R v Betts

[2003] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:	R v Betts [2003] QCA 159
PARTIES:	R v BETTS, Shane Lee (applicant)
FILE NO/S:	CA No 45 of 2003 DC No 76 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING	District Court at Beenleigh
COURT:
DELIVERED EX	15 April 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2003
JUDGES:	McMurdo P; Jerrard JA and Fryberg J Separate reasons for judgment of each member of the Court, Jerrard JA concurring as to the orders made; Fryberg J dissenting in part
ORDERS:	1. Grant the application for leave to appeal, allow the appeal and instead of the sentence imposed at first instance, order that the sentence of imprisonment be suspended forthwith, with an operational period of 18 months 2. The applicant pay compensation in the sum of $2,500 to the Sheriff of the District Court at Beenleigh, for and on behalf of the complainant, of an address to be provided to the Sheriff by the Director of Public Prosecutions, Queensland, within 18 months of today’s date, in default, four months’ imprisonment
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – where applicant pleaded guilty by ex officio to one count of wilful damage – where applicant had no previous convictions - where applicant sentenced to six months imprisonment – whether primary judge erred in failing to give sufficient regard to s 9 (2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 (Qld) – whether sentence manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 9 (2)(a)(i) and (ii)
COUNSEL:	P Callaghan for the applicant M Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty by ex-officio

indictment to one count of wilfully damaging the walls and	10
doors of a Loganlea dwelling between 15 and 24 January 2002.
On February 2003 he was sentenced to six months' imprisonment.
He seeks leave to appeal against that sentence on the grounds
that the Judge erred in failing to give sufficient regard to
s 9(2)(a)(i) and (ii) Penalties and Sentences Act 1992 (Qld)	20
or, alternatively, that the sentence was manifestly excessive.
The applicant was 25 at sentence and 24 at the time of the commission of the offence. He has no previous convictions.
30
The complainant was the owner of a rental property at
Loganlea. The tenants responsible for the property, the
applicant's aunt and uncle, left and the tenancy was
informally taken over by the applicant's father, Mr Barry
Betts. The complainant wanted Mr Betts Snr to sign rental	40
papers but Mr Betts refused. Over time, as rental payments were not up to date, the complainant decided to evict the tenants. He asked Mr Betts Snr to leave the premises but without result.
50
On 16 January 2002 police officers attended at the
complainant's property following an altercation between the
landlord and the Betts family. Police inspected the property
and, whilst the complainant described the house as dirty, it

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was then undamaged. On 23 January 2002 the complainant again

attended his rental premises with a contingent from the

television program "A Current Affair". The house was then

extensively damaged inside and the yard littered with rubbish

and food scraps. Every plasterboard wall and internal door	10
had holes knocked in them and some doors had been ripped from their hinges and were lying in the backyard. The premises suffered $8,000 of property damage.
Because of the sympathy aroused through the television	20
program, a number of local citizens and tradesmen offered
their labour free of charge to help repair the premises so
that the complainant was only out of pocket $2,500. That
heart-warming story is the only positive aspect of this whole
sad affair.	30
Mr Betts Snr was originally charged with this offence but on
the morning of his trial the applicant accepted full and sole
responsibility, pleaded guilty to an ex-officio indictment and
the charge against Mr Betts Snr was not proceeded with.	40
The learned Crown Prosecutor at sentence contended that
imprisonment was within range but might be wholly suspended or
subject to an intensive correction order; alternatively, a
lengthy period of community service would be appropriate.	50

The applicant's case was that, after what the Betts family understood to be harassment, the applicant returned to the rented house, which his family had vacated, and caused the damage. Defence counsel at sentence explained that when the 3 60

original tenants, the applicant's aunt and uncle, moved out

Mr Betts Snr decided that his de facto and their baby child, with whom he lives three or four days a week, would move in, together with the applicant, the applicant's brother and	10
another female. The complainant was keen to have a lease signed to formalise this arrangement but Mr Betts Snr was reluctant to sign anything because he was not intending to
live at the premises fulltime. The Betts family remained in
the premises after negotiations about the lease broke down and	20
it was conceded that although some rent was paid the rent was
not up to date for the entire period. As the relationship
between landlord and tenants deteriorated the complainant
padlocked off the water mains. There was an unpleasant
altercation between the complainant and Mr Betts Snr at the	30
fence of the premises in the presence of "A Current Affair" media crew who had earlier visited Mr Betts Snr at his place of employment.
On another occasion a friend of the complainant's produced a	40
knife and a shotgun cartridge and threatened Mr Betts Snr, although it was not suggested the complainant encouraged this conduct.
The police attended the premises on 16 January when the	50
applicant phoned them following an aggressive meeting between the complainant and the applicant's family. The Betts family moved out the next week. The applicant later returned and

extensively damaged the property with a pitchfork. It seems
that he was not responsible for the extensive littering about
the property. 4 60

The applicant's parents divorced when he was about 14 years

old and he has largely lived with his father since then. He	10
dropped out of his year 11 schooling to look after his younger
brother whilst his father was in prison. He has nevertheless
succeeded in completing his apprenticeship and become a
qualified pastry cook. He was working at the time of sentence
as a labourer and living with his aunt. He offered to pay	20
compensation over an 18 month period at about $30 per week.
Defence counsel conceded at sentence that whilst imprisonment
was within range, community service or a wholly suspended
period of imprisonment was applicable, with an order for	30
compensation over about 18 months. Defence counsel also submitted that the applicant was not a person in need of an intensive correction order.
It is true that the learned sentencing Judge did not refer to	40
s 9(2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 (Qld), namely that:

"In sentencing an offender a Court must have regard to -

(a) principles that - 50

(i) a sentence of imprisonment should only be imposed

as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable..."

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The applicant does not contend that it was necessary for the

Judge to make reference to these matters when imposing

sentence.

10

His Honour understandably regarded this offence as a serious example of its kind and one that could not be justified, despite the explanation provided by defence counsel. His Honour specifically referred to the applicant's plea of guilty, relative youth, lack of previous convictions and other

20

mitigating circumstances as together amounting to "powerful
circumstances of mitigation". His Honour concluded, however,
that punishment, deterrence and denunciation required the

imposition of the custodial sentence.

30

This indicates to me that his Honour weighed up what he saw as the competing interests and determined that the facts of this case required that the offender be imprisoned.

Ultimately, the issues raised in the grounds of appeal merged

40

into one question, "Was a sentence of actual imprisonment
manifestly excessive in all the circumstances here?"

Counsel for the respondent concedes that he has been unable to locate a judgment of this Court, which supports a sentence of

50

imprisonment for a first offender charged with wilful damage

on this scale, nor has he put forward any District Court

comparable sentences to support the sentence imposed here. Counsel for the respondent concedes the sentence is at the high end of the range but contends that the applicant's 6 60

conduct as a 24 year old man intentionally returning to the

complainant's house and damaging it so extensively

nevertheless warranted a term of imprisonment.	10
It is notorious that short gaol sentences for young first
offenders are unhelpful to rehabilitation. It is also self
evident that the sentence imposed here will not restore to the
unfortunate complainant the $2,500 he had to expend on repairs	20
to his property, a sum which would have been $8,000, but for the generosity of the local trades people.
It is difficult to understand why the sentencing ends referred
to by his Honour of punishment, deterrence and community	30
denunciation could not have been sufficiently met by a substantial community service order, a conviction and an order for compensation of $2,500.
This comparatively young first offender has overcome some life	40
difficulties to complete a trade and was in steady employment
at sentence and had offered and had genuine prospects of
paying a substantial amount of compensation. In my view, to
impose a custodial sentence here was, in all the
circumstances, manifestly excessive.	50

The applicant has now served two months' imprisonment, a substantial deterrent sentence. I would not, therefore, now impose a community service order, but the complainant should still be compensated for the intentional damage suffered by him at the hands of the applicant. 7 60

I would grant the application for leave to appeal, allow the

appeal and instead of the sentence imposed at first instance,	10
order that the sentence of imprisonment be suspended
forthwith, with an operational period of 18 months. I would further order that the applicant pay compensation in the sum of $2,500 to the Sheriff of the District Court at Beenleigh, for and on behalf of the complainant, of an address to be	20
provided to the Sheriff by the Director of Public
Prosecutions, Queensland, within 18 months of today's date, in
default, four months' imprisonment. If the compensation is
not paid within that period, the applicant is to appear in the
District Court, Beenleigh, at the first available date, to	30
show cause why the default period of imprisonment should not be imposed.
JERRARD JA: I agree with the orders proposed by the
President. This was an unusual matter, including the fact	40
that the present applicant entered a plea of guilty to an ex officio indictment, on the date that a trial was listed to start, in which his father was charged with committing that same offence.
50
The Crown accepted that plea, without actually knowing what acts the applicant would be admitting. They learned during the applicant's sentencing process, from the submissions made

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by his barrister, that he was admitting having done all of the

damage by himself.

In circumstances in which he was a first offender, who

declared a willingness to make what was in fact restitution in	10
full for the cost of the extensive damage he alone said he had
carried out, I considered that a sentence which included
imprisonment was appropriate, but that a sentence which
included only imprisonment was not and was manifestly
excessive, where the out of pocket complainant would otherwise	20
have received restitution. For those reasons, I agree with the order imposed by the President.
FRYBERG J: I would dismiss this application. In my view, the
sentence while high, was within the ambit of the discretion of	30
the sentencing Judge. Two grounds of appeal were argued. The first was that the sentencing Judge failed to have regard to the principles enunciated in subsection 9(2) of the Penalties and Sentences Act.
40
Counsel for the applicant conceded that it was not necessary for the Judge to refer explicitly to that subsection and that the process of concluding that he had not had regard to those subsections must be one of inference.
50

The sentencing Judge expressly referred to the relative youth of the applicant and the most obvious reason for such a reference is the provisions of subsection 9(2). Even taking into account all of the factors referred to by counsel, I am unable to draw the inference which is invited. 9 60

That leaves the question of whether the sentence is manifestly

excessive. That question in some regards is like, how long is	10
a piece of string. It is one on which minds can and often do differ.
To my mind, there are a number of factors adverse to the
applicant in the present case. Among them are the fact that	20
he showed little interest in cooperating with the administration of justice. He made no admissions and no confession to his crime, until the very morning when his father was due to face Court, charged with the offence.
30
Second, he committed damage of a very considerable extent, not
only in terms of dollar value, but in terms of the number of
blows and the duration of time which the damage would have
taken to cause. The imposition of a sentence of actual
imprisonment was regarded during the hearing below as being	40
within the range of penalties available to the sentencing and learned defence counsel.
It is, I concede, a matter of some regret, that we do not have	50

available a picture of the normal range of penalties which are
imposed for this offence in the District Court and which are
not appealed. It would be interesting to know, for example,
whether there are any cases which have not been appealed,
where first offenders have been given comparable terms of
imprisonment. 10 60

any, where first offenders have committed damage to this	10
extent and the Attorney-General has not seen fit to appeal. provide these sorts of statistics.
I hasten to add, that I am not suggesting that there is any	20
dereliction of duty on the part of counsel appearing for the
Crown in this Court, since I am very conscious of the
possibility that the cash starved Director of Public
Prosecutions does not have the resources to collect these
figures. They are, however, figures which ought to be	30
available.
For those reasons, I would dismiss the application.
Before I part with it, however, I would observe on the	40
unwisdom of the conduct of the landlord in confronting the
situation with the aid of television. A confrontational
situation is calculated to lead to violence, either to people
or to property. The Court systems are boring, time consuming
and tedious, precisely because those factors take the risk of	50
considerably.

It would also be interesting to know what cases there are, if

violence out of the situation or reduce that risk is regrettable that they were not followed in this case. 11 60

Having regard to the view of the majority, the question arises

as to the appropriateness of the order. I would concur in the	10
order proposed by the President in the circumstances.
THE PRESIDENT: The order is as I have proposed.

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