SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: I agree with the order proposed by Jones J and with his Honour’s reasons for that order.

[2]  CULLINANE J: I have read the draft reasons for judgment of Jones J in this matter and agree with those reasons and the order proposed.

[3]  JONES J:  On 16 May 2008 the applicant pleaded guilty in the District Court at Brisbane to nine offences set out in three separate indictments.  The offences taken in chronological order and the sentences imposed were as follows:-

The sentences imposed for the latter six offences were to be served concurrently but cumulatively upon the three year sentences for the offences committed on 30 May 2006.

[4] The offending on 30 May 2006 involved the applicant going to premises from which his then girlfriend had been evicted by her landlord.  He argued with the landlord, a 72 year old male, who retreated back into the dwelling.  The defendant followed him, shook the lattice door to open it, grabbed the landlord in a bear-hug pinning his arms against his chest and threatened to bite his ear off.  The applicant then let the landlord go.  But when the latter stepped inside his unit and was closing the door the defendant pushed the door open and punched the complainant a number of times, causing a cut above his right eye requiring six sutures, bruising to the right side of the face, arms and left shoulder and a cut on the head.  He was later treated at the Princess Alexandra Hospital and remains traumatised by the attack.  Initially, the applicant denied knowing the complainant or having ever been at the premises, but he was subsequently charged and released on bail.

[5] The offending on or about 20 January 2007 occurred whilst the applicant was still on bail by his entering into an open garage at a dwelling in suburban Brisbane and stealing a motor vehicle.  The vehicle was recovered some three weeks later by which time false number plates had been affixed to it.  In the same period he also gained entry to a different residence by smashing a rear glass sliding door.  Once inside the dwelling he stole electrical equipment and jewellery and used the stolen car to make his getaway.  The following day he attended Cash Converters and obtained a cash loan for some of the property which he had stolen.  The unrecovered property taken from the dwelling was of a value of almost $4,000.

[6] In the offending on 10 February 2007 the applicant used a rock to smash a window at the residence of a woman at Jindalee in Brisbane.  When the occupant challenged him, the applicant stared at her in a strange manner and moved away in the direction of a nearby service station.  A few minutes later the applicant entered a nearby dwelling by opening a closed but unlocked sliding door.  He was now holding a pair of hedge trimmers which he had taken from the rear of the dwelling.  He later admitted to police that he was armed with a kitchen knife which was secreted on his person but that was not seen by anybody nor used by him at any time.  The applicant used the hedge trimmers to break other doors causing them to shatter.  He also turned towards the resident and raised the hedge trimmers above his head in a threatening manner and took a step towards her.  The applicant was acting strangely and erratically.  It is accepted that he was experiencing psychotic hallucinations.  In his own mind he was being pursued by armed, corrupt police officers who wanted to kill him and he was seeking help from the occupier.  She quickly left the premises fearing for her safety.  The applicant then barricaded himself inside the dwelling and over the next few hours a siege situation ensued during which time the applicant continued to damage property in the dwelling.  The applicant was arrested some four hours later and taken to hospital under police guard.  Though at the time of committing these two offences he was in a state of amphetamine induced psychosis with hallucinatory symptoms and believed he was defending himself, he managed to cause some $44,000 worth of property damage, some $10,000 of which was not covered by insurance.  The complainant suffered from anxiety attacks requiring medical treatment.

[7] The seriousness of these offences has to be seen against the background of the applicant’s extensive history of prior criminal offending.  In 1990, at the age of 18 years, he was found guilty of offences of breaking and entering and stealing and was placed on probation for two years.  He breached the probation order and was  re-sentenced to a total of six months imprisonment.  In April 1992 he was sentenced for two offences of armed robbery, five counts of unlawfully using a motor vehicle and two counts of burglary.  He was sentenced to five years imprisonment and was released in May 1994 after his serving two years of that period.  Some six months after his release and whilst still on parole he committed a serious series of offences which included committing two armed robberies at separate banks in the Burpengary Shopping Centre whilst armed with a sawn-off shotgun and disguised with a black balaclava.  He took $4,000 from one bank and $4,700 from another and used two stolen vehicles to commit those robberies.  Whilst leaving the second bank he shot at a vehicle driven by a civilian witness who had attempted to follow him.  In the course of being later apprehended he discharged the firearm and shot himself in the right foot.  For those activities he was sentenced to a total of 10 years imprisonment and spent almost the entire period in actual custody.  He was released on 12 November 2004, some 18 months before the first of the offences with which we are now concerned.

[8] It was said on his behalf that upon his release from prison in 2004 he had made an attempt to get his life back into order and had made significant steps towards achieving that.  The problem, it was said, is that he formed a relationship with a woman who was a drug addict and this has resulted in his life going out of control.  His partner is now herself in prison because of drug related offences.  She, however, gave birth to the applicant’s son on 1 April 2007, a short time after the applicant was taken into custody in respect of these offences.  That child is now being cared for by the applicant’s mother.  All that he offers for the future is a stated strong resolve not to lapse into that type of offending again and to continue his relationship with the same woman and to provide a home and future for his child.

[9] The cases to which the learned sentencing judge was referred by way of comparatives were the Court of Appeal decisions of R v Hardman [2001] QCA 15; R v Houghton & Genrich [1997] QCA 137.  Each of these cases involved a home invasion at night-time with actual violence against the occupier.  The sentences of three and a half years and four years imprisonment respectively after pleas of guilty were not disturbed.  There are details in those cases that are different to the present case to which the applicant drew attention.  Principally he referred to the higher level of violence which was actually directed at the occupier whereas in his first case there was no similar premeditation and in the latter case no direct physical injury.

[10]  At the primary hearing counsel for the applicant suggested that an overall sentence of between four and five years would be the appropriate outcome for the totality of the offending having regard to the early pleas of guilty that were offered.  The prosecution contended for a total sentence of seven years being three years for the first offending with a cumulative four year sentence for the others.

[11]  The learned sentencing judge determined that he should frame sentences which would have the combined effect of a head sentence of five and a half years imprisonment.  His Honour had an expectation based on the applicant’s previous history with parole applications that he was unlikely to be released on the date of declared eligibility.  He took note of the fact that since the applicant’s arrest in February 2007 he has spent a total of 459 days in prison, 105 of those days being said to relate to some other infringement for which punishment would have been less than that number of days.  In the end result his Honour declared 354 days as being time served in respect of the penalties imposed.  The applicant will become eligible for parole on 12 February 2010, one year, nine months after the sentence date.  Effectively then the parole eligibility date is at the half way mark.

[12]  The applicant argues that the sentences individually and in combination are manifestly excessive.  In a detailed written outline supplemented by extensive oral submissions, the applicant raises the following issues:-

1. There were factual errors in the sentencing remarks.  The first claim relates to a statement that when the applicant entered the premises of the last complainant he had a knife secreted on his person.  The applicant claims he did not carry a knife and there is no evidence of his having done so.  This submission overlooks the fact that his Honour’s finding was consistent with the applicant’s admission to the police.

The second claim relates to the initial mistaken belief that the applicant’s child was born prior to the commission of these offences and thus diminishing the impact of his claim that he had taken steps to rehabilitate himself.  The correct situation is known to this Court along with the enhancement of the details of the applicant’s rehabilitative efforts and these remain relevant to the issue of whether the sentence, in view of this Court, was manifestly excessive.

2. There was insufficient regard to the circumstances of the May 2006 offending and the impact of his arrest upon his attempt at rehabilitation.  The applicant contends that the complainant, by his conduct towards the applicant’s then girlfriend and his refusal to negotiate, was more responsible for the altercation in that the applicant was engaged in what he described as the “noble” pursuit of protecting his girlfriend.  The applicant contends that his entry into the house was an unintended consequence of the escalating argument and that his offending should be seen as a simple assault rather than as a home invasion.  He asserts that his subsequent release on bail with daily reporting conditions resulted in his losing his job, in a breakdown of his relationship and an interruption to his rehabilitation efforts.  He contends that these matters were not put cogently to the learned primary judge.

This attempt by the applicant to minimise the seriousness of the offending overlooks his quite deliberate conduct in pushing aside a lattice screen and pursuing the complainant who was trying to escape the confrontation.  The assault to an elderly man with obviously little capacity to resist was violent in its nature.  As to the bail, the applicant has had sufficient experience with the criminal justice system to know the advantages of bail compared with the alternative.  The fact that he abused his freedom by engaging in other illegal activities is a factor to which the learned primary judge was obliged to have regard.

3. Insufficient allowance was made for the fact that the last house invasion and the possession of garden shears was not an offensive act but was an attempt to escape the effects of his psychotic episode.  This ground, in my view, has no merit.  The offending has to be seen against the earlier deliberate home invasion, theft of property and the subsequent fraudulent disposal of it.  It is clear from his Honour’s remarks, the length of the terms of imprisonment and their being served concurrently that the learned primary judge made significant allowance for this self induced psychosis.  In the end result the whole history of the applicant’s offending on these current offences as well as his prior criminal history, show a lack of regard for the security and the property of others.

4. The learned primary judge made no statement of the allowance made for the plea of guilty.  The applicant points to the fact that the learned primary judge did not expressly identify the allowance made for his pleas of guilty in compliance with s 9(3) of the Penalties and Sentences Act 1992.  Notwithstanding this, it is clear from his Honour’s opening remarks that he was sentencing on the basis of pleas of guilty having been made.  By virtue of subsection (5) the failure to make express reference does not invalidate the sentencing process.  The applicant’s intention to plead guilty was formed at an earlier time and in respect of four of the counts, there was an ex officio indictment.  Moreover, there were submissions by the applicant’s counsel about the extent of the reduction to take account of the plea of guilty.[1]  If there were to be no reduction to the penalty for any reason the applicant’s counsel agreed that the seven years proposed by the prosecution would have been appropriate.[2]

Consequently in fixing the head sentence at five and half years and in ordering early eligibility for parole, the learned primary judge has made a significant allowance.  From his Honour’s remarks six months of the reduction was allowed to offset the prospect of the applicant not receiving parole as soon as he was eligible, but there remains a significant further allowance which obviously relates to the pleas of guilty, expressions of remorse and the prospect of rehabilitation.

In my view the applicant was not entitled to receive a concession based on speculation about the outcome of a future parole application.  As was observed by Pincus JA (Derrington and Chesterman JJ agreeing) in R v Faramus[3], the granting of parole “depends entirely upon the policy of the parole authorities at the relevant time, subject to ministerial directions which may be given under the statute”[4].  In my view it is not an appropriate part of the sentencing process to attempt to second-guess the decisions of the executive and its officers.  Thus, the applicant has, in my view, received what I regard as an impermissible benefit in the reduction of the head sentence.

The respondent relies additionally upon the decision of Faramus as justifying the sentence imposed.  There, the defendant was sentenced on pleas of guilty to six years imprisonment for 13 offences including seven counts of break and entering, four counts of receiving and two other offences of dishonesty.  He had served nine prior terms of imprisonment for various offences including one term of nine years for armed robbery.  The similarity of this offender’s background and pattern of offending with that of the applicant’s is notable. 

[13]  In the end result it is for the applicant to satisfy this Court that the sentence imposed below was manifestly inadequate.  He refers the Court to four further cases which he contends indicate that a lower sentence is appropriate in his case.  I will deal with those cases now.

[14]  In R v Beauchamp[5], a sentence of 18 months suspended after 24 days was imposed after a successful appeal by the offender who entered a neighbour’s adjoining unit whilst intoxicated for the purpose of taking some detergent.  The fact that he was wearing only a towel around his waist and carrying a knife was not, on proper consideration, regarded as relevant to the criminality of his offending.  This case provides no guidance to the proper sentence in the present case.

[15]  In R v Sailor,[6] a family member of a murder victim intended to enter the victim’s home to reminisce.  Having entered he found another person in the house and erroneously believing that that person was the killer commenced to assault him.  The unusual circumstances of that case provide no guidance.

[16]  In R v Denham,[7] the Attorney-General appealed against a sentence of 12 months imprisonment to be served by way of an Intensive Correction Order imposed on an offender who entered the home of the complainant and assaulted him.  The offender was the de facto partner of a woman who was in custody dispute with the complainant and the assault was motivated by issues surrounding that dispute. 

[17]  In R v Rankin,[8] the offender pleaded guilty to two counts of burglary with violence whilst armed, attempted robbery and assault occasioning bodily harm.  He was sentenced to five years imprisonment on each count.  The offender had carried out the attack at the behest of two women who had previously been dealt with for their role in procuring the attack.  There was a need in the circumstances to maintain some parity with the co-offenders and this fact dictated a variation in the sentence by directing that it be suspended after the offender had served two years with an operational period of five years.

[18]  None of these additional cases relied upon by the applicant provide any basis for the suggestion that the learned primary judge was wrong in being guided by the cases to which he had been referred.

[19]  In all the circumstances the applicant has not persuaded me that the sentences imposed were manifestly excessive and I would therefore dismiss the application.