R v Leu[2008] QCA 201

SUPREME COURT OF QUEENSLAND

1. KEANE JA: I have the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with his Honour’s reasons and the orders proposed by his Honour.

2. FRASER JA: On 4 April 2008 the applicants were convicted on their pleas of guilty of four counts: burglary by breaking, in the night, with violence, while armed, in company, with property damage (count 1); assault occasioning bodily harm, while armed, in company (count 2); common assault (count 3); and armed robbery in company with personal violence (count 4). 

3. The applicants were sentenced on each of counts 1 and 4 to be imprisoned for five years. It was ordered that the applicants be eligible for release on parole after serving three years. On counts 2 and 3, the applicants were sentenced to imprisonment for two years. All terms of imprisonment were to be served concurrently. It was declared that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicants had already served in custody, was time served in respect of those sentences.  With respect to the applicant Leu, the sentencing judge found a breach of an earlier probation order proven but ordered that he be not further punished.

4. Each applicant applies for leave to appeal against sentence.

Circumstances of the offences

5. The applicants are brothers who knew the complainant as their drug dealer. They used to go to his house to buy marijuana from him. On the date of the offences, 17 September 2007, there was an exchange of mutually threatening text messages between Leu and the complainant.  The complainant complained that Leu had stolen money or drugs from the complainant’s house, which Leu denied.  There was also a telephone conversation, overheard by Togia, in which Leu and the complainant threatened each other.  The complainant threatened to use a baseball bat against Leu.  Leu responded with a threat and the complainant seemed in effect to invite Leu to attempt to carry out his threat.  Leu then sent a text message to the complainant threatening that he was going to go to his house and “smash him”.

6. Leu and Togia then drove to the complainant's house. They arrived at about 7.40 pm, burst through the door and chased the complainant into a bedroom.  He was smaller than each of the applicants.  Leu was holding a vacuum cleaner pipe which he had picked up from his garage.  Togia was holding a wooden stake of a kind designed to support a small sapling.  Togia shouted at the complainant, asking him where his money was.  The complainant fell on to his mattress.  Leu and Togia punched and kicked him while they aggressively shouted at him.  The complainant screamed at them to stop.  The complainant's girlfriend jumped on top of the complainant to protect him from the applicants’ assaults.  Togia pushed her out of the way.  She was not injured in this assault (count 3).  Togia thrust the stake towards the complainant, striking him on the right side of the face, scarring him. 

7. After being asked for some marijuana, the complainant said that it was on the table and that Togia and Leu should take it. Togia hit the door of a cupboard with the pipe he was holding. The cupboard fell over and it smashed a fish tank. Togia stole some marijuana and one of the applicants stole some money. Togia warned the complainant not to call the police. Leu and Togia fled when a neighbour shouted.

8. The applicants were apprehended on the following day. Each of them made admissions to police. Togia said that after he overheard the complainant threaten his brother he had the idea of giving the complainant a "touch up".

9. The complainant sustained relatively minor injuries: contusions to the scalp and a shoulder, an abrasion to the face, and a facial scar that would fade away. Analgesics were prescribed. So far as the submissions revealed, no further treatment was necessary.

The applicants’ personal circumstances

10. Each applicant had continuously been in full time employment. Their employers, who spoke highly of them in references that were tendered at the sentence hearing, were willing to offer re-employment despite this offending. The applicants were also involved in a local church and in community affairs. References testified to their good characters. They contributed substantially to the upkeep of their wider family. Each applicant expressed contrition and remorse at an early point. Each entered a plea of guilty at the earliest opportunity.

11. Leu was aged 20 years at the time of the offences and at the time of sentence. He had a previous conviction for armed robbery in company with personal violence in April 2006. The circumstances of that previous conviction explain why he received for it on 6 February 2007 a sentence of only two years probation and 200 hours of community service. Leu had been returning home from a party in the early hours of the morning, heavily intoxicated, walking alone in central Ipswich.  He was present when the principal offender approached the complainant and asked for a cigarette and then threatened to slash the complainant unless the complainant handed over money.  The complainant handed over a $20 note.  Leu intervened, trying to calm things down but the principal offender demanded more money.  He put his arm around the complainant's neck and the complainant said he would hand over $10.  At that point Leu asked for $10 as well, in response to which the complainant handed over a $20 note to the principal offender and said that he and Leu could have it between them. 

12. Leu committed some minor offences whilst on probation which amounted to a breach of the probation order. A court report indicated that overall he had been compliant with the reporting requirements of his order although he had failed to report on three occasions. He had failed to attend community service on a number of occasions. His counsel attributed this to his unavailability because of his full time employment, which was said to explain why Leu was not the subject of any action in relation to those breaches. Leu was on probation and community service when he committed these offences.

13. Togia was 23 years of age when the offences occurred and when sentenced. He had been fined for stealing in 2006, when no conviction was recorded. Otherwise he had no prior convictions.

Submissions at the sentence hearing

14. At the sentence hearing counsel for the respondent submitted that a head sentence of at least five years imprisonment was appropriate. The applicants' counsel submitted that a head sentence of two and a half years was appropriate. Comparable authorities were cited by the prosecutor and by counsel for Leu and Togia. No authority was cited in which a court had specified a parole eligibility date or parole release date after the mid-point of the sentence. Togia's counsel submitted that his client's plea of guilty should be reflected in a release date earlier than that to which he otherwise would be entitled after serving half the term, namely after serving one-third of the term.  No contrary submission was made on behalf of the respondent.

Sentencing remarks

15. The sentencing judge summarised the circumstances of the offence to which I have referred and said:

"In my view, this was a premeditated, thuggish and extremely violent attack by two men in company. It is a cornerstone of a civilised society that a person is entitled to feel secure in his own home. Home invasions by weapon-wielding intruders must be condemned. The offenders deserve severe punishment."

16. After referring to each applicant's antecedents and references, the sentencing judge referred to the parties' submissions and said:

"I do not accept the defendant's [sic] submissions on penalty. The proposition that the armed robbery to which they have pleaded guilty was just an afterthought should be rejected. These two men violently forced their way into the complainant's home, and then yelled aggressively at him: "Where are your drugs and where is your money?" or words to that effect. They went there to assault and rob him, and they did so.

Although the defendants are young men and have pleaded guilty it would not be appropriate in my view to impose a sentence of imprisonment of less than five years for these very serious offences."

The discretion miscarried

17. A severe sentence was undoubtedly required in these matters, in which the applicants were guilty of a premeditated home invasion, assault and robbery, in company with each other whilst armed. They must have terrified the complainant and his girlfriend. The latter was not said to have done or said anything to provoke the applicants and in any case no motive could justify or excuse their offensive conduct. No sensible explanation was advanced for these offences.

18. What Davies JA said of similar offending a decade ago remains true today:

"The importance of deterrence in cases of this kind in my view cannot be over-emphasised. Judging by the number of cases which come before this Court, offences of this kind appear to be prevalent and, involving as they do the intrusion into the privacy of a person’s home, often at night, involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved." ^[1]

19. In addition to general deterrence, personal deterrence is an important factor, particularly for the applicant Leu, who unfortunately failed to take advantage of the leniency afforded to him following his earlier offending. Nevertheless, the applicants' pleas of guilty, their co-operation with the authorities, their contrition and remorse, their good employment record and the other personal circumstances I have mentioned favoured appropriate moderation.

20. In the absence of any order concerning parole eligibility, the applicants would have become eligible to apply for a parole order after serving half of the five year term.^[2]  The judge was empowered to fix a later date upon which the applicants would become eligible for parole,^[3] but such orders are the exception rather than the norm and should not be made unless there is good reason to do so.^[4]

21. The sentencing judge gave no reason for making the unusual order deferring eligibility for parole for six months beyond the mid-point and it is evident, as is appropriately conceded by the respondent, that there is none. Further, because this order was unusual and was not contemplated in the submissions of any party, in my respectful opinion it should not have been made without the sentencing judge adverting to it and giving the parties an opportunity to be heard about it.^[5]  The failure to allow that opportunity and the failure to give any reason for making the order also amount to errors, as the respondent also appropriately concedes.

22. It is evident that the sentencing judge also erred in imposing the same sentence on each applicant. The applicants should have been treated as equally responsible for the appalling circumstances of the offences, but whilst Togia had no relevant criminal history Leu had a relevant and quite recent conviction: Togia should have received a more lenient sentence.^[6]  In my respectful opinion, an examination of the comparable decisions to which I refer below also demonstrates that the head sentences were excessive.  Taking into account the orders deferring eligibility for parole, the sentences were manifestly excessive.

23. In these circumstances it is necessary for this Court to exercise the sentencing discretion afresh in each case.

Comparable cases

24. The maximum penalty for the robbery and burglary counts is life imprisonment.

25. In R v Cockfield [2006] QCA 276 the applicant for leave to appeal against sentence pleaded guilty to similar offences.  Cockfield was 22 years old at the time of offending and had a criminal history which included some offences involving violence.  Apparently on the spur on the moment, Cockfield, in company with another offender, pushed his way into a house past two of the occupants (a third offender remained near the door), pretended to have a gun, and demanded money whilst threatening to shoot one of the occupants and holding him by the throat.  He stole two mobile phones from the house.  Ultimately the occupants of the house pushed the offenders out the door.  Cockfield pleaded guilty and co-operated with the authorities, although with some qualifications at the early stages.  The sentence proceeded on the basis that the complainants suffered no injuries or ill-effects.  Cockfield had promising prospects of rehabilitation, with excellent references, good employment prospects, and he was in a permanent relationship supporting his partner and their new-born baby daughter at the time of sentence.  He undertook to give evidence implicating his co-offender pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld).

26. This Court set aside a sentence of three and a half years imprisonment suspended after six months and re-sentenced Cockfield to a sentence of two years imprisonment suspended after three months. But for the s 13A undertaking, Cockfield would have been sentenced to two and a half years imprisonment suspended after nine months with an operational period of two and a half years. The President observed that the circumstances of that applicant's offending, whilst including 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 appropriate starting sentence was one in the range of two and a half to three years imprisonment with an early recommendation or suspension to recognise the significant mitigating factors (the plea of guilty and the applicant's promising rehabilitation prospects, his good employment history since the offending, and his support of his partner and new baby).

27. Cockfield was plainly a less serious case than these matters: there was no premeditation, the offenders were not armed, and the complainants suffered no injuries or ill-effects.  Cockfield supports the view that where, as here,  an offender’s premeditated home invasion in company with another offender includes a premeditated robbery and the use of weapons by both offenders in a premeditated assault causing bodily harm, the lowest point of the sentencing range ordinarily would be not less than three years imprisonment.

28. In R v Blenkinsop; R v Blenkinsop [2007] QCA 181, Aaron Blenkinsop's application for leave to appeal against his sentence of five and a half years imprisonment with a recommendation for parole after two years for burglary with a circumstance of aggravation (with two years imprisonment on the remaining counts of deprivation of liberty, common assault and stealing) was dismissed.  The application for leave to appeal by his brother, Tony Blenkinsop was allowed.  His sentence of four years imprisonment on the burglary count was set aside and a sentence of three years imprisonment with a parole release date after he had served nine months was substituted.

29. The Blenkinsop brothers were part of a group of four men who carried out a home invasion at night. The four offenders wore masks and surgical gloves. They burst in on two men in a unit, carrying a sword, a steak knife, a baseball bat and something in the nature of a pestle. Aaron Blenkinsop carried the sword and behaved as the leader, giving directions to the other three. Tony Blenkinsop carried the steak knife. The home invasion was premeditated, ostensibly to "sort out" someone supposed to be a paedophile, but in fact the offenders entered the wrong unit. On Aaron Blenkinsop's instructions others in the group bound the hands and feet of the two occupants with electrical tape and the group ransacked the unit and stole items. Threats of violence were made and a knife was held close to one occupant's neck. At one point Tony Blenkinsop removed the tape from the hands of an occupant who complained that it was too tight. Aaron Blenkinsop also pleaded guilty to other burglaries, receiving stolen property, a fraud charge and other summary offences. Aaron Blenkinsop was on bail at the time he committed the home invasion offences. He was 23 years old at the time of his offending with a criminal history which included, most seriously, one count of robbery with actual violence whilst armed and in company, the circumstances of which were very similar to the subject home invasion. Tony Blenkinsop was 18 years old at the time of offending, had no criminal history and was employed with a wife and young family.

30. Holmes JA (with whose reasons Williams JA and Jerrard JA agreed) considered that for Aaron Blenkinsop a head sentence effectively of six years and four months imprisonment (five and a half years for the burglary plus 10 months served but not declarable) was not manifestly excessive when taken against the background of the applicant's criminal history, particularly the previous conviction for a similar offence, and considering the seriousness of the circumstances of the home invasion charges, the additional criminality of the receiving and fraud charges, and the fact that all offences occurred in breach of bail conditions and the home invasion charges in breach of a suspended sentence.

31. Her Honour considered that a sentence of three years imprisonment, released after serving a quarter of the head sentence, was appropriate for Tony Blenkinsop given that his involvement was limited to his presence, his movement of one of the occupants from one room to another, and his releasing of the tape around that occupant's wrists after a complaint of its tightness, particularly in light of his favourable antecedents.

32. Togia’s and Leu’s criminality was arguably of a higher order than that of Tony Blenkinsop, who, whilst armed, did not in fact assault any occupant and assisted one occupant.  In that respect Blenkinsop is consistent with the view that a head sentence in excess of three years imprisonment for Leu and Togia is appropriate here.  I also accept the submission on behalf of the respondent that Blenkinsop suggests that the range for this offending extends up to five and a half years imprisonment.  It is relevant to observe however that Aaron Blenkinsop’s criminality was worse than that of Leu and Togia; and that whilst Leu did have a relevant criminal history, the circumstances of his previous offending were not as disturbing as that of Aaron Blenkinsop, who had carried out a previous, similar home invasion.  That was much emphasised in this Court’s disposition of his application.

33. The sentencing judge may have accepted the prosecutor’s submission that a head sentence of 5 years imprisonment for each applicant was required by R v Stawicki & Meier [1996] QCA 51 and R v Rankin [2004] QCA 2.  Such a head sentence was not necessarily out of the range for Leu but it was too high for Togia, in my respectful opinion.

34. In Stawicki & Meier this Court refused leave to appeal against effective sentences of five years for armed robbery in company with a recommendation for consideration for parole at the expiration of 18 months for Meier and at the expiration of 12 months for Stawicki.  Those offenders were part of a group of four men who invaded the home of a seriously disabled pensioner whilst two of them were armed (one with a knife and one with a piece of wood).  The Court emphasised the importance of deterrence in those offences "in which a vicious attack was made on a disabled man".  Those sentences reflected the very high degree of criminality involved in four men attacking a disabled pensioner in his home.  It was a more serious case than the present one.  Because it concerned only the question whether the sentence was manifestly excessive it is of little assistance here.

35. In Rankin, the applicant for leave to appeal was sentenced to imprisonment for five years on counts of burglary by breaking and entering with violence while armed, with accompanying property damage, attempted armed robbery with personal violence, and assault occasioning bodily harm while armed.  The applicant smashed a glass sliding door to force his way into the flat of the complainant, who lived there with a young woman and her two year old child.  The applicant was carrying a wooden axe handle, was dressed in black clothing and was wearing a beanie over his head.  He struck the complainant on the face with the axe handle, causing lacerations requiring stitching.  The applicant had been hired to carry out the assault and burglary for a small fee.  He was 28 years old and had an apparently lengthy criminal record, including convictions of assault occasioning bodily harm.  The complainant and his partner suffered an adverse "lasting impact on their lives".  The Court evidently regarded the sentence of five years imprisonment as being at the top of the range but within it, but for reasons of parity with the sentences given to co-offenders, the application and appeal were allowed and the sentence was varied by ordering that it be suspended after the applicant had served two years of the five year term.  The facts of that decision are so different from this case as to render it of virtually no assistance here.

36. In this Court Togia's counsel cited a large number of decisions where more lenient sentences were imposed for what was said to be broadly comparable offending. Some of those decisions concerned Attorney-General's appeals, where the sentences are partly explicable by the moderation which conventionally applies in such cases. I do not regard those decisions as calling for a sentence as low as three years imprisonment for Togia for that reason and because of other factors to which I now refer:

• In R v Fatnowna; ex parte A-G [1999] QCA 492 an older offender, with previous convictions but none for violence, was convicted after a trial and sentenced to three years imprisonment suspended after six months for entering a dwelling house at night while armed using violence, and assault causing bodily harm whilst armed and in company.  The sentence of three years was described in this Court as "not heavy" and the suspension after six months was described as "light".

• In R v Salmon; ex parte Attorney-General of Queensland [2002] QCA 262 this Court imposed a sentence of 18 months imprisonment suspended after six months after a plea of guilty to 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.  It was "a serious case of home invasion" by a 24 year old offender with previous convictions including break and enter offences.  That sentence was influenced by considerations of parity with a co-offender’s sentence and by the fact that the applicant had already served time under the original intensive correction order. 

• R v Denham, ex parte A-G (Qld) [2003] QCA 74 is not a comparable case: the offender there was unarmed and alone and acted out of concern for the wellbeing of a young child in the complainant's custody.  This Court's refusal of the Attorney-General's appeal against a sentence of an intensive correctional order with special conditions as to psychiatric and psychological treatment, for burglary and assault occasioning bodily harm does not bear on the appropriate range here.

• R v Sailor, ex parte A-G (Qld) [2003] QCA 227 is also not a comparable decision.  The offender and two others with whom he entered a residence in the middle of the night mistakenly believed that the house was unoccupied, and the offender mistook an occupant in the dark house for the killer of a friend. 

37. Togia's counsel also referred the Court to R v Bower-Miles & Smith [1995] QCA 453, in which the Court set aside sentences of three and a half years imprisonment with parole recommended after 12 months and imposed instead sentences of two years imprisonment suspended after three months.  Those offenders had pleaded guilty to entering a dwelling house with intent at night and assault occasioning bodily harm while armed with a weapon.  Bower-Miles was 19 years of age with no previous convictions and Smith was 29 years of age with no relevant previous convictions.  In that case only one of the intended victims sustained any injury, and it was minor.  The other occupants of the house were uninjured.  The intended victims overwhelmed their assailants, giving them a "fairly severe hiding".  Viewed as an invasion of the occupants' privacy and security, the offence was described as ranking as "one of the most unsuccessful escapades" of its kind.  The sentences for those offences, described by Thomas J as being towards the "less serious end of home invasions cases" in which the invaders "learned a very painful lesson before being sent to prison", are consistent with the view that a minimum term of imprisonment of three years might be expected for the more serious offending in this case. 

38. Assistance as to the low point of the appropriate range is not obtained from those other decisions cited for Togia in which the only relevant finding in this Court was that a particular sentence was not manifestly excessive: R v Brelsford [1995] QCA 594 (three years imprisonment with a parole recommendation after 12 months), R v Houghton & Genrich [1998] QCA 137 (four years imprisonment with a parole recommendation after 15 months) and R v Jurd [2007] QCA 228 (four years imprisonment with parole eligibility fixed after 14 months).

39. In addition to the cases I have already discussed, counsel for Leu relied upon R v Bowe; R v Taylor [2004] QCA 414 and R v Wardrop [1996] QCA 292. 

40. Wardrop, who was aged 24 when sentenced, was sentenced to imprisonment for four years on counts of assault occasioning bodily harm whilst armed and unlawful wounding, two years imprisonment for entering a dwelling house with intent, and 12 months imprisonment for a stealing offence, all sentences to be served concurrently. The applicant and a companion with whom he had been drinking went to the complainant's house with the intent of causing him to desist from what the applicant regarded as his offensive conduct of stalking the applicant's adopted sister. The applicant and his co-offender forced their way into the complainant's unit, damaging a wall in the process, and the applicant punched and struck the complainant with a baseball bat. The applicant and his co-offender further kicked and punched the complainant whilst he was on a bed, after which they left, taking with them some articles in the unit. The complainant suffered various cuts and abrasions but also a facial fracture, broken nose and headaches and sore eyes still causing problems at the time of the sentence. That applicant had no prior convictions for violence (although he had previously been given 12 months probation and 80 hours of community service for stealing and false pretences charges) and he had significant psychiatric difficulties for which he had been receiving largely successful treatment. He was married and supported two children, and there was an early plea of guilty.

41. Given those matters and the fact that the offence might not have been premeditated to the extent of being armed with the baseball bat, the Court considered that although the head sentence of four years was appropriate the recommendation for release on parole after serving 18 months failed to accord sufficient weight to the mitigating circumstances. For those reasons the Court substituted a recommendation that the offender be eligible to apply for parole after serving 12 months of the sentences.

42. Leu’s offending is more serious than Wardrop’s, particularly because Leu and Togia armed themselves before arriving at the complainant's residence and did so with intent to assault and rob the complainant. Wardrop does support the view that the sentencing judge made insufficient allowance for the mitigating factors in the applicants' favour in fixing the date for eligibility for parole. 

43. In R v Bowe; R v Taylor, a sentence of two and a half years imprisonment for burglary and assault occasioning bodily harm whilst armed and in company was not disturbed on appeal.  The circumstances were broadly similar to those here in that Taylor was armed with a bicycle lock and cable and Bowe was armed with a piece of varnished timber, they entered the complainant's home and assaulted him with those weapons, abused him, damaged property, stole and then fled; and the complainant suffered relatively minor injuries, lacerations and bruising.  Leu's counsel relied particularly upon the fact that that sentence was imposed after a trial rather than, as here, after a plea of guilty.  The decision of the Court, however, was merely that the sentence imposed was "by no means" manifestly excessive.  It is therefore of no particular assistance in the disposition of these applications.

44. This examination of broadly comparable decisions leads me to conclude that for these applicants, whose premeditated home invasion at night in company with each other included a robbery and the use of weapons by both in an assault that caused relatively minor bodily harm to an occupant who was in dispute with one of the applicants related to the complainant’s supply of drugs, the sentencing range falls between about three and five and a half years imprisonment.

45. Having regard to each applicant’s apparently good prospects of rehabilitation, their youth, their pleas of guilty, their remorse and contrition, and their co-operation with the authorities, each applicant should be eligible for parole after having served less than one-third of their sentences. I would reject the submission made for Leu seeking partial suspension of his sentence to obtain certainty of early release. It is appropriate for this offending that the appropriateness of parole be assessed when he applies.

46. In Togia’s case, having regard also to the absence of any significant prior criminal history, I consider that the appropriate sentence for his offending is imprisonment for three and a half years, with a parole eligibility date fixed after serving 12 months.

47. As I earlier concluded, Leu’s sentence must be more severe to reflect his previous conviction for a robbery offence and that he was on probation and community service for that offence when he committed these offences. It is disturbing that he failed to take advantage of the leniency afforded to him on that occasion. Even so, his personal circumstances suggest that rehabilitation remains an important consideration. For him I regard the appropriate sentence as one of imprisonment for four and a half years, with a parole eligibility date fixed after serving 16 months.

Disposition of Togia’s application

48. I would grant the application by Togia, allow the appeal, set aside the sentences imposed in the District Court on counts 1 and 4 and instead impose a term of imprisonment of three and a half years on each of those counts. I would confirm the sentences of imprisonment for two years on each of counts 2 and 3. All terms of imprisonment are to be served concurrently. I would order that Togia be eligible for release on parole after serving 12 months. It should be declared that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicant had already served in custody, was time served in respect of those sentences.

Disposition of Leu’s application

49. I would grant the application by Leu, allow the appeal, set aside the sentences imposed in the District Court on counts 1 and 4, and instead impose a term of imprisonment of four and a half years on each of those counts. I would confirm the sentences of imprisonment for two years on each of counts 2 and 3. All terms of imprisonment are to be served concurrently. I would order that Leu be eligible for release on parole after serving 16 months. It should be declared that a period of 202 days from 18 September 2007 to 8 April 2008, which the applicant had already served in custody, was time served in respect of those sentences.

50. LYONS J: I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree with the reasons and the orders proposed by his Honour.