; accordingly he had prior convictions for conduct that was also a variety of “home invasion”.

[35]  In the matter then under appeal that complainant had suffered quite serious injuries from the 10 to 15 blows that applicant had delivered with the iron pipe, which injuries included fractures to a rib and to the complainant’s forearm.  The sentence imposed on Mr Porter was certainly less onerous than that imposed on Mr Hess; Mr Porter did act alone, but had a significant previous record for the same invasive behaviour.

Sentences the Crown relied on

[36]  The Crown referred the court to the sentences imposed in R v Houghton & Genrich[8] and in R v Hardman[9].  In the latter case the applicant Hardman was sentenced on his plea of guilty to a charge of burglary with threats of violence while armed and in company to three and a half years imprisonment, with a recommendation for consideration for parole after 16 months.   His application for leave to appeal against sentence was refused.  He and his co-offender, one Robinson, had gone to the complainant’s residence which was opposite Mr Robinson’s house, after they had been drinking together at a hotel.  Mr Hardman did not know the complainant, but Mr Robinson did, and wrongly believed he had a grievance against him.  

[37]  When those offenders arrived at the complainant’s residence, Mr Robinson called out threats, including a threat to kill the complainant when the latter stepped outside, as Mr Robinson invited him to do.  Mr Hardman was then standing to one side holding a stick.  Eventually the complainant left his house through the back door as some one was kicking open the front one.  Mr Robinson then entered the premises but Mr Hardman did not.  He admitted to the police that he had a knife with him at the time and declared that he had wanted to kill the complainant, even though he had no prior acquaintance with him.  He also admitted having kicked the complainant’s door.

[38]  While on bail for that offence he committed an unlawful assault on his own neighbour, and then on a latter occasion wilfully and unlawfully damaged two windows and a door, that being that neighbour’s property.  On that second occasion he also assaulted a police officer.  He was sentenced for those offences at the same time as he was for the offence of  burglary with threats of violence whilst armed and in company.

[39]  That applicant had prior convictions for assault, including aggravated assault, and for serious assault on a police officer.  His convictions for earlier acts of violence were therefore more serious than those of Mr Hess, but that applicant did not himself use any force on that complainant, although he did kick the door and was armed.  The fact that that complainant was not attacked at all makes the three and a half year sentence imposed on Mr Hardman comparable with the four year sentence imposed on Mr Hess.

[40]  The prosecution also relies on the decision in R v Houghton & Genrich, in which those defendants had pleaded guilty to one count of house breaking and one of assault occasioning bodily harm in company whilst armed.  Both were sentenced to four years imprisonment with a recommendation for release on parole after 15 months.  Those sentences are certainly comparable to that imposed on Mr Hess; those two offenders unsuccessfully applied for leave to appeal.

[41]  Mr Houghton was aged 30 and had no criminal history, and Mr Genrich was 32 with one conviction for a similar offence, that being a conviction in 1993 for breaking and entering a dwelling house with intent and for assault occasioning bodily harm while armed with an offensive weapon.  For that earlier offence of “home invasion” Mr Genrich was sentenced to two years imprisonment, wholly suspended.

[42]  The complainant in the matter in which leave to appeal was sought was a 56 year old man living in a unit block who had complained to the Body Corporate of that unit block that Mr Houghton’s de facto was using the premises for prostitution.  That complaint led to those two applicants appearing at the complainant’s door, dressed as bikies, and Mr Houghton was carrying a concealed wooden baton.  A threat was made to use it and when those offenders were about to leave the situation was inflamed by a comment made by the complainant.  That resulted in Mr Houghton losing his temper, breaking the security door and attacking the complainant with the baton and with his fists.  That complainant suffered a fractured left cheek bone, double vision, lacerations and bruises.  The role played by Mr Genrich was to support Mr Houghton by entering the unit and standing by, apparently as backup, while Mr Houghton assaulted that complainant with the baton. 

[43]  This court held the case to be a serious one of home invasion and referred to sentences imposed in the matters of R v Brelsford[10]  and R v Frazer[11] those being home invasion cases.  In the first of those the applicant was sentenced to three years imprisonment with a recommendation for parole after one; and in the second sentenced on appeal to four and a half years imprisonment, with a recommendation for parole after two years.  The court declared in R v Houghton & Genrich that the importance of deterrence in cases of this kind cannot be over emphasised, such offences being extremely serious and apparently prevalent. 

[44]  Those sentences imposed in R v Houghton & Genrich, and in R v Frazer, are certainly comparable with that imposed on Mr Hess but are heavier than the sentence of two and a half years imprisonment imposed on appeal by this court in the matter of R v Couper[12].  In that matter a sentence of three years imprisonment had been originally imposed by the learned sentencing judge, but the sentence was set aside on appeal by that applicant solely because of the marked disparity between that sentence and the sentence imposed upon that applicant’s co-offender, who had been sentenced to two and a half years imprisonment by a different sentencing judge.

[45]  In that matter those two offenders (and a female co-offender) had entered the complainant’s home in a search for the child of the male co-offender.  The co-offender removed his child from that house, where the child’s mother was then living.  The co-offender’s excuse for having done that was a belief that the complainant and the child’s mother were involved in the unlawful production and distribution of amphetamine.  That co-offender himself committed a serious assault on the complainant with a length of steel water pipe, and the applicant Couper, at the co-offender’s urging, also committed a serious assault on the complainant with a baseball bat which Mr Couper had brought with him to the premises.  Mr Couper was convicted of assault occasioning bodily harm whilst armed and in company, and acquitted by a jury of a second count of assault and a count of wilful damage to a vehicle.  The Crown did not press a charge of house breaking whilst armed and in company to which the co-offender had pleaded guilty (that co-offender also pleaded guilty to one count of assault occasioning bodily harm whilst armed and in company) before the different judge.  Quite understandably that co-offender did not appeal against the two and a half year sentence he received for those two offences, and it was those sentences which resulted in the three years originally imposed on Mr Couper being reduced to two and a half.

[46]  This court agreed on that appeal that the original sentence of three years imprisonment, considered by itself, appeared a relatively moderate sentence or at the middle of the range established by other sentences of this court.  The other sentences to which reference was made in that appeal included those of R v Houghton & Genrich, and R v Brelsford.

[47]  An examination of the sentences to which Mr Hess and the Crown have referred the court shows a considerable range of sentences upheld or imposed by this court, in “home invasion” cases and that Mr Hess received a head sentence at the higher end of that range.  The range of sentences may be explained by the presence or absence of aggravating or mitigating circumstances, and the actual offences for which sentence is imposed is obviously important.  Here, Mr Hess was convicted of the offences of burglary with two circumstances of aggravation, of unlawfully wounding, and of assault with a circumstance of aggravation.  Those convictions and the fact that a knife was used to cause the unlawful wounding make his counsel’s concession that four years was the appropriate head sentence, a sensible concession, and likewise makes sensible the fact that Mr Hess concentrated his argument on trying to reduce the 18 months he must serve.

[48]  His pleas of guilty were entered very late and his grounds of appeal and the argument he presented shows that he really has no genuine remorse at all about his own unlawful conduct.  He does not acknowledge doing anything wrong, or that he pleaded guilty to offences he committed. That means the predominant mitigating factors are his limited prior criminal history and the fact that he did ultimately save the community part of the cost of a trial.  Were it not for the order suspending the sentence after 18 months, Mr Hess would have been eligible for consideration for release on parole after serving 24 months; accordingly his earliest release date was really reduced by one quarter by reason of the mitigating factors.  He might reasonably have argued that a much larger discount of the minimum term was warranted had he made his pleas of guilty earlier, but in the circumstances the reduced benefit of those pleas reflect how late they were entered.

[49]  I would order that the application for leave to appeal be dismissed.

[50]  DUTNEY J: I agree with the reasons of Jerrard JA and with the orders he proposes.

[51]  PHILIPPIDES J: I agree with the reasons of Jerrard JA and with the orders proposed.