SUPREME COURT OF QUEENSLAND

[1]  KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA.  I agree with those reasons and with the order proposed by his Honour.

[2]  MUIR JA:  I agree with the reasons of Fraser JA and with the order he proposes.

[3]  FRASER JA: On 21 October 2008 the applicant was convicted on his pleas of guilty and sentenced for one count of burglary with assault and three counts of wilful damage.  The grounds of the applicant’s application for leave to appeal against sentence are that the sentence is manifestly excessive when compared with the sentences passed on his co-offenders and that the sentence lacks parity with those other sentences. 

The circumstances of the offences

[4] An agreed statement of facts tendered at the sentence hearing recites that on 21 January 2008 the applicant (then 24 years of age) and friends of his, Bates and Hansen, were drinking at a hotel where they had expressed a common dislike for the complainant.  They drove to the complainant’s house with the intention of giving him a “touch up”.  Bates and Hansen unsuccessfully attempted to persuade the complainant to come out and then they entered the house and tried to pull the complainant out.  That attempt failed but the applicant then rushed through the open front door and started to swing punches at the complainant, hitting him a number of times on the neck, face and chest.  Thereafter the applicant and Bates pushed the complainant’s head into a gyprock wall.  The applicant, Bates and Hansen then started to kick the complainant as he lay on the floor.  The applicant was barefooted but one of the other offenders was wearing boots.  During the following scuffle the complainant had lumps of his hair ripped from his head, apparently while Hansen and Bates were swinging him around by the hair.  When someone yelled that the police were coming the three offenders let go of the complainant, who barricaded himself into a toilet in the house.  The complainant then saw Bates smashing his car standing outside the house.  Bates and Hansen decamped after first yelling out threats to burn the house down and unsuccessfully attempting to persuade the complainant to come out to “get his medicine”.  When police attended the scene the applicant was outside the house.  He told police that it was his fault and that he had done everything.  Police quickly found and apprehended Bates and Hansen. 

[5] The applicant participated in a record of interview with the police, and admitted going to the complainant’s house, entering without permission, and assaulting the complainant.  Bates admitted going to the house with the intention of assaulting the complainant.  Hansen admitted to attending the house knowing that the complainant was to be assaulted but said that he had gone there to stop the applicant or Bates from hurting the complainant “too much”.  He, like Bates, denied assaulting the complainant. 

[6] The complainant coughed up blood following the assault, there may have been a transient loss of consciousness, and after the assault he felt pain everywhere, mainly in the chest wall.  He sustained tenderness in various parts of his body where he had been kicked or hit, some bruising and loss of some hair.  A victim impact statement indicates that, unsurprisingly, the offences had significant emotional, financial and lifestyle impacts upon the complainant. 

[7] Defence counsel submitted that the background against which the offences were carried out was that the applicant’s de facto wife had left him for the applicant’s good friend, the complainant, who for the previous two years had lived with the applicant, his de facto wife and their two young children.  Defence counsel did not contradict the submission by the respondent’s counsel that the offences involved a degree of premeditation and that the applicant acted out of jealousy, although defence counsel did submit that there was no premeditation prior to the day of the offences.

The applicant’s personal circumstances

[8] The applicant was 24 years of age when he committed the offences and 25 years of age when sentenced.  He was a single man, living with his mother on a cattle property about 30 minutes drive west of Mackay.  They were caretakers of the property but also paid rent.  The applicant worked as a landscaper.  He described himself as being somewhat depressed at the time of the offences because of the breakdown of his relationship with his former de facto wife.

[9] The applicant had a criminal record.  In 2001 he was convicted of stealing.  This seems to have been a trivial offence: he was ordered to pay restitution of $2.30, no conviction was recorded and he entered into a recognizance to be of good behaviour.  Later in the same year the applicant was convicted of contravening a direction or a lawful requirement in July 2001: that may have related to the stealing offence.  He was convicted and fined $200 for that offence.  In early 2002 the applicant was again convicted of stealing, in late 2001, and he was fined $200.  Those earlier offences may be put to one side as having no particular significance in this application, but in December 2003 the applicant was convicted of two charges of common assault committed in November 2003.  No conviction was recorded and he was fined $750.

[10]  The applicant cooperated in the administration of justice by his early admissions to police and by participating in a full hand up committal and he entered an early plea of guilty.

The applicant’s sentence

[11]  The respondent’s counsel sought a head sentence of three years in view of the serious features of the offence.  He reminded the sentencing judge that the maximum penalty for the burglary offence was life imprisonment.  He also contended for a parole release date after one-third of the head sentence had been served, in view of the applicant’s early plea of guilty and other favourable circumstances.  Defence counsel asked the sentencing judge to consider a wholly suspended sentence or immediate parole, particularly in light of the applicant’s employment history.

[12]  The sentencing judge summarised and took into account the matters which I earlier described, including the applicant’s criminal record, which his Honour characterised as “not a serious criminal history”.  The sentencing judge described the offence of going into someone else’s home for the purpose of retribution as something that the courts must discourage and referred also to the serious nature of the assault, involving as it did the applicant in company with two other men of similar age punching the complainant and also kicking him while he was on the ground.

[13]  The applicant was sentenced to two years imprisonment on the burglary count and six months imprisonment on each of the wilful damage counts, all sentences to be served concurrently.  His parole release date was fixed at 21 June 2009, eight months from the commencement of his sentence.

The co-offenders’ sentences

[14]  The co-offenders, Bates and Hansen, pleaded guilty to the same charges and were sentenced on 23 October 2008, two days after the sentencing of the applicant.  The short delay occurred because the co-offenders had initially indicated that the matter might proceed by way of a contested sentence but, following the provision by the Crown to the co-offenders of a statement by the applicant and further negotiations, agreement was reached that the co-offenders would be sentenced on the basis of the facts put forward in the sentencing of the applicant.  Each of the co-offenders was sentenced to 12 months imprisonment on the burglary charge and six months imprisonment on each of the wilful damage charges, all terms of imprisonment to be served concurrently and to be wholly suspended with an operational period of three years.

[15]  The sentencing judge’s reasons for giving the co-offenders lighter sentences than that imposed upon the applicant were that, whereas the applicant had previous convictions for common assault and for stealing, the co-offenders had no previous convictions and the sentencing judge considered that the applicant was the “instigator” of the events.  The judge explained that by the term “instigator” he meant to convey that the applicant was the “motivator” for the events: the applicant “had the problem” and sought the assistance of the co-offenders.

Analysis

[16]  As the Chief Justice emphasised in R v Fitzgerald [2004] QCA 241 at para [4] the Court must, through the penalties imposed, take a serious stand against home invasions, in respect of which there is a strong need for deterrence.  Fitzgerald was a factually similar case, in which the Court refused an application for leave to appeal against a sentence of 21 months imprisonment wholly suspended after six months with an operational period of three years imposed for offences of entering a dwelling with intent to commit an indictable offence and assault occasioning bodily harm.  The complainant there suffered injuries of a similar severity to this complainant, although that offender renewed his assault after the arrival of police he did not commit his offences in company, he had no prior convictions, and his personal circumstances were more compelling.  In light of that decision and the analysis of authority in it there is no basis for an argument that the applicant’s sentence was manifestly excessive.  The early parole release date appropriately reflected the applicant’s early plea of guilty and the other personal circumstances in his favour.

[17]  I reject the submission made by the applicant’s counsel that the sentencing judge erred by sentencing the applicant on the footing that his culpability for the offences was greater than that of his co-offenders or in denying the applicant the opportunity to be heard in opposition to such a course.  The submission sought to draw an inference from the sentencing judge’s remark at the subsequent sentencing hearing of the co-offenders that the applicant was the “instigator” (meaning “motivator”, as the sentencing judge explained) of the offences.  However, at the applicant’s sentence hearing the sentencing judge said on this topic only that “going into the home of someone out of sheer retribution is something that the courts discourage”.

[18]  That is undoubtedly correct.  The sentencing judge was entitled to conclude that the applicant’s offending was retributive.  The background described by defence counsel at the applicant’s sentence hearing plainly suggested that the applicant was motivated by jealousy in his attack upon the complainant and it was not suggested that he or his co-offenders had any other cause for their “common dislike” of the complainant referred to in the agreed statement of facts.  That was presumably what the sentencing judge meant when, at the subsequent hearing, he characterised the applicant as the “motivator”.  But however that may be, the reasons for the sentence imposed upon the applicant were comprehensively expressed when that sentence was imposed and they are not to be qualified by a contestable inference said to be derived from what the same sentencing judge said at a subsequent sentencing.

[19]  The applicant’s next argument invokes the parity principle expounded in Lowe v The Queen (1984) 154 CLR 606, in which the High Court held that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: if that arises, the severer sentence should be reduced even if it is otherwise an appropriate sentence within the permissible range of sentencing options.  In Postiglione v The Queen (1997) 189 CLR 295 at 301-302 Dawson and Gaudron JJ pointed out that this is not simply a question concerning the imposition of different sentences for the same offence, but it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.  Their Honours observed (at 303) that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. 

[20]  Here, although the sentencing judge correctly characterised the applicant’s criminal history as not being a serious one, the fact that the co-offenders had no previous criminal convictions was a significant point of distinction between them and the applicant.  So too was the fact that the criminal conduct of each of the offenders was explicable only on the footing that their common dislike of the complainant arose out of a perceived personal slight to the applicant.  It may be, as the applicant’s counsel submitted, that an absence of any independent motive in the co-offenders is not a mitigating circumstance, but the applicant’s culpability was of a high order, commensurate with the strength of his own motive: the agreed statement of facts demonstrates that it was the applicant who commenced the first serious assault upon the complainant by swinging punches at him after the complainant had repulsed the co-offenders in their attempt to pull him outside his house.  These matters provide a rational basis for the applicant’s own contemporaneous protests to the police to the effect that he bore primary responsibility for these offences.

[21]  It may well have been open to the sentencing judge to impose severer penalties upon the co-offenders, notwithstanding that they had no prior convictions, but in my opinion the difference between the sentences is readily explicable by those differences in the circumstances of the offences and the offenders and the applicant has no justifiable sense of grievance about his sentence. 

[22]  The applicant contends that, if the court were of the opinion that the sentence imposed was manifestly excessive on the grounds of disparity, the applicant’s subsequent cooperation in providing a statement to the Crown should be taken into account in sentencing afresh.  In oral submissions the applicant’s counsel confirmed that this point only arose if the court first concluded that the sentence was manifestly excessive on the grounds of disparity.  In light of my conclusion that the sentence was not manifestly excessive it is not necessary to consider this point. 

[23]  I would refuse the application.