R v Moffett[2006] QCA 444

SUPREME COURT OF QUEENSLAND

1. JERRARD JA:  In this application I have read the reasons for judgment and orders proposed by Mackenzie J, but have respectfully come to a different conclusion from His Honour.  That is because I do not think there are enough matters to justify giving Mr Moffett a head sentence twice as long as that of his co-offender Gary Jeppesen.  For that reason I think Mr Moffett has a justifiable sense of grievance at the sentence he received compared to Mr Jeppesen.

2. Mr Moffett does have two prior convictions for assault occasioning bodily harm, and he was the instigator of a retaliatory attack, after being warned by police not to retaliate. But he was not the person carrying the weapon – that was Jeppesen – and he did not use a weapon in the house. Jeppesen had prior convictions for drug offences, and assaulted the complainant with the weapon Jeppesen carried in. Mr Jeppesen, who was 26, had good references and a good work history and received a sentence of 12 months imprisonment to be served by way of an intensive correction order. He was also ordered to pay $1,000 in compensation. Mr Moffett had attended an anger management course conducted by the Department of Health, prior to being sentenced, and had taken some steps to reduce the adverse effects upon his life and others resulting from his abuse of alcohol. He had changed employment to keep himself away from a work environment in which he was encouraged to drink heavily. I accept that the decision of this Court in R v Denham; ex parte A-G (Qld) [2003] QCA 74^[1] certainly showed that the sentence imposed on Mr Moffett was within the range of available sentences.  But that is not the point.  As Williams JA wrote in R v Nagy [2003] QCA 175:^[2]

“...equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance’.  That decision, and subsequent cases applying it, establish that a sentence should be reduced where there is such a marked disparity, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.”^[3]

3. The decision in R v Denham also demonstrates that the 12 months imprisonment served by way of an intensive correction order imposed on the co-offender Jeppesen was within the available range of sentencing options, that being the sentence imposed on Mr Denham, and not disturbed on the Attorney-General’s appeal.  In those circumstances the appropriate head sentence for Mr Moffett was one of the same order as that imposed on Mr Jeppesen, namely 12 months imprisonment.  I would suspend that after three months, for an operational period of two years.  I would also order that Mr Moffett, like Mr Jeppesen, pay compensation in the sum of $1,000 to the deputy sheriff of the District Court at Brisbane for transmission by him to Jamie Peter Shepherd at an address to be supplied by the Director of Public Prosecutions, and that failing payment within six months, that the matter be referred by the Registrar to the State Penalties Enforcement Register.

4. MACKENZIE J:  The applicant seeks leave to appeal against sentence of two years imprisonment suspended after six months for three years imposed for three offences arising from one incident.  He, Harry Smith Hosmer and Garry Robert Jeppesen pleaded guilty to three counts arising from the incident.  The first was entering a dwelling house with intent to commit an indictable offence, with circumstances of aggravation that it occurred in the night time and that they were in company, were armed with an offensive instrument and that actual violence was used.  The second was that they unlawfully assaulted the complainant and did him bodily harm while armed with an offensive instrument and in company.  The third was an unlawful assault on the de facto wife of the victim of the other two offences.

5. The incidents to which the application relates were the culmination of a series of events in the hours preceding them. The complainant Mr Shepherd and his de facto wife Ms Hinds lived in the same street in Kilcoy as the applicant. During the afternoon, Hosmer had been seen driving past their house and calling out abuse to a male visitor named Walker. About 7:30 pm Mr Shepherd and Mr Walker left to go fishing.

6. While they were away, a group which included Hosmer came to the complainant’s house. Some of the group were expressing antagonism towards Walker, and Hosmer demanded to know where Walker was, threatening to assault the person from whom he demanded the information if he did not give it. It is not suggested that the applicant was one of this group. When Ms Hinds, who had been in the shower, became aware of what had happened, she phoned Mr Shepherd and he and Mr Walker came home. They noticed, as they drove into the street where Mr Shepherd lived that a party was under way at another house. The applicant ran out in front of the car but they avoided him. When Mr Shepherd arrived home he called out a challenge to Mr Hosmer to “sort it out”. It was accepted that this was a challenge to Hosmer to engage in a fight.

7. Instead of Hosmer, the applicant came and engaged in a fight with Mr Shepherd which resulted in Mr Shepherd lying face down on the road with the applicant on top of him. Ms Hinds kicked and punched the applicant several times when she came to help the complainant. Police were called and the applicant, with support from Hosmer, claimed to have been hit with the back of an axe or tomahawk. He was bleeding from the nose and from a small cut inside his mouth but there were no injuries supporting a blow or blows as described by him. The learned trial judge acted on the basis that he had not actually been hit with an axe but may have believed he was.

8. No charges were laid as a result of this incident but significantly, when the applicant was asked if he wanted to make a complaint, he declined saying he would “sort it out”. The police officer warned him explicitly not to take the law into his own hands. Mr Shepherd, who had suffered injuries consisting of a swollen forehead, an abrasion to his forehead and sore ribs, also declined to make a complaint.

9. Around midnight, another person at the party was about to leave in his car when the applicant and Hosmer came out. Moffett indicated he intended to bash someone and told the driver to go to Jeppesen’s house. Jeppesen came out with something in his hand.

10. According to submissions made on Jeppesen’s behalf, he was a workmate of the applicant. He had been drinking earlier in the night and had already retired to bed when the applicant phoned him and said he had been assaulted. When the applicant came to his house Jeppesen was led to believe he had been attacked with a tomahawk and agreed to become involved.

11. About midnight, Mr Shepherd was lying on a couch in his home when he heard a noise and saw Ms Hinds go to the door. Jeppesen came through the door with the applicant behind him. Hosmer was somewhere behind the applicant. It was never clearly established what weapon was used. Shepherd believed it was a baseball bat, although it was put to the car driver, inconclusively, that it was a piece of dowelling. Mr Shepherd was hit across the back of the head with the instrument and fell to the ground. Ms Hinds dived on top of him to protect him and was pulled off by the hair by Hosmer. The instrument was then “stabbed or lunged” into Mr Shepherd’s face hitting his nose and around his eyes. The three men then left.

12. The learned sentencing Judge sentenced the applicant on the basis that while he was not the person who was actually armed he instigated the visit to Mr Shepherd’s home and did so after he had been warned not to take the law into his own hands.

13. Another matter upon which she placed significance was that he had two previous convictions for assault occasioning bodily harm, in 2000 and 2001, both of which involved punching men for no apparent reason.  One of the matters relied on was that, by describing him as having “quite a serious history of violence”, the sentencing judge had overstated the seriousness of his prior offending.  However, other incidents on his record not involving assaults nevertheless suggested a tendency towards violence when he was under the influence of alcohol.  Read in that way in the context of what happened in this case, I am not persuaded that the learned sentencing judge erred. Neither of the other offenders had a comparable criminal history.  In addition, the applicant was 24 years of age.  Hosmer was 18 at the time of the incident and Jeppesen 26.

14. It was not submitted that the sentence imposed on the applicant was intrinsically manifestly excessive because it was beyond a sound exercise of the sentencing discretion for a case of this kind. Rather, the submission on behalf of the applicant was that, in terms of Lowe v The Queen (1984) 154 CLR 606, the applicant had a justifiable sense of grievance because he received a period of actual imprisonment when Jeppesen, who had the offensive instrument, and Hosmer, who had initiated the events of the evening and had physically assaulted the female complainant during the incident from which the charges arose, were respectively sentenced to twelve months imprisonment on each count, to be served as an intensive correction order, together with a compensation order for $1000, in the case of Jeppesen, and a fully suspended twelve months sentence on the first count and eighteen months probation on the other two counts in the case of Hosmer. 

15. One of the foundations of the applicant’s argument is that the Crown Prosecutor submitted that the same head sentence should be imposed for each of the offenders but their individual circumstances reflected by different orders mitigating the head sentence. The learned sentencing Judge was not bound to adopt that approach. The reasons why the learned sentencing Judge did not do so were that she regarded the applicant as the instigator of a retaliatory attack, after he had been warned by the police not to engage in further violence after the first incident. He was the person who roused Jeppesen from his bed after having expressed an intention to the car driver of committing further violence, which could only be regarded as retaliation for what he believed had been an assault upon him with a tomahawk in the earlier incident.

16. With regard to Hosmer, he had been involved in the incident that began the chain of events. He was one of the men who went to the house when the incident that led to the charges occurred, but was not armed. During the incident he had grabbed Ms Hinds’ hair and dragged her off the complainant to facilitate Jeppesen’s attack on him. He was also several years younger than both the other accused and had no previous convictions except for breach of bail.

17. Jeppesen had two drug convictions of a minor nature. He was not involved in the chain of events until the last stage. He was roused from his sleep and went to the complainant’s house armed with an offensive instrument in the belief that the applicant had been assaulted with a tomahawk and was the first to enter the house. He assaulted the complainant by striking him on the head and in the facial area.

18. It was asserted that, of all the offenders, the applicant had done most to achieve rehabilitation since the offence. That consisted of an anger management course and a course on alcohol abuse. He had changed jobs to get away from the alcohol culture at the meatworks where he had previously worked and had not re-offended in the eighteen months since the commission of the offence.

19. The learned sentencing Judge took into account Hosmer’s youth and observed that rehabilitation in such a case must be balanced against the need for general deterrence. She said that he had real prospects of rehabilitation, evidenced by the fact that he had recently commenced working again.

20. With regard to Jeppesen, she noted that he had little relevant criminal history, a very good work history and good references.  For this reason, and the circumstances that led to his involvement, it may well have been thought by the learned sentencing judge that the absence of evidence of additional steps by him which might in other cases be considered rehabilitative was of little consequence. She said that “with some misgiving” she was prepared to impose an intensive correction order in addition to ordering compensation.  The words quoted suggest that she thought that a sentence not involving a component of time in actual custody for his role was marginal; but any sentence in excess of twelve months imprisonment would have precluded allowing him to continue his otherwise useful life by serving his sentence in the community under an intensive correction order. 

21. With regard to compensation, the learned trial judge was told that the applicant had himself made an offer at committal to the investigating police to pay, on a “no strings attached” basis, a substantial sum of compensation but it had been rejected. Apparently, once it was rejected in circumstances that are not clear from the record, it was not renewed subsequently. Not referring to it in the sentencing reasons is not in the circumstances an error affecting the proper exercise of the sentencing discretion. 

22. Counsel for the applicant also submitted in the written submissions that the case fell within the principle in Veen v The Queen (No 2) (1988) 164 CLR 465 where it was said that the criminal history of an offender is a factor that may be taken into account in determining the sentence to be imposed but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the offence for which the person is currently being sentenced.  It was submitted that the sentence was disproportionate in comparison with the sentences for the persons who were actually violent and that the learned sentencing Judge had erred in that respect. 

23. In my view, the learned sentencing Judge was entitled to give particular weight to the role played by the applicant in the events of the evening.  The incident which led to the present charges was plainly instigated by him because he was aggrieved at what he believed had been done to him in the earlier incident.  Although the challenge to fight had been issued to Hosmer in that incident, he had accepted it.  When he said something suggestive of consequential violence to the police officer after that incident, he was warned not to take matters into his own hands. He was the one who sought out Jeppesen in the middle of the night to assist in exacting retribution on Shepherd.  It was also relevant to take into account that he had a criminal history which included apparently unprovoked assaults, and other offences committed when he was annoyed by something that had happened to him.

24. In my view the learned and very experienced sentencing Judge accurately differentiated between the criminal responsibility of the three parties to the incident and did not impose sentences that were out of balance in a way that could lead to a legitimate sense of grievance on the part of the applicant. Nor, as explained above, did she give undue weight to his previous convictions. I would dismiss the application for leave to appeal against sentence.

25. PHILIP McMURDO J:  I agree with Mackenzie J.