R v Peisley[2009] QCA 142

SUPREME COURT OF QUEENSLAND

HOLMES JA:  I'll ask Justice McMurdo to give his reasons first.

McMURDO J:  The applicant wishes to apply for leave to appeal against sentences imposed on 4 June 2008.  To make that application he requires an extension of time.  His applications for leave to appeal and to extend time were filed on 16 March 2009. 

He is not legally represented.  In his application as filed, he claims that during the sentencing hearing, he was heavily medicated and did not have “an understanding of what was going on”.  He claims that now he is off that medication, he realises that his sentence is excessive and that he should apply for leave to appeal.

He was sentenced in the District Court at Southport, having pleaded guilty to numerous counts upon several indictments.  On the one indictment, there was a count of receiving and a count of fraud, for which he was sentenced to 12 months’ imprisonment on each.  On a second indictment, he was convicted of one count of burglary in company and one count of robbery in company with personal violence.  He was sentenced to three years’ imprisonment on each count.  On a third indictment, the respective counts and sentences were as follows:

• burglary while armed and in company – five years’ imprisonment;
• armed robbery in company with personal violence – eight years’ imprisonment;
• doing grievous bodily harm – five years’ imprisonment;
• making a threat to cause injury – 12 months’ imprisonment.

On the count of armed robbery in company with personal violence, there was a declaration that he had been convicted of a serious violent offence.  All the sentences were ordered to be served concurrently.  It was declared that he had served a total of 822 days in pre-sentence custody. 

By now, he has served each of those terms, save for those of five and eight years.  The offences the subject of the second indictment were also very serious, as the learned sentencing Judge explained.  But it is unnecessary to discuss them in considering whether his proposed appeal has any real prospect of success.  For the respondent it is argued that there is no such prospect and that an extension of time should be refused also because this Court would not be satisfied with his explanation for not challenging the sentences within time.

The applicant was aged 22 at the time of these offences and 25 when sentenced.  He had a criminal history, largely in New South Wales, of offences of dishonesty and violence.  That included offences for which he was sentenced in early 2005, shortly before he turned 22 of maliciously inflicting grievous bodily harm and robbery whilst armed with an offensive weapon.  The learned sentencing Judge regarded it as a significant aggravating factor that he was on bail at the time he committed the presently relevant offences.

Those offences were committed in the course of a home invasion.  On the night of 15 April 2006, he and a co-offender rushed into a house where there were three men.  The applicant was carrying a sawn-off shotgun, which he pointed at each of these men in turn.  He demanded money, mobile phones and watches.  The co-offender was yelling at the applicant to shoot the three men. 

The applicant struck one of them across the side of his face with the barrel of the gun, causing his mouth to bleed heavily and dislodging one of his teeth.  His jaw was broken.  The applicant then took the wallet and phone of another of these men, and with his closed fist, struck that man in the face four or five times.  The applicant turned to the third man, forcing his mouth open and the barrel of the shotgun into his mouth whilst he tapped the trigger with his finger.  Again the co-offender was urging him to shoot.  Instead, the applicant struck him in the face with the gun and stole money from his wallet.  He threatened to kill the man if he complained to police.

The applicant was apprehended shortly afterwards.  A sawn-off shotgun was found in the house where he was then staying.  His co-offender in this incident and (if another) his co-offender in the incident the subject of the other indictment involving the burglary has not been located.  The applicant was asked to identify him.  He provided a name to the prosecution and that person was known to the police.  But his Honour remarked that this person looked nothing like any description of the co-offender which had been provided by any of the complainants.  The prosecution told his Honour that it would not accept the applicant as a credible witness in any proceedings against his co-offender if and when he is located.  Nevertheless his Honour said that he had made some allowance for the applicant’s offer to assist in the prosecution of the co-offender although “to a more limited degree than would be possible had the offer been accepted and acted upon by the Crown”.

Before the learned sentencing Judge, the applicant’s counsel tendered a report from a psychologist, Dr Frey.  His Honour noted Dr Frey’s assessment of the applicant as being currently “in a lucid condition being maintained on a quite high dose of antipsychotic medication”.  Dr Frey referred to a history of the applicant’s ignoring his medication and using illegal drugs instead.  He said that the applicant would need to take his medication regularly to prevent the return of the psychotic symptoms which had contributed to these offences.  His report also described what his Honour said was the grossly dysfunctional upbringing which the applicant had endured, living on the streets from a very young age and coming under the influence of outdoor motorcycle gang members.

His Honour took into account the pleas of guilty and accepted that there was a degree of remorse “and also a degree of disappointment and self disgust”.

I am unable to see any arguable error in his Honour’s reasoning.  Nor could there be any basis for holding these sentences to be manifestly excessive.  There was a relatively high degree of violence in this home invasion.  Although the gun was not discharged, it was used in a terrifying way to threaten each of the three complainants and it was used as a means of physical assault.  Each of these men was violently attacked and one in particular suffered very serious physical injuries as well as permanent psychological damage.  Nor is there any substantial argument which could be made against the serious violent offence declaration.

The applicant in arguing his own case this morning referred to some sentences imposed in circumstances which are not so obviously comparable to the present; but more importantly, in none of those cases, was there any authoritative statement of what might constitute a relevant range for offences such as these and which would indicate that the present sentences were outside that range.

The respondent cites two decisions of this Court which in my view do provide that indication that the present sentences were within range.  They are The Queen v Jones [2000] QCA 84 and The Queen v Dougherty and Doyle, which are matters CA 360 and 362 of 1998.

In each of those cases, there was a home invasion by a number of people with the use of a firearm as an instrument to assault persons in the home and to threaten them.  In Jones, the firearm was discharged accidentally, but no harm came from that.  The Court in each case described the circumstances of the home invasion as being of a relatively serious type for that offence.  In Jones, for example, Justice Davies described the offence there as a very bad example of a home invasion.  The circumstances outlined in his Honour’s judgment in my view show that the case was no more serious in that respect than the present one.

The sentence in each of those cases was one of eight years’ imprisonment with a declaration of a serious violent offence.  The offenders in each of those cases were older men.  In Jones, the offender was in his 50s and in Dougherty and Doyle, the offenders were aged respectively 54 and 35.

Jones had an extensive criminal history but not for violence.  Dougherty and Doyle did not have a history of violence.  That is to be compared with the present case where the applicant, although a young man, has, as I have mentioned, a criminal history which involves apparently serious offences of violence and for which, as we heard from him this morning, he had served a term of imprisonment in New South Wales.

The apparently poor prospects then of an application for leave to appeal the sentence make it unnecessary to consider the respondent's other argument where the respondent attacks the veracity of the applicant’s explanation for not applying for leave to appeal within time.

In my view the applicant has no substantial prospect of success if granted an extension.  I would dismiss his application for an extension of time, which was filed on 16 March 2009 and in consequence would dismiss his application for leave to appeal, which was filed on the same date.

HOLMES JA:  I agree.  I think it is worth mentioning that the sentence of eight years' imprisonment with a serious violent offence declaration was imposed in the context of his Honour sentencing also for another event, in which the applicant broke into a house occupied by a man with two small daughters, who had the misfortune to return during the break in by the applicant and his co-offender.

A struggle ensued, during which the man's mobile phone was stolen.  He and his two small daughters, aged seven and eight, were left thoroughly traumatised by the event.  That context, I think, is relevant to the consideration of what sentence was appropriate for the serious home invasion and the offences committed during it.

I agree, therefore, with Justice McMurdo that the application for an extension of time for leave to appeal should be dismissed.

APPLEGARTH J:  I agree with the reasons given by Justice McMurdo.  I also agree with the reasons given by Justice Holmes.  The head sentence of eight years imprisonment is not manifestly excessive in the circumstances.  The learned sentencing Judge's discretion did not miscarry in making a declaration that the applicant had committed a serious violent offence.

I agree that the application should be dismissed.

HOLMES JA:  The application for an extension of time to seek leave to appeal against sentence is dismissed.