SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant pleaded guilty on 9 June 2006 to one count of burglary and one count of armed robbery in company with personal violence.  He was sentenced to three and a half years imprisonment suspended after six months with an operational period of three and a half years.  His sole proposed ground of appeal were leave to appeal against sentence granted is that the sentence is manifestly excessive.

[2] The applicant was 22 years old at the time of his offending and 24 at sentence.  He had some prior criminal history.  On 9 March 2000 he was fined without conviction for possession of a dangerous drug and convicted and fined for behaving in a disorderly manner.  Later that year he was fined $500 without conviction for unlawfully climbing a structure and serious assault.  Later still in 2000 he was convicted and fined $250 for breach of his bail undertaking.  In March 2004 he was convicted and fined $800 for two counts of common assault and one count of obstructing a police officer.  Later that year he was convicted and fined $200 for two counts of common assault.  The present offences were committed on 31 July 2004.  He has no subsequent criminal history.  He pleaded guilty at an early stage.  As I will detail shortly, he has been co-operative with the authorities although his co-operation has not been unqualified.

[3] The circumstances of his commission of the offences the subject of this application were as follows.  The complainants Daniel Radmore and Melinda Lewis shared a house with Michael Williams in suburban Brisbane.  They were all in their early twenties.  On 31 July 2004 they were watching television and sharing a few drinks in the lounge room of their home with friends James Wallace, also a complainant, and his brother Benjamin.  At about 12.30 am a car pulled up in front of their house.  Three young men, the applicant and his co-offenders Bugajna and Balke, who were all unknown to the group in the house, were arguing about the driving of the car.  James Wallace and Michael Williams walked out the front door and had a cigarette.  One of the offenders yelled out to James Wallace and Michael Williams "Have you got any weed?"  The response was negative.  The applicant and Bugajna came up the stairs.  The applicant said to James Wallace "Sell us a tinny.  I know you've got some.  Don't make us bash you."  The applicant said to Michael Williams "Are you going to stand up to me?"  Radmore and Benjamin Wallace then came to the front door.

[4] The applicant and Bugajna again asked for drugs. They pushed their way into the house.  The applicant said "Go and get your weapons, boys 'cause we've got a gun here."  The applicant pushed past James Wallace saying "I'm having a look inside the house."  Bugajna followed.  Balke remained at the top of the stairs or perhaps in the doorway or just inside the house.  Benjamin Wallace telephoned for assistance and escorted the sole female occupant, Ms Lewis, out the back door and into a shed where she prudently remained throughout the incident.  The applicant demanded money from James Wallace and Daniel Radmore before picking up Michelle Lewis' bag.  Radmore said that the bag belonged to his girlfriend.  The applicant said "I don't want to steal from no chick" and put the bag down.  Radmore said that he did not have any money and pointed to his wallet.  The applicant went through the wallet and took some unspecified contents before putting it down.  The applicant then took hold of Radmore's throat and said "I've got a gun in my pocket.  I'll shoot you if you don't give me any money."  Whilst making those threats his left hand was tapping his trouser pocket.  Bugajna said "Just shoot him, just shoot him."  Bugajna asked who lived in the house and rummaged through drawers containing papers.  The applicant picked up two mobile phones and put them in his pocket.  James Wallace pushed both the offenders, despite their resistance, out the door.  Benjamin Wallace attempted to frighten the offenders into leaving the house by brandishing a knife.  Radmore and Williams helped James Wallace close the door.  The three offenders left.  James Wallace then telephoned one of the mobile phones, saying to the person who answered "Bring back the fucking phone you maggot."  Whoever answered the telephone responded "You better be ready.  I've got a carload of boys coming over there now."  The registration of the vehicle was noted and passed on to police who arrived about an hour later.

[5] The applicant was arrested at about 8.20 am on 1 August 2004.  He participated in an interview with police in which he admitted being present at the complainants' house where he was involved in a scuffle but his version minimized his own role.  He gave a further statement to police on 30 January 2006 which implicated his co‑offenders.  He gave a third statement a few days before his sentence in which he admitted his role and stated his willingness to give evidence against his co-offenders at trial.

[6] No victim impact statements were tendered and the sentence proceeded on the basis that the complainants suffered no ill effects as a result of the incident.

[7] The prosecutor at sentence submitted that the applicant's evidence would be particularly useful in Balke's trial which otherwise turned on circumstantial evidence.  We were told at the hearing of this application that the trial of Bugajna and Balke is listed in the District Court at Brisbane for hearing on 7 August 2006.  The prosecutor also submitted that, but for the applicant's co-operation in undertaking to give evidence implicating his co-offenders pursuant to s 13A Penalties and Sentences Act 1992 (Qld) ("the Act"), the appropriate sentence would be three to four years imprisonment with a recommendation for post-prison community‑based release after serving about one-third of the sentence to recognize the plea of guilty and other mitigating factors.  With the additional assistance to the authorities given by the applicant under s 13A, the sentence should be suspended after six to nine months.

[8] The applicant's counsel at sentence contended that the appropriate penalty without the s 13A undertaking was not merely in the range suggested by the prosecutor (three to four years) but three to five years imprisonment.  He submitted however that the applicant's additional co-operation with the authorities under s 13A, combined with the many other mitigating factors, required that the sentence be fully suspended.  The additional mitigating factors to which he referred included a very favourable reference from the applicant's employer, a registered builder who has used the applicant as a sub-contractor carpenter since August 2004, shortly after the commission of the offences.  Other references also confirmed defence counsel's submission that the applicant had formed a permanent relationship and was supporting his partner and their newborn baby daughter.  References from apparently reliable and respected community members supported defence counsel's submission that the applicant had successfully rehabilitated himself since the commission of these offences almost two years earlier and was now a hard-working young family man in steady employment.

[9] The court was then closed to receive further written and oral submissions in camera in accordance with s 13A.

[10]  The judge next commenced his sentencing remarks in a public court hearing, making the following observations.  In outlining the circumstances of the offences the judge noted that he considered Bugajna the most active of the three offenders.  The applicant had pleaded guilty.  The robbery was serious because the victims did not know that the offenders were not armed, and personal violence was used on Daniel Radmore.  Deterrence was an element of some importance for these offences.  The applicant was comparatively young with a "reasonable work record" and had the responsibility of a young child.  His prior criminal history was concerning in that non-custodial sentences had not deterred him.  Whilst each category of the applicant's two offences was serious, the offences were not the more serious examples.  His Honour also referred to the applicant's favourable references.

[11]  The court was then closed again and proceedings continued in camera under s 13A.  His Honour noted that any custodial term would be particularly difficult because of the applicant's co-operation with the authorities;  it would be served in protective custody.  He accepted the value of the applicant's co-operation especially in respect of the case against Balke.  His Honour said:

"Accordingly, what I propose doing will have mathematically the end result that you will actually serve half the time in gaol that you would have without the section 13A.  With the section 13A component the sentence would have been on each charge three and a half years' imprisonment suspended after 12 months for three and a half years conditioned that you not commit any offence punishable by imprisonment if you were to avoid being dealt with and caused to serve the balance of the said sentence.

In open Court, with the benefit of the section 13A component the order will be three and a half years imprisonment such to be suspended on similar terms after six months for a period of 3 and a half years if you wish to avoid being dealt with and called on to serve the balance of the said sentence.

If you give evidence in accordance with your statement you will not have to serve the extra sentence.  If you breach the contract and don't give evidence in accordance with that statement you will be brought back before me on an application to sentence you to the higher sentence that I have referred to."

[12]  The court resumed in public.  The judge sentenced the applicant to three and a half years imprisonment to be suspended after six months with an operational period of three and a half years.

[13]  Mr J A Griffin QC, who appears for the applicant with Mr P F Mylne, submits that the judge failed to comply with s 13A(7) so that the sentencing discretion miscarried.  That section relevantly provides:

"(7)After the imposition of the penalty, the sentencing judge or magistrate must -

(a)close the court;  and

(b)state in closed court -

(i)that the sentence is being reduced under this section;  and

(ii)the sentence it would otherwise have imposed;

..."

[14]  The judge closed the court and stated that he was reducing the sentence under s 13A and the sentence he would otherwise have imposed before, not after, the imposition of the actual penalty in open court so that he did not strictly comply with s 13A(7).  Mr Griffin contends that, as in R v Webber,[1] this had the effect that the sentencing process miscarried and that this Court can resentence the applicant, exercising its discretion afresh.[2]

[15]  In Webber the sentencing judge did not state under s 13A(7) what sentence he would have imposed but for Webber's co-operation with the authorities.  This meant that the judge's reasons there did not transparently reveal the important factor of the extent of the reduction in the sentence for the co-operation.  It also had the effect that if Webber subsequently failed to co-operate in accordance with his undertaking under s 13A and the prosecution applied to reopen the sentencing proceedings under s 188(2) of the Act (as permitted by s 13A(7)(c)) the court would have difficulty in complying with s 188(4) of the Act as it would not know the sentence that the original sentencing judge would have imposed but for the undertaking.

[16]  In this case, as Mr Griffin concedes, the procedural error in stating the required matters under s 13A(7)(b) before, instead of after, the imposition of the actual penalty has no practical consequences and renders no detriment to the applicant.  It does nothing to assist the applicant in demonstrating to this Court under s 668E(3) Criminal Code that "... some other sentence ... less severe, is warranted in law and should have been passed".  This contention is without substance.

[17]  Mr Griffin alternatively contends that defence counsel at sentence wrongly conceded the correctness of the prosecutor's submission that the appropriate sentence before taking into account the s 13A undertaking was three to four years imprisonment with a recommendation for parole after about one‑third.  Mr Griffin emphasizes that the applicant's offending was at the lower end of the range of seriousness for offences of home invasion and armed robbery in company with personal violence;  there was no premeditation and no injuries to the complainants.  He particularly relies on the decisions of this Court in R v Salmon;  ex parte A-G (Qld),[3] R v Bower-Miles & Smith[4] and R v Abednego.[5]

[18]  In Salmon the Attorney-General appealed against the imposition of a 12 month intensive correction order for a serious case of home invasion involving 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.  Salmon was one of a group who broke into the home unit of his aunt and uncle, the foster parents of a two and a half year old child whose mother was Salmon's sister.  The purpose of the home invasion was to recover the child but Salmon's principal purpose was to bash Mr McAvoy as part of a personal vendetta.  Members of the group were armed with pieces of wood.  Salmon led the charge, smashing the unit door to effect entry.  Salmon hit Mr McAvoy in the face, jaw and ear with his fists.  Other members of the group also assaulted him, some with a piece of wood.  Mrs McAvoy was assaulted by others in the group in an attempt to have her release her grip of the child.  The offenders took the child from the unit and she was not returned for three weeks.  The McAvoys and the child suffered serious emotional damage.  Salmon made himself available for interview by the police when he heard that they wanted to question him.  He pleaded guilty to some counts at committal and to the remaining counts on the morning of trial after negotiations between the lawyers as to the wording and nature of the charges were successfully resolved.  He was 24 years old at the time of the offences.  He had previous convictions for breaking and entering, unlawful use of a motor vehicle and drug offences.  The Court noted the cautious approach taken on Attorney-General appeals;  the most disturbing feature of Salmon's behaviour was the element of a home invasion to effect child stealing so that deterrence was an important factor.  Whilst the Court was concerned of a risk of suicide if Salmon was incarcerated, the sentencing judge gave this factor too much weight in the absence of supporting evidence.  Salmon's offending warranted an actual custodial term in the range of 18 months to two years, suspended after six to eight months.  Salmon had already served three months of the intensive correction order apparently satisfactorily and that time should be recognized in the substituted sentence.  That factor and the need to maintain parity with co-offenders warranted the allowing of the appeal and the substitution of a sentence of 18 months imprisonment suspended after six months;  but for those two factors a sentence of two years imprisonment would have been imposed.

[19]  In Bower-Miles & Smith the applicants pleaded guilty to entering a dwelling house at night with intent and assault occasioning bodily harm whilst armed with an offensive weapon.  They were sentenced to three and a half years imprisonment with a recommendation for parole after 12 months.  The offenders were in dispute with the complainants, one of whom had pleaded guilty to an offence in respect of an offender's car.  The applicants went with Michael Lye to the complainants' home.  Bower-Miles carried a wooden baton and Smith a broken pool cue.  Lye was carrying two torches but desisted from involvement in the offences.  The two offenders entered the house and commenced to fight with two male complainants.  Smith was punched in the face and hit with the butt of the rifle.  Bower-Miles successfully struck one complainant with the baton but he was kicked and punched by other complainants.  After suffering some injuries Smith fled the scene with two scalp lacerations and a broken nose.  Bower-Miles meanwhile was unconscious on the ground.  He suffered two black eyes, a five centimetre abrasion on the right arm and some amnesia from his hour long concussion.  One complainant sustained a scalp laceration of about one centimetre and some tenderness to the right shoulder.  The applicants Smith and Bower-Miles received much more significant injuries.  Bower-Miles was 19 and was in employment with no prior convictions.  Smith was 29 with two minor drug convictions.  He was self-employed as a bricklayer and had two children with whom he did not live but with whose welfare he was involved.  Whilst recognizing the seriousness of offences of home invasion, this Court by majority varied the sentence by reducing the term of imprisonment to two years suspended after six months with an operational period of two years for Bower-Miles and three years for Smith.  Thomas J in dissent noted that the case fell towards the less serious end of home invasion cases, despite the element of vigilantism, and considered that only a short custodial term was necessary because of the mitigating factors:  he would have suspended the sentences after three months.

[20]  In Abednego the applicant pleaded guilty to one count of assault occasioning bodily harm whilst armed and in company.  He was armed with a metal steering lock and in the company of a co-offender Lacey.  Abednego was sentenced to two years imprisonment suspended after six months.  He contended that the sentence was manifestly excessive.  He was 20 at the time of the offence.  The complainant and Lacey had had an altercation earlier in the evening of the offence because a child of the complainant had spat on Lacey's car and the complainant's children were playing "chicken" with Lacey's vehicle.  Lacey discussed the situation with Abednego and they together returned to the complainant's house to talk to him with a view to resolving issues peacefully.  The applicant armed himself with part of a metal steering wheel lock because he was not a very good fighter and wanted to deter any potential aggression.  The complainant answered the door and manifested some aggression towards Abednego.  Abednego told the complainant not to hit Lacey again or he would stand up for him.  The complainant took off his jacket and offered to fight.  He came towards Abednego who struck the complainant two blows with the wheel lock causing the complainant to fall to the ground.  As he was getting to his feet Abednego kicked him.  Abednego used excessive force and as a result the complainant suffered a fracture of the left mandible with residual jaw trismus, loss of some teeth, a minor closed head injury and post‑traumatic stress disorder;  he was unable to work for seven months.  Abednego had no previous convictions and was well regarded by his peers and employer.  He was very remorseful.  He approached the police to admit his actions and he and his family made a genuine offer to provide compensation for the complainant.  The Court by majority allowed the appeal and substituted a sentence of six months imprisonment suspended after three months with an operational period of 12 months.

[21]  The respondent places emphasis on this Court's decision in R v Perks & Jaggard.[6]  The applicants there were two of four offenders who pleaded guilty to unlawful use of a motor vehicle, burglary and armed robbery in company.  One offender was 16 years old.  Jaggard was 21 years old with no prior criminal history.  He was sentenced to five years imprisonment with parole eligibility after 18 months.  Perks, who acted as a lookout, was 18 years old with no prior criminal history.  He was sentenced to three years imprisonment with a recommendation for parole eligibility after 12 months.  A third co-offender who did not appeal, Dohnt, was 19 years old with a minor criminal history.  He was given five years imprisonment with an 18 months non-parole period.  The child stole a motor vehicle and all four offenders drove around for a time in it.  They randomly selected the complainant's house as the target of their criminal conduct.  One offender was armed with a crowbar.  The complainant was recovering from a head operation and was asleep in his home at night.  The three offenders woke him by shining a torch into his eyes.  The child held a crowbar over his head as if to strike him.  The complainant screamed.  The offenders forced him to hand over his wallet by threatening to use the crowbar.  The offenders took his wallet, $20 and a key card after also forcing him to disclose his PIN.  They said they would return if the number was wrong.  The complainant's elderly mother came out of her room during the offence but the offenders ordered her back to bed.  She was having treatment for breast cancer and had a heart condition.  The offences had a subsequent profound effect on her quality of life.  The complainant's daughter was also in the home and heard the offenders smashing open the door and their car idling outside;  as a result she suffers panic attacks.  The complainant received treatment from a psychiatrist for a post-traumatic stress disorder.  These offences were committed prior to the 1997 amendments to the Act.  The Court concluded that despite the youth and mitigating factors, the serious aspects of the offences supported the sentence imposed.

[22]  The cases referred to by Mr Griffin did not, as here, involve the combination of the serious offences of both burglary and armed robbery in company with personal violence, each of which is punishable by a maximum penalty of life imprisonment.  The circumstances of the cases to which he referred us were, however, more serious than the actual offending here.  Perks & Jaggard was unquestionably more serious than this case and, apart from the charges laid, bears no real comparison to it.  The victims in Perks & Jaggard, as in the cases to which Mr Griffin referred us, understandably suffered very serious consequences.  The complainants in the present offences on the material before the sentencing judge suffered no ill consequences and fortunately quickly got the better of the offenders, evicting them without difficulty.  The circumstances of the applicant's offending, whilst meeting the elements of both burglary and armed robbery in company with personal violence, were examples towards the lowest end of the range of such offences.  The learned sentencing judge was led into error by the prosecutor and by the defence counsel's concession that the appropriate starting point without taking into account the s 13A co-operation was a sentence of three to four years imprisonment with a suspension or parole recommendation after about one-third.  The appropriate starting sentence was rather one in the range of two and a half to three years imprisonment with an early recommendation or suspension to recognize the significant mitigating factors (the plea of guilty and the applicant's promising rehabilitation evidenced by his lack of subsequent conviction since these offences in August 2004 and his many glowing references, his good employment history since August 2004 and his support, including financial support, of his partner and new baby).  That error infected his Honour's subsequent reasoning process so that the ultimate sentence, as well as the notional sentence imposed under s 13A(7), was manifestly excessive.

[23]  I would grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed and instead order that on each count the applicant be sentenced to two years imprisonment to be suspended after three months with an operational period of two years.  But for his undertaking under s 13A I would have sentenced him to two and a half years imprisonment suspended after nine months with an operational period of two and a half years.[7]

[24]  I note that the applicant's counsel do not contend that it is necessary for this Court to make an order prohibiting publication of all or part of the proceeding or of these reasons.

[25]  Orders:

1. Application for leave to appeal against sentence granted.

2. Appeal allowed.

3. Set aside the sentence imposed on each count on 9 June 2006 and instead order on each count that the applicant serve a term of imprisonment of two years suspended after serving three months with an operational period of two years.

[26]  JERRARD JA:  I agree with the reasons and orders proposed by the President.

[27]  HOLMES JA:  I have read and agree with the President's reasons for judgment, and I agree with the orders proposed.