R v Pashen[2022] QCA 111

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bond JA.

2. [2]
   McMURDO JA:  I agree with Bond JA.
3. [3]
   BOND JA:

Introduction

4. [4]
   On 1 December 2021, the applicant was convicted on his own plea of guilty of two offences which he and William John Tratt committed on the afternoon of 17 March 2021, namely entering a dwelling with intent to commit an indictable offence with the aggravating features of using actual violence whilst armed with a dangerous weapon and an offensive instrument, and whilst in company (count 1) and stealing (count 2).
5. [5]
   As will appear, the offending occurred during a premeditated home invasion, in which Tratt threatened the resident with a sawn-off 22-calibre rifle and a pocketknife, and the applicant assisted him by physically restraining a heavily pregnant 17-year-old girl from going to the aid of her father.
6. [6]
   The sentence imposed was as follows:

   1. (a)
      7 years imprisonment for count 1.
   2. (b)
      12 months imprisonment for count 2.
   3. (c)
      Pursuant to s 159A of the Penalties and Sentences Act 1992:

      1. the sentencing judge stated that the applicant was held in pre-sentence custody for 258 days between 18 March 2021 and 30 November 2021; and
      2. the Court declared that 258 days of pre-sentence custody was to be taken to be time already served under the sentence.
   4. (d)
      The date that the applicant was eligible for parole was fixed at 30 July 2023, which was 20 months after the date of sentence, and about 28½ months after the time the applicant had been returned to custody.
7. [7]
   The applicant seeks leave to appeal from the sentence, contending that the head sentence of 7 years imprisonment was manifestly excessive.
8. [8]
   It is, however, unnecessary for the applicant to establish that contention, because the sentencing discretion miscarried for other reasons.

The sentencing discretion miscarried

9. [9]
   On 1 February 2021 the applicant had been sentenced in the Magistrates Court, relevantly, to 6 months imprisonment (with two shorter concurrent terms) with an immediate parole release for dangerous operation of a vehicle; minor drug offences; public nuisance; assault and obstruction of a police officer; and public intoxication.  The offences were committed in 2020.
10. [10]
    The index offences were committed on 17 March 2021, during the period of the applicant’s parole order.  Under s 209(1) of the Corrective Services Act 2006, if a prisoner is sentenced to another period of imprisonment for an offence committed during the period of a prisoner’s parole order, the order is taken to have been automatically cancelled on the date on which the offence occurred.  The conditions of s 209(1) having been satisfied, the applicant’s parole order is taken to have been automatically cancelled on 17 March 2021.
11. [11]
    Under s 211 of the Corrective Services Act, the time for which the applicant was released on parole before committing the offence which resulted in his parole being cancelled under s 209, counted as time served under that Magistrates Court sentence: R v Smith [2013] QCA 397 at [24].  That means that the period from and including 1 February 2021 to and including 16 March 2021 (44 days) counted as time served under that 6-month sentence, leaving the applicant liable to serve another 137 days of that sentence.
12. [12]
    Because the index offences were committed whilst the applicant had been released on parole, s 156A of the Penalties and Sentences Act 1992 applied and the sentence of imprisonment to which the applicant was to be sentenced for the index offences was required to be ordered to be served cumulatively with the 137 days which he was still liable to serve under the Magistrates Court sentence.  The sentencing judge failed to make that order.
13. [13]
    Further, the declaration that the whole 258 days of pre-sentence custody was to be regarded as time served under the index sentence meant that the period of imprisonment which was imposed for the index sentences could not be regarded as having started from the end of the period of imprisonment which the applicant was serving under the Magistrates Court sentence.  To ensure that the index sentence was a cumulative sentence, the sentencing judge should have exercised the powers under ss 159A(3A)(b) and 159A(3B)(c) of the Penalties and Sentences Act so as to avoid the consequence that a cumulative term of imprisonment would become in part a concurrent term: see R v Braeckmans [2022] QCA 25 at [31] per McMurdo JA (with whom Sofronoff P and Kelly J agreed).
14. [14]
    In this case, the applicant had returned to custody on 18 March 2021, so the date which would be the end of the period of 137 days of imprisonment which he was liable to serve was 1 August 2021, and the period which was then open to be declared as time served under the index sentence so as to bring about the requisite cumulative effect was the remaining 121 days of pre-sentence custody from and including 2 August 2021 to and including 30 November 2021.  Accordingly, the sentencing judge could have avoided the consequence that a cumulative term of imprisonment would become in part a concurrent term by:

    1. (a)
       ordering that 137 days of the pre-sentence custody was not to be taken to be imprisonment already served under the index sentence (which would be the exercise of power under s 159A(3A)(b) with the result that s 159A(3B)(c) would apply); and
    2. (b)
       then declaring the remaining 121 days of pre-sentence custody to be time served under the index sentence (which would be the exercise of power under s 159A(3B)(c)).
15. [15]
    The sentencing judge was informed by counsel, wrongly, that the period in which the applicant could be regarded as serving out the Magistrates Court sentence could be the subject of a declaration as time already served under the index sentences without infringing s 156A.  (R v Braeckmans was delivered after the imposition of the index sentence).  The difficulty for the sentencing judge was also compounded by errors in the pre-sentence custody certificate.  Nevertheless, the result of the foregoing discussion is that – specific error in the sentencing discretion having been demonstrated – this Court is required to exercise the sentencing discretion afresh.

Considerations relevant to sentence

The circumstances of the offending

16. [16]
    The complainant and his heavily pregnant 17-year-old daughter were at home on the afternoon of 17 March 2021, when the applicant, aged 40, and Tratt, aged 26, entered their home unit, uninvited.
17. [17]
    The daughter was in her bedroom and saw them walk past her room towards the bedroom in which her father lay sleeping.  She got up and followed them, shouting at them for barging into their unit.
18. [18]
    Tratt was armed with shortened firearm and a pocketknife.  He went to the complainant’s bed and the applicant stood in the doorway to the bedroom.  The complainant woke up when Tratt poked him with the pocketknife.
19. [19]
    The daughter had pushed past the applicant into the bedroom and yelled at Tratt and the applicant to get out.  She tried to wrestle the gun out of Tratt’s hand.  The applicant involved himself by holding the daughter away from Tratt.  He was laughing as he did so.  Tratt pointed the gun at the complainant’s chest, pulling the trigger on at least two occasions.  The complainant thought he was going to be shot, but the gun didn’t fire. At some point, Tratt hit the complainant on the head with the barrel of the gun and, when the complainant tried to get up off the bed, Tratt swung his hand and cut the complainant’s ear with the pocketknife.
20. [20]
    Whilst the complainant was yelling at them to get out of his house, Tratt told the applicant to get the keys and the phone.  The applicant managed to grab the complainant’s mobile phone – that was the stealing which was the subject of count 2 – but they could not find any keys.
21. [21]
    The four of them moved out of the complainant’s bedroom and the daughter armed herself with a knife from the kitchen.  After she came towards Tratt and the applicant with the knife, they ran out of the unit, got into a car driven by an unknown driver and made their getaway.
22. [22]
    The police attended a short time later.  The complainant was taken to hospital in an ambulance, having sustained a 1cm laceration to the right ear lobe and a 1mm stab wound to the left thigh.
23. [23]
    Tratt and the applicant were known to the complainant and his daughter.  Part of their offending was witnessed by neighbours.  Indeed, one of the neighbours and also the complainant and his daughter identified the getaway vehicle as one which belonged to the applicant’s mother.
24. [24]
    The following day police executed search warrants at the respective residences of Tratt and the applicant, finding the stolen mobile phone, the gun and other evidence consistent with descriptions given by witnesses.  The gun was found in a bag with an empty magazine, but there was also an expelled bullet found in the same bag.  The proper inference seems to be that the gun must have been unloaded at the time it was used in the offending.
25. [25]
    Tratt and the applicant were each arrested and transported to the police station.  They each declined to participate in an interview and were charged by police and remanded in custody.  The Crown accepted before the sentencing judge and also before this Court that the plea of guilty was to be regarded as a timely plea.
26. [26]
    A victim impact statement from the complainant revealed that he suffered severe mental trauma.  His daughter blamed him for what happened and he felt that had destroyed their relationship and the possibility of a relationship with his grandson (who was born the day after the event).  He is scared to sleep, has flashbacks and is on antidepressants.  He feels mentally insecure.  He feels he has become an anxious and timid person.  He is overwhelmed with fear and insecurity.  He feels that the applicant’s conduct wrecked his life.

The applicant’s prior criminal history

27. [27]
    The applicant had a lengthy criminal history, starting in 1999 when he was aged 19.  He had been sentenced on 23 separate sentencing occasions.  Although lengthy, his criminal history was less serious than Tratt’s.  The majority of the applicant’s offending concerned drug offending.  He was, however, also sentenced for some property and dishonesty offences, for contraventions of a domestic violence order and for assaulting and obstructing police.
28. [28]
    Only two prior sentences involved sentences of imprisonment.  The first was the sentence in the Magistrates Court on 1 February 2021 to which reference has already made.  The second was a further suspended sentence in the Magistrates Court on 14 April 2021 for a public nuisance committed on 6 November 2020.  The pre-sentence custody and the imprisonment imposed by the index sentence represented the first period of actual imprisonment which the applicant had served.
29. [29]
    In light of the applicant’s offending whilst on parole, a court report from Community Corrections recorded the opinion that the applicant had shown a disregard for the importance of lawful conduct and was not considered suitable for further community corrections orders.

The applicant’s personal circumstances

30. [30]
    The applicant was brought up in Brisbane.  His childhood was unremarkable save for an incident of sexual abuse which he suffered at the hands of a teacher when he was 13.  He has been in receipt of a disability support pension since suffering a work accident in 2007 which caused crush injuries to his knee and his back.  His criminal history arose as a corollary of his drug use.
31. [31]
    The applicant has two younger children from a previous relationship who live in Melbourne.  He has limited contact with them.  But he does have a significant relationship with his 19-year-old son who lives in Lismore.  His son has been in contact with him while he’s been in custody and they hope to be in further contact when he is ultimately released.
32. [32]
    During the applicant’s period in custody, he has been working in the sewing shop.  He also completed a certificate II in applied fashion, and received some high praise from his teacher for his involvement in that course.
33. [33]
    The applicant has the support of his parents, and proposes to return to live with them on his release.  His father had placed a letter before the sentencing judge, which was also before this Court.  He wrote that the applicant had revealed that he was sorry for what he had done.  He wrote that the applicant had several physical and mental problems which had resulted his being on the disability pension.  Pain from his physical problems had sent him on a downward spiral into drug and alcohol use.  He had made attempts to get clean, including by two stays at rehabilitation centres.  Before committing the index offences he had been off drugs for over 12 months.
34. [34]
    A letter from the applicant’s psychiatrist to the Prison Mental Health Service revealed that the applicant had been diagnosed with Chronic Schizophrenia complicated by Polysubstance Abuse, and that he also suffered from Major Depression.  Prior to his incarceration he had been on a medication regime for those illnesses.  However, the applicant had informed the psychiatrist that he was not receiving regular treatment, nor his usual medications whilst in prison.  The letter requested the Prison Mental Health Service to review his current treatment and amend as appropriate.

The applicant’s co-offender

35. [35]
    Tratt too had a lengthy criminal history, containing offences of violence.  His criminal record was, in that respect, significantly worse than that of the applicant.  Tratt had committed the index offences during the operational period of a number of suspended terms of imprisonment imposed on 27 March 2020.  He was sentenced to a head sentence of 7 years imprisonment, to operate concurrently with the full activation of the suspended terms imposed on 27 March 2020 (12 months).  A parole eligibility date was set at 30 November 2023.  258 days pre-sentence custody was declared.

Submissions concerning comparable cases

36. [36]
    Counsel for the applicant referred to the cases on which the Crown had relied before the sentencing judge (namely R v Miller [2015] QCA 94, R v Amato [2013] QCA 158 and R v Mullins & Kluck [2000] QCA 150) and submitted that they supported a head sentence for count 1 of between 5½ years and 7 years.  Before the sentencing judge the Crown had suggested they were cases which supported a head sentence of between 6 and 7 years.  Before this Court, the applicant argued, correctly, that on that basis the range would more correctly be regarded as between 5½ years and 7 years, because the 6-year sentence in Miller had included a 6-month cumulative sentence for a Bail Act offence.
37. [37]
    Counsel for the applicant went further to suggest, having regard to R v Leu & Togia (2008) 186 A Crim R 240 and R v Volante [2021] QCA 109, the true bottom of the range of appropriate sentences might be even lower, noting that in the former case Fraser JA had concluded after an examination of comparable decisions:

“… for these applicants, whose premeditated home invasion at night in company with each other included a robbery and the use of weapons by both in an assault that caused minor bodily harm to an occupant who was in dispute with one of the applicants related to the complainant’s supply of drugs, the sentencing range falls between three and five and a half years imprisonment.”

38. [38]
    Counsel for the applicant submitted that an appropriate head sentence for count 1 was 5½ years.  Such a sentence would mean the entire period of imprisonment commencing on 18 March 2021 would be of the order of 70½ months.  Counsel submitted that the parole eligibility date should be fixed at a date at 22 months after the commencement of the period of imprisonment.  That date would be 18 January 2023.
39. [39]
    The Crown submitted that a 7-year head sentence derived support from R v Jones [2000] QCA 84, R v Dougherty [1999] QCA 73 and R v Macklin [2016] QCA 244.  It submitted that each of those cases involved principal offenders who were mature and had extensive criminal convictions although not involving violence committed as a principal offender who committed home invasion offences (including robberies) using firearms.  It submitted that the sentences actually or notionally imposed in each was 8 to 8½ years with eligibility beyond the midpoint.  It noted that further support was found in R v Amato [2013] QCA 158, which involved a starting head sentence of 9 years imprisonment which was reduced to account for the mitigating factors.
40. [40]
    Counsel for the Crown distinguished R v Leu & Togia and R v Volante by suggesting that the offences in those cases did not involve firearms and were committed by much younger men (late teens to early twenties).  Further, deportation was a significant feature in the re-sentencing exercise in R v Volante, and operated both in reducing the head sentence and in the Court allowing a suspension rather than parole.
41. [41]
    Although the suggested head sentence of 7 years would mean the entire period of imprisonment commencing on 18 March 2021 would be of the order of 88½ months, counsel for the Crown submitted that mitigating features could be reflected in the setting of a parole eligibility date at a date significantly less than one third of the entire period of imprisonment.  The suggested date was 29 March 2023, which is only 24½ months after the commencement of the period of imprisonment.

Consideration

42. [42]
    Count 1, which bears a maximum penalty of life imprisonment, involved serious criminal conduct on the part of both offenders.  It involved a home invasion where the offenders used both a firearm and a knife.  Although the victim did not suffer significant physical injuries, he did suffer significant mental trauma.  The offending had a gravely adverse impact on him.  The circumstances of the offending suggest that the considerations of general deterrence, specific deterrence and denunciation are important factors.
43. [43]
    R v Miller involved a home invasion in company at night by a 39-year-old offender in which the victim was detained against his will, tied up, blindfolded and beaten.  No weapons were involved, but the victim sustained significant injuries and a substantial quantity of property was stolen from the dwelling house. The Court of Appeal regarded an effective head sentence of 5½ years as not manifestly excessive.  Boddice J (with whom Holmes and Gotterson JJA agreed) observed that R v Mullins & Kluck and R v Amato revealed that sentences of imprisonment of 7 years were also within the proper sentencing discretion for a robbery committed in the home, particularly where significant violence was occasioned to the victim.
44. [44]
    Those cases seem to me to be the most helpful benchmarks to which regard should be had in arriving at an appropriate sentence in this case.  I agree with the Crown’s argument distinguishing the applicant’s reliance on R v Leu & Togia and R v Volante.  Moreover, to my mind the other cases on which the Crown relied were also unhelpful.  R v Jones and R v Dougherty each involved the threatened and actual application of considerably more violence than occurred here.  And R v Macklin involved the threatened use of a loaded shotgun, where the offender had a much more serious criminal record than the present applicant, including a previous conviction for a violent home invasion.
45. [45]
    Parity considerations are certainly relevant here.  As to that:

    1. (a)
       Tratt’s criminal history was distinctly more serious than that of the applicant.  And his conduct in relation to the index offences was also more serious than that of the applicant, because he had the gun and the pocketknife and it was he who pointed the gun at the complainant and pulled the trigger.  He submitted before the primary judge that at the time of offending he knew that the firearm was not loaded, but the sentencing judge was not disposed to act on the truth of that submission.
    2. (b)
       On the other hand, although the applicant must have known at the time he and Tratt entered the premises that Tratt was carrying the firearm and the pocketknife, there was no evidence placed before the sentencing judge or this Court on re-sentence which could support a conclusion that he had known at any earlier time of Tratt’s intended use of the firearm (whether loaded or unloaded) or of the knife.  Nevertheless, the applicant took an active part in the whole course of events and there was clear evidence of some premeditation.  His conduct in holding the pregnant 17-year-old girl back from going to the aid of her father, whilst Tratt was using the gun and knife, rendered him equally criminally responsible for Tratt’s conduct.
    3. (c)
       The differences between the applicant and Tratt warrant imposing a distinctly lesser head sentence on the applicant than was imposed on Tratt.
46. [46]
    Aggravating features are that the applicant was a mature person at the time of the offending and the offending represented an escalation in the nature of his offending.  It is also an aggravating feature that the offending occurred whilst the applicant was on parole for the miscellany of offences the subject of the Magistrates Court sentence of 1 February 2021.
47. [47]
    On the other hand, the applicant’s father’s letter reveals that he is remorseful for his offending.  The timely guilty plea is also consistent with remorse, and certainly reveals an intent to cooperate with the administration of justice, saving the Crown the expense of a trial and the complainant from having to give evidence.  The applicant suffers from serious physical and mental illnesses.  There was no evidence to suggest that his mental illnesses had any causative significance to the offending, but it may at least be inferred that the combination of his physical and mental illnesses may cause a sentence to weigh more heavily on him.
48. [48]
    In this case, a head sentence of 6 years is appropriate, cumulative upon the term imposed in the Magistrates Court on 1 February 2021.  The sentence in relation to count 2 should stay the same.  To ensure that the sentence is a cumulative sentence, orders should be made under ss 159A(3A)(b) and s 159A(3B)(c) of the Penalties and Sentences Act in the manner discussed at [14] to [16] above.
49. [49]
    A 6-year head sentence would mean the entire period of imprisonment commencing on 18 March 2021 would be of the order of 76½ months.  Bearing in mind the plea of guilty and the other mitigating features, I would set a parole eligibility date at less than the one third mark.  The parole eligibility date should be fixed at a date at 22 months after the commencement of the period of imprisonment.  That date would be 18 January 2023.

Sentence

50. [50]
    I would make the following orders:

1. The application for leave to appeal against sentence is allowed.
2. The sentence imposed by the sentencing judge is set aside.
3. On each count of the indictment a conviction is recorded.
4. On count 1, the applicant be imprisoned for 6 years.
5. The sentence is to be served cumulatively on the remaining term of imprisonment the applicant is liable to serve in respect of the sentence imposed in the Magistrates Court on 1 February 2021.
6. On count 2, the applicant be imprisoned for 12 months, to be served concurrently with the sentence imposed for count 1.
7. Pursuant to s 159A of the Penalties and Sentences Act 1992:
   1. (a)
      it is stated that the applicant was held in pre-sentence custody for 258 days between 18 March 2021 and 30 November 2021;
   2. (b)
      it is ordered that 137 days of pre-sentence custody (from and including 18 March 2021 to and including 1 August 2021) is not to be taken to be imprisonment already served under the sentence; and
   3. (c)
      it is declared that 121 days of pre-sentence custody (from and including 2 August 2021 to and including 30 November 2021) is to be taken to be time already served under the sentence.
8. The date that the applicant is eligible for parole is fixed at 18 January 2023.