SUPREME COURT OF QUEENSLAND

[1]  CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA.  I agree that the application should be dismissed for those reasons.

[2]  WHITE JA: The applicant seeks leave to appeal a head sentence of 12 months to be suspended after serving three months, imposed upon him in the District Court at Ipswich on 28 April 2010 for a number of offences, the most serious of which was going armed in public so as to cause fear and wilful damage to a motor vehicle by shooting at it.  He contends that he ought not to have been given a sentence which involved imprisonment and instead ought to have received a community based order with no conviction recorded.  He was aged 17 at the time of the offending and had no previous convictions.

[3] This application raises issues of the appropriateness of the sentence; the principles enshrined in s 9(2)(a) and (d) of the Penalties and Sentences Act 1992 (Qld), that imprisonment should be a last resort and of the complainants’ contribution to the offence; and parity with co-offenders.

The sentences

[4] The offending conduct occurred on 21 February 2009.  The applicant was charged jointly with Tyrone Theuerkauf (aged 21 years), Kyle Carstens (aged 17 years) and Steven King (aged 19 years) with one count of unlawfully attempting to strike one Garth Storey and others with intent to maim; one count of dangerous operation of a motor vehicle; one count of going armed so as to cause fear and two counts of wilful damage to a motor vehicle.  The applicant was also charged with two summary offences – the unlawful possession of a bolt action rifle (a .22) and dangerous conduct with a weapon.

[5] The Crown entered a nolle prosequi with respect to count 1 on 1 February 2010 against Theuerkauf and Carstens. Those defendants pleaded guilty on 2 February 2010 to the remaining counts and were sentenced by Judge Richards.  Theuerkauf was sentenced to two years imprisonment, wholly suspended for an operational period of two years, for the dangerous operation of a motor vehicle, and two years probation for the other offences.  Without co-operation (agreeing to implicate the applicant and King), he would have been sentenced to two years imprisonment with parole after serving six months.  Carstens was sentenced to two years probation and 200 hours of community service with a conviction recorded.  Without his co-operation implicating the applicant and King, her Honour would have imposed three years probation and 240 hours of community service.  They were both sentenced under s 13A of the Penalties and Sentences Act 1992.

[6] On 28 April 2010, the morning of their trial, the applicant and King pleaded guilty to charges 2 to 5.  The prosecution entered a nolle prosequi with respect to count 1.  King was sentenced to three years probation and a conviction recorded.  The applicant was sentenced to 12 months imprisonment, suspended after three months with a two year operational period, for the counts of going armed and the count of wilful damage caused by the firing of the gun towards the motor vehicle.  He was sentenced to three months concurrent imprisonment with respect to each of the other counts on the indictment and the summary offences.  Accordingly, the applicant was the only one of the four co-offenders required to serve any time in prison.

[7] The four offenders were charged under both s 7 and s 8 of the Criminal Code in respect of all of the offending conduct as appropriate. 

Circumstances of the offences

[8] On 21 February 2009 the applicant, his co-offenders and the complainants attended, with others, a 19th birthday party for one Adam Sippel at Brightview.  A group of five young men, who subsequently made up the complainants, left that party to attend a nearby rodeo between 9 and 10 pm.  One of their friends, a Reece Saxelby, remained at the party.  He was challenged to a fight by the offender King who, as related to the court by the prosecutor, was making a nuisance of himself.  Saxelby got the better of King in the fight.  King’s supporters, who far outnumbered Saxelby’s friends, were looking to set upon Saxelby, however, Mr Sippel’s father intervened.  Saxelby rang his friends at the rodeo and asked them to return to collect him. 

[9] The complainant group arrived in a Hyundai sedan but were met in the driveway by Adam Sippel who asked them to leave as their friend Saxelby was being looked after in the house and police had been called.  While reversing to leave, the Hyundai collided with a Hilux double cab utility belonging to Theuerkauf which was blocking their exit.  The Hyundai attempted to leave the property but was set upon by a group of young men with iron bars and other weapons.  The headlights and taillights of the Hyundai were smashed, leaving it without illumination.  Theuerkauf stood in front of the Hyundai to force it to stop but it did not.  He smashed the windscreen with a metal bar with a hook implement on the end of it and penetrated the windscreen in front of the driver.

[10]  The four offenders got into the Hilux utility and gave chase.  Theuerkauf was driving, Carstens was in the front passenger seat and King in the back seat behind the driver with the applicant next to him.  The Hilux utility was fitted with spotlights, as the vehicle was used for hunting animals, and a bullbar.  The Hilux chased the Hyundai sedan, which had no operating lights, using its high beam and spotlights.  The chase took place over several kilometres in rainy conditions and at speeds estimated at about 100 kilometres per hour.  The utility rammed into the back of the Hyundai several times as it tailgated the sedan.  The occupants of the Hyundai threw bottles at the pursuers and one, at least, hit the windscreen of the utility.

[11]  There were guns and a cross-bow in the car.[1]  Carstens fired a gun into the air out of the passenger window.  Some statements say King handed the gun to Carstens.  The other rifle was in a gun case.  The applicant took the .22 rifle out of the case and shot “towards” but “not directly at” the Hyundai.  The applicant admitted to loading the weapon “about twice” and recalled hitting the car in front “at least once” and could not recall if he fired a third shot.[2]  Two bullet holes in the Hyundai were identified by police as having been fired from the .22 rifle.

[12]  The chase finally concluded when the Hilux utility overtook the sedan and the Hyundai turned off down a side road.

[13]  The offenders, apart from Theuerkauf, the driver, had consumed a large amount of alcohol; the applicant admitting to consuming half a carton of XXXX bitter.

[14]  A few days later on 27 February 2009, the applicant was interviewed by police and made full admissions about his involvement in the chase. 

The sentence hearing

[15]  The primary Judge wanted to establish the value to be given to the plea of guilty, as it had been indicated on the morning that the trial was to commence.  It is not necessary to set out that narrative, save to mention that there were indications by all offenders that pleas would be entered when the indictment was first presented but there were some issues with count 1.  The applicant’s lawyers had attempted to obtain particulars of the counts and the basis upon which any pleas would be entered from several Crown prosecutors from January 2010 but without success.  They were told, somewhat astonishingly, that it was not the practice of the Office of the DPP to give particulars in writing.  Mr Boyle, who appeared on behalf of the respondent on this appeal, eschewed any such practice.  Those particulars were finally provided on the afternoon before the trial and the balance on the morning of the trial.  In those circumstances, her Honour correctly regarded the plea as timely.  On the morning of the trial, after indicating that he would plead guilty to counts 2 to 5, the applicant, at the request of the prosecutor, also agreed to give evidence against King.  King, learning that the three co-offenders had agreed to give evidence against him, pleaded guilty.

[16]  The matter then moved to sentencing the applicant and King.  Her Honour was given limited information about the applicant.  She was told that he was educated to grade 12 and from 2007 to the date of sentence had generally been in employment and at that time was employed as a contractor building sheds and garages.  The applicant had, apparently, chosen not to mention these criminal charges where he worked and so there was no reference to support his manner of working.  The applicant’s counsel told the court that his client was supported by his father (who was in court for the sentence) and the father had reported that the applicant’s conduct had improved since he had ceased associating with the co-offenders and started drinking less.  As her Honour observed, without any tangible documentation in support of the applicant’s post offending rehabilitation[3] there was little for her to “go on”.[4]

Ground 1 – sentence manifestly excessive

[17]  In the course of an exchange with the applicant’s counsel about the shooting, her Honour said:[5]

“Well, it’s more than foolish, Mr Lynch, it was hugely dangerous and had massive potential to cause serious harm.”

Mr Lynch, for the applicant, submitted that her Honour was impermissibly referring to count 1 – acts intended to maim – which had been discontinued.  Her Honour was stating no more than what was apparent in the charge of going armed with a rifle so as to cause fear; namely, it had the potential to escalate.  There was no suggestion that she was straying towards the far more serious charge in count 1 which, under s 317 of the Criminal Code, carries a maximum penalty of life imprisonment.  Her Honour’s observation was quite different from the impugned comments in R v White,[6] a case relied upon by Mr Lynch, where observations of the sentencing judge, such as “I have little doubt you intended to cause trouble … You endeavoured to stab …” suggested a finding in relation to offences with which the defendant had not been charged.  It is quite legitimate in assessing the circumstances and seriousness of any offending to refer to the potential for harm.[7]

[18]  It is convenient to consider the sentence proper in the context of Ground 2.

Ground 2 – failure to give weight to the factors in s 9(2)(a) and (d) of the Penalties and Sentences Act

[19]  There was agreement below that the offence of going armed so as to cause fear and/or the wilful damage to the motor vehicle by the bullets did not amount to an offence of violence against a person so as to bring into consideration the provisions of s 9(3) of the Penalties and Sentences Act.

[20]  The applicant complains that her Honour failed to take into account that Theuerkauf as the driver could have put an end to events by ceasing to pursue the Hyundai.  Her Honour was aware of that observation made by Judge Richards when she sentenced Theuerkauf but it hardly impacted upon the applicant’s criminal responsibility.  Mr Lynch further contended that her Honour failed to give appropriate weight to the contribution by the complainants to the offence, pursuant to s 9(2)(d) of the Penalties and Sentences Act, in throwing bottles at the Hilux utility, at least one of which hit the windscreen.  The evidence as presented, and not challenged, was that the throwing of bottles was responsive to the tailgating and ramming by the Hilux utility.

[21]  The applicant also contends that her Honour erred in finding that the applicant deliberately shot at the Hyundai rather than, as he stated in his interview with the police, that he shot towards the vehicle.  As Mr Lynch recognised in his written submissions, the distinction is subtle and in the context of the other admissions made by the applicant that he knew that he had hit the car, it is a distinction without a difference.

[22]  Mr Lynch also submits that her Honour gave insufficient weight to the applicant’s prospects of rehabilitation.  Her Honour did observe “that the chances of your offending may well be very slight”[8] but added that the principle of deterrence, and that the sentence needed to reflect condemnation of the behaviour, outweighed the other factors which might have lead to a non-custodial sentence.  Her Honour had very little to work with on the issue of rehabilitation.  Given that alcohol was clearly a significant factor in the whole deplorable episode, the applicant seemed remarkably relaxed about urging upon the court his understanding of the serious consequences if alcohol is consumed in excess.  It cannot be said that her Honour failed to take into account whatever prospects there were for the applicant. 

[23]  Mr Lynch also submits on behalf of the applicant that her Honour gave insufficient weight to the offer of assistance which the applicant was prepared to give to law enforcement agencies under s 9(2)(i).  Her Honour noted that the applicant from his initial interview made admissions against his interest.  The agreement to give evidence against King was after the particulars had been worked out with respect to his own offending.  It is true that the lateness of the applicant’s plea could not, on the whole, be shafted home to the applicant because of the prosecution’s failure to provide particulars which were reasonably sought.  However, it meant the co-operation which the applicant agreed to give was not necessary.  Against the co-operation by the co-offenders, it could not be said that his co-operation required any marked reduction in sentence.[9]

[24]  Finally, the applicant contends that her Honour failed to have proper regard to the principle in s 9(2)(a) that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.  Mr Lynch relied on observations by McPherson JA in R v Taylor & Napatali; exparte Attorney-General of Qld,[10] a case of armed robbery in company with violence where the youthful offenders were sentenced to a 12 month intensive correction order.  His Honour said:[11]

“The critical factor influencing the judge's sentencing discretion in the present case was that the respondents were youthful first offenders, for whom the judge considered there was some real prospect of rehabilitation if they were not sent to gaol.  That has been regarded as a significant factor in sentencing for as long as any of us can remember, and no doubt for very much longer.  It is not one that is confined to this State, as can be gathered from the following passage in the reasons for judgment of Wanstall CJ (with whom Matthews and Kelly JJ agreed) in R v Price [1978] Qd R 68, 70-71. His Honour quoted with approval from the Tasmanian case of Lahey v Sanderson [1959] Tas SR 17, where Burbury CJ said:

“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed.  There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed.  It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.  With that I respectfully agree.”

That, Wanstall CJ added, was a correct principle to be applied in the case of a youthful offender with no previous convictions whose chances of reformation were favourable.  It is a principle or factor that has repeatedly been adopted and applied in the process of sentencing in courts in Queensland.”

[25]  Those observations continue to be applied where appropriate.[12]  In R v Turner[13] and R v Rochford,[14] cases not otherwise with features in common with the present case, the offenders, without intent, fired loaded weapons into a garage associated with a house and into a police station respectively, and were sentenced to actual terms of imprisonment.  It is worth noting that in Taylor & Napatali neither of the weapons, as was known to the offenders, were capable of firing.  Her Honour was correct to conclude that taking a loaded rifle out of its case and firing “towards” a close-by sedan motor vehicle containing five people, more than once, and knowing that he had hit that vehicle, was a serious matter which even a drunk would understand was dangerous, and which called for a term of actual imprisonment.  Even if the applicant might not re-engage in conduct of a similar kind, the combination of guns, young men and alcohol required a sentence to have a strongly deterrent effect.

Ground 3 – parity

[26]  Mr Lynch submitted that the disparity between the applicant’s sentence and those of his co-offenders was such as to give rise to a justifiable sense of grievance “or, in other words, to give the appearance that justice has not been done”.[15]  When considering the relationship between the sentences of co-offenders a court must have regard to their “different degrees of criminality”.[16]

[27]  Theuerkauf was 21 at the time of the offence and had a serious driving history.  He was the driver of the motor vehicle, but agreed to plead guilty to counts 2 to 5 in November 2009.  He gave an undertaking to give evidence against the applicant and King.  His sentence proceeded pursuant to s 13A of the Penalties and Sentences Act.  Without co-operation, he would have been sentenced to a term of imprisonment of two years with parole after six months.  The applicant’s sentence of 12 months imprisonment suspended after three months is not, by comparison, excessive. 

[28]  Carstens was 17 at the time of the offence.  He had a minor criminal history of public nuisance and some traffic history.  Like Theuerkauf, he agreed to plead guilty to counts 2 to 5 in November 2009 on ex-officio indictment and agreed to implicate King and the applicant.  He was also sentenced under s 13A of the Penalties and Sentences Act.  The clear and significant distinction which her Honour recognised at the outset was that Carstens was sentenced on the basis that he fired into the air. 

[29]  King was 19 at the time of the offending, with a criminal history before and afterwards.  He was given the benefit of a timely plea.  Although he might be thought of as the catalyst for the criminal behaviour, he was not charged with the earlier conduct.  He was given three years probation with a conviction recorded.  There was no evidence advanced by the prosecution that King engaged in any overt criminal conduct apart, no doubt, from encouraging the other offenders in the car.

[30]  When those sentences are considered alongside the prolonged and deliberate use of a loaded fire arm by the applicant, it is clear that the sentences imposed, considered objectively, give rise to no marked disparity or a justifiable sense of grievance.

[31]  No error can be discerned in the primary Judge’s sentencing discretion.  The application should be dismissed.

[32]  ATKINSON J: I agree with the order proposed by White JA and with her Honour’s reasons.