R v Ross[2012] QCA 247

SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I agree that the application should be refused for the reasons given by Douglas J.

[2] FRASER JA:  For the reasons given by Douglas J, the applicant’s sentence was not manifestly excessive and the application should be refused.

[3] DOUGLAS J:  The applicant pleaded guilty to what is commonly described as a “home invasion”.  The charges were burglary by breaking, in the night, with violence, in company, with property damage; assault occasioning bodily harm, while armed, in company and stealing.  He was sentenced to 18 months imprisonment on the burglary count, 15 months for the assault and three months for stealing.  His parole release date was fixed after six months at 18 October 2012. 

[4] The applicant contends that the sentences were manifestly excessive.  The variation sought was to change the parole release date to the date the application was heard, 31 July 2012.  In my view, the date fixed was appropriate and no reason is shown for interfering with the learned sentencing judge’s decision. 

Circumstances of the offences

[5] At approximately 2.00 am on the morning of 18 December 2010, which was a Saturday, the applicant and another man walked past the residence of the complainant who was asleep.  Both the applicant and the other man were grossly intoxicated.  They started to yell out threats and abuse to the complainant and another occupant of the complainant’s residence and began to knock on the bedroom window.  The occupants answered the door.  The applicant’s companion complained to the occupants about their use of a mini-bike.  The yelling and abuse continued with the applicant and his companion just inside the residence.  The applicant’s companion commenced to assault the complainant by punching him to the face and nose.  A struggle then took place.  The applicant joined in the assault by hitting the complainant on the forearm with a plastic oar which broke.  At the same time a light fixture and light were broken and a wall and a cupboard were also damaged.  The applicant’s companion then kicked the complainant in the testicles which felled him.  At that stage the other occupant of the residence picked up a metal pole.  The applicant then took hold of a spear gun which had been on the couch.  The complainant grabbed at the spear gun.  The applicant said:  “Why don’t I threaten you with this?”

[6] The other occupant of the residence then retreated to his bedroom.  The complainant was able to remove both of the intoxicated offenders from the residence.  During that struggle the applicant hit the complainant in the stomach.  The complainant was pushed to the ground where he was kicked to the ribs.  He was able to get to his feet.  He saw the applicant holding the spear gun which was directed at his lower abdomen.  The applicant then lunged toward the complainant causing a superficial injury with the spear gun.  The complainant was able to push both intoxicated offenders away and they absconded. 

[7] The applicant’s companion was interviewed on 1 January 2011 and made “frank admissions … limited by his intoxication”.  The applicant was interviewed on 6 January 2011.  Both the applicant and his companion said initially that the complainant answered the door armed with the spear gun but that assertion was later withdrawn. 

History of the plea

[8] The matter was initially listed for trial for the week commencing 30 January 2012.  The co‑offender indicated an intention to enter a plea of guilty and on the morning of the applicant’s trial, on 31 January 2012, he entered pleas of guilty but sought an adjournment on the basis that some factual matters were in issue.  At that stage the applicant’s contention was that the complainant had armed himself with the spear gun and that a struggle then took place.  The co-offender pleaded guilty on 3 February 2012 and the applicant’s contested sentence was listed for 17 April 2012.  Witnesses attended but the matter was adjourned to the following day and on 18 April 2012 the matter proceeded uncontested with the applicant accepting that he picked up the spear gun from the couch but only after the complainant’s co‑resident armed himself with the metal pole. 

The applicant’s antecedents

[9] The applicant was 26 years of age at the time of the offence and 28 at the time of sentence.  He had no criminal history and a good work history.  He was in a stable relationship, he and his partner having a child aged two and a half years at the time of the sentence.  His partner had four other children and he adopted the role of a father to them.  He had good character references whose effect was that his offending was an aberration.  He offered to pay compensation.  His co‑offender had a more significant criminal history including convictions for entering premises and stealing which were said to reflect his life as a drug addict.  He was sentenced to 21 months imprisonment, reflecting his criminal history. 

The sentencing judge’s remarks

[10] The learned sentencing judge considered that a deterrent sentence was warranted in respect of home invasion offences, an unexceptionable view bearing in mind decisions such as R v Fitzgerald.[1]  He took into account the fact that the physical injuries to the complainant were minor and that the applicant and his co‑offender were not particularly effective as home invaders given the ease with which the complainant was able to eject them from his home.  He also took into account the applicant’s plea of guilty, the absence of any previous criminal history and his excellent work history.  He commented that the references tendered on the applicant’s behalf showed that he was a valued worker, parent and partner.  Two of those references described his conduct as out of character and an uncharacteristic aberration.  His Honour’s conclusion in considering the criminality of the applicant’s conduct referred to the fact that he used a dangerous weapon and inflicted an injury on the complainant.  He formed the view that that required him to impose a term of actual imprisonment.

The sentence imposed

[11] There was no dispute that an 18 months head sentence was within the appropriate range.  The applicant’s counsel below contended the range was between 18 months and two years imprisonment.  His counsel also conceded that a term of imprisonment involving an actual custodial element would be within range.  Counsel focussed particularly on the applicant’s lack of a criminal history and his solid work record in arguing to the learned sentencing judge that he need not send the applicant to prison. 

[12] On this application it was contended that his Honour did not give consideration to the applicant’s rehabilitation, the fact that the community did not need to be protected from him, and whether the punitive or deterrent aspect of the sentence should prevail so as to destroy any rehabilitation which had taken place.[2]

[13] Counsel for the applicant referred us, however, to the comments by Thomas J in R v Wentt[3] where His Honour said that home invasion offences which threatened the safety of persons in their own home are commonly regarded as sufficiently serious to demand custodial sentences even in the case of persons of previous good character.  He also referred us to a number of decisions which show such an approach as well as some others where an intensive correction order or a parole release date earlier than was imposed by His Honour in this case was ordered.[4]

[14] Of significance also is the statement by Fraser JA in R v Leu; R v Togia[5] which was referred to by counsel for the respondent:

“[18]What Davies JA said of similar offending a decade ago remains true today:

‘The importance of deterrence in cases of this kind in my view cannot be over-emphasised. Judging by the number of cases which come before this Court, offences of this kind appear to be prevalent and, involving as they do the intrusion into the privacy of a person’s home, often at night, involving assault of an occupant in his or her home, they are extremely serious; the more so when there are two or more invaders involved.’[6]”

[15] Other decisions were relied upon by the respondent to indicate that a parole release date fixed after six months in a case such as this is by no means excessive.[7]

Discussion

[16] His Honour’s concern that the applicant used a dangerous weapon and inflicted an injury on the complainant was justified.  It must also be remembered that the assault involved the punching of the complainant a number of times in the stomach and his being kicked while on the ground.  The respondent contended, with good reason, that, given the late indication of the plea of guilty and the failure to resolve the factual contest associated with the plea until the day before the sentence proceeding, the recommendation for parole was generous.

[17] Mr Lynch, who appeared for the applicant, argued that this case was distinguishable from any of the others because the applicant attended at the premises unarmed initially and was otherwise of good character.  It is apparent, however, that those were matters taken into account by His Honour and that the sentence imposed by him was one that was within an appropriate range.

[18] Finally, the respondent contended that, although the sentencing judge did not specifically mention rehabilitation in his remarks, it could not be said that he overlooked that factor given the generous nature of the sentence he imposed.  It is also clear from His Honour’s remarks that he took the applicant’s generally good history, including his excellent work history, into account.  They were relevant to his prospects for rehabilitation. 

[19] It has not been shown to my satisfaction that the sentence imposed by His Honour was inappropriate. 

Order

[20] I would therefore refuse the application.