SUPREME COURT OF QUEENSLAND

[1] KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour.

[2] HOLMES JA: I agree with the reasons of Fraser JA and the orders he proposes.

[3] FRASER JA: On 27 September 2007 the applicant was convicted on his own pleas of guilty of four indictable offences and five summary offences.  The most serious of the indictable offences were one count of burglary and stealing on 23 November 2006 and one count of indecent assault on the same date.  For each of those offences he was sentenced to three and a half years imprisonment. 

[4] In respect of the other indictable offences, committed on 23 June 2006, the applicant was sentenced to 12 months imprisonment on one count of common assault and two months imprisonment for one count of wilful damage. 

[5] In addition, the applicant was sentenced to two months imprisonment for three summary offences concerning the possession of things used in connection with the smoking of a dangerous drug.

[6] Pre-sentence custody from 18 December 2006 to 27 September 2007, a period of 283 days, was declared as time served in respect of the sentences.

[7] All of these sentences were ordered to be served concurrently with each other.  No penalty was imposed in relation to the remaining two summary offences. 

[8] The applicant seeks leave to appeal against the sentences on the grounds that they are manifestly excessive. 

The circumstances of the offences

[9] The offences of common assault and wilful damage on 23 June 2006 apparently arose out of a family argument.  The applicant repeatedly demanded money from his mother, the complainant.  The applicant grabbed her by the hair.  When she left the house and went to a neighbour's house to telephone police, the applicant followed her and demanded her return.  The applicant then walked back to the family home and smashed five windows, a vase and some crockery. No basis appears for thinking that the sentences for these offences were excessive.

[10] The more serious offences occurred at about 1.00 am on 23 November 2006.  The applicant broke into the house of the complainant, a 49 year old woman.  It appears that the applicant got into the house through a window by removing a flyscreen and opening a sliding glass window. The complainant was asleep in her bedroom alone in the house.  The complainant awoke to find the applicant, a stranger, rubbing her vagina.

[11] When the complainant awoke, she jumped and the applicant ran out.  The complainant noticed that her mobile telephone and wallet and contents were missing from the bedroom. 

[12] Later, the applicant made numerous telephone calls to the complainant, using the complainant's own mobile phone.  After the complainant cancelled her mobile telephone service, the applicant made numerous further telephone calls using his mother's mobile telephone.  The applicant said nothing during the telephone calls.

[13] When the police found the applicant, he admitted having sold the complainant's mobile telephone and using his mother's mobile telephone.  He was arrested and charged.

[14] The summary drug offences relate to the applicant's possession of apparatus used to smoke cannabis sativa.  The other summary offences concern breach of bail conditions.  The applicant failed to report as directed on his bail and failed on one occasion to comply with a residential condition.

The applicant's circumstances

[15] The applicant was 20 years old at the time of the indictable offences involving his mother, and 21 years old at the time of the offences of indecent assault and burglary and stealing on 23 November 2006.  He committed all of the offences whilst he was on probation and on bail. 

[16] The applicant had been placed on a two year probation order for offences including assault occasioning harm, common assault, wilful damage, and possessing dangerous drugs, for which he was sentenced in 2005.  These offences constituted the second breach of that order. He had previously been fined for breaching that order and for an offence of wilful damage on 25 July 2005.

[17] In addition, on 29 January 2003 the applicant was sentenced in New South Wales to a nine month control order with a non-parole period with conditions of 33 days for numerous offences, including demanding property with menaces and stalking or intimidating with intent to cause fear of physical or mental harm. 

[18] The applicant was interviewed by a psychiatrist, Dr Maguire.  The learned sentencing judge gave the applicant credit for his having been frank and honest in that interview.  Dr Maguire's report suggests that the applicant has a history of mental health problems and has received treatment from time to time for these problems. The applicant was sexually abused as a child and that may have contributed to his mental health problems.

[19] Dr Maguire observed that the applicant fulfilled the criteria necessary for a diagnosis of substance induced psychosis or schizophrenia, but that it was not possible on the basis of the interview to clarify whether his psychosis was entirely attributable to substance abuse. 

[20] The learned sentencing judge properly took into account the serious nature of the offence of sexual assault, aggravated as it was by the applicant having entered the complainant’s residence at night. The significant adverse emotional effect upon the complainant, brought out by her victim impact statement, was also properly taken into account by the learned sentencing judge.

[21] It appears from the applicant’s own account to Dr Maguire that the applicant had been taking drugs and drinking heavily.  He told Dr Maguire that, before he entered the house, he saw the complainant in the house and claimed that he was attracted to her.  He stood at the back of her house and commenced masturbating before entering the house.  He claims to have entered the house, taken the handbag outside the house, and then re-entered when he committed the offence described earlier.

[22] The learned sentencing judge also properly regarded as significant the fact that the offences were committed while the applicant was on probation. 

Uncharged offence relied upon as aggravating circumstances

[23] His Honour described the applicant’s conduct in using the complainant’s own mobile telephone to repeatedly telephone her as having aggravated the circumstances of the offence. The applicant’s later use of his mother’s telephone to harass the complainant further was described in the sentencing remarks as having aggravated the commission of the offence. It seems clear that the learned sentencing judge regarded the whole of this conduct as justifying a more serious sentence.

[24] The use of a “carriage service” (which includes a telephone service) in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive is an offence under s 474.17 of the Criminal Code Act 1995 (Cth). Ms Holliday, who appeared for the respondent, properly accepted that the applicant’s harassing telephone calls to the complainant constituted an offence (or offences) with which the applicant had not been charged. The procedure provided by s 189 of the Penalties and Sentences Act 1992 (Qld) was not followed.

[25] During the course of the hearing of the application for leave to appeal, the Court raised the question whether the learned sentencing judge’s reliance on this conduct constituted an error of principle in the sentencing process. Although this particular ground had not been articulated in the applicant’s application, it is appropriate to take it into account, particularly as the applicant represented himself.

[26] In R v D [1995] QCA 329 at 51, this Court extensively reviewed the authorities and summarised the relevant principles in the following passage of the judgment of Fitzgerald P, and Byrne and White JJ,:

1. Subject to the qualifications which follow

(a)a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R. v. T. at 455); and

(c)an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be 

    permissible otherwise to take into account may not be taken into    

    account if the circumstances would establish:

(a)a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a "circumstance of aggravation" (Code, s. 1) of which the person to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.

3.  An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., "context" or the "relationship’, between the victim and offender, or to establish, for example, the offender’s "past conduct", "character", "reputation", or that the offence was not an "isolated incident", etc."

[27] It was not suggested that those principles should be reviewed in this application. Rather, the submission for the respondent was that, applying those principles, the conduct was sufficiently closely connected with the circumstances of the offences charged to justify it being taken into account as part of the sentencing process.

[28] On that approach, the question becomes whether the applicant’s harassment of the complainant by his use of the telephones formed "part of" the offences of which he had been convicted: cf paragraph 2(a) quoted above from R v D. That in turn depends upon the closeness of the connection, both temporally and in other respects, between that conduct and the conduct constituting the offences of burglary and indecent assault.

[29] The telephone calls undoubtedly aggravated the seriousness of the offences of burglary and indecent assault, but they constituted conduct of a character which was quite different from those offences. They also occurred a significant period of time afterwards. The facts outlined by the Crown prosecutor suggested that the first telephone calls were made no less than two hours after the applicant had left the complainant’s home. The telephone calls made by the applicant using his mother’s telephone were said by the prosecutor to have occurred between 5:46am - 7:20am, some four or more hours after the applicant had left the complainant’s residence.

[30] In these circumstances, this conduct could not reasonably be regarded as having formed part of any of the offences of which the applicant was convicted. The learned sentencing judge took that conduct into account in determining the sentences for burglary and indecent assault. Applying the sentencing principles which were accepted by the respondent as being here applicable, I conclude that the learned sentencing judge erred in the sentencing process for those offences. That being so, this Court is obliged to exercise the sentencing discretion afresh in relation to those offences: AB v The Queen (1999) 198 CLR 111 at 160; R v Johnson [2007] QCA 433 at [6] – [7].

Comparable cases

[31] In R v Baker the Court of Appeal dismissed an application for leave to appeal against the applicant's sentence of three years imprisonment for an offence of breaking and entering with intent to commit an indictable offence.  That applicant was acquainted with the complainant and he did not indecently assault her, but stood naked in her bedroom.  When she screamed, the applicant left.  Whilst Baker was older and had a more serious criminal history than the applicant here, Baker’s offence was less serious.  The sentencing judge observed in that case that had the applicant assaulted the complainant he could have expected a longer term in prison.

[32] In R v Billy [1997] QCA 290, the Court of Appeal refused an application for leave to appeal against sentences of imprisonment of four years without any recommendation for parole on one count of entering a dwelling house with intent and a second count of indecent assault. The sentence was described by Pincus JA as being at the upper end of the range. There, the complainant awoke to find the applicant lying on top of her, naked and trying to kiss her.  The applicant began pulling the complainant's pants down and he threatened that he had a knife (which was later found on the floor of the bedroom).  When the complainant screamed the applicant left.  In that case the offence was more serious, particularly because of the threat to use a knife in that applicant’s possession, and that applicant was older. 

[33] Reference was also made to R v Sagiba in which the Court dismissed an appeal by the Attorney-General against a sentence of four years imprisonment.  That was a considerably more serious case, in which 15 indictable offences were charged involving the breaking and entering or attempted breaking and entering of nine separate premises.  The offences were described as amounting to a six month spree of offending.  During three of the burglaries the respondent indecently assaulted the female occupant of the premises.  On the other hand, the respondent had no previous convictions and was described as having been a good productive member of the community prior to the offences.  The Court referred to evidence suggesting apparent remorse and shame on the part of the respondent.  Thomas JA expressed the view that perhaps a sentence of five years imprisonment might have been more appropriate than the four year sentence imposed, but concluded that appellate interference with a primary sentence upon appeal by the Attorney-General was not justified.

Conclusion

[34] The maximum penalty for the offence of indecent assault is 10 years imprisonment. The burglary offence attracts a maximum term of life imprisonment.

[35] On the basis that it falls to this Court to sentence afresh excluding any reference to the harassing telephone calls, my view is that head sentences of three and a half years for the most serious offences are appropriate.  An earlier parole eligibility date than that which is otherwise fixed by s 184(2) of the Corrective Services Act 2006 (Qld) should be specified pursuant to s 160D of the Penalties and Sentences Act 1992 (Qld) to recognise the applicant's distinctive personal circumstances (particularly his mental health issues, his pleas of guilty, and the degree of his cooperation with the authorities).  I would fix 18 February 2008 as the date on which the applicant is eligible for parole, which is fourteen months after the applicant commenced to serve time in respect of the sentences. I would otherwise confirm the sentences imposed by the learned sentencing judge.

Order

[36] The application for leave to appeal against the sentences imposed for the offences of burglary and indecent assault should be granted and the appeal against those sentences allowed. The sentences imposed for those offences should be set aside, and in lieu thereof the applicant should be sentenced to three and a half years’ imprisonment with the parole release eligibility date fixed as I have indicated. Otherwise the sentences imposed below should be confirmed.