R v Badaa[2022] QCA 12

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Mazza AJA.
2. [2]
   McMURDO JA:  I agree with Mazza AJA.

3. [3]
   MAZZA AJA:  The applicant, Yunus Badaa, seeks leave to appeal against sentence.
4. [4]
   The applicant was convicted on his pleas of guilty of one count of burglary (count 1), one count of extortion with a circumstance of aggravation (count 2), two counts of common assault (counts 3 and 4), one count of malicious act with intent (count 6),^[1] one count of burglary in the night in company (count 7), and one count of assault occasioning bodily harm while armed in company (count 8).  Counts 1 to 4 were committed on 4 December 2017 by the applicant alone.  Counts 6 to 8 were committed by the applicant with a co-accused, Qazin Kruezi on 5 December 2017.
5. [5]
   On 4 September 2020 the applicant was sentenced in the Supreme Court by Boddice J as follows:

6. [6]
   His Honour ordered that all of the sentences be served concurrently, and declared that the 1,003 days the applicant had spent in custody between 6 December 2017 and 3 September 2020 be regarded as time served.  The applicant does not dispute that the sentence for count 6 was intended to reflect a global criminality of the applicant's offending.^[2]
7. [7]
   His Honour did not fix a parole eligibility date.  Accordingly, the applicant will be eligible for parole after serving half of his sentence, four years and three months' imprisonment.^[3]
8. [8]
   The applicant seeks leave to appeal his sentence on the sole ground that the sentence imposed was manifestly excessive in all the circumstances.
9. [9]
   For the reasons that follow, the application for leave to appeal should be refused.

The facts

10. [10]
    The agreed facts^[4] may be summarised as follows.  At the time of the offending, the applicant was 25 years old.
11. [11]
    The complainants, MIH, KAL, BRS and ANC all lived together in a house in Kuraby.  Both BRS and ANC were 17 years old.
12. [12]
    The applicant lived on the same street as the complainants.
13. [13]
    On 3 December 2017, some of the complainants spray painted various symbols and words on a white truck parked outside their house.
14. [14]
    Some time in the afternoon of 4 December 2017, the applicant, who knew MIH, KAL and ANC, walked into their home and then into MIH's bedroom.  He threatened to kill MIH, yelling words to the effect of:

I know it was you guys that spray painted the truck.  I can't believe you would do this shit.  I'm here to collect $2,000 and you're going to give it to me by Wednesday and if you don't I will shoot you in the knee cap.  If you ring the police I will shoot you in the head and kill you. (Counts 1 and 2)

15. [15]
    KAL, BRS and ANC heard the applicant's threat.  MIH and the applicant walked into the loungeroom where the applicant picked up a guitar and threatened to 'smack' MIH's head with it.  A short time later, the applicant left the house.
16. [16]
    At around 4.45 pm on 4 December 2017, KAL, BRS and ANC cleaned the graffiti off the side of the truck using petrol and methylated spirits.  As they finished, the applicant pulled up in his car and yelled, 'Stop cleaning it, stop cleaning it, you've got to pay the $2,000'.  BRS twice asked the applicant if he knew the driver.  The applicant's answer was not responsive to the question.  The applicant said, 'Say it again and watch what happens'.  The applicant then slapped BRS across the side of the face (count 3).  ANC yelled out to the applicant, telling him, in effect, that BRS was a minor.  A neighbour who witnessed the incident yelled out to the applicant to stop.  The applicant then picked up a jerry can of petrol and said to KAL words to the effect of, 'Stop cleaning the car or I will burn you'.  The applicant then poured petrol over KAL which covered him and got into his mouth.  The applicant pointed a cigarette lighter at KAL (count 4).  KAL then moved away from the applicant and went into the house.
17. [17]
    The following day, some of the complainants saw the truck owner and told him that they had cleaned the truck.  The truck owner was a neighbour and did not know either the applicant or Mr Kruezi.
18. [18]
    At around 8.30 pm, the applicant went to the complainants' house.  He called out to MIH and told him that he still owed him $2,000 despite the fact that the truck had been cleaned.  MIH told the applicant, in effect, that everything had been sorted out with the owner of the truck who did not know who the applicant was.  The applicant became angry and said, 'You better have my money'.  MIH told the applicant that he could give him some money but not until he got paid and that it would not be $2,000.  The applicant made a phone call and left.
19. [19]
    At approximately 10.00 pm the complainants heard a knock at their front door.  ANC opened the door.  The applicant and Mr Kruezi were standing next to each other.  Each wore a hooded jumper which partially concealed their faces.  Mr Kruezi was carrying a handgun of some description.  He pointed the weapon at ANC and, at a range of approximately one metre, pulled the trigger.  ANC took evasive action.  A projectile (the exact nature of which was unknown, but it was not a bullet) grazed ANC's nose.  The noise of the gun being fired perforated ANC's right eardrum (count 6).  ANC immediately dropped to the ground and held his face (count 7).  The applicant and Mr Kruezi entered the house, yelling out, 'Drugs or money'.  Mr Kruezi told BRS to put his face against the couch and held the gun to his head.  The applicant and Mr Kruezi then located MIH.  Both started yelling 'drugs and money now'.  Mr Kruezi walked down the hallway towards MIH pointing the weapon at MIH's face.  Mr Kruezi then struck MIH on the back of the head with the gun (count 8).  The applicant and Mr Kruezi then left the house.
20. [20]
    ANC was treated in hospital for his injuries, which, in addition to his perforated eardrum, included an abrasion of the bridge of his nose.  MIH sustained minor injuries.

ANC's victim impact statement

21. [21]
    In a very brief victim impact statement, ANC describes the adverse physical and psychological consequences of the offending upon him including impairment to his sleep and almost total hearing loss in his ear.

The applicant's personal circumstances

22. [22]
    The applicant was born in 1992.  He was 28 years old at the time he was sentenced.  He has a limited but relevant prior criminal history.  On 3 July 2012 he was sentenced in the Brisbane Magistrates Court for an offence of assault occasioning bodily harm.  Then, on 21 November 2013, he was sentenced in the Maroochydore District Court for an offence of wounding and was imprisoned for two years and nine months.  The sentencing remarks with respect to this offence were tendered at the applicant's sentencing hearing.  In essence, the applicant purposely broke a bottle and struck the victim to the head and upper body with it, causing injuries that resulted in significant scarring.^[5]  While the incident was not entirely unprovoked by the victim, the sentencing judge described the applicant's behaviour as 'a completely excessive reaction'.

Psychological report of Mr Peter Stoker

23. [23]
    A report by Mr Peter Stoker, a Clinical Psychologist, dated 19 August 2020, was tendered in the sentencing proceedings.^[6]
24. [24]
    Mr Stoker interviewed the applicant by telephone on 18 August 2020.  He obtained a detailed personal history from the applicant.  The applicant was born in Perth and until about the age of 16, his family moved backwards and forwards between Morocco and Australia.  The applicant told Mr Stoker that he suffered episodes of physical, emotional and other kinds of abuse in his formative years.  He left school at year 10 level.
25. [25]
    The applicant is a user of alcohol, cannabis, prescribed drugs and illicit drugs such as cocaine and methylamphetamine.  He was addicted to methylamphetamine at the time of the offending.
26. [26]
    Mr Stoker noted that while in custody on remand the applicant was prescribed Mirtazapine, an anti-depressant, Valium and Risperidone, an anti-psychotic.  The applicant was later referred to a psychologist.  Mr Stoker stated that the psychologist was 'organising a release plan for follow up treatment'.
27. [27]
    Mr Stoker diagnosed the applicant with post-traumatic stress disorder and a polysubstance abuse disorder.  On the strength of the telephone consultation, Mr Stoker also diagnosed the applicant with a major depressive disorder with paranoid features.  This condition was said to have developed as a result of a 'relationship failure' and being falsely accused of 'kidnapping'.
28. [28]
    The Crown prosecutor submitted that the sentencing judge should reject Mr Stoker's opinions having regard to the 'superficiality of the information' Mr Stoker had been provided with.^[7]  Defence counsel did not ask his Honour to make findings in accordance with Mr Stoker's opinions.  Rather, he sought to tender the report to show the medications the applicant has been prescribed and some of his past problems.  Nothing in Dr Stoker's report was capable of supporting a causal link between the conditions identified by him and the applicant's offending.

Submissions before Boddice J

29. [29]
    The Crown prosecutor contended that a sentence of eight to 10 years' imprisonment was an appropriate penalty for all of the applicant's offending.  The Crown submitted that his Honour should make a serious violence offence declaration pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld), which would have the effect of requiring the applicant to serve 80 per cent of any sentence before being eligible for parole.
30. [30]
    Counsel for the applicant submitted to his Honour that a sentence of 7 to 8 years' imprisonment was appropriate with an order that the applicant be eligible for parole immediately.

The sentencing remarks

31. [31]
    His Honour characterised the offences as involving 'serious and abhorrent behaviour on [the applicant's] part'.  He said, quite correctly:^[8]

“Essentially, [the applicant] took the opportunity to initially enter into the complainant's home, threaten them and try to extort money from them in relation to an event which appears to have had no relevance to [him] whatsoever.”

32. [32]
    He said both the offences of malicious act with intent and extortion were very serious examples of their type.^[9]  His Honour took note of the long-term consequences to ANC in respect of count 6 ‘in terms of fear as well as damage to his ear’.
33. [33]
    His Honour drew no distinction in the culpability between the applicant and Mr Kruezi observing that although Mr Kruezi fired the weapon, the applicant was the instigator of the events on 5 December 2017.  His Honour said that the actions of the applicant and Mr Kruezi involved 'equal criminality'.
34. [34]
    Boddice J referred to Mr Stoker's report.  His Honour accepted that the appellant had a 'somewhat dysfunctional' background which had impacted on his 'ability to operate effectively in the community'.  His Honour accepted that the appellant had 'fragile mental health conditions'.^[10]  Given the shortcomings of Mr Stoker's report, his Honour's findings as to the applicant's mental health are the most favourable that the applicant could have hoped for.
35. [35]
    His Honour identified the principal mitigating factor as the applicant's pleas of guilty, but also acknowledged, in declining to make a serious violent offence declaration, the applicant's 'relative youth' and the consequences that such an order has on a person of the applicant's age and the applicant's 'relatively limited criminal history'.^[11]
36. [36]
    After recognising the need to impose a just sentence that reflected sentencing considerations such as denunciation, the protection of the community and the need to 'encourage and foster any prospects of rehabilitation', his Honour said that he proposed to 'impose a significant head sentence for this criminal conduct'.  While noting that there were features of the case which warranted serious consideration for the making of a serious violent offence declaration, his Honour declined to make this declaration.  Instead, he chose to not set a parole eligibility date 'earlier than is provided for by the legislation'.^[12]  His Honour said that he had moderated what would have been a head sentence of nine years' imprisonment to an overall head sentence of eight years and six months' imprisonment to take into account the restrictive conditions imposed upon prisoners as a result of the COVID-19 pandemic.^[13]
37. [37]
    His Honour then imposed the sentences referred to earlier in these reasons.

The submissions to this Court

38. [38]
    At the outset, senior counsel for the applicant, Mr Crowley QC, accepted that the sentence imposed by his Honour of eight years and six months' imprisonment in respect of count 6 was imposed pursuant to the sentencing practice which has been acknowledged as part of the common law of Queensland described in R v Nagy^[14] and R v Kruezi.^[15]
39. [39]
    While Mr Crowley QC did not abandon the claim that the term of eight years and six months was manifestly excessive, his oral submissions were focused upon his Honour's discretionary decision not to fix the date of parole eligibility earlier than is provided for by legislation.  In substance, Mr Crowley QC submitted that his Honour's decision was unreasonable and plainly unjust, having regard to the applicant's subjective circumstances, including his somewhat dysfunctional background and fragile mental state.  Mr Crowley QC submitted, in effect, that even if this Court did not interfere with the sentence on count 6, this Court should intervene to make an early parole eligibility order.
40. [40]
    Counsel for the respondent, Mr Wallis, while acknowledging the mitigating factors identified by his Honour, submitted, in substance, that having regard to the serious nature of the applicant's overall offending, the sentence of eight years and six months' imprisonment was not manifestly excessive either in its length or in his Honour's decision not to set a parole eligibility date.

Analysis

41. [41]
    In Nagy, Williams JA, having considered what was stated by the High Court in Griffiths v The Queen^[16] and Pearce v The Queen,^[17] said:^[18]

“Where a judge is faced with the task of imposing sentences for a number of distinct, unrelated offences there are a number of options open.  One of those options is to fix a sentence for the most serious (or the last in point of time) offence which is higher than that which would have been fixed had it stood alone, the higher sentence taking into account the overall criminality.  But that approach should not be adopted where it would effectively mean that the offender was being doubly punished for the one act, or where there would be collateral consequences such as being required to serve a longer period in custody before being eligible for parole, or where the imposition of such a sentence would give rise to an artificial claim of disparity between co-offenders.  That list is not necessarily exhaustive.  Such considerations may mean that the other option of utilising cumulative sentences should be adopted.”

42. [42]
    The Nagy approach was considered and approved in R v Bowditch.^[19]  In Kruezi it was recognised as part of the common law that is commonly applied to sentencing for state offences in Queensland.
43. [43]
    In the present case, his Honour did not expressly state that he was applying the Nagy approach, but it is clear from the sentencing remarks and the way in which the sentence was structured that he adopted this approach.
44. [44]
    His Honour chose as the global sentence the most serious offence, count 6, and imposed a sentence for this offence designed to take into account the overall criminality for all of the offending committed by the applicant.  When seen in this light, a sentence of eight years and six months' imprisonment is plainly a sound exercise of the sentencing discretion.
45. [45]
    The offending was for the purpose of extorting money from the complainants in respect of events in which the applicant had no legitimate concern.  The applicant was not the owner of the truck that some of the complainants graffitied.  Nor was he a friend or associate of the owner of the truck.
46. [46]
    The offending was carried out with persistence and determination over two days.  The offending on 4 December 2017 was bad enough, involving as it did the applicant entering the complainant's house, threatening MIH, assaulting BRS and then, in what must have been a very frightening event, dousing KAL with petrol and pointing a cigarette lighter at him.
47. [47]
    The offending continued the following day and was even more serious.  The applicant returned to the complainant's house to reinforce the demand.  Upon being told by MIH that everything had been sorted out, the applicant, instead of desisting, called his friend, Mr Kruezi, and returned to the complainant's house and committed counts 6 to 8.
48. [48]
    As to these offences, it is clear that the applicant and Mr Kruezi acted in concert to terrorise the complainants.  His Honour was correct to regard each of the applicant and Mr Kruezi as equally culpable for what occurred.  The terror experienced by ANC hardly needs describing.  While the weapon used by Mr Kruezi did not discharge a bullet, it discharged a projectile of some kind which fortunately only grazed him but could have potentially inflicted a much more serious injury.  As it was, the noise of the firearm being discharged at such close range perforated one of ANC's eardrums and has left him with some degree of impairment.  Mr Kruezi then held the gun to BRS's head and assaulted MIH with the weapon.
49. [49]
    The applicant's overall offending, when taken as a whole, was very serious and required the imposition of a substantial term of imprisonment.
50. [50]
    The maximum penalties for the offences committed by the applicant are set out earlier in these reasons.  The sentence for count 6, which clearly was the most serious of all of the offences he committed, is life imprisonment.  The other offences he committed carry substantial maximum penalties.
51. [51]
    Apart from the pleas of guilty which were entered late,^[20] the other matters in mitigation could only have been given limited weight.
52. [52]
    The applicant was 25 years old at the time he committed the offences, an age which is at the outer limit of which leniency for youth could be given.  He had a relevant record of prior offending, particularly the wounding offence for which he was imprisoned in 2013.  While his previous record is not an aggravating circumstance and he is not to be punished again for those offences, it is relevant in the present case because it shows that the offending was not uncharacteristic.  It also underscores the need to impose a sentence that provides appropriate denunciation, deterrence and public protection, all of which were highly relevant sentencing considerations in this case.
53. [53]
    His Honour afforded the applicant some mitigation for his somewhat dysfunctional background and fragile mental state.  But, as Mr Crowley QC accepted, this was not a case where the applicant's mental health was causative of the offending.
54. [54]
    In oral submissions no reference was made to any comparable cases, but the written submissions by the parties discussed a number of cases said to be comparable.^[21]  It is unnecessary to discuss these cases.   They are relatively small in number.  Each is factually different to the other and is in turn factually different from the present case.  They provide little guidance and do not point to the global sentence in the present case being erroneous.
55. [55]
    Having regard to all of the relevant circumstances, I do not regard the sentence of eight years and six months' imprisonment as unreasonable or plainly unjust.  It was an appropriate reflection of the applicant's overall criminality taken as a whole and having regard to all relevant sentencing considerations, including the mitigating factors.  The global sentence of eight years and six months' imprisonment was not manifestly excessive.
56. [56]
    I now turn specifically to the question of parole.
57. [57]
    It was, in my opinion, well within the proper exercise of his Honour's sentencing discretion not to make a parole eligibility date, with the effect that, by operation of s 184(2) of the Corrective Services Act 2008 (Qld), the applicant is eligible for release on parole after serving four years and three months of the sentence that was imposed.  The granting of parole eligibility before the expiry of half of the sentence was not required, having regard to the applicant's overall criminality and paying due regard to the mitigating factors.

Conclusion and orders

58. [58]
    In my opinion the ground of appeal has not been made out.  The order I would make is:

1. Leave to appeal against sentence refused.