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R v Bargenquast, Davis & Holmes[2005] QCA 476

R v Bargenquast, Davis & Holmes[2005] QCA 476

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Bargenquast, Davis & Holmes [2005] QCA 476

PARTIES:

R
v
BARGENQUAST, Adam Troy
(applicant)

R
v
DAVIS, Wade Anthony
(applicant/appellant)

R
v
HOLMES, Mark William
(applicant)

FILE NO/S:

CA No 135 of 2005

CA No 153 of 2005

CA No 158 of 2005

SC No 369 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

Appeal against Conviction and Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2005

JUDGES:

de Jersey CJ, McPherson JA and Mackenzie J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Applications for leave to appeal against sentence refused in each case
2. Appeal against conviction in CA No 153 of 2005 dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – where each of the applicants convicted after trial of six offences involving violence including manslaughter – where offences committed during a sustained pursuit of the deceased and after his capture – where applicants aged between 22 and 44 at time of offences – where trial judge could not differentiate as to the level of involvement in the offences apart from one applicant who was identified as the leader – where two applicants complained of lack of parity between sentences of co-offenders – where one applicant claimed he played a lesser part in the offences, had good work history, supportive family, good references and minor criminal history and that these factors should have been reflected in his sentence –   whether sentences manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – IN GENERAL – where appellant convicted after trial of six offences involving violence including manslaughter – where appellant appealed against three counts only – where appeal against conviction on one count was argued on the basis that there was insufficient satisfactory evidence upon which a jury could conclude that the appellant was present at the scene at the time of the offence – where appeal against conviction on the remaining two counts was argued on the basis that the quality of the evidence was such that the convictions were unsafe and unsatisfactory – whether jury’s verdicts were unsafe and unsatisfactory

R v Duong & Others [2002] QCA 151; CA Nos 336, 338, 343 and 344 of 2001, 30 April 2002, considered

COUNSEL:

A J Rafter SC for the applicant in CA No 135 of 2005

A Kimmins for the applicant/appellant in CA No 153 of 2005

D J Walsh for the applicant in CA No 158 of 2005

M R Byrne for the respondent

SOLICITORS:

Bernard Bradley & Associates for the applicant in CA No 135 of 2005

John McDonald Solicitor for the applicant/appellant in CA No 153 of 2005

AW Bale & Son for the applicant in CA No 158 of 2005

Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Mackenzie J. I agree with the orders proposed by His Honour, and with his reasons.

[2] McPHERSON JA:  I agree with Mackenzie J, for the reasons he has given, that the appeal by Davis against his conviction cannot succeed and should be dismissed. I also agree that the applications of Bargenquast, Davis and Holmes for leave to appeal against the sentences imposed on them must also fail. Together, they engaged in a protracted series of violent offences which took place over several days and culminated in the death of one of their victims. They were fortunate not to have been found guilty of murder but only of manslaughter. It was nevertheless an offence which in this case resulted from participation in deliberate acts of violence aimed at recovering a small amount of money, and not one that was the consequence simply of culpable negligence or inadvertence on their part.

[3]  In the matter of sentencing, each complains of disproportion or lack of parity in the sentences imposed upon him. It is a complaint that wears thin when account is taken of the acts that each of them carried out, the extent of their individual participation in the conspiracy to inflict violence, their relative ages and, especially in the case of Holmes, his prior criminal history. One may feel some sympathy, if that is the correct word, for Davis, who is a young man with a previous good record, work history and family background. That he became personally involved in these crimes seems have been largely fortuitous; but, once involved, he took part fully with the others in the violent actions that led to the fatal event. In the light of the jury verdicts, the learned judge carefully analysed the part that each of the applicants played in the commission of the offences. Her Honour’s assessment is not shown to be wrong and she made no error in exercising her sentencing discretion. It is not possible to view the sentences as excessive.

[4] The applications for leave to appeal against sentence should, like the appeal of Davis against conviction, be dismissed.

[5] MACKENZIE J:  These reasons are concerned with an appeal by the appellant Davis against conviction on three counts of the indictment and applications for leave to appeal against sentence by Bargenquast, Davis and Holmes.  Jon David Farthing was also tried jointly with them, but has not appealed.  An appeal against conviction by Bargenquast was abandoned before the hearing.  For convenience, although it is strictly not accurate in the cases of Bargenquast and Holmes, I will refer to each of them as an appellant. 

Overview

[6] Holmes had given Farthing $3,500 in cash to arrange for the purchase of cannabis.  Farthing gave this money to the deceased, Kerrie Edward Palmer, who, they believed, had subsequently absconded with the money.  The offences in respect of which the present proceedings are concerned arise from incidents during the subsequent search for and location of Palmer which resulted in his death.  On 27 January 2003 the deceased’s body was found at Mudjimba.

The indictment

[7] Count 1 alleged that on or about 10 January 2003, at Maroochydore, Bargenquast, Davis, Holmes and Farthing unlawfully assaulted Mitarsha O'Neill and did her bodily harm whilst in company and armed with an offensive weapon.  She was known by Palmer and it was believed by them that she may be able to give information about his whereabouts. 

[8] Count 2 alleged that on 27 January 2003 at Noosa Heads Bargenquast, Davis, Holmes and Farthing unlawfully assaulted Kylie Ann Soanes.  Soanes was the occupant, with a man named Zambona, of a house in Coral Tree Avenue, Noosa Heads.  Those searching for the deceased believed that he was living at that house, which was not far from the premises involved in counts 3 and 4.  The count relates to an incident which occurred when she was intercepted and assaulted by another person Desaubin, who was involved in part of the series of incidents, when she went to the shops to buy cigarettes.

[9] Count 3 charged that on 27 January 2003 at Noosa Heads, Bargenquast, Davis, Holmes and Farthing entered the dwelling house of one Tamara Jean Freestone with intent to commit an indictable offence by breaking, in the night-time, with actual violence, whilst armed with a dangerous weapon and an offensive instrument, and in company.  Count 4, alleged that contemporaneously with count 3, the same participants unlawfully assaulted Geoffrey Jappe and did him bodily harm whilst in company and armed with a dangerous weapon and an offensive weapon.  When Soanes was being assaulted, Palmer was seen near a taxi.  Jappe, who had also been at the taxi, went into Freestone’s unit and, during the course of events after that, the unit was entered by slicing through the screen door with a knife.  Jappe was cut on the hand and the face with a knife.  Freestone attempted to intervene and was slapped and told to sit down. 

[10]  Count 5 alleged that on 27 January 2003 at Noosa Heads, Bargenquast, Davis, Farthing and Holmes unlawfully deprived the deceased of his personal liberty.  This count arose from the capture of the deceased by the men who were seeking him and his subsequent detention. 

[11]  Count 6 alleged that on 27 January 2003 at Noosa Heads the appellants and Farthing unlawfully assaulted the deceased and did him bodily harm whilst in company and armed with a dangerous weapon and an offensive weapon.  The Crown entered a nolle prosequi in respect of this count at the commencement of the trial. 

[12]  Count 7 alleges that on a day unknown between 26 January 2003 and 30 January 2003 at Sunshine Coast, the appellants and Farthing murdered the deceased.  

The verdicts and sentences

[13]  Each of the appellants and Farthing were convicted of counts 1 to 5 and 7, or an alternative count open on the indictment.  Most notably, each was acquitted of murder but convicted of manslaughter (count 7).  The verdicts and sentences imposed, with any alternative count upon which an offender was convicted appearing in brackets, are set out in the following table:

 

  

Bargenquast

Davis

Farthing

Holmes

1

AOBH whilst Armed and in company

(O'Neill)

2 years

2 years

6 months

(assault)

2 years

2

Common assault

(Soanes)

3 months

3 months

3 months

3 months

3

Burglary with circumstances of aggravation (Freestone)

5 years

4 years

2 years

4 years

4

AOBH whilst armed

and in company

(Jappe)

3 years

9 months

(assault)

6 months

(assault)

9 months

(assault)

5

Deprivation of Liberty

(Palmer)

3 years

3 years

3 years

3 years

7

Manslaughter

(Palmer)

12 years

10 years

9 years with SVO declaration

14 years


Davis’ appeal against conviction

[14]  The sole ground was that the verdicts in respect of counts 1, 3 and 4 were unsafe and unsatisfactory.  It is necessary to deal with each separately. 

[15] Count 1:  The appeal against this conviction was argued only on the basis that there was insufficient satisfactory evidence upon which a jury could conclude beyond reasonable doubt that the appellant was present at the unit at the relevant time.  The count related to an aggravated assault occasioning bodily harm on Mitarsha O'Neill.  The complainant gave evidence that she received a phone call from Chantal Conroy at about 3am.  Conroy came to her house and together they walked to Conroy’s house.  When they arrived Farthing was sitting in the lounge room where O'Neill and Conroy also sat down.

[16]  Shortly after, three men whom she did not know came in and shut the door behind them.  They stood in front of her and asked her where Palmer was.  When she said she did not know, she was accused of lying. 

[17]  O'Neill gave descriptions of the men.  She said one was tall and skinny and had short brown hair and tattoos on the side of his face.  She heard him referred to as “Adam”. (It was accepted that this was Bargenquast).  She described another as “about 40 something”, medium build, with a flat top hair cut.  She heard the others calling him “Stretch”. (It was accepted that this was Holmes).  The third man was described as a “young guy” wearing a hat, of quite stocky build and about 20 years old.  She did not hear him referred to by name.

[18]  After the initial questioning, Stretch told the “young guy” to “get the thing out the car”.  He left the house and came back.  Although in answer to the question “Did you see if he had anything?”, she replied “I didn’t see anything”, almost immediately afterwards she was asked what happened after the young fellow with the hat came back.  She replied “He gave a white cord to Adam and he put it around my throat and pulled extremely tight”.  She was again accused by Stretch of lying and then he hit her in the face with his closed fist.  Farthing and Conroy had remained in the lounge.  The “young guy” was sitting on a bar stool in the kitchen which was attached to the lounge room, a little further away than Farthing and Conroy. 

[19]  After a conversation with Stretch, Conroy and Farthing left.  After further threats were made, she was told she could go.  She fled home.  The injuries she suffered were sufficient to constitute bodily harm. 

[20]  She had been unable to identify the appellant from a photo board shown to her by the police.  In cross-examination she agreed that the unidentified man had not touched her or hit her.  Nor had he offered any verbal encouragement to Stretch and Adam.  She remained firm in her evidence that it was the unidentified man who was told to get the thing from the car and that she had seen him come back with the white cord in his hand and give it to Adam.  She was asked about her statement to the police in which she had said the unidentified man had passed something to the man identified as Stretch.  She explained that what had happened was that Stretch had then given it to Adam. 

[21]  Conroy said that she had met both Bargenquast and Holmes prior to the relevant incident.  She had not met the appellant prior to the night of 10 January 2003.  He had come to the house with Bargenquast and Holmes that night, prior to the incident in count 1.  She believed he had been introduced to her as Wade.  After discussion on that occasion about Palmer’s whereabouts and whether O'Neill was lying about her knowledge of his whereabouts, a plan was discussed, in the presence of Conroy, the three appellants and Farthing, under which Conroy would pretend that she was worried about a prowler and contact O'Neill.  The purpose was to get O'Neill to come to Conroy’s house so that Bargenquast could “chat to her”.  When she and O'Neill arrived there, Farthing was there but the others were not.  They arrived again about five minutes later.  In particular, the man she knew as Wade was with Bargenquast and Holmes again. 

[22]  Her evidence of what happened then was that Holmes and Davis came inside.  She thought Bargenquast was on the balcony.  Davis and Farthing stood back in the kitchen.  Davis was “very quiet” and did not say anything.  She agreed that the person she knew as Wade had taken no part in what was being done to O'Neill and had said nothing by way of encouragement to the others. 

[23]  She said that Holmes had questioned O'Neill and asked if she was lying.  Then she saw Holmes give a nod to Bargenquast who came in with the cord and passed it to Holmes who put it around O'Neill’s throat and questioned her aggressively.  At one stage, Bargenquast was holding the cord while it was around her neck.  After a conversation with Holmes, she and Farthing left, leaving the three men and O'Neill in the house. 

[24]  Conroy had been shown a photo board by the police and identified Bargenquast and Holmes.  With regard to Davis, she endorsed on the photo board number 10, but when shown the board in court, pointed to number 6 which was Davis’ photograph.  The explanation she gave for the discrepancy was that number 10 was immediately below the photograph she identified as Davis.  She said she was “pretty sure” she had identified the photograph of Davis to the police.  The jury had the advantage of seeing her give evidence, which we did not.  It was for them to decide whether they accepted that she had in fact identified the photograph of Davis.

[25]  The focus of the appellant’s submissions was that there was inadequate proof he was the third man.  If there was, even though he did not actively participate in the assault on O'Neill, his presence both when the plan to lure her to the premises was discussed and while the others were assaulting her was a sufficient basis for the jury to find he was a party even if not satisfied that he had got the cord at the direction of Holmes. 

[26]  The learned trial Judge gave a general direction in appropriate terms concerning identification evidence and a specific direction about Conroy’s evidence, coupled with a reminder of the need to consider her participation in the plan to lure O'Neill to her house as an issue going to credit. 

[27]  The learned trial Judge left Davis’ case to the jury on two bases, that he aided in the commission of the offence by providing the cord and by offering encouragement by remaining during the commission of the offence.  She gave appropriate directions on each of these concepts.  No complaint is made about their content.  She told them that they had to be satisfied that Davis was present before they could convict and that it was a matter for them whether they were satisfied beyond reasonable doubt that the third man was Davis.

[28]  These directions were given shortly after a passage about which complaint is made because, it is said, it was an incorrect summary of O'Neill’s evidence.  The complaint is that the learned trial Judge said that O'Neill’s version was that Holmes had directed Davis, whom the learned judge mentioned by name rather than as the unidentified man, to get the thing from the car and that he had returned with something.  While it is true that O'Neill did not know Davis’ name and therefore did not use it in her evidence, the passage can only reasonably be understood as referring to the part played by the unidentified man who, if other evidence was believed, was Davis.  Actually using Davis’ name in that context could not have misled the jury.

[29]  The same may be said about the submission that a direction, immediately following the directions concerning the need to be satisfied that Davis was present before they could convict, which dealt with the possible basis of liability of aiding by encouragement, was defective.  The complaint was that the way in which it was expressed “presupposes proof that Davis was present and then requires the jury to make all the indicated inferences and make them in a way unfavourable to the accused”.  Merely reading the passages is sufficient to demonstrate that the complaint is ill founded.  The jury had been clearly instructed of the need to be satisfied that the third man was Davis.  The direction then deals with the premise that the jury accepts that Davis was present but is not satisfied he aided by getting the cord. It explains how, alternatively, he may be an aider by providing support by his presence, knowing what was happening to O'Neill. It was explained that it was a matter of inference whether he did know and whether he intended to support the others’ conduct and that it had to be the only inference reasonably open on the evidence before they could convict on that basis. There is no error in this direction.

[30]  There is no substance on this ground.  The appeal against the conviction on count 1 should be dismissed. 

[31]  Counts 3 and 4:  The only attack on these convictions was that the quality of the evidence was such that the convictions were unsafe and unsatisfactory.  Davis was convicted of burglary with all of the alleged circumstances of aggravation in relation to the entry into the unit occupied by Tamara Freestone in Coral Tree Avenue, Noosa. The verdict of the jury was taken in respect of each circumstance of aggravation individually. He, in common with Holmes and Farthing, was also convicted of common assault of Geoffrey Jappe in the unit, although Bargenquast was convicted of aggravated assault occasioning bodily harm.

[32]  There could be no doubt that Davis had gone in company with the others to search for Palmer, or that he was in the vicinity of the premises.  He admitted driving Bargenquast and Holmes to the area, knowing that they intended to recover money which they claimed to have been stolen by Palmer.  He admitted participating in chasing Palmer when he ran away.  In one of his records of interview he admitted participating in dragging a girl from the bushes and searching her bag to see if the money was in it. 

[33]  The case was conducted on the basis that it was not Davis who had actually broken into the premises.  The person who first affected entry used a knife to cut a fly screen to do so.  Jappe said that he himself had arrived in a taxi and located Palmer in the vicinity.  Shortly afterwards a four wheel drive pulled up nearby.  Palmer ran away followed by men from the four wheel drive.  Jappe went into Freestone’s flat, when she was already there, and locked the door. 

[34]  Then he saw a man at the door who asked where Palmer was.  The man, whom the learned trial Judge was satisfied was Bargenquast, then cut the screen with a knife and entered the premises.  When inside he held the knife to Jappe’s throat.  Jappe told him he did not know where Palmer was.  Then his arm was pinned down by Bargenquast putting his knee on it.  He then began to cut Jappe’s hand while continuing to ask where Palmer was.  He then cut Jappe’s face.

[35]  Jappe said another man about 45, stocky and with grey hair, had, just prior to his face being cut, walked in with a woman whom Jappe said was the person with whom Palmer had been staying.  Jappe was then taken outside to look for items Palmer might have dropped.  There, he was assaulted by a scruffy looking, well built, red haired man who stopped when told to do so by one of the others.  Then, after he had gone back inside a man about 25, brown haired, and carrying a baton about one and a half feet long came in.  After a while he heard someone call, from outside, “We’ve got him” and the men left.

[36]  Tamara Freestone also gave evidence of a short stocky person with a piece of wood about a metre long coming into the flat at a time before Jappe went outside and was assaulted by the redheaded man.

[37]  The evidence of a witness Desaubin, who had already been sentenced for his part in events of the evening, placed Davis in the company of Holmes and Bargenquast at Coral Tree Avenue at the relevant time.  He also gave evidence that he saw Davis, whom he knew, in the flat.  He said that Davis had a miniature baseball bat.  This and other aspects of his evidence relating to Davis were strongly challenged in cross-examination. 

[38]  The learned trial Judge explained the circumstances in which Desaubin had given evidence and the consequences for him if he did not cooperate at the trial.  She gave an appropriate warning that it was dangerous to convict on his evidence in the absence of independent evidence supporting his evidence.  She directed them correctly that they could nevertheless rely on Desaubin’s evidence in the absence of such supporting evidence and that it was ultimately a matter for them whether and to what extent they accepted his evidence.

[39]  The case was left to the jury on the basis that Davis’ liability was either that he aided in the offences by entering the unit shortly after Bargenquast had entered, or on a s 8 basis if the jury was not satisfied as to that basis.  No complaint was made that the verdicts on counts 3 and 4 were inconsistent. It is possible that the jury acted on a view of the evidence that both Holmes and Davis entered the unit shortly after Bargenquast, and that the assault of someone in the unit was a probable consequence of the entry, which was done in the course of what was, at least, a tacitly agreed enterprise of searching for Palmer’s hiding place. However, the evidence supported a sequence of events that the assault involving the use of a knife to cut Jappe in an attempt to get information had at least commenced before the other two had actually entered the unit. The jury’s verdict of guilty of only common assault may reflect a view that this went beyond what Davis and Holmes should be held responsible for.

[40]  On the evidence as a whole it was, in my view, reasonably open to a jury to be satisfied of Davis’ guilt on each of the counts.  In my view the appeals against conviction on counts 3 and 4 should be dismissed. 

Appeals against sentence

[41]  The sentences imposed are set out in the table in paragraph [13] above.  The learned trial Judge summarised the events of the evening by saying that the pursuit of Palmer was relentless.  After he was first sighted he eluded his pursuers. They then terrified the neighbourhood and the offences against Soanes, Freestone and Jappe were committed. 

[42]  While he was under their control, Palmer suffered a tearing of the nerve fibres of the brain.  The injury was caused by forces which generated rapid rotation of the head, causing the brain to swing within the skull.  Shearing forces in the centre of the brain ruptured the nerve fibres.  One blow could have been sufficient but usually there was more than one.  In addition, he had bruising under the frontal lobe, a subdural haematoma and a scalp laceration.  He had fractured ribs, bruising in the area of the lower back and right buttock and other lacerations and bruising.

[43]  When he was captured, in the yard of a residence, he was punched, and struck with a piece of wood.  He was dragged on to the road where he was further assaulted.  The learned trial Judge expressly made no finding whether there were further assaults after the appellants, Farthing and Palmer left Coral Tree Avenue.  She could not be satisfied which of the appellants and Farthing inflicted the fatal blow but she was satisfied that they were all involved in what happened there.  Whether or not Holmes actually inflicted any violence, she was satisfied of his presence, of his being in charge of the pursuit and that not only did he not dissuade the others but also gave knowing encouragement to them. 

[44]  She said she found it impossible to differentiate as to the level of involvement in the offences.  She said that apart from Holmes’ role as the leader, she thought they were equally culpable.  (That appears to relate to the position before matters individual to the offenders were taken into account). The offences were serious violent offences which involved a pursuit of a sustained nature.  They involved the commission of several offences.  There was coordination among the appellants and Farthing as evidenced by the arrival of the four wheel drive and the placing of Palmer in the vehicle and the subsequent conveyance of him to Mountain Creek, and then to Buderim, by which stage, the learned trial judge thought, he was probably dead. 

[45]  The learned trial judge referred to R v Duong & Others [2002] QCA 151, and to R v Bates & Baker [2002] QCA 174 which she considered to be a worse case than the present case.  She referred to the offers to plead guilty to manslaughter before and during the trial. She said the present case fell between Duong and Bates & Baker in seriousness.  She said that she would fix a head sentence to reflect the other offences and make the sentences for them concurrent with it (R v Nagy [2004] 1 Qd R 63).  It is now necessary to deal with the submissions concerning each of the appellants.

Holmes

[46]  The complaint was essentially of a lack of parity with Bargenquast.  It was submitted that the evidence showed Bargenquast was directly involved in the attacks on O'Neill, Jappe and Palmer.  Holmes had been involved in the attack on O'Neill but not on Jappe.  He prevented other attacks on Jappe by telling others not to do so.  Although it was submitted there was no evidence of his involvement in actual attacks on Palmer, it was conceded that Holmes had gone with the others and Farthing after the attack and was the prime mover in the burial of Palmer’s body.  It was also conceded that the attack was for Holmes’ benefit. 

[47]  Holmes had the worst criminal history of any of the appellants, although mostly not recent.  He was the leader of what the learned trial judge described as a relentless pursuit of the victim.  She said he would be sentenced on the basis that he had assumed the leadership role.  Because of that, his criminal history and the fact that, at 44, he was older than the others, he would be given the highest penalty. 

Bargenquast

[48]  The essence of the submissions on Bargenquast’s behalf was that apart from his age there was little to distinguish between him, Davis and Farthing.  Factually, it was submitted, there was little to distinguish between his and Farthing’s actions for the purpose of sentence, except that Holmes was in control of what happened.  While he was convicted of more serious offences on counts 1 and 4 than the others, his position was comparable with Davis’ and he should be sentenced at the same level.

[49]  The learned trial Judge noted his criminal history, mostly relating to property offences and not to violence.  She noted his psychiatric problems and his age, 27 at the time of the offences.  It may be observed that the argument that his position was comparable to Davis’ is difficult to maintain. Bargenquast clearly played a more active role than him in relation to counts 1, 3 and 4.

Davis

[50]  It was submitted that even if the appeal against conviction on counts 1, 3 and 4 were dismissed the head sentence was excessive because of his age (22 at the time), his good work history and supportive family, good references, his minor criminal history, and the fact that he was influenced by Holmes.  It was submitted that Davis played a lesser part in the offences, because he provided the transport, and the evidence that he had engaged in physical violence against Palmer was unsatisfactory.  It was also submitted that he had withdrawn at a point when Palmer, who may have been dead by then, had been taken to Buderim.  He assisted the police by naming the others involved and taking the police to the Buderim address.  It was submitted that the sentence should be reduced to eight years with no serious violent offence declaration.

[51]  The learned trial Judge noted that he was the youngest of the offenders, with steady employment.  She accepted that he was under the influence of Holmes who was a family friend and a mentor.  He had supplied the vehicle on the second occasion after Holmes had tried to contact his father who was unavailable.  The learned trial Judge said that he should receive some benefit for his assistance. Although what he said was not entirely truthful, he named the other offenders and took the police to the Buderim address.  In addition to these matters, it may be observed that Davis was present on both occasions, 17 days apart, and that it appears that, on his admissions, his assistance was not limited, on the second occasion, to providing transport.  He had participated, at Coral Tree Avenue in the chase at least to a certain extent.  It should also be recorded, for the purpose of considering parity, that the learned trial Judge described Farthing’s assistance as “substantial”.  He had surrendered to the police and eventually made a full confession.  He identified the others, took the police to the body, and to all relevant sites.  The jury’s differential verdicts indicated that it saw his role as a lesser one than the roles of the others. 

Conclusions concerning sentence

[52]  In my view, the learned trial Judge carefully weighed the factors individual to the appellants and relating to Farthing.  On the evidence before her, it cannot be maintained successfully that her ranking of the offenders and the relativity between the sentences imposed was erroneous.

[53]  With respect of the level of sentences imposed, according to the jury’s verdicts, the offenders pursued a course of conduct on two occasions 17 days apart, with the intention of finding Palmer whom they believed had absconded with the $3,500 given by Holmes to Farthing to obtain drugs.  In the course of their activities, they terrorised people whom they believed might be able to give information about Palmer’s whereabouts.  When they found him and he tried to escape, he was subjected to a degree of violence that caused the fatal injury. 

[54]  It is difficult, in the result, to escape the conclusion that the beating that proved fatal was inflicted in retribution for what they believed he had done, even if his death was unintended.  It was therefore a very serious offence. 

[55]  Having regard particularly to Duong, where 12 years imprisonment was imposed on the main offenders in a serious but less protracted series of offences, and where it was also said that the offenders must receive some benefit for their belated pleas of guilty, it cannot be demonstrated that a sentence of 14 years imposed on the leader of the connected series of offences or any of the other sentences which carefully reflect relative degrees of culpability and mitigating circumstances, are manifestly excessive.  The applications for leave to appeal against sentence should therefore be refused in each case.

 

 

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Editorial Notes

  • Published Case Name:

    R v Bargenquast, Davis & Holmes

  • Shortened Case Name:

    R v Bargenquast, Davis & Holmes

  • MNC:

    [2005] QCA 476

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McPherson JA, Mackenzie J

  • Date:

    16 Dec 2005

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2004] QSC 481 [2004] QSCPR 121 Dec 2004B and H each applied to be tried separately from F, D and D in respect of one joint charge of murder; where statements from co-accused implicated B and H in offence; whether unfair risk of prejudice; H's application refused, B's application allowed and separate trial ordered: Philippides J
Primary JudgmentSC No 369 of 2005 (no citation)29 May 2005B, D, H and F each convicted of six offences including one count of manslaughter, deprivation of liberty, assault and aggravated burglary; each defendant sentenced to between nine to 14 years' imprisonment on manslaughter count together with lesser concurrent sentences
Appeal Determined (QCA)[2005] QCA 47616 Dec 2005B, D and H each applied for leave to appeal against sentence and D appealed against three of six convictions; whether sentences manifestly excessive or lacked parity between co-offenders; whether sufficient evidence to convict D beyond reasonable doubt; applications refused in each case and appeal against convictions dismissed: de Jersey CJ, McPherson JA and Mackenzie J

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
R v Bates; R v Baker [2002] QCA 174
1 citation
Jump To
Cite 1 - [2002] QCA 174
R v Duong, Nguyen, Bui & Quoc [2002] QCA 151
2 citations
Jump To
Cite 1 - [2002] QCA 151
Cite 2 - [2002] QCA 151
R v Nagy[2004] 1 Qd R 63; [2003] QCA 175
1 citation
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Cite 1 - [2004] 1 Qd R 63

Cases Citing

Case NameFull CitationFrequency
R v Armitage(2021) 9 QR 1; [2021] QCA 1851 citation
R v Armitage, Armitage & Dean(2020) 3 QR 375; [2020] QSC 414 citations
R v Dean, Selmes & Phillips [2018] QCA 124 4 citations
R v McDougall[2007] 2 Qd R 87; [2006] QCA 3652 citations
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