R v Barber

[1995] QCA 127

COURT OF APPEAL

[1995] QCA 127

FITZGERALD P
DAVIES JA

BYRNE J

CA No 7 of 1995
THE QUEEN
v.

CHRISTOPHER JOHN BARBERApplicant

BRISBANE
..DATE 21/03/95
21/03/95
THE PRESIDENT: The applicant has applied for leave to appeal
against sentences imposed in the District Court at Brisbane on
7 December 1994. The offences for which he was then sentenced
occurred between 14 November 1993 and 14 March 1994.
Throughout all that period he was on bail.

He had earlier - that is prior to 14 November 1993 committed other offences. Most were of little consequence, but two need be noted. He was sentenced for those two offences on successive days and in the reverse of the order in which the offences occurred earlier in 1994 and the present sentences were imposed.

On 21 April 1993 he committed an assault occasioning bodily harm whilst in company. He was sentenced for that offence on 16 August 1994. Meanwhile on 15 August 1994 he was sentenced for two offences which he had committed on 17 April 1994. For the offence of grievous bodily harm which he committed on that date he was sentenced on 15 August 1994 to imprisonment for four years with the sentence to start on May 18 1994 including pre-sentence custody of 91 days. It was recommended that he be considered for release on parole after serving 10 months.

For the offence of wilful and unlawful damage to property in
the night-time which he committed on 17 April 1994, he was
sentenced to a further term of imprisonment for six months to
be served concurrently with the other sentence imposed that
day.
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For the offence of assault occasioning bodily harm whilst in
company, which he committed on 21 April 1993 while he was a
juvenile, he was sentenced on 16 August 1994 to detention for
12 months with an order that there be no change to that
recommendation with respect to parole which had been made on
15 August 1994. That is the period he was to be detained
under the sentence imposed on 16 August 1994 was not to exceed
the time when he became eligible for parole in relation to the
sentence imposed on 15 August 1994.
The sentences in relation to which the applicant presently
seeks leave to appeal relate to offences committed in the
latter part of the period of approximately one year between
the offences for which the applicant was sentenced on
15 August 1994 and the offence for which he was sentenced on
16 August 1994.

On 14 November 1993 following an argument with the complainant, the applicant and others threw rocks at the complainant's vehicle which was parked at the side of his residence in Fortitude Valley and its rear windscreen was broken as a result. At the time the applicant was on bail in relation to the offences which he had committed in April 1993.

When he was arrested on 14 November 1993, he was again
released on bail. He subsequently pleaded guilty to a count
of wilful damage and on 7 December 1994 was sentenced to
imprisonment for six months.
21/03/95
Obviously the applicant was still on bail in relation to the
further offences which he then proceeded to commit after
14 November 1993. On 20 November 1993 the complainant
attempted to stop the applicant and a group of male youths who
were attacking a man in Fortitude Valley. The applicant
punched the complainant with a closed fist in his right eye
causing a laceration to his right eyebrow. He was again
arrested and again released on bail. After he pleaded guilty
to a count of assault occasioning bodily harm he was sentenced
to imprisonment on 7 December 1994 for a period of 18 months.

On 5 December 1993 the complainant was beaten by the applicant and a group of about four other youths. He was then kicked by the applicant and others a number of times. He briefly escaped before being punched and kicked again and after a further brief escape was again punched and kicked. He was treated for bruising and swelling to the chest, stomach, ribs and facial region.

The applicant was not arrested until 3 March 1995 when he was
again released on bail. He subsequently pleaded guilty to
assault occasioning bodily harm in company and on

7 December 1994 was sentenced to imprisonment for two years.

On 29 January 1994 the applicant who was in company with
another person kicked the complainant knocking him to the
ground and then punched him a number of times. The
complainant was dazed and bleeding heavily from the mouth. He
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was also missing teeth and had pain to the right eye, ribs and
chest.

The applicant was arrested that day and released on bail about a month later. He pleaded guilty to another count of assault occasioning bodily harm in company and on 7 December 1994 was again sentenced to imprisonment for two years.

The applicant's final offence involved breaking and entering
on 14 March 1994. He was again arrested and again
subsequently pleaded guilty to breaking, entering and stealing
and on 7 December 1994 was sentenced to imprisonment for

18 months.

All the sentences imposed on 7 December 1994 were concurrent
with each other, but cumulative upon the sentence which had
been imposed on 15 August 1994. Further on
7 December 1994 it was recommended that the applicant be

eligible for parole on 18 May 1996.

Before this Court it was acknowledged that the effect of
sentence which the applicant is now serving in respect of all
offences is imprisonment for six years with a recommendation
for consideration for release on parole after two years from
the date he was first placed in custody. The applicant is
only a young man. He was born on 4 November 1996 and was
17 years of age when he committed all the offences for which
he was sentenced on 7 December 1994.
21/03/95
The sentencing Judge also took into account that the applicant
had pleaded guilty to all offences and also his personal
circumstances. His mother and her de facto husband are
alcoholics. The applicant had been subjected to extreme
violence when he was young and he and his sister had been
placed in a number of foster homes for a number of years.

Ultimately he was forced to leave home and started living on the streets. He consumed alcohol every day during that period. However, His Honour also pointed out the seriousness of the offences which showed a pattern of violent conduct, sometimes in company involving assaults on other persons, mainly in public places.

The need for deterrence was referred to and it was said that the community and the Courts will not tolerate gangs of persons, even relatively young persons, viciously and cowardly assaulting people going about their lawful business.

His Honour said that he took into account the totality of the applicant's conduct and imposed sentences on that basis which the Judge who had sentenced on 15 August 1994 would have done had all the matters come before him then. That, in my opinion, was the correct approach.

Before this Court it was submitted for the applicant that his
conduct arose from his living on the streets and his problem
with alcohol and that since he had been in gaol, he had done a
number of courses including a drug and alcohol management
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course and an anger management course. Further he is
completing his Year 10 studies in prison and has done a
landscape gardening course and hopes to do this kind of work
when released.

Emphasis was placed for the applicant upon his youth and his personal circumstances and it was pointed out that the delay in his pleading guilty and these offences being disposed of was not his fault.

In summary it was said that the sentences are manifestly excessive and that an effective overall sentence of four to five years imprisonment with a recommendation for consideration for release on parole after 12 months indicated was an appropriate sentencing range.

In my opinion the head sentence was within the permissible range and cannot properly be interfered with by this Court. A matter of particular significance in arriving at this conclusion, in my opinion, is the pattern of behaviour by the applicant over a specific period during which he was on bail for other offences.

However, I do not think that his youth and personal
circumstances and his pleas of guilty have been sufficiently
taken into account in relation to the period which he must
serve before being considered for release on parole.
21/03/95
Accordingly, I would grant the application, allow the appeal
and alter the sentence imposed below only to the extent that I
would, in lieu of the present period which must expire before
the applicant is eligible for parole, order that he would be
considered eligible for parole 15 months after the date he was
first placed in custody. To clarify that I would order that
the applicant be eligible for consideration for release on
parole on 18 August 1995.

DAVIES JA: I agree.

BYRNE J: I agree.

THE PRESIDENT: The orders will be as I have indicated.

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