R v Kraaz
[2006] QCA 520
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Kraaz[2006] QCA 520
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R v Kraaz[2006] QCA 520
R v Kraaz[2006] QCA 520
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | |
DELIVERED ON: | 8 December 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 October 2006 |
JUDGES: | Keane JA, Mackenzie and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | 1.Application allowed 2.The applicant have leave to reopen the sentencing proceedings 3.The sentence of four years imprisonment be set aside and, in lieu thereof, a sentence of three years and 10 months be imposed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES applicant convicted of offence of entering a dwelling to commit an indictable offence in company with another – sentenced to four years imprisonment with recommendation for post-prison community based release after serving 18 months – applicant contends that sentence imposed did not reflect the level of her offending compared to her co‑offenders – applicant instigated the commission of the offence – whether sentence was manifestly excessive CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – applicant served thirty days pre-sentence custody for a charge which was later dropped – charge was dropped after the learned sentencing judge had passed sentence therefore no allowance was made – respondent does not object to the Court reducing sentence to take into account pre-sentence custody – whether time served in pre-sentence custody for unrelated charges should be considered by the Court R v Feher [2001] QCA 449; CA No 132 of 2001, 17 October 2001, considered R v Granato [2006] QCA 25; CA No 285 of 2005, 10 February 2006, considered R v Mullins and Kluck [2000] QCA 150; CA Nos 387 of 1999, 388 of 1999, 2 May 2000, considered R v Phillips; ex parte A-G [2001] QCA 544; CA No 229 of 2001, 28 November 2001, considered |
COUNSEL: | P E Smith for the applicant M J Copley for the respondent |
SOLICITORS: | Gilshenan & Luton for the applicant Director of Public Prosecutions (Qld) for the respondent |
[1] KEANE JA: I agree with the reasons of Jones J and with the orders proposed by his Honour.
[2] MACKENZIE J: I agree that leave to appeal against sentence should be allowed for the reasons given by Jones J, and that the orders proposed by him be made.
[3] JONES J: The applicant was indicted on a charge of burglary whilst armed and in company with another. This charge allowed for alternate verdicts on five lesser offences. The applicant was acquitted by the jury of the principal offence and four of the alternate counts but was convicted of the offence of entering a dwelling house to commit an indictable offence in the dwelling in company with another. In respect of her conviction for this offence she was sentenced to four years imprisonment with a recommendation for post-prison community based release after serving 18 months.
[4] The applicant seeks leave to appeal against this sentence on the ground that it is manifestly excessive having regard to the penalties imposed on her co-offenders and her young age. She claims to have a justifiable sense of grievance by the level of her sentence compared with that of her co-offenders.
Background facts
[5] The applicant was born on 17 October 1984 and was 19 years old at the time of the offence on 16 June 2004 and 21 years at the time of sentence. She was the lawful daughter of the complainant, Malcolm Kraaz. The applicant’s mother and father separated when she was one year old and she lived thereafter with her mother. Her father remarried and had further children with his second wife. This family occupied a dwelling on a mango farm outside Bowen. After the age of 12 years the applicant had little contact with her father. Approximately two years prior to this offence she renewed contact with him and visited his farm on a few occasions. The complainant was a Jehovah’s Witness and he imposed conditions on the applicant’s staying at his property which she was unable to accept. Consequently she only visited rather than stayed at the house. At the time of the offence the persons present in the dwelling were Malcolm Kraaz, his wife Kerry, Kerry’s elderly parents and the applicant’s half-brother Reuben who was aged 10 years.
[6] For some time prior to this offence, the applicant had a problem with the taking of illicit drugs. She was also associating with two male persons, Stephen Hall and Michael Madrid with whom she was initially charged. The two males were the ones who actually entered the dwelling whilst armed and in company with each other. They, like the applicant, had financial problems because of their involvement with drugs. She had, in conversation, informed other persons that her father was a jeweller and that he had a safe in his house in which he kept gemstones and cash. It is not clear whether this information was imparted directly to the males or to a female companion. During the evening of the day before the offence, the applicant drove the two males to a place near her father’s farm. The males left the vehicle returning 15-20 minutes later. One of them (Madrid) said this was to allow him to familiarise himself with the area of the farmhouse. The applicant claimed it was to allow them to pick up drugs. At all events the applicant gave sufficient directions to allow the males to attend there the next morning and carry out the robbery. During the course of their so doing, the complainant claimed they acted in a way which indicated they were aware of the location of the safe in a walk-in wardrobe in the complainant’s bedroom. There was ample evidence that the applicant initiated the robbery and there was no doubt that she directed the two males to the property and gave instructions where to find the safe. The applicant’s role then was counselling the two males and aiding them in the commission of the offence. She did not herself go into the residence. By its verdict, the jury was not satisfied that she was aware that the co-offenders would be armed or that actual threats of violence would occur.
[7] In the early hours of the morning the two males with stockings over their heads, armed with a shotgun and a crowbar entered the complainant’s residence. They forced the occupants into one room and made threats to shoot them if they did not comply with their demands. Whilst none of the victims were harmed physically, the terrorising behaviour has had a lasting adverse psychological impact on the wellbeing of each of them.
[8] In respect of their conduct, the two males each pleaded guilty to the offence of entering a dwelling house with intent with circumstances of aggravation by threatening to use actual violence and by being armed and in company. They also pleaded to a further offence of armed robbery. They were dealt with also for other unrelated offences of entering dwelling houses.
[9] When sentencing Hall and Madrid the learned sentencing judge in those cases thought the penalty range fell within five to seven years and settled on six years as being appropriate. His Honour then made certain discounts for matters going to mitigation. In the end result Stephen Hall, who had a moderately lengthy criminal history, was sentenced to five years imprisonment with a recommendation for post-prison community based release after serving 18 months. Michael Madrid, whose prior criminal offending was less, was sentenced to five years imprisonment with a recommendation for post-prison community based release after serving 15 months.
Issues raised on appeal
[10] Whilst the applicant and the two males were convicted of similar offences (though theirs were with aggravating circumstances), there were significantly different considerations impacting on the respective penalties to be imposed. The requirement of achieving parity in sentences between co-offenders is not so clear cut in this case. Firstly, there is the fact that the applicant was found guilty after trial whereas the male offenders pleaded guilty and were granted substantial concessions on that account. The learned primary judge relied on this fact to find that the applicant was not entitled to credit of the kind afforded to the male offenders. He said, “By putting the matter to trial you have shown no remorse” (R 326/10). That statement does not appear to take into account the applicant’s success in gaining not guilty verdicts in four of the more serious alternate offences. Her decision not to plead guilty is not necessarily an indication of lack of remorse. Further to that, there was the claim, accepted by the learned primary judge, that the applicant had ceased her involvement with drugs. This might also be taken as some indication of remorse. She had been away from drugs for some two years prior to sentence (R 320/50).
[11] The second aspect is the difference in prior criminal offending. The applicant’s convictions extended over a one year period and related to the use of drugs and minor offences. Madrid’s offending covered a period of 12 years but only for minor matters prior to the subject offence. Hall’s offending was over a 15 year period and involved offences for house breaking, stealing, multiple drug offences, weapons offences and breaches of bail and suspended sentence conditions.
[12] The most significant feature arises from the applicant’s claim that she was not aware that the male offenders would use the level of violence described in detail in the sentencing remarks concerning their cases. This claim was apparently accepted by the jury as might be gleaned from their verdicts of not guilty in the counts involving robbery or damage. Against that there is the breach of trust on the part of the applicant against her own family. It was this conduct which provided the basis for the offending and without which the offences would not have occurred. Moreover, the nature of the common purpose to rob from a locked safe ought to have led to an expectation of the prospect of some threats of violence, if not actual violence itself.
[13] The prosecutor below submitted to the learned primary judge that the appropriate level of punishment should show some parity with that of the co-accused with a head sentence of five years imprisonment. Counsel for the applicant below, highlighting the fact of the applicant’s recent rehabilitation, suggested that a head sentence in the region of three and a half years would be more appropriate.
[14] Against this background the applicant contends that in imposing the sentence he did the learned primary judge fell into error in three ways.
[15] Firstly, the applicant contends there was error in his holding that there was little difference in the offending of the applicant and that of the co-accused. After discussing the various roles each had played he said – “To that extent, your circumstances are a little different to those of Madrid and Hall, but not much in my view”(R 326/22). The circumstances of offending were of course different but in terms of criminality there is something of a balance between the violent actions of the co-offenders and the appalling breach of trust which the applicant visited upon her own family.
[16] Secondly, the applicant contends that the learned primary judge was in error in his assessment that the co-offenders’ sentences were too lenient. To this end the applicant’s counsel referred to the cases R v Granato [2006] QCA 25, R v Feher [2001] QCA 449, and R v Phillips; ex parte A-G (Qld) [2001] QCA 544 to suggest an appropriate range for co-offenders fell between three years and five and a half years. Granato, who was 33 years old, pleaded guilty to a burglary committed in company of two other men. He was sentenced to five years imprisonment with a PPCBR after 21 months. The offence involved actual violence with the complainant sustaining a fractured skull, lung contusions and fractured little finger. The sentence was not reduced on appeal.
[17] Feher pleaded guilty to a burglary and robbery in company with personal violence. He was sentenced to five and a half years imprisonment. He was the instigator of the offence in which other persons carried out the home invasion. One of the co-offenders would have been sentenced to eight years imprisonment but for the application of s 13A of Penalties and Sentences Act 1992 (Qld). In discussing Feher’s application the Court of Appeal expressed the view that the sentence was “if anything, a little generous to him”.
[18] Phillips was one of three accused who each pleaded guilty to different combinations of offences. The most significant offence was burglary and attempted armed robbery for which a sentence of four years imprisonment was imposed but wholly suspended. He was 29 years old at the time of the offence and put forward compelling grounds for mitigation. The Attorney-General was successful and he was sentenced to five years imprisonment to be suspended at 12 months.
[19] Reference was made also to another Attorney-General appeal (R v Salmon; ex parte A-G (Qld) [2002] QCA 262) and to cases involving particularly young offenders (R v Lovell [1999] 2 Qd R 79; R v Bainbridge 74 A Crim R 265; R v Watkins [2003] QCA 437) and other cases which identify sentences ranging from three and a half years to two years (R v Cockfield [2006] QCA 276; R v Bowe & Taylor [2004] QCA 414 and R v Hess [2003] QCA 553). They are of some assistance in determining the appropriate range and the fact that the penalty must accommodate greatly varying circumstances.
[20] The prosecution referred to the case of R v Mullins and Kluck [2000] QCA 150 which concerned two 20 year old males targeting an elderly couple whose home they entered at night-time and from whom they aggressively demanded money. They were sentenced to seven years imprisonment with a recommendation for parole after three years. The sentence was not disturbed on appeal. All of this suggests a range for comparable offending between five years and seven years. It unnecessary to make a case by case comparison of these sentences but simply to observe that the sentencing range for offences of this kind with greatly varying circumstances, must necessarily be wide. The prosecution argues that four years imprisonment might be high for the instigation of a random burglary but here, where there is a deliberate targeting of the house and the benefit, and a betrayal of family confidentiality, the cases relied upon by the applicant are less relevant.
[21] The learned sentencing judge made some adverse observations about the sentences imposed on the applicant’s co-offenders. Criticism of the level of sentences imposed by a judge in another case is rarely appropriate especially when no appeal has been lodged in respect of those sentences and where no comparable cases were cited. Any such comments ought to be restrained in the interests of maintaining confidence in the courts and judicial comity. Even when parity issues are relevant it is normally sufficient to consider the difference in the conduct of the respective offenders and the sentencing range identified by the cases involving comparable conduct.
[22] The relevant penalty range, though wide, is reasonably well settled. I do not accept that his Honour’s views about the head penalty imposed on the co-offenders resulted in any error or his approach to this sentence. He was rightly concerned about parity issues and in my view he has considered the appropriate range in which the head sentence should fall. In the special circumstances here of the applicant’s breach of family trust and her instigation of the offence, I do not accept that she could have a legitimate sense of grievance about the head sentence imposed on her relative to those on her co-offenders.
[23] Thirdly, it is argued that the learned primary judge failed to give due weight to the applicant’s age and post-offending circumstances. His Honour’s consideration of these matters is reflected in his recommending consideration for post-prison community based release after serving 18 months in prison some six months earlier than it would otherwise have arisen. The plaintiff was 19 years of age at the time of the offending and 21 years of age at the time of sentence. Her criminal history (R 370) identifies six offences in the 12 month period prior to this offending. The penalties imposed in respect of those earlier offences did not deter her from engaging in this most serious offence. The need for personal deterrence was obvious. It cannot be said that the learned trial judge fell into error in the manner in which he has structured the penalty.
[24] Were these the only considerations, I would refuse the application for leave.
Application for leave to reopen the sentence
[25] At the time of her sentencing the applicant was facing another charge of entering a dwelling house and committing an indictable offence said to have occurred on 3 January 2006.
[26] For this charge, the applicant was incarcerated for the periods disclosed in the pre‑sentence custody certificate as follows:-
3 - 18 January 2006, a period of 16 days;
18 - 27 February 2006, a period of 10 days;
27 February - 3 March 2006, a period of 5 days;
making a total of 31 days.
[27] The learned primary judge was aware of this pre-sentence custody at the time of sentencing but having established that this time in custody was served in connection with the unrelated offence, no allowance was made for the time served.
[28] After the hearing of the appeal the prosecution decided not to proceed with this charge. Had the decision not to proceed with the unrelated charge being made at the time of sentencing, or indeed before the hearing of this appeal, either court would have regarded this period of unwarranted incarceration as a relevant circumstance such as to require consideration under s 9(2)(q) of Penalties and Sentences Act 1992 (Qld) (“the Act”).
[29] The late decision by the prosecution not to proceed with this charge has prompted the applicant to seek a reopening of the appeal and the sentence. The prosecution, after due reflection, has determined not to make any submissions to oppose this application.
[30] This is not an instance where s 159A of the Act applies. That section is relevant when the time in custody is “in relation to proceedings for the offence and for no other reason”. As Fryberg J pointed out in R v Edie[1] at para [45]:-
“There are only two logical outcomes of the process. Either the offender was held or the offender was not so held. If it is the latter, s 161 [now s 159A] can have no application to the sentence. In such circumstances the only way in which the custody can be given recognition is by the exercise of the general discretion described above. In such cases there is no statutory obligation to order that the custody not be taken to be imprisonment already served by the prisoner.”[2]