Hibbs v The Queen
[2002] WASCA 204
•2 AUGUST 2002
HIBBS -v- THE QUEEN [2002] WASCA 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 204 | |
| COURT OF CRIMINAL APPEAL | 02/08/2002 | ||
| Case No: | CCA:63/2002 | 16 JULY 2002 | |
| Coram: | MURRAY J STEYTLER J MILLER J | 16/07/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Sentences varied by ordering concurrent service | ||
| B | |||
| PDF Version |
| Parties: | DARIAN MARTIN HIBBS THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Aggravated burglary and assault occasioning bodily harm Home invasion for purpose of assaulting occupant Applicant one of a number of offenders One other offender sentenced Plea of guilty Aggregate term of 3 years imprisonment with parole eligibility imposed Disparity with term imposed on cooffender Sentences varied by ordering concurrent service Term of imprisonment reduced to 2 years |
Legislation: | Nil |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 R v White [2002] WASCA 112 Cabassi v The Queen [2000] WASCA 305 Etrelezis v The Queen [2001] WASCA 327 Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 Kilner v The Queen [1999] WASCA 189 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Pearce v The Queen (1998) 194 CLR 610 Pieri v The Queen [2001] WASCA 357 Postiglione v The Queen (1997) 189 CLR 295 R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 R v Ward (1999) 109 A Crim R 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HIBBS -v- THE QUEEN [2002] WASCA 204 CORAM : MURRAY J
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Aggravated burglary and assault occasioning bodily harm - Home invasion for purpose of assaulting occupant - Applicant one of a number of offenders - One other offender sentenced - Plea of guilty - Aggregate term of 3 years imprisonment with parole eligibility imposed - Disparity with term imposed on cooffender - Sentences varied by ordering concurrent service - Term of imprisonment reduced to 2 years
Legislation:
Nil
(Page 2)
Result:
Leave to appeal granted
Appeal allowed
Sentences varied by ordering concurrent service
Category: B
Representation:
Counsel:
Applicant : Mr S J Jones
Respondent : Mr K P Bates
Solicitors:
Applicant : Rattigan Kearney & Bochat
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
R v White [2002] WASCA 112
Case(s) also cited:
Cabassi v The Queen [2000] WASCA 305
Etrelezis v The Queen [2001] WASCA 327
Gutteridge v The Queen, unreported; CCA SCt of WA; Library No 940410; 5 August 1994
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
Kilner v The Queen [1999] WASCA 189
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Pearce v The Queen (1998) 194 CLR 610
Pieri v The Queen [2001] WASCA 357
Postiglione v The Queen (1997) 189 CLR 295
(Page 3)
R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998
R v Ward (1999) 109 A Crim R 159
(Page 4)
1 JUDGMENT OF THE COURT: On 18 March 2002, the applicant pleaded guilty in the District Court at Rockingham to aggravated burglary, involving the entry into a dwelling house by offenders in company armed with baseball bats, and to an assault occasioning bodily harm to one Smith.
2 On 25 March 2002, the applicant was sentenced to 2 years imprisonment for the aggravated burglary and to imprisonment for 1 year for the assault occasioning bodily harm. The two sentences were ordered to be served cumulatively and were imposed with eligibility for parole. The aggregate term was therefore one of 3 years imprisonment. The sentences were backdated so that they commenced on 18 March. From those sentences, the applicant sought leave to appeal. Upon the hearing of the appeal leave was granted and the appeal was allowed. The sentences were varied by ordering their concurrent service from 18 March 2002, effectively reducing the term to one of 2 years imprisonment with parole eligibility. These are our reasons for making those orders.
3 The facts of the case as found by the sentencing Judge were that on the date of the offence the applicant drove his vehicle to the house in question. In his vehicle were four male passengers. That vehicle was accompanied by another bearing four males and a female, a total of 10 persons. Their intention was to enter the house without the consent of the occupant Smith and to assault him, apparently to "settle a score" with him. That was not a matter which involved the applicant but he had heard a discussion to that effect among persons at the place from which all the offenders came. It was the applicant's role to provide some of the transport.
4 It was accepted that without the knowledge of the applicant, a number of the males armed themselves with metal bars and baseball bats. The applicant was not aware that any were armed until they arrived at the house.
5 When they did so, three of the males forced their way into the house through the front door and two entered the house through a rear door. Their victim was asleep in a rear bedroom with his girlfriend. He was struck numerous blows to the body, to his limbs and to his head while he lay on the bed. As a result of the attack, Smith received injuries sufficiently serious to require his admission to hospital and treatment, including for a broken jaw.
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6 While this was happening the applicant became worried about the level of violence being employed by some of the offenders. He had not entered the house but was waiting outside. He heard the noise of conflict and of property being smashed. He drove his car away without waiting for his passengers to return.
7 Her Honour the sentencing Judge told the applicant that she regarded him as having played an important role in the commission of the offences by providing transport to the house, knowing that the intention was to commit a serious burglary by entering the victim's house and assaulting him. He had made full admissions to that effect when arrested and interviewed by the police. Her Honour commented that, "the law makes no distinction between the culpability of principal offenders and aiders." Her Honour is an experienced Judge. Whether she meant to make that observation or not is unclear. Of course the law makes no distinction between the criminal responsibility of principal offenders and those who aid them to commit offences, but for sentencing purposes Judges are commonly required to make an evaluation of the culpability or the seriousness of the offending of individual offenders and to properly distinguish between them.
8 That was not a particular problem for her Honour in this case. The indictment before the Court charged with the commission of the offences, not only the applicant but also male persons named Burton and Barr and a Ms Leong. When the case was called on there was no appearance by Burton and a warrant was issued for his arrest. Ms Leong pleaded not guilty and no plea was taken from Barr. Both of those persons were remanded on bail to next appear at a status conference, and so the applicant was the only person then dealt with.
9 Her Honour noted the pleas of guilty, which were not "fast-track" pleas but were made for the first time in the District Court upon the applicant's committal for trial. He was aged 24 when he came to be sentenced, as he had been on the date of the offences. He did not have a great deal of education but he had been in regular employment until he lost his job and commenced to associate with a "bad crowd", including persons who were committing offences, in some of which he participated. In the result, shortly after the time of the commission of this offence the applicant was sentenced in the Rockingham Court of Petty Sessions for two offences of fraud, one of receiving and one of stealing for which he served a community based order of 6 months and performed 40 hours community work. Prior to those convictions there was only one offence of dangerous driving. The sentencing Judge noted that the court had been
(Page 6)
- informed, "that you have now come to the realisation that it is necessary for you to cease associating with law-breakers and negative influences and get your life in order."
10 Her Honour naturally considered it to be to the applicant's credit that until about 12 months before he came before the court he had led a relatively law-abiding life, had a good employment history, did not abuse drugs, co-operated with the investigating police officers upon his arrest and pleaded guilty. Her Honour thought that while personal deterrence did not loom large in the sentencing process, general deterrence was a consideration which had to be stressed in view of the seriousness of the offences, the injuries to the victim and the fact that it was a terrifying, "violent home invasion", in which the applicant had involved himself quite gratuitously at the discussion and planning stage.
11 Her Honour added:
"I regard each of these matters as being distinct, although I concede that the offending occurred over a relatively short period of time during the course of an ongoing event but, as previously mentioned, there are two distinct offences known to the law that were committed."
12 As we have said, for the burglary the sentencing Judge imposed 2 years imprisonment. For the assault occasioning bodily harm she imposed imprisonment for 1 year. It is apparent from her remarks that her Honour arrived at those sentences by appropriately reducing the terms that she might otherwise have imposed to take account of "mitigatory factors". Her Honour expressly commented that the seriousness and the nature of the offences were such that she would not exercise her discretion so as to suspend service of the aggregate term of 3 years imprisonment.
13 The antecedent report provided by the Crown in respect of the applicant mentioned, not only the persons named on the indictment before the Court, but also two other male persons who had not been apprehended and a further person, one Wallace, who was said to have been remanded to the District Court sitting at Fremantle to be sentenced. In the proceedings before her Honour the sentencing Judge, there was no mention of Wallace or what, if anything, had happened to him.
14 In fact on 15 February 2002 before a different Judge of the District Court, Wallace had been sentenced for the same two offences to 3 years imprisonment for the aggravated burglary and 1 year imprisonment for the assault occasioning bodily harm. Those sentences had been ordered to be
(Page 7)
- served concurrently with parole eligibility. They were backdated to 26 September 2001, upon which date Wallace had been taken into custody on remand. In the result therefore Wallace received the same aggregate term as the applicant although, as we say, the sentencing Judge in this case did not know what had happened to Wallace.
15 Reference to the remarks made by the Judge who sentenced Wallace shows that Wallace became embroiled in a disagreement between Smith and his former girlfriend, Ms Leong, over property that Smith was endeavouring to recover. Wallace went to Smith's house armed with a wooden baseball bat. He went inside and during the assault upon Smith which followed Wallace struck him at least once with the bat. A co-offender assaulted Smith repeatedly with an iron bar. Wallace tried to restrain him. In addition, he extricated Smith's girlfriend from the danger that she might also be assaulted and got her out of the room. Although Wallace pleaded guilty, there was a trial of some issues of fact before the sentencing Judge. In addition, Wallace pleaded guilty to charges of escaping legal custody, using a false name, five offences of stealing and two charges of fraud, the subject of a notice issued under the Sentencing Act 1995 (WA), s 32.
16 So far as Wallace personally was concerned, he is the same age as the applicant. His employment history was not as favourable and he had a more extensive record of convictions dating back to 1994 of relatively minor offences of dishonesty, drug offences and some minor nuisance offences.
17 The Judge who dealt with Wallace also remarked upon the seriousness of the offences committed upon Smith, although it was said of Wallace that he was by no means the most culpable of the offenders involved. In Wallace's case, apart from such mitigating circumstances as there were, the principal matter of mitigation was his pleas of guilty on the "fast-track" system, having regard to which her Honour reduced the term she would otherwise have imposed for the burglary from one of 4 years to one of 3 years. Wallace was also sentenced to 1 year imprisonment for the offence of assault occasioning bodily harm and to much shorter sentences for the offences the subject of the s 32 notice. All the terms were ordered to be served concurrently and backdated to 26 September 2001 and so, as we have said, in Wallace's case also the aggregate term was one of 3 years imprisonment.
18 Turning to the grounds upon which the application for leave to appeal was advanced, the first which may be mentioned is the ground
(Page 8)
- alleging error in that the sentencing Judge did not suspend service of the terms of imprisonment. It will be evident from the orders we made that this ground did not attract the support of the Court. The proper approach to an appeal in relation to the suspension of a sentence has recently been authoritatively dealt with by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. We need only say that we could identify no error on the part of the sentencing Judge in declining to exercise her discretion so as to suspend service of the sentences imposed. Her Honour's judgment not to do so seemed to us to be well within a supportable exercise of discretion having regard to all the circumstances of the case to which we have referred.
19 There is a complaint that her Honour failed to have proper regard to the extent of the applicant's involvement in the offences by saying that the law did not distinguish between him and the principal offenders. We think, with respect to her Honour, that there is merit in that proposition. Certainly the applicant rendered his aid to the other offenders whom he knew were to commit an offence of violent home invasion and whom he knew were proposing to assault Smith, but her Honour accepted that it was only upon their arrival at the house that the applicant became aware that co-offenders were armed, and he did not enter the house. He fled when it became apparent to him that those who did so were employing more violence than the applicant expected would occur.
20 He was, it seems to us, properly to be regarded as a secondary offender, an aider whose role was, although important to the commission of the offences, of a less serious character than that of those offenders who entered the house and physically assaulted Smith with weapons, causing him bodily harm and, indeed, potentially much more serious injury. It seems to us that the applicant offended in a less serious way than did Wallace but, however that may be, we think it cannot be said that sentences of imprisonment of 2 years for this type of aggravated burglary and 1 year for the assault occasioning bodily harm were other than relatively lenient sentences. The appeal would not be allowed, in our opinion, upon the basis of the error identified in this particular ground.
21 Then the applicant complains that the sentences were imposed cumulatively. This we thought to be a ground of appeal having some merit. The question of the imposition of concurrent or cumulative sentences was recently discussed by this Court in R v White [2002] WASCA 112 by McKechnie J, with whom Wallwork and Murray JJ agreed. His Honour considered the decided authorities before holding at par [25] and par [26] that:
(Page 9)
- "The question commonly posed for answer by a sentencing Judge is whether the offences arise out of the same set of facts so that the sentences should properly be made concurrent, or whether the offences disclose entirely distinct conduct which should attract separate and therefore cumulative punishment.
…
There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion."
22 The offence of aggravated burglary is concerned with the activity of a group of armed persons entering the dwelling house with intent to commit an offence inside. That offence was found to be an assault upon Smith. The assault was the second offence, the assault occasioning bodily harm. It was rightly the subject of a separate count on the indictment but there are obvious close links between the two offences. When Wallace was sentenced, the Judge ordered concurrent service of the two terms.
23 It is really in the end of little moment whether two appropriately proportionate sentences for the different offences are ordered to be served cumulatively or allowed to be served concurrently, provided the final result in terms of the aggregate term is itself proportionate to the totality of the criminal conduct of the offender, but prima facie, we think in a case such as this the sentences should be imposed concurrently in respect of an offender like the applicant who rendered aid to the commission of both offences by principal offenders by the same conduct of driving them to the place where the offences were to be committed knowing that they were likely to occur.
24 However that may be, it seemed to us that the real difficulty in this case is that presented by the remaining ground which argues that there was disparity between the final result of the sentences imposed on the applicant and Wallace. We have already said that we would not put the culpability of the applicant at such a high order as was proper in the case of Wallace. Further, although the two men were the same age, the applicant's antecedents were better. It was evident that each sentencing Judge assessed properly the worth of the pleas of guilty that the two men
(Page 10)
- made. Although Wallace's were fast-track pleas, they did not attract a significantly greater discount for sentencing purposes than those made by the applicant.
25 This, in our opinion, is not a case where the sentences imposed on the applicant were already so lenient that they could not be further reduced to mark a proper conclusion about the comparison between the circumstances affecting the applicant and Wallace, including the fact that Wallace was sentenced for a greater number of offences having regard to the terms of the s 32 notice.
26 In our opinion, the disparity was sufficiently grave to require this Court to intervene. It was convenient to do so by varying the sentences imposed on the applicant so as to set aside the order that they be served cumulatively, leaving the sentencing otherwise unchanged.
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