R v Rochford[2006] QCA 200

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  The applicant pleaded guilty on indictment to offences of threatening violence at night and two counts of wilful damage.  These were counts 2, 3 and 4 on the indictment.  Count 1, attempting to strike with a projectile, was not pursued.  He was sentenced to three years imprisonment with a recommendation after 18 months on count 2 and two years two months on counts 3 and 4.  There were a number of summary firearms offences relating to the night of the incident and one of possession of a small quantity of amphetamine found in his possession when he was arrested.  He was convicted but not further punished for them.

On the evening of the 26th of April 2004 the applicant had been drinking with a friend.  They decided to do some target practice with a rifle that was at his friend's house but apparently not owned by him.  They drove to a location where they tried to shoot some wildlife and then fired a number of shots at a road sign.  Having failed to locate any other suitable targets they went home, taking a route that naturally led past the Dalby Police Station.

As they approached the police station the applicant took up the rifle and pointed it through the passenger side window.  He fired one shot at the police station and after the vehicle had travelled a little distance down the road, fired another through the front plate glass door leading to the front counter and reception area.  Fortunately there was no one in the area at the time, although the station was a 24 hour station. 

According to the driver of the vehicle, who was not a party to any plan to commit the acts, the applicant said at the time he picked the rifle up, "It never got a mention last time.  I'm going to make the papers.  I'll show them who's the boss."  What the first part of that statement meant is not explained.  A police officer had, shortly before the shooting, answered a telephone in the main area of the police station but no one responded.  As a result he and another officer walked out the back exit of the building followed by another police officer.  The leading officer had just opened the back door and gone outside when there was a very loud bang and something like smoke was seen coming from the vicinity of a brick wall just in front of the officer.  A bullet had, in fact, impacted the wall at that point.

After the officers had hurriedly gone back inside there was another loud bang.  That shot smashed the very thick plate glass pane in the door of the front office.  The rifle used was never found but a cartridge case consistent with the kind probably used was located about 40 metres from the front door.  Metal fragments were found in the area where the impact of the projectile with the front door had occurred.

Police inquiries were unsuccessful for several months.  Then two men gave police information that they had been drinking with the applicant at a time prior to the incident and the conversation had turned to pig hunting and rifles.  The applicant said he had a rifle consistent with that used in the shooting.  According to the witnesses the applicant had said that he was going to, as he said, "Shoot coppers and to shoot shit up."  When one of the men asked him why, he said, "I'm sick of them hassling me."  Because of previous experience with the applicant the two men had not taken this comment seriously.

For the major offence particularised as discharging a firearm in the night with intent to alarm in circumstances likely to cause a police officer to fear bodily harm to himself and others, he was sentenced to three years imprisonment with a recommendation for post prison community based release after 18 months.  The maximum sentence for the offence was five years imprisonment.

No issue was taken by the applicant with the sentence of three years imprisonment.  However it was submitted that the recommendation for post prison community based release after 18 months was manifestly excessive.  There were a number of matters to be taken into account in mitigation, such as a timely plea of guilty, only a minor criminal history, a good work history, no offending in the two years between the date of the offence and the date of sentence, and good family support.  There was also evidence that at the time the applicant was an alcoholic but had, since his arrest, taken steps to overcome that problem.  It was submitted that there was good reason to hold the view that the applicant was unlikely to re-offend.  It was also submitted that the offence involved no premeditation. 

The last matter raised as an issue relied on by applicant.  It was submitted that the learned sentencing Judge erred in not indicating the factual basis for the sentence that he imposed.  If he had acted on the basis that some premeditation did exist based on the comment some weeks before the incident, he should have indicated that he intended to do so to give the applicant the opportunity to give evidence on that subject.  Alternatively, if he did not act upon such premise then the sentence was manifestly excessive.

It is apparent from an exchange between the learned sentencing Judge and the applicant's counsel during sentencing that the applicant was not in a position to deny that he may have said that he intended to shoot the police.  However, it presumably would have been his case that if he did say that, he was not speaking the truth.  It clearly would have been open on the facts before him for the learned sentencing Judge to treat the shooting as it happened on the evening as unplanned and opportunistic.  However, the incident would have been incomprehensible in the absence of some underlying antipathy towards the police.

Acceptance that a three year head sentence is appropriate for an offence of this kind and a concession by the Crown make the argument with regard to how the learned sentencing Judge should have dealt with the remarks made some time before the shooting less important.  It was said on behalf of the Crown that if the release date was fixed at half the head sentence the head sentence must have been reduced to some extent for a plea of guilty and other mitigating circumstances. 

The Crown accepted that adopting that approach it was difficult to see that full credit had been given for the matters in mitigation, including the plea of guilty.  The only issue was whether, as the applicant contended initially, although it was amended somewhat at the hearing before us, the applicant should have his sentence suspended after effectively six months, or whether there should be a recommendation for eligibility for post prison community based release, perhaps after a period of 14 to 15 months, as the Crown contended.

The submission that there should be a recommendation rather than the suspension was based on the applicant's perceived need for continuing help in overcoming his alcohol problem.  At the time of the sentence that was a discretionary matter for the sentencing Judge and a choice that a recommendation rather than a suspension be made was within a proper exercise of discretion.

I, myself, am not persuaded that, even though we will be altering the sentence, those reasons have been invalidated.  Factoring in a reduction of head sentence to make appropriate allowance for matters of mitigation implies a head sentence of at least four and a half years and perhaps more.  In my view a head sentence of four or more years imprisonment, having regard to the available maximum penalty of five years, would not have been justified in this case, even though its intrinsic seriousness, having regard to the facts, should not be minimised in any way.  It must be remembered, however, that the charge in count 1 involving an attempt to strike any of the occupants of the building with a projectile was not proceeded with.  The pleas of guilty entered, the most serious of which only involved an intent to alarm, were in full satisfaction of the indictment.

Having regard to the timely plea of guilty and the other matters in his favour, including his attempts to overcome his alcohol problem, I would not interfere with the sentence of three years but would make a recommendation for eligibility for post prison community based release after 12 months of that period. 

The sentences on the other counts in the indictment should be varied to include a recommendation after nine months.

The orders made with respect to the summary offences do not need to be varied.

I would therefore order that the sentence imposed on count 2 of the indictment be varied by setting aside the recommendation that the applicant be considered for post prison community based release after 18 months and substituting therefor a similar recommendation after 12 months, and the sentences imposed on counts 3 and 4 be varied by adding a recommendation that he be considered for post prison community based release after nine months; otherwise the application for leave to appeal should be refused.

JERRARD JA:  I agree with the reasons just announced by Justice Mackenzie and with the orders proposed by His Honour.

HOLMES JA:  I agree also with those reasons and orders.

JERRARD JA:  The orders of the Court will be as proposed by Justice Mackenzie and the declaration that the applicant had already served 90 days of the sentence, that is from 1 July 2004 until 28 September 2004, remains.