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R v Wolmby[2021] QCA 283

[2021] QCA 283

COURT OF APPEAL

SOFRONOFF P

MORRISON JA

MULLINS JA

CA No 180 of 2021

DC No 17 of 2021

THE QUEEN

v

WOLMBY, Wayne Applicant

BRISBANE

TUESDAY, 14 DECEMBER 2021

JUDGMENT

SOFRONOFF P:  The applicant pleaded guilty to one count of riot.  Section 61 of the Criminal Code defines that offence and also provides for circumstances of aggravation, relevantly, the offender being armed with a dangerous or offensive weapon and the damaging of property.  Both of those circumstances were pleaded in the indictment.

On 27 July 2021, Judge Morzone QC sentenced the applicant to two years imprisonment.  His Honour declared a period of pre-sentence custody of 325 days and set an immediate parole eligibility dated.  The applicant seeks leave to appeal against that sentence on the ground that it was manifestly excessive.

The agreed facts concerning the offending are as follows.  On 1 January 2020, there was a brawl at Aurukun involving members of two families.  A man who was a member of one of these families was stabbed to death.  His killers, named Bowenda and Ngakyunkwokka, turned themselves into police.  This intensified the feud.

There was a funeral held at Aurukun Cemetery on the afternoon of 28 February 2020.  The deceased was associated with the families of Bowenda and Ngakyunkwokka.  Members of the family of the man who had been killed on 1 January and the people supporting them formed a riotous group of about 30 people on the road that led from the cemetery to the township.  Some of them were armed with shovels, steel bars, spears, sticks and rocks.  Some of them were shouting that they wanted to kill the family members associated with the killers.

Six police patrols were dispatched to quell the riot, but they were violently driven back.  Police cars were attacked and damaged with star pickets and other objects.  A police officer was wounded.

Mr Perry Yunkaporta attended the funeral.  He drove a troop carrier with about 16 passengers who had also attended the funeral.  Among them were four children aged between three and 10 years of age.  They had come to a stop where the riotous group had blocked the road.  The applicant was part of that group.  One of these people called, “Let’s kill the people in the car”.  The group threw rocks and bricks at the car breaking its windows.  One brick thrown at the car wounded one of the passengers.  Mr Yunkaporta managed to get his passengers safely to Aurukun, chased by the mob.

The rioters then successively attacked people at a number of houses.  They carried weapons such as iron bars and used them to gain entry into some of the houses.  At one house, a power grinder was used to break open a window.  At another house, it was the applicant who kicked open a door to gain entry.  Vocal threats were called out, including to kill children.  Some of the people attacked were women and others were children.  One woman had her hair pulled by members of this mob and her head was hit with a star picket.  A boy of 14 was hit by a number of men and was attacked with a broom handle by a woman.  He was held down and assaulted and, when he managed to run away, was chased and punched.  A girl of 13 was assaulted by several women and also by the applicant.  The riot continued for four hours.  The cost in property damage exceeded $27,000.

The applicant is a 24 year old Indigenous man who lived at Aurukun.  Until 2016, he had a minor criminal history for which the penalties were at the most fines.  On 24 October 2016 when the applicant was 19 years old, Judge Harrison sentenced him for one offence of breaking and entering and attempted armed robbery in company with personal violence and a second offence of wilful damage to property.  The applicant and four other men had cut through a security fence into the camp of a contractor and his wife and children who were doing work at Aurukun.  The offenders wanted to steal cigarettes, alcohol and other consumables.  To do this, the applicant and his co-offenders threw rocks and metal poles at the contractor and at his dog, and used a hammer to smash his way into a car that was at the camp.

His Honour also had to sentence the applicant for two summary offences involving damage to a police car and breaking into a supermarket to steal cigarettes.  Having regard to the applicant’s youth and minor criminal history, Judge Harrison sentenced him to imprisonment for two years on the break and enter offence, and concurrent lesser sentences on the other offences, and ordered his immediate release on parole.

The applicant then committed further offences on 26 July 2018 while on parole.  There were two assaults whilst armed, both of which were domestic violence offences, and two contraventions of a domestic violence order.  On 17 August 2018, a magistrate at Aurukun sentenced the applicant to two years imprisonment with a parole release on 17 February 2019.  That parole was suspended for non-appearance on 27 July 2019, but the applicant was released on parole again on 20 January 2019.  It was following this latest release on parole that the applicant committed the offences on 28 February 2020.  He was arrested on the following day and he falsely denied to police that he had taken part in the offence.

His Honour referred expressly to the need for the sentence to deter the applicant from further offending and also to “send a message to others that this is not the way to settle disputes”.  His Honour took into account that the offending involved physical harm to people.

In mitigation, Judge Morzone QC took into account the applicant’s plea of guilty and his youth.  He noted that the applicant was the father of a three year old child, although he and the child’s mother were separated.  His Honour observed that the applicant had spent “too much time” in jail during his young life, and that through no fault of his own he had not had much opportunity for employment.  His Honour expressly considered the significance of the sentence that the applicant had just served upon yet a further sentence of imprisonment, and that it was necessary to sentence in a way that the accumulation of the sentences did not result in a crushing sentence.

His Honour looked at other cases of sentencing for riot, including one involving an offence committed at the same incident.  That case, Yunkaporta, Cairns District Court, 26 March 2021, involved another young offender, but one with no criminal history.  Like the applicant, he pleaded guilty, but he was also candid when he spoke to police.  His Honour said that this was a case in which there was “your young age, your good character, your good work history” and no criminal record.  Accordingly, in that case, his Honour imposed a sentence of 15 months with an immediate release on parole.

The present circumstances are different.  The applicant does have a criminal history and it involves offences of a like kind, namely, violence in company, damaging property and assaults, as well as the applicant’s disregard of Court orders.  Unlike Yunkaporta, the applicant has not been deterred either by previous incarceration or by the strictures of parole.

When sentencing the applicant, the Judge envisaged that in the circumstances that then obtained the applicant’s parole application would be considered promptly within about 25 days.  However, the applicant applied for leave to appeal and this had the effect by reason of statute that consideration of his application for parole was suspended until his application for leave to appeal against sentence had been dealt with.  In the meantime, the possibility of speedy consideration of his parole, something that existed at the time of sentence, disappeared and now the applicant must join the queue of other applicants for parole for his application to be considered.

The applicant now contends that the Judge’s intention, namely, early consideration of parole, has been frustrated and a different order should now be made.  That submission cannot be accepted.  This is an application for leave to appeal and an arguable error in the exercise of discretion must be shown.  The submission that I just related does not impute error to the learned sentencing Judge.  Rather, but for the delay in the eligibility of the applicant to have his parole application considered, which was caused by his decision to file a notice of application for leave to appeal, his application would have had an early consideration.  That is not capable of imputing any error to the sentencing Judge’s exercise of discretion.

For the reasons that I have given, there is no arguable case here that the sentencing discretion miscarried and leave to appeal should be refused.

MORRISON JA:  I agree.

MULLINS JA:  I agree.

SOFRONOFF P:  Leave to appeal is refused.

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Editorial Notes

  • Published Case Name:

    R v Wolmby

  • Shortened Case Name:

    R v Wolmby

  • MNC:

    [2021] QCA 283

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Mullins JA

  • Date:

    14 Dec 2021

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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