R v Fleming[2009] QCA 112

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Chesterman JA. 

[2]  CHESTERMAN JA:  On 17 November 2008 the applicant pleaded guilty to common assault; burglary by breaking, in the night, with violence, while armed, in company; wilful damage; and assault occasioning bodily harm while armed and in company.  On 21 November 2008 he was sentenced to 12 months’ imprisonment for the assault; three and a half years’ imprisonment for each of the counts of burglary with aggravation and assault occasioning bodily harm while armed and in company; and 12 months’ imprisonment for wilful damage.  All sentences were to be served concurrently.  A parole eligibility date was fixed for 17 January 2010 which is 14 months after the plea.  The orders require the applicant to serve a third of the two longer terms in actual custody.  There was a declaration that four days of pre-sentence custody was time served under the sentences.

[3] The offences to which the applicant pleaded guilty were committed on 11 February 2008.  At the time he was serving a period of 12 months’ probation imposed upon him on 14 June 2007.  He was also dealt with in respect of the breach of probation and a term of 12 months’ imprisonment, to be served concurrently with the other sentences, was imposed.

[4] The offences were committed in the course of a home invasion.  At the time the applicant was in company with one Paul Daly. 

[5] The complainant who owned the home was a young woman called Brianna Wex.  She had invited two friends, Rebecca Thomas and Norman Bourne, to her unit.  At about 2 am Ms Wex went out to her car to fetch a CD and noticed the applicant standing near the carport.  She recognised him, having seen him at parties during the previous 18 months.  After some small talk she invited him to join her and her friends in the unit.  He called out to Daly, who was nearby, to join them.  The complainant did not object as she knew him too.

[6] The evening passed without incident until Daly took hold of Ms Thomas by her buttocks.  Daly pleaded guilty to common assault.

[7] Mr Bourne was unsettled by the presence of the two young men and told Ms Wex that if they did not leave he would.  Ms Wex sought to defuse the tension by telling everyone to go outside for a cigarette.  Shortly after that and without warning, Daly kicked Bourne on the side of the head.  Daly pleaded guilty to assault occasioning bodily harm.  The applicant abused Daly for his behaviour, demanding to know “Why the fuck did you just do that?”

[8] Ms Wex ordered both of them to leave the unit, which they did.  As Ms Wex and her friends re-entered the unit, the applicant grabbed Ms Thomas in a headlock from behind.  The applicant let go when her friends pulled her free and locked the front door of the unit.  Ms Thomas was not injured.  That conduct was the common assault to which the applicant pleaded guilty.

[9] No explanation for his behaviour was advanced.  The applicant was later to tell police that he was heavily intoxicated at the time and could recollect very little of the night’s events.

[10] About five minutes later the applicant began to bang on the front door. Simultaneously Daly banged on the back door.  Their purpose was to retrieve Daly’s car keys which the applicant had taken because he was concerned that Daly might try to drive.  The applicant believed he had left the keys in the unit.  In fact he had them in his pocket.  He was too drunk to recall.

[11] The applicant asked Ms Wex if the keys were in the unit.  After a search Ms Wex told him that they were not, and she told them to go away.  At that point the applicant became aggressive and began pounding on the door.  Mr Bourne pushed a couch against the door and called the police on his mobile phone.  The front door burst open and the appellant and Daly fell through the doorway.  The lock was destroyed.  The two men pushed the couch aside and entered the unit.

[12] Daly grabbed Mr Bourne’s phone and threw it on the floor, smashing it.  It was valued at $589.  That conduct constituted the wilful damage to which both pleaded guilty.

[13] Ms Wex demanded that both leave the unit immediately.  Instead the applicant walked towards her and Ms Thomas.  They retreated towards the kitchen sink.  The applicant took up a metal pole, about a metre and a half long, and poked it against their stomachs, forcing them against the bench.  In retaliation Ms Thomas grabbed a similar pole.  Both swung at each other.  Ms Thomas was hit on the head.  She suffered a cut to her lip, which bled, small cuts and abrasions to her arms, legs and hips, and bruising to one of her eyes.  That conduct constituted the assault occasioning bodily harm whilst armed and in company.  During that melee Mr Bourne picked up a bed slat and hit the applicant on his back.  The applicant suffered some scratches and abrasions and a swelling on his head.

[14] The two offenders then fled.  In what was described as “some little while later” the applicant apologised to Ms Wex, telling her that he could not remember what had happened but apologised nonetheless.

[15] Like his co-offender, the applicant co-operated with investigating police by agreeing to be interviewed.  Both admitted to being at the flat but could recall little else.  It does not appear that the applicant denied any of the allegations against him.

[16] The plea of guilty was recognised as being an early one.

[17] Counsel for the applicant submits that a head sentence of three and a half years’ imprisonment is manifestly excessive.  The sole ground for this submission is the decision of this Court, R v Armstrong, Park, Pullyn [2008] QCA 132.  The case is said to be authority for the proposition that the appropriate term of imprisonment for “this category of home invasion” is between 18 months and three years.

[18] There the appellants (three of the four offenders in total) broke into the complainant’s home in the early hours of the morning to exact revenge over an incident a fortnight before.  Pullyn had found the complainant in bed with his pregnant de facto wife.

[19] The complainant was beaten by all four men, two of whom used a chair as a weapon.  The complainant was struck about eight to nine times.  As he left Armstrong smashed windows in the complainant’s vehicle.  The offenders returned one and a half hours later and attempted to gain entry a second time, but desisted when it became apparent that the police had been called.

[20] Each was sentenced to three years gaol, Armstrong (who was 24) to be released on parole after 10 months, the other two (who were slightly younger) after nine months.  On appeal the head sentences were not disturbed, nor was Armstrong’s parole release date.  He played a leading role, did not know the complainant and thus had no grievance against him that may have excused or explained his involvement.  He had a criminal history which was said to be of limited relevance to an offence of violence.

[21] The other appellants had their non-parole periods of nine months reduced to about four months.  Neither had any previous convictions.

[22] It is pointed out that the applicant and Daly were teenagers, 19 and 18 years old respectively, and both were known to the homeowner who had initially invited them into the flat where the violence was committed.  It is also pointed out that there was no hint of premeditated violence, or motivations of revenge. 

[23] The applicant submits that a head sentence of two years’ imprisonment with a parole release date being fixed after eight months to reflect the applicant’s youth, remorse as evidenced by the apology, and his early plea of guilty, is appropriate.

[24] The applicant has a long and disturbing criminal history, despite his youth.  On 20 April 2006 he was dealt with in the Brisbane Childrens Court on charges of torture and unlawful deprivation of liberty.  The offences were committed on 1 March 2005 when the applicant was 16 years of age.  He was sentenced to four months’ detention, to be released after having served two, and was placed on 12 months’ probation.

[25] The circumstances of the offence were that on 1 March 2005 the applicant orchestrated the torture of a young girl in her early teens.  The offending took place over approximately two hours.  The applicant directed and coerced four other young females to assault the complainant.  Included in this group were the applicant’s 13 year old sister and 14 year old girlfriend.  The victim received numerous punches.  At one stage she had a phone cord placed around her neck whereupon the applicant instructed his followers to “Treat her like a dog”.  The applicant also took part in the violence, tackling the complainant and causing her pain to the ankle.  He threatened to harm her and her family if she went to the police.  Other members of the group ultimately decided to release the girl despite the applicant’s protests.

[26] The applicant breached the terms of the probation order imposed for that offence.  He failed to notify his supervisor of his change of address.   He was dealt with in the Gladstone District Court on 14 June 2007 for the breach.  The earlier order was revoked, the applicant was resentenced for the original offence, and required to perform 12 months’ probation and 100 hours of community service.

[27] On 19 March 2007 the applicant assaulted his girlfriend, occasioning her bodily harm.  He was dealt with for that offence in the Brisbane District Court on 26 February 2008 when he was sentenced to a term of 18 months’ imprisonment wholly suspended for a period of three years.  At the time of the offence the applicant was serving the period of probation imposed in the Childrens Court in April 2006.  The circumstances of the offence were that the applicant and his then girlfriend had argued.  She was smoking a cigarette which the applicant pushed into her cheek, causing a substantial burn.  Later the same day the applicant threw himself upon the girl, knocking her to the ground where he slapped her to the right side of the face, causing bruising to the forehead and eye.

[28] When the present offences were committed the applicant was on bail for the assault upon his girlfriend in March 2007 and was serving a term of probation imposed in June 2007 as a consequence of the earlier breach of the probation order made in April 2006.

[29] The applicant has other, less serious, convictions for possessing drugs and weapons.

[30] A comparison between the applicant’s offending and that in Armstrong, Park and Pullyn does not assist the applicant’s cause.  Park and Pullyn were first offenders.  Their sentence of three years’ imprisonment imposed for aggravated burglary was not reduced on appeal.  The order that they be released on parole after serving nine months in custody was set aside and replaced by a suspension after three months.  Armstrong’s sentence was not disturbed.  He was required to serve 10 months in actual custody.  He was said to have “a criminal record though of limited relevance to an offence of violence.”  He received the more severe sentence because he was the instigator of the attack and because he had no personal motive for it.  For him, the violence was gratuitous.

[31] The judgment in Armstrong does not purport to establish any principle or to set up any tariff.  It does not suggest a range of 18 months to three years.  It is a decision on its own facts, and while useful as a comparison is no more than that. 

[32] Unlike the applicant at the time of his offending Armstrong was not on probation.  He was not on bail.  His attack was not upon a woman and he had no criminal history of violence against women.  These are significant differences.  Armstrong was sentenced to three years’ imprisonment and required to serve 10 months.  The applicant, with a disturbing history of violence and a consistent disregard of stern warnings and the imposition of community-based orders, was sentenced to three years and six months, and required to serve 14 months.  The comparison does not suggest that the sentence imposed on the applicant is excessive.

[33] There are circumstances which exacerbate the seriousness of the applicant’s offending.  The offences constituted a third breach of his probation.  One of those previous breaches was constituted by a vicious assault on a young woman.  The offences occurred while he was on bail for that assault.

[34] The applicant and his co-accused used considerable force to gain entry to the flat.  They broke the door lock and overcame the householders’ attempts to keep them out.  The intrusion and attack upon the householders was wanton.  The applicant and Daly had initially been invited into the premises and treated with courtesy and kindness.  They repaid the hospitality with mayhem.

[35] The applicant armed himself with a weapon which was capable of causing considerable injury against two young women.  It is fortunate that it did not. 

[36] Counsel for the applicant points out that the sentencing judge made a recommendation that the applicant be eligible for parole after serving 14 months.  Such recommendations are no longer possible: s 160A(3) of the Penalties and Sentences Act 1992 (Qld).  The error, if it be one, is of no consequence.  It was corrected when the order was recorded on the indictment.  The order as recorded fixes the parole eligibility date at 17 January 2010.

[37] Then it was submitted that in his remarks the learned judge referred to the applicant’s spending “a period of 40 months” in prison, before going on to say he would be released after serving 14 months.  Three and a half years is, of course, 42 months, not 40.  Whether the error be one of transcription or arithmetic, it is of no consequence.

[38] Counsel for the applicant also points to evidence that suggested the applicant had “a demonstrated promising rehabilitation”.  He had completed a TAFE course in scaffolding and found work in that occupation.  He had adopted a more conventional domestic arrangement and had not “re-offended for ... nine months”.

[39] The sentencing judge took this into account.  His Honour said:

“... a term of imprisonment is the only option ... available ... I accept the fact that you have employment, and I accept the fact that you have seemingly self-rehabilitated to a degree.  But in the light of your prior convictions and in light of the fact that you have an extensive history for violence, and in light of the nature of your own version that you can’t remember [these offences] because you were intoxicated at the time, I’m left with no alternative but to impose a term of imprisonment”.

[40] The sentence is a severe one for a young man who shows some signs of developing maturity and rehabilitation.  It was, however, necessary to impose a substantial term of imprisonment because of the circumstances of the offending which were serious and involved a determined, drunken, aggressive intrusion into a stranger’s home and because of the disturbing history of violence, especially towards young women, evidenced by the applicant’s record and his anti-social disregard for the rights of others and the authority of the Court which, by its orders, sought to protect society.

[41] The learned judge was influenced by the same factors.  He noted the need for the sentence imposed to reflect the circumstance that the applicant was:

“... on probation at the time ... and also ... had a lengthy experience with the criminal justice system.”

The applicant had been dealt with in the past with considerable leniency despite his demonstrated characteristic of physical aggression.  To show leniency again would run the considerable risk that the applicant would not be sufficiently deterred from engaging in such behaviour.  The particular circumstances of the offence might not have justified the sentences imposed, without the applicant’s criminal history.  That history showed the need for a sentence which will unequivocally demonstrate that the community, and the courts, will not put up with such conduct as the applicant’s.

[42] Counsel for the respondent referred us to R v Frazer [1997] QCA 306 and R v Cockfield [2006] QCA 276 but neither is of particular relevance.

[43] As I mentioned the applicant was on probation when the offences were committed.  It will be recalled he was ordered to undergo 12 months’ probation and perform 100 hours of community service on 14 June 2007 when the earlier order made on 20 April 2006 was revoked.  The commission of the offences by the applicant on 11 February 2008 was a contravention of the requirement of the probation order, imposed by s 93(1)(a) of the Penalties and Sentences Act 1992 (Qld) (“PSA”) that he not commit another offence during the period of probation.  The contravention was itself an offence, being made so by s 123 of the PSA.  The penalty is limited to the imposition of a fine.  By s 126(2) and (4) of the PSA the Court, when dealing with someone like the applicant, may punish for breach of the probation order, or resentence for the original offence with respect to which probation was ordered, as if he had just been convicted. 

[44] The sentencing judge does not appear to appreciate the legal position.  There seems to have been considerable confusion about whether he should resentence the applicant for breach of probation or whether he should resentence for the original charges of torture and deprivation of liberty committed in 2005.  The court order sheet suggests that he did both.

[45] The prosecutor submitted that “whatever order is made ... should be made to run cumulatively upon the sentence ... impose[d] in respect of the breach of probation which would ... give a longer global head sentence ...”.  Defence counsel submitted that it would be in order to impose up to 12 months’ imprisonment on a resentence for the torture but that that sentence should be concurrent with the sentences imposed for the present offences because the commission of those offences, for which he was going to be punished by a term of imprisonment, were themselves the facts which constituted the breach of the probation order.

[46] The sentencing judge preferred the prosecutor’s submissions but instead of sentencing the applicant for the earlier offence and making that sentence cumulative upon the sentences imposed for the February 2008 offences, his Honour imposed a longer head sentence for those offences and made the resentence concurrent.  He said that he did not:

“... want to give ... a cumulative sentence for breaching [the applicant’s] probation ... because that would have caused difficulties in terms of an earlier release at the third mark.”

[47] His Honour’s approach to the breach of probation was quite wrong.  For a start, as I mentioned, there was confusion about which option, punishment for breach or resentencing, should be followed.  His Honour referred to “giv[ing] ... a ... sentence for breaching [the applicant] probation” and indicated that he had imposed a sentence of 12 months’ imprisonment “in relation to the breach of probation”.  The choice of words does not suggest an appreciation that the applicant was being resentenced for the original offence.  A sentence of imprisonment could not have been imposed as punishment for a breach of probation because s 123 of the PSA limits the sanction to a fine.

[48] If 12 months’ incarceration were being imposed by way of resentence it was wholly disproportionate to the circumstances.  When dealt with initially for the torture and deprivation of liberty the applicant was sentenced to four months’ detention to serve two, which he served, and 12 months’ probation.  He breached that in a way that did not involve any additional criminality.  For that relatively minor breach he was required to undergo a further 12 months’ probation and perform 100 hours of community service.  He performed all of the service and had undergone eight months of probation, in addition to the time spent on probation following the first order, when the present offences were committed. 

[49] Section 126(6)(b) of the PSA requires the Court to have regard to the extent to which an offender had complied with a probation order when being resentenced for breach of it.  Given the history I have described, the imposition of any substantial term of imprisonment was excessive. 

[50] The sentencing judge increased the sentence that would otherwise have been imposed for the aggravated assault and aggravated burglary to obviate the need to impose a cumulative sentence for breach of the probation order.  The breach of that order should not have resulted in the applicant having to serve a longer term in custody than those offences required.  It was not such as to call for any additional punishment.

[51] It follows that the applicant was sentenced on an erroneous legal basis.  I would give leave to appeal against sentence, allow the appeal, set aside the sentences of three years and six months imposed on each of Counts 4 and 6 and instead sentence the applicant to three years’ imprisonment.  The parole release date should be fixed at 17 November 2009, one year after the applicant was taken into custody.  The declaration as to pre-sentence custody should not be disturbed.

[52] MULLINS J:  I agree with Chesterman JA.