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R v Dahlstrom[2022] QCA 139

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dahlstrom [2022] QCA 139

PARTIES:

R

v

DAHLSTROM, Traydan John

(applicant)

FILE NO/S:

CA No 39 of 2022

DC No 3467 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court Brisbane – Date of Sentence: 7 February 2022 (Porter QC DCJ)

DELIVERED ON:

5 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2022

JUDGES:

Mullins P and Morrison JA and Boddice J

ORDERS:

  1. 1.Leave to appeal be granted.
  2. 2.The appeal be allowed, to the extent that the applicant’s parole release date be fixed at 6 December 2022.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of burglary by break with violence in company, one count of common assault, two counts of assault occasioning bodily harm whilst armed in company, and one count of wilful damage – where the applicant was sentenced to three years imprisonment on count 1 and lesser concurrent periods of imprisonment in respect of the remaining counts – where the applicant was to be released on parole after serving 15 months imprisonment – where the offending involved serious physical violence – where the applicant had several mitigating factors – where the applicant was on bail for nearly two years with no reoffending – whether the sentencing judge made a material error in referencing the applicant being on bail for a year with no reoffending – whether the sentencing discretion should be re-exercised – whether the Court should fix a parole release date after serving 10 months imprisonment

R v Armstrong, Park, Pullyn [2008] QCA 132, cited

R v Leu; R v Togia (2008) 186 A Crim R 240; [2008] QCA 201, cited

COUNSEL:

J W J Fenton for the applicant

S J Muir for the respondent

SOLICITORS:

Murray Torcetti Layers for the applicant

Director of Public Prosecutions (Queensland) for the respondent
  1. [1]
    MULLINS P:  I agree with Boddice J.
  2. [2]
    MORRISON JA:  I agree with the reasons and the orders proposed by Boddice J.
  3. [3]
    BODDICE J:  On 7 February 2022, the applicant pleaded guilty to one count of burglary by break with violence in company (count 1), one count of common assault (count 2), two counts of assault occasioning bodily harm, whilst armed, in company (counts 3 and 4), and one count of wilful damage (count 5).
  4. [4]
    On the same date, the applicant was sentenced to imprisonment for three years on count 1 and lesser concurrent periods of imprisonment on the remaining counts.  It was ordered that the applicant be released on parole after serving 15 months of that sentence, namely, on 6 May 2023.
  5. [5]
    The applicant seeks leave to appeal his sentence.  Should leave be granted, the applicant relies on two grounds.  First, that the requirement he serve 15 months actual imprisonment was manifestly excessive in the circumstances.  Second, that the sentencing judge erred in failing to find that the risk of the applicant reoffending was low, in circumstances where the sentencing judge “misapprehended the facts, namely, that the Applicant had been on bail without re-offending for almost two years and not one year”.

Background

  1. [6]
    The applicant was born in 1997.  He was aged 22 at the time of the offences and 24 at sentence.
  2. [7]
    The applicant had a limited criminal history.  He had no previous offences for violence and had not previously been sentenced to imprisonment.

Offences

  1. [8]
    All of the offences were committed on 19 March 2020.  The complainants in the assault counts were a 27 year old female, a 23 year old male and a nine year old child.
  2. [9]
    On 19 March 2020, the applicant, in company with his co-accused and another unknown male, forced his way into a residence.  In doing so, they pinned a child against a wall as a consequence of the door being forced open.  The applicant then swung a punch towards the male complainant who struck the applicant with a baseball bat the male complainant had retrieved from the garage in an attempt to defend himself.  Notwithstanding that blow causing blood to appear on the applicant’s head, the applicant continued to swing punches at the male complainant.  Those events represented count 1 on the indictment.
  3. [10]
    Count 2 was committed when the applicant struck the female complainant in the mouth with a closed fist.  Count 3 was committed when the applicant and the unknown male continued to assault the male complainant.  The applicant grabbed the baseball bat from the male complainant and hit him 10 to 15 times in the head, jaw and eye socket.  That attack only stopped when the female complainant’s partner grabbed the baseball bat from the applicant.
  4. [11]
    Count 4 was committed when the male complainant managed to break free and run out the front door.  The applicant retrieved the baseball bat and the three offenders gave chase.  The applicant punched the male complainant at least five to six times.  This attack ceased when a neighbour jumped the fence.
  5. [12]
    Count 5 was committed when the unknown male offender, who had swung a sock filled with a billiard ball on several occasions striking the male complainant, swung the sock several more times hitting walls and causing several holes and dents.
  6. [13]
    The male complainant suffered significant injuries to his face and body.  Ambulance officers called to the scene noted that the male complainant was vomiting, had a headache, and complained of neck pain and pain/deformity to his nose as well as pain to the left eyebrow, upper scapula, left arm, left him and knees.  The male complainant was taken to hospital for treatment.
  7. [14]
    The female complainant complained that her finger was stiff and sore.  She also complained of ongoing pain associated with the injury.

Sentencing remarks

  1. [15]
    The sentencing judge described the offending as a “very serious example of this kind of offending”.  The applicant, in company with an armed accomplice who used the weapon, forced his way into the home of others in disregard of the presence of those people, including a woman and child.  The attack was very violent.  Whilst it was initially stopped by the applicant being disarmed with the bat, the applicant and his accomplices chose to continue it and chase the male complainant with that assault only being stopped by a courageous neighbour.  The applicant also assaulted the female complainant in front of a child.
  2. [16]
    The sentencing judge recorded that the applicant had pleaded guilty but observed that it was “a remarkable thing” that the sentencing judge still did not know what the offending was about or why it occurred.  Against that background, it was difficult for the sentencing judge to be sure “that this kind of offending would not happen again”.
  3. [17]
    Notwithstanding those observations, the sentencing judge recorded many factors in the applicant’s favour, including his youthfulness at the time of the offending, his good character, both before and after the offending, and no relevant criminal history.  The applicant had also been on bail “for a year with no reoffending” and had written a letter to the Court which showed remorse for the offences.
  4. [18]
    After referring to comparable yardsticks, the sentencing judge recorded that a head sentence of four years was clearly within range with deterrence and community denunciation looming large.  However, the sentencing judge accepted that rehabilitation was likely, noting that the applicant had managed to start his own business as a carpenter and that his business partner spoke well of him.
  5. [19]
    After noting the current difficulties with parole and finding that it was not sufficient to suspend a sentence, the sentencing judge found that taking into account the plea of guilty, remorse and good character, the head sentence would be reduced from four years “for the purpose of parity” to three years.  That reduction gave the power to give a certain release date.  However, the sentencing judge found the applicant should still be required to serve, in effect, a third of the four year sentence.  Accordingly, a parole release date was fixed after serving 15 months.

Applicant’s submissions

  1. [20]
    The applicant submits that a requirement that he serve 15 months actual imprisonment was manifestly excessive.  The applicant was a youthful offender with no relevant past criminal history and good prospects of rehabilitation.  Whilst the offences involved a serious “home invasion”, the applicant had pleaded guilty, had commenced his own business and was in a stable relationship and had demonstrated remorse in terms of a letter sent to the Court.
  2. [21]
    The applicant further submits the sentencing judge erred in recording that the applicant had been on bail without reoffending for one year.  The applicant had been on bail for almost two years, a significant period for a young offender.  Such a period was supportive of a conclusion that the applicant was a low risk of reoffending.

Respondent’s submissions

  1. [22]
    The respondent submits that a requirement that the applicant serve 15 months in custody was not manifestly excessive in the circumstances.  Further, the erroneous reference to a period of one year on bail did not constitute an error in the exercise of the sentencing discretion.
  2. [23]
    The respondent submits that the sentencing judge’s sentence properly reflected the applicant’s plea of guilty, youthfulness, lack of relevant criminal history and prospects of rehabilitation by reducing the head sentence from four years to three years.  Such a reduction was a significant recognition of the mitigating factors in the applicant’s favour, and allowed certainty of release.
  3. [24]
    The respondent submits that once that conclusion is reached, a requirement that the applicant serve effectively one third of the notional sentence was neither unreasonable nor plainly unjust.  It was a proper recognition of the mitigating factors in the applicant’s favour.  Whether the applicant was on bail for one year or two years without reoffending did not materially affect the reduction to be imposed for those mitigating factors.

Discussion

  1. [25]
    The applicant pleaded guilty to offences which involved serious violence.  All of the offences were committed in the context of a sustained attack on individuals in the sanctity of their own home.  The applicant pursued the male complainant notwithstanding intervention by others.  Such offending rightfully was described as a serious example of a home invasion.  Absent strong mitigating factors, a head sentence in the order of four years imprisonment would be well within range.
  2. [26]
    The applicant did, however, have a substantial number of mitigating factors.  He pleaded guilty to the offences, in a timely manner.  The applicant was a youthful offender, with no relevant prior criminal history.  The applicant had been on bail since 26 March 2020, a period of almost two years, with no reoffending.  During that period, the applicant had established his own business.  The applicant also expressed genuine remorse and had a number of positive references supportive of a conclusion that he had good prospects of rehabilitation.
  3. [27]
    Contrary to the respondent’s submissions, the sentencing judge’s erroneous reference to the applicant having been on bail for only one year was a material error, in the context of a youthful offender with no relevant prior criminal history.  Such a substantial period was strongly supportive of prospects of rehabilitation.
  4. [28]
    In the context of the applicant’s mitigating factors, the erroneous reference of the applicant’s substantial period on bail without reoffending did materially affect sentencing as the correct period on bail favoured a conclusion that the applicant was a low risk of reoffending.  The failure to recognise that fact infected the sentencing process such that the sentencing discretion miscarried.
  5. [29]
    As a consequence of that specific error, it is necessary to re-exercise the sentencing discretion.  It is, therefore, unnecessary to consider the ground of manifest excess.
  6. [30]
    In re-exercising the sentencing discretion, the material factors in the applicant’s favour are his youthfulness, his lack of relevant criminal history, his cooperation by his pleas of guilty, his express remorse and his good prospects of rehabilitation as evidenced by a lengthy period on bail without any reoffending by the applicant.
  7. [31]
    Allowing for those strong mitigating factors, the applicant ought to be sentenced, for count 1, at the lower end of the comparable yardsticks.[1]  Such a conclusion supports a head sentence of three years imprisonment for that offence.
  8. [32]
    The mitigating factors also support a conclusion that whilst the applicant should be required to serve actual time for such serious violence, he ought to be the beneficiary of an early parole release date.  In addition to the reduction to be afforded for his pleas of guilty and express remorse, a further reduction is warranted having regard to his youthfulness and prospects of rehabilitation.
  9. [33]
    I would fix a parole release date after serving 10 months.

Orders

  1. [34]
    I would order:
  1. 1.Leave to appeal be granted.
  2. 2.The appeal be allowed, to the extent that the applicant’s parole release date be fixed at 6 December 2022.

Footnotes

[1] R v Leu; R v Togia [2008] QCA 201, R v Armstrong, Park, Pullyn [2008] QCA 132.

Close

Editorial Notes

  • Published Case Name:

    R v Dahlstrom

  • Shortened Case Name:

    R v Dahlstrom

  • MNC:

    [2022] QCA 139

  • Court:

    QCA

  • Judge(s):

    Mullins P, Morrison JA, Boddice J

  • Date:

    05 Aug 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC3467/21 (No citation)07 Feb 2022Date of sentence (Porter QC DCJ)
Notice of Appeal FiledFile Number: CA39/2207 Mar 2022-
Appeal Determined (QCA)[2022] QCA 13905 Aug 2022-

Appeal Status

Appeal Determined (QCA)

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