R v Hirst[2023] QCA 25

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 2 August 2022 Mr Hirst pleaded guilty to, and was sentenced for, assault occasioning bodily harm in company (count 1), common assault (count 2) and burglary, by break, with violence, in company, with property damage (count 3).  His son (the son) and one Mr Kovac were co-defendants for counts 1 and 3.  The son pleaded guilty and was sentenced at the same time as Mr Hirst.  Mr Kovac was committed for sentence and was sentenced on 27 January 2023.
2. [2]
   Mr Hirst was sentenced to imprisonment of three years and six months for each of counts 1 and 3 and to a concurrent sentence of imprisonment of one year for count 2.  His eligibility for parole date was fixed at 2 August 2023.  Mr Hirst was ordered to pay compensation to the complainants for counts 2 and 3 of $3,000.  The son who was 23 years old at the date of offending was sentenced to imprisonment for a period of two years for each of counts 1 and 3 and was given an immediate parole release date on the date of sentence.  Mr Kovac who was 35 years old at the date of the offending was sentenced to imprisonment for eight months for count 1 and for three years for count 3 with each term of imprisonment being suspended after serving three months in custody for an operational period of three years.
3. [3]
   Mr Hirst applies for leave to appeal against the sentence on the grounds of:

   1. (1)
      the sentence was manifestly excessive in all the circumstances;
   2. (2)
      the learned sentencing judge erred in finding Mr Hirst did not show credible signs of remorse which affected the exercise of the sentencing discretion; and
   3. (3)
      the parity principle requires the reduction of Mr Hirst’s sentence.

Circumstances of the offending

4. [4]
   The complainants for counts 2 and 3 were the couple who lived with their family across the road from Mr Hirst and his wife for 10 years.  Mr Hirst had fallen out with the complainants a few years prior to the offending when the male complainant’s employer refused to pay for plastering work completed by Mr Hirst.  In the afternoon of 10 April 2021, a work colleague of the male complainant (the friend) was socialising with the complainants and their neighbours, sitting on camping chairs out the front of the two properties.
5. [5]
   The sequence of events as to what then occurred could be described with accuracy and in detail, because of the CCTV footage available from the cameras installed on the complainants’ property.  At about 5.35 pm, Mr Hirst drove his car into his driveway, got out and yelled at the complainants “the boys are on their way … the party is about is start”.  The complainants and the friend packed up their chairs and started to walk back to the complainants’ home.  Another car pulled up outside the Hirst home and Mr Kovac got out of the car and walked towards the friend.  He was followed by Mr Hirst, Mrs Hirst, the son and another son.  The female complainant was on the footpath holding her two month old child and using her mobile telephone to call the police.  Mr Hirst “chest barged” the female complainant.  This was the common assault that was the subject of count 2.
6. [6]
   At the same time Mr Kovac confronted the friend and pushed him in the chest once, causing the friend to stumble.  The friend told him “whatever your problem is, it’s not with me” and Mr Kovac responded “I don’t care I’m going to knock your block off” before Mr Kovac was pulled away by Mrs Hirst.  Mr Hirst then moved past Mr Kovac and pushed the friend once in the chest causing him to stumble back.  Mr Hirst punched the friend once in the mouth with a closed fist causing him to fall against the fence.  Mr Hirst punched the friend in the face once and kicked him once in the ribs.  The son then punched the friend once in the jaw with a closed fist.  Mr Hirst punched the friend in the face one more time with a closed fist.  During this assault both Mr Hirst and the son verbally abused the friend.  The CCTV footage ended at this point.  The assault of the friend was the subject of count 1.
7. [7]
   The male complainant was at the rear of the family home.  Mr Kovac ran through the open garage of the complainants’ family home to the back patio area and Mr Hirst and the son followed.  The male complainant ran into the house and locked the glass sliding door before running into the kitchen area.  Mr Hirst, the son and Mr Kovac kicked and punched the glass sliding door causing it to shatter.  They entered the family home and ran into the kitchen where they pushed the male complainant who grabbed a kitchen knife which he hid behind his back as he walked backward towards the main bedroom and locked the door.  The male complainant pushed against the door from the inside, as the group kicked and punched the door with force that caused the door to bow and break.  Wooden shards from the door caused cuts and abrasions to the male complainant’s forearms and cuts to his chest.  The male complainant pushed the knife through the hole in the door which caused the group to back away.  As Mr Hirst and the son left, they yelled out a threat to the male complainant and his family.  The police arrived shortly after.  The complainants and their family left the family home that evening and never returned.  They caused the renovations to the house to be completed by others and the house to be repaired and sold.  They were traumatised by the incident.
8. [8]
   Mr Hirst and the son were charged with offences on that day and declined to participate in a formal interview.  Mr Hirst told police “I know I shouldn’t done it but I have had enough”.  When the police spoke with Mr Hirst again on 5 May 2021, he could not recall the incident with the female complainant but admitted to the assault against the friend.  Mr Hirst told police that he wrongly thought the friend was one of the concreters who had threatened him earlier that day.
9. [9]
   The friend suffered a cut lip, bruised jaw, black eye and pain in his arm and was unable to chew on the right side of his jaw for two weeks following the incident.  The cost of the damage to the glass sliding door and wooden main bedroom door was $2,272.73.  Mr Hirst paid $3,000 into his solicitor’s trust account a few days before the date of the sentencing hearing on account of compensation to the complainant which was described to be for property and personal injury but was primarily compensation for the damage to the doors.

Mr Hirst’s antecedents

10. [10]
    Mr Hirst was 53 years old at the date of the offending.  He had been married for 30 years with three adult children.  He worked as a plasterer since leaving high school after year 10.  He has been self-employed for the last 20 years.  He had an irrelevant and very dated criminal history.  One character reference was tendered from a social worker who was close friends with Mr Hirst’s children and knew Mr Hirst socially.  This referee noted that Mr Hirst had expressed remorse “and reflected heavily on this and for all this has impacted” and “has accepted full responsibility and blames no one but himself for his actions”.  A second character reference was tendered from a fellow worker in the building industry who had both worked with Mr Hirst and known him socially for a period of 40 years.  This referee attested to Mr Hirst’s thriving business and his community involvement.

Sentencing remarks

11. [11]
    In reciting the facts of the offending, the sentencing judge accepted the prosecutor’s submission, based on the threat that Mr Hirst yelled to the complainants when he got out of his car, that Mr Hirst made a premeditated decision to go to the complainants’ house in company to confront them violently.  After completing the summary of the facts of the offending, the sentencing judge found that the only explanation for the three men leaving the complainants’ home was that the male complainant confronted them with the knife.  The sentencing judge also found that the fact that they had desisted from the incident was negated by the parting threat to the complainants’ family.  The sentencing judge accepted that the home invasion caused the complainants to leave and sell their house.  The sentencing judge observed that “This was a violent series of assaults as part of an unprovoked and unjustified home invasion which was planned at least in broad terms by [Mr Hirst]”.  After referring to Mr Hirst’s antecedents and the character references, the sentencing judge noted the early guilty plea and that Mr Hirst had not sought to avoid responsibility in his dealing with the police and that showed cooperation with the administration of justice.
12. [12]
    The sentencing remarks continued with the following.  Mere cooperation without more did not compel any inference of remorse.  Mr Hirst had offered no apology to the victims and his statement to the police suggested that somehow the fact that he “had enough” was an explanation, if not an excuse, for the violence.  (It is difficult to reconcile that observation with the actual comment recorded in the agreed statement of facts that Mr Hirst prefaced his comment about having had enough with the statement “I know I shouldn’t have done it”.)  The offer of compensation did not show remorse.  It was recognition that the damage to the house should not have been done and should be repaired but did not reflect any meaningful attempt to address the “obvious financial harm” to the complainants resulting from the violent attack of which Mr Hirst should have known.  The victim impact statement told a “clear and credible story” of the damage this violence did to the complainants’ family in anxiety, in the interruption to the lives of their children and in the financial and emotional cost of having to leave their home of 10 years.  That was taken into account under s 9(2)(c)(i) of the Act.  All purposes for which a sentence may be imposed under s 9(1) of the Act were engaged, although paragraph (e) did not loom large for Mr Hirst.  The apparent lack of insight into the offending or proper remorse “might give one cause for some residual concern”.  Section 9(2A) of the Act applied to the sentencing.  Mr Hirst’s long history of no previous acts of violence means that personal deterrence was not a significant consideration.  Punishment for the offending and general deterrence loomed large, as violent home invasions must be deterred as explained by Fraser JA in R v Leu; R v Togia (2008) 186 A Crim R 240 at [18].  The offending was not as serious as in Leu and Togia.
13. [13]
    The sentence imposed on the son for each of counts 1 and 3 was imprisonment for two years with immediate release on parole on the basis that he was a relatively young man, relatively immature and was led into the offending by Mr Hirst.

Sentencing of Mr Kovac

14. [14]
    Mr Kovac was sentenced by his Honour Judge Smith.  Mr Kovac’s guilty plea was early.  The agreed statement of facts for counts 1 and 3 was identical to that used for the sentencing of Mr Hirst and the son.  Mr Kovac had driven from the hotel in response to Mr Hirst’s telephone call and was intoxicated.  He commenced the attack on the friend and led the others through the open garage in chasing the male complainant.  Mr Kovac attended the police station on 16 April 2021 and participated in a recorded interview.  He did not recall assaulting the friend due to his intoxication.  Mr Kovac had no prior criminal history.  He had a good work history and good references.  Hardship to his wife and their young children would be caused by his imprisonment.  Mr Kovac obtained a psychological report for the purpose of the sentencing which reported on his anger management issues and also on his tendency to rely on alcohol to cope with life stressors and his desire to change that pattern.  Judge Smith noted that there was no provocation by the complainants and there was gratuitous violence.  Mr Kovac had pushed the friend at the start of the incident but was not physically involved in the punching and kicking of the friend, even though he remained a party to it.  Judge Smith considered that the seriousness of Mr Kovac’s offending fell somewhere between that of Mr Hirst and the son and took into account the significant mitigating factors to reduce the custodial component to three months.

Was the sentence manifestly excessive?

15. [15]
    Despite the sentencing judge’s finding there was no proper remorse on the part of Mr Hirst, there was significant cooperation with the administration of justice.  The early guilty plea meant that there was less than 16 months between the date of the offending and the date of sentencing.  From the time he was arrested, Mr Hirst acknowledged that he should not have offended in the way he did.
16. [16]
    The premeditation for the offending found by the sentencing judge was only very limited in time.  The confrontation was provoked in Mr Hirst’s mind because he was mistaken about the identity of the friend whom he only saw when he arrived in his driveway shortly before Mr Kovac and the son arrived.
17. [17]
    The gravamen of Mr Hirst’s offending was procuring Mr Kovac and the son to join with him in confronting the complainants and the friend and to participate in a sustained attack with fists on the friend that was unprovoked.  The offending was then aggravated by the second stage of breaking into the complainants’ house which involved destroying the glass door and with the group then endeavouring to get to the male complainant behind the closed bedroom door.  There was no further physical confrontation and the male complainant’s physical injuries were limited to the cuts and abrasions from the shards from the bedroom door.  The threat that Mr Hirst made to the male complainant as he departed was an unfavourable aspect of the incident.
18. [18]
    It was a mitigating factor in favour of Mr Hirst that he had no relevant prior criminal history and had been consistently employed or in business successfully until he committed these offences.  Even though he did not have the benefit of youth, he had the benefit of a lengthy unblemished record until the offending which meant good prospects for his rehabilitation that was consistent with the sentencing judge’s conclusion that personal deterrence not a significant factor in sentencing Mr Hirst.  Mr Hirst acted on his willingness to pay compensation, at least for the property damage to the doors, by providing his solicitor with the funds for that purpose before the date of sentence.
19. [19]
    There were successful appeals in Leu and Togia which resulted in Mr Leu who was 20 years old at the date of the offending being sentenced to imprisonment for four and one-half years with parole eligibility after serving 16 months in custody.  His brother Mr Togia who was 23 years old at the date of offending was sentenced to three and one-half years’ imprisonment with parole eligibility after serving 12 months in custody.  Both offenders pleaded guilty to one count of burglary by breaking, in the night, with violence, while armed, in company, with property damage, one count of assault occasioning bodily harm, while armed, in company, one count of common assault, and one count of armed robbery in company with personal violence.  The complainant was the offenders’ drug dealer.  On the date of the offences there was an exchange of mutually threatening text messages between Mr Leu and the complainant and a telephone conversation, overheard by Mr Togia, in which Mr Leu and the complainant threatened each other.  Mr Leu then sent a text message to the complainant that he was going to go to his house and “smash him”.  The offenders drove to the complainant’s house.  Mr Leu was holding a vacuum cleaner pipe which he had brought with him and Mr Togia was holding a wooden stake used to support a sapling.  They burst through the door and chased the complainant into a bedroom and asked where his money was.  The complainant fell onto the mattress and was punched and kicked by the offenders.  The complainant’s girlfriend jumped on top of the complainant.  She was pushed out of the way by Mr Togia and that resulted in the common assault charge.  The offenders stole some of the complainant’s marijuana and one of the offenders stole some money.  The offenders made admissions when apprehended the next day.  The complainant sustained relatively minor injuries.  Mr Leu had a previous conviction for armed robbery in company with personal violence that was committed 17 months prior to the date of offending for which he had been sentenced only seven months prior to the offending to two years’ probation and 200 hours of community service.  It was apparent from the sentence that the prior armed robbery was a much less serious offence, but it was aggravating that the subject offending was committed whilst Mr Leu was on probation and community service orders.  Mr Togia had one prior conviction for stealing.  Despite the youth of the offenders, the premeditation for the offending was not momentary, each of the offenders was armed and they also robbed the complainant.
20. [20]
    The three offenders in R v Armstrong, Park and Pullyn [2008] QCA 132 who were aged between 22 and 24 years pleaded guilty on an ex officio indictment to one count of burglary which involved committing the crime of assault occasioning bodily harm whilst armed and in company and one count of attempted burglary by break at night, in company.  Each was sentenced to three years’ imprisonment for the burglary and 18 months’ imprisonment for the attempted burglary.  The parole release date for Mr Armstrong was fixed after serving 10 months in custody and the parole release date for each of Mr Park and Mr Pullyn was fixed after serving nine months in custody.  The background to the offending was that Mr Pullyn felt betrayed when he discovered his pregnant partner in bed with the complainant some two weeks before the incident.  The assault was premeditated as the offenders who had drunk to excess decided to visit the complainant’s home to assault him.  The complainant was woken at 3.20 am by knocking on the front door and shouting.  When he opened the door, he was confronted by Mr Armstrong whom he had never met or seen before.  Behind Mr Armstrong were Mr Pullyn and Mr Park who were known to the complainant and a fourth person.  Mr Armstrong punched the complainant in the mouth knocking him backward over a coffee table and continued to punch him and the other offenders joined in, each hitting the complainant several times.  Mr Pullyn picked up a chair and commenced hitting the complainant at least six times.  Mr Armstrong then took the chair and struck the complainant a further two or three times.  The attack ceased when the offenders believed the police had been summoned.  The offenders left the house uttering threats that this was a warning.  On leaving, Mr Armstrong smashed the windows of the complainant’s vehicle which resulted in an additional charge against him of wilful damage for which he was sentenced to two months’ imprisonment.  The offenders then returned to the house at about 5.00 am and attempted to gain entry.  The injuries to the complainant were limited to swelling, abrasions and contusions.  The use of the chair as a weapon and returning to the house a second time were aggravating features.  Mr Armstrong who was the oldest offender was more blameworthy than the others and had a prior criminal history of limited relevance.  Mr Armstrong’s application for leave to appeal against the sentence was unsuccessful.  The actual custodial component for the sentences imposed on Mr Pullyn and Mr Park was reduced by suspending their sentences after they had served almost four months in custody for an operational period of three years.
21. [21]
    Both Leu and Togia and Armstrong were considered in R v Dahlstrom [2022] QCA 139. This Court resentenced the offender because of an error at first instance.  Mr Dahlstrom 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.  Mr Dahlstrom was 22 years old when he and two others forced themselves into a residence.  Mr Dahlstrom swung a punch towards the male complainant who struck him with a baseball bat.  Mr Dahlstrom continued to swing punches at the male complainant.  The common assault was committed when Mr Dahlstrom struck the female complainant in the mouth with a closed fist.  The first assault occasioning bodily harm was committed when Mr Dahlstrom and one of the co-offenders continued to assault the male complainant by Mr Dahlstrom’s grabbing the baseball bat from the male complainant and hitting him 10 to 15 times in the head, jaw and eye socket.  That attack stopped when the female complainant’s partner grabbed the baseball bat.  The second assault occasioning bodily harm was committed when the male complainant managed to break free and run out the front door and Mr Dahlstrom and the co‑offenders gave chase, when Mr Dahlstrom punched the male complainant at least five to six times.  The attack ceased when a neighbour jumped the fence.  The male complainant suffered significant injuries to his face and body.  Mr Dahlstrom had no relevant prior criminal history and was on bail for two years during which he committed no offences and started his own business.  He expressed genuine remorse and had positive references that supported his having good prospects of rehabilitation.  It was described at [25] as “a serious example of a home invasion” and “Absent strong mitigating factors, a head sentence in the order of four years imprisonment would be well within range”.  On the resentence, a head sentence of three years’ imprisonment was confirmed and a parole release date fixed after 10 months in custody.
22. [22]
    The sentence imposed on Mr Hirst is not reconcilable with these comparable authorities where counts 1 and 3 did not involve other than brief premeditation, neither Mr Hirst, Mr Kovac nor the son was armed, and Mr Hirst had mitigating factors in his favour, including that he was being sentenced as a first time offender.  The sentences for counts 1 and 3 were therefore “unreasonable or plainly unjust”.  The sentence of 12 months’ imprisonment for the first offence physically committed by Mr Hirst which was the chest barge of the female complainant while she was holding her baby for which there was no injury was unjustifiable.  Mr Hirst has succeeded in discharging the onus of showing that the sentences imposed were manifestly excessive.

Application of the parity principle

23. [23]
    The parity principle also supports a successful appeal by Mr Hirst against his sentence.  The youth of the son and the fact that his involvement came about after receiving the telephone call from Mr Hirst did not justify the significant difference between the head sentences for Mr Hirst and the son and that Mr Hirst had to serve 12 months of the sentence in custody before being eligible for parole with the son not serving any time in custody.
24. [24]
    Even though Mr Kovac was sentenced subsequent to Mr Hirst, his sentence can be taken into account for the purpose of determining whether there is a sentencing disparity between co-offenders: R v TAS [2021] QCA 49 at [44].  Objectively speaking, Mr Kovac’s offending was marginally less serious than Mr Hirst’s offending and Mr Kovac had more matters of subjective mitigation than Mr Hirst.  Despite those differences, a head sentence of imprisonment for three years and six months with the requirement that 12 months be served in custody before being eligible for parole would mean that Mr Hirst would serve nine months more in actual custody than Mr Kovac and then be subject to parole supervision for two years and six months.
25. [25]
    The disparity of Mr Hirst’s sentence with the respective sentences imposed on the son and Mr Kovac gives rise objectively to a justifiable sense of grievance which requires some reduction of Mr Hirst’s sentence to achieve proper relativity with the son’s sentence and Mr Kovac’s sentence.
26. [26]
    It is not necessary to consider ground 2.

Resentencing

27. [27]
    An appropriate sentence for Mr Hirst for each of counts 1 and 3 in the circumstances is imprisonment for three years.  The purposes of punishment and general deterrence that apply to this sort of offending will be met adequately if each sentence is suspended after Mr Hirst has served nine months in custody.  Such sentence avoids an unacceptable disparity with the sentences imposed respectively on the son and Mr Kovac.  Count 2 would not have attracted a sentence of imprisonment, if it had not been followed by the other offences committed by Mr Hirst.  A sentence of six months’ imprisonment is appropriate for count 2 in the circumstances.

Orders

28. [28]
    The orders which should be made are:

1. Application for leave to appeal against sentence granted.
2. Appeal allowed.
3. Vary the sentence imposed in respect of each of counts 1 and 3 from three and one-half years’ imprisonment to three years’ imprisonment.
4. Vary the sentence imposed for count 2 from 12 months’ imprisonment to six months’ imprisonment.
5. Set aside the date fixed for eligibility for parole.
6. Vary the sentences for counts 1 and 3 by ordering that the term of imprisonment for each of counts 1 and 3 be suspended after serving a period of nine months’ imprisonment and Mr Hirst must not commit another offence punishable by imprisonment within a period of three years to avoid being dealt with for the suspended term of imprisonment.