R v Beauchamp

[2002] QCA 238

[2002] QCA 238

COURT OF APPEAL

DAVIES JA
  WILLIAMS JA
  JERRARD JA

CA No 130 of 2002

THE QUEEN

v.

BARRY GEORGE BEAUCHAMP  Applicant

BRISBANE

..DATE 01/07/2002

JUDGMENT

1

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WILLIAMS JA:  On the 30th of April 2002 the applicant

pleaded guilty to two counts on an indictment which had been

presented to the District Court, Townsville.  Count 1 was in

these terms:  that on the 20th day of October 2001 at

Townsville he entered the dwelling house of Helen Flora

Kedub with intent to commit an indictable offence and was

armed with a dangerous weapon.  The second count was that on

that date he unlawfully assaulted Helen Flora Kedub.  

Thereafter counsel appearing for the prosecution outlined

the circumstances of the offence to the learned sentencing

Judge.  In the course of doing that he did not expressly

identify the indictable offence which the Crown alleged the

applicant intended to commit when he entered the dwelling.

The circumstances of the offence as outlined by the

prosecutor were as follows:  a house had been divided into

two separate units, the applicant residing in one and the

complainant in the other.  They had little contact and could

not be regarded as close neighbours.  There was an agreement

that the applicant would mow the lawn in return for the use

of the complainant's washing machine.  Apparently the

washing machine broke down and was not fixed.  In

consequence the applicant began mowing only his side of the

residence.  That created some tension between them.

The offence occurred relatively early in the morning but it

appears that the applicant had been drinking quite heavily. 
  The complainant had risen early to feed some of her pets and       

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then returned to bed leaving her back door ajar.  She was

awoken by feeling something on her bed.  She saw the

applicant sitting on the bed.  At that stage he touched her

on the right shoulder.  

That was identified by the prosecution as the offence of

unlawful assault.  She was startled and scared.  She rolled

out of bed and at that stage saw that the applicant was

naked and was holding a large black‑handled knife with a

curved blade.  She screamed.  The applicant then walked out

of the flat with a small towel wrapped around his waist.  As

he was leaving he apparently said words to the effect, "Your

door was open.  Why don't you let me use your washing

machine and I'll mow the whole lawn?"

When counsel for the applicant outlined the circumstances of

the offence from the applicant's point of view he indicated

in very clear terms that the applicant's plea was on the

basis his intent in entering the complainant's residence was

to steal some detergent.  

The sentence in fact imposed was 18 months' imprisonment

suspended after six months with an operational period of two

years.  That sentence was imposed on count 1.  On count 2

there was a sentence of three months' imprisonment with no

recommendation.

The remarks of the sentencing Judge did not clearly indicate

what offence he considered the plea of guilty related to so

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far as count 1 was concerned; he did not identify the

offence which the applicant intended to commit when entering

the dwelling house.

In cases of this kind it is, in my view, desirable that the

offence in question be clearly identified because that can

have a very significant effect on the sentence.  The learned

sentencing Judge did expressly say that the applicant did

not threaten the complainant with the knife and that was a

matter of some importance.  That does, to my mind, indicate

that the learned sentencing Judge was accepting that the

intent that the applicant had when he entered the unit was

not to effect some assault with the knife.

It does seem, and this was effectively the submission put

forward today by counsel for the applicant, that having the

knife and being clad only in a towel wrapped around his

waist were no more than indicia of the applicant's state of

intoxication at the time.  The offences were, nevertheless,

serious in that they did involve entering a dwelling house

whilst a woman therein was in bed asleep, or at least half

asleep.

I should also say that the applicant was aged 46 at the time

of the offence and is now aged 47.  He did have some

criminal history but the last entry was some 22 years prior

to the commission of this offence.  Apart from some

relatively minor property offences the most serious offence

was that of unlawful wounding in 1979 for which he received

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three years' imprisonment with a recommendation for parole

after 12 months.

As I have said, the learned trial Judge did not indicate

that he was sentencing on a basis other than that the

relevant intention of the applicant was to steal some

detergent.

In my view, looked at in that light, the sentences imposed

were manifestly excessive and should be adjusted

accordingly.

Taking into account the fact that the applicant was heavily

intoxicated at the material time I am of the view that a

custodial sentence of some short duration was called for.

On the 24th of May 2002 the applicant was granted bail

pending the hearing of the appeal.  That meant that he had

served 24 days in custody under the sentence imposed. 

Whilst that is a very brief period it would, in my view, be

unjust to send him back to gaol for a short additional

period.

In all the circumstances of this case I would vary the

sentence with respect to count 1 by ordering that it be

suspended after serving 24 days in custody.  And with

respect to the sentence for the common assault I would set

aside the period of imprisonment for three months and in

lieu thereof order that he be imprisoned for a period of 24

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days.

In the circumstances therefore I would grant leave to

appeal, allow the appeal, vary the sentence on count 1 by

deleting the provision that the sentence be suspended after

serving six months and in lieu thereof order that it be

suspended after serving 24 days.  And with respect to the

sentence on count 2 I would set aside the order that he be

imprisoned for three months and in lieu thereof order that

he be imprisoned for 24 days.  Otherwise the sentences

should stand.

DAVIES JA:  I agree.  Ordinarily in a case like this where a

man has entered a woman's flat clad in the way he was and

bearing a knife a sentence of the order which was imposed by

the learned sentencing judge would plainly have been

justified.  It is only in the most unusual circumstances of

this case that, in my opinion, this Court should interfere

with a sentence of that kind.  

Those unusual circumstances are that the facts upon which

the applicant was sentence included that his only relevant

intent was to take some detergent.  It followed from this

that the learned sentencing Judge did not and could not have

sentenced on the basis that the applicant had any intent to

do any harm to the complainant or to threaten her.

His state of dress, that he was clad only in a towel, and

the existence of a knife were irrelevant to that.  They are

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explicable only by the fact that he was extremely

intoxicated.  It is in those unusual circumstances that this

Court, as I have said, is justified in interfering with the

sentence which was imposed and I agree with the orders

proposed by Justice Williams.

JERRARD J:  I agree.  I consider that the critical matter is

the concession made by the Crown that the learned sentencing

Judge appears not to have drawn the inference that there was

any intent in the appellant to assault the victim when he

entered her premises.

I endorse the remarks by his Honour Justice Williams that it

is important that parties specify the intent admitted by a

plea on charges of this nature.  I have nothing else to add.

DAVIES JA:  The orders are as indicated by Justice Williams.

‑‑‑‑‑

7                  JUDGMENT