R v Lidbetter[2009] QCA 6

SUPREME COURT OF QUEENSLAND 

THE CHIEF JUSTICE:  The applicant pleaded guilty to a number of offences committed on 4 March 2007.  They formed part of the same incident and they were going armed in public so as to cause fear, deprivation of liberty, common assault and wilful exposure.  He was sentenced to 18 months' imprisonment with a parole release date after six months.  He served seven weeks and three days prior to his being released on bail pending appeal.  He seeks leave to appeal against the sentence.

His counsel, Mr Heaton, has submitted that a term of imprisonment of the order of six months, suspended after the time he has already spent in custody should have been imposed.

The offences were committed in these circumstances.  The applicant flagged down a passing motorist and accused him of having done burn outs the night before.  The applicant produced a knife, which he held to the complainant's neck while yelling at the complainant about the burn outs.  The applicant was obviously intoxicated and bleeding from the mouth.  The complainant was a complete stranger to the applicant and the complainant had not, in fact, been responsible for the conduct attributed to him by the applicant.

Associates of the applicant intervened to disarm the applicant, whereupon the complainant drove off and called the police.  The police arrived at the applicant's house.  In response to their inquiring of the applicant whether he consented to be searched, - he lowered his pants revealing his genitals.  Hence the charge of wilful exposure.

In August 2007, after the commission of the offences in March 2007, but prior to his being sentenced in October 2008, the applicant suffered a serious heart attack.  Reports from Andrew Wright and Dr Gerald Kaye were placed before the learned sentencing Judge and they provided detail of the applicant's condition and the treatment he required.  That evidence did warrant the conclusion that incarceration would be more burdensome for the applicant because of his condition, than for other inmates not similarly afflicted.

His Honour took that into account in selecting the 18 month head sentence, which he indicated would otherwise have been higher.  He also directed the Department of Community Corrections to provide the applicant with appropriate medical treatment.  Upon the hearing of this application we were provided with an affidavit from the applicant dealing with the provision of medical treatment while he was in custody.  It appears that the treatment was generally available and provided, although perhaps not as expeditiously as the applicant would have wished.  Significantly, to my mind, he says in that affidavit, "My condition has remained stable in the correctional centre." 

The learned Judge was particularly influenced by these circumstances; that the applicant took the law into his own hands perceiving that the complainant had been guilty of the offensive driving; that the applicant used a knife to threaten the complainant; and that the applicant had a relevant and substantial criminal history.  As well as an extensive criminal history for offending of a comparatively minor nature, including many convictions in relation to graffiti, the applicant was convicted in November 2002 of assault occasioning bodily harm.  He punched a barman after he was asked to settle down by bar staff.  And he was convicted in July 2006 of two offences of stalking.  He was given 18 months probation for the stalking offences, so at the time he committed the instant offences, he was subject to probation.  A report placed before his Honour showed that the applicant had been performing satisfactorily while on probation. 

The Crown Prosecutor suggested a range of six to 12 months imprisonment, drawn, it was said, from R v Hayes [2008] QCA 236.  The judge considered that to be too low.  He selected two years imprisonment as the appropriate starting point and then reduced that to take account of the applicant's medical condition and other matters of mitigation, substantially the pleas of guilty.  He then ordered parole after one third of that 18 month term.

Counsel for the applicant submitted that the Judge adopted a starting point which was too high and out of accord with Hayes.  Counsel also submitted that his Honour gave insufficient weight to the prospect of the applicant's rehabilitation in light of his abstaining from alcohol because of his medical condition.  The Judge expressed some scepticism about whether the applicant could be relied on to remain alcohol free. 

The circumstances of Hayes were, to my mind, remarkably similar to those of the present case.  Hayes was effectively sentenced to 15 and a half months imprisonment with parole after seven and a half months.  The Court of Appeal took the view that Hayes should have been released after serving one third of the head sentence, which lead to a remedial order.

Save for this applicant's medical situation, the only substantial point of distinction between the two cases in my view is age.  Hayes was 33 years old, whereas the applicant was 23 years old when he committed his offences.  I consider that his Honour did start from too high a point in selecting two years imprisonment, and that he should have started from 15 months imprisonment for this sort of offending.  And then tempered that to take account of the applicant's plea of guilty and the applicant's personal circumstances, including his medical condition.

That would have warranted reducing the term from 15 months to 12 months, with parole after one third of that period, namely after four months.  It is the close comparability of Hayes which persuades me that the Judge started from too high a level, fairly leading the applicant to query why he was apparently treated more severely.

I would allow the application and the appeal against sentence,  set aside the sentence imposed in the District Court on 31 October 2008, and in lieu thereof, order that the applicant be imprisoned for 12 months, setting as the parole release date, the date which will mark the applicant’s having served four months of that term.

There should also be an order that a warrant issue for the arrest of the applicant to lie in the Registry for seven days pending execution.

FRASER JA:  I agree.

P LYONS J:  I agree.

THE CHIEF JUSTICE:  The orders are as I have indicated.