R v Bodsworth

[1994] QCA 376

IN THE COURT OF APPEAL [1994] QCA 376

SUPREME COURT OF QUEENSLAND

C.A. No. 302 of 1994

Before Fitzgerald P. McPherson JA. Cullinane J.

[R. v. Bodsworth]

BETWEEN:

T H E Q U E E N

v.

NATHAN BODSWORTH Applicant

Fitzgerald P. McPherson JA. Cullinane J.

Judgment delivered 23/09/94

Reasons for judgment of the President and Cullinane J, separate concurring reasons of McPherson JA.

Application for leave to appeal refused.

CATCHWORDS:CRIMINAL LAW - Sentence - Burglary - Unlawful wounding - applicant and co-accused broke into unit of 79 year old woman - applicant stood by whilst co-accused bashed complainant with piece of wood - youthful applicant under the influence of an older criminal - early plea and co- operation - whether custodial sentence appropriate considering applicant's age, assistance and participation

Counsel:Mr. C. Callaghan for the applicant

Ms. L. Clare for the respondent

Solicitors:Gilshenan and Luton for the applicant

Director of Prosecutions for the respondent

Hearing Date: 13/09/94

REASONS FOR JUDGMENT -THE PRESIDENT and CULLINANE J.

Judgment delivered 23/09/94

This is an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 22 July 1994 for offences of burglary and unlawful wounding. The applicant was convicted on his own plea, and was sentenced to imprisonment for four months and placed on probation for three years. Only one sentence was imposed in respect of both offences. The applicant was born on 30 June 1975, was seventeen years old at the time of commission of the offences on 23 June 1993, and has no previous criminal history. The application is based on the sole ground that the sentence is manifestly excessive.

The applicant and his co-accused, one Wehramann, were drinking in Wehramann's unit on the evening of 22 June 1993 and were "pretty drunk" when Wehramann said: "Why don't we go next door and rob the lady next door?"

Wehramann resided in the unit adjacent to the unit of the complainant, who was a seventy-nine year old woman living on her own. The applicant, who said he thought Wehramann was joking, agreed. The notion of a joke is not easy to reconcile with the applicant's description of his co-accused as "pretty violent" at the time, or the applicant's statement that he was "really scared". Further, the talk of committing the offence suggested

had begun hours earlier. The applicant knew that Wehramann was prone to violence, that the complainant was in her unit and that Wehramann had previously been abusive towards her.

When the co-accused went outside, at about 1.00 a.m. on 23 June 1993, the applicant followed him and saw him getting into the complainant's unit. Wehramann had removed a flyscreen from the kitchen window of the complainant's unit and forced the window, thereby gaining entry. After climbing in the unit, he came around and opened the door for the applicant.

At the time, Wehramann had with him a table leg, a piece of wood about 18 inches by 1.5 inches, and a pen knife. When the applicant asked why he had the piece of wood, he replied "Just in case she wakes so I can threaten her, ... I will not hurt her." However, the applicant knew that his co-accused "could snap", and a "whole heap of things" went through his mind, including "he could have hit her, could have killed her, could have turned on me ... ." His only explanation for proceeding was that he was scared of his co-accused, who he hoped would not hurt the complainant.

Wehramann looked about downstairs in the complainant's unit and, when he could not find anything to steal, he went upstairs to search further. After a couple of minutes he called for the applicant to follow him upstairs, which he did. Wehramann, who was in the complainant's bedroom, instructed the applicant to stand at the top of stairs and keep an eye on the complainant while he continued to look around. Wehramann then came out of the complainant's bedroom with a bag, and both he and the applicant went into a spare room and searched it but found nothing. The applicant's co-accused then went back into the complainant's bedroom and, on his instructions, the applicant returned to the top of the stairs to watch the complainant.

The applicant noticed her stirring, and saw Wehramann put an unknown object over her face with his left hand to keep her quiet and then hit her with the piece of wood in his right hand when she struggled.

Both of the applicant and Wehramann ran downstairs. The complainant was screaming. Wehramann grabbed the applicant and said: "You're not going anywhere, I've got to get something, I've left something upstairs, stay here." The applicant then heard the complainant scream then suddenly stop. Wehramann came back downstairs and they both left and returned to Wehramann's unit.

The applicant did not want to know what had happened to the complainant, although he did consider that she might have been killed. Wehramann warned him against disclosure of what had occurred.

The applicant spent the rest of the night at Wehramann's unit and left by himself at about 6.30 a.m.. He made no effort to contact the authorities or to seek help for the complainant.

Later that morning, the complainant was discovered, lying in her blood, and was taken to the hospital with a variety of injuries including a five centimetre laceration and a seven centimetre laceration to the forehead with surrounding haematoma, a black left eye, bruising to the left jaw, bruising across the bridge of the nose, a compound facture to the right index finger and tenderness to the chest area. She stayed in hospital for two days. While she could remember the attack, she could not remember her assailant.

Police received information from neighbours about suspicious activity in and around Wehramann's unit. Upon examination, police found three piece of wood, one of which was bloodstained with a grey hair on it. Wehramann denied all knowledge of the offences and named the applicant as his alibi for the night.

That afternoon, police questioned the applicant who immediately made a full and frank disclosure and voiced apologies to the complainant. He said that he was with Wehramann when he "broke into the old lady's house and bashed her". He also said that he was scared of Wehramann. He is prepared to give evidence against Wehramann, and that evidence is important, if not vital, to the prosecution case. He has co- operated fully with the police.

The applicant had known his co-accused for some three months at the time of the offences, having met him through a Job Search course. Wehramann, who was a year older than the applicant, had a previous conviction for dishonesty and the applicant knew he had been in trouble with the law. The supervisor of the Job Search Course, a former police officer, noticed Wehramann leading the applicant astray.

The prosecution accepted that Wehramann was the principal offender, that the applicant's role was limited to encouragement by his presence, and, in relation to the wounding, that he was guilty because it was objectively a probable consequence of the burglary in the circumstances in which it occurred.

It was submitted on behalf of the applicant that he had fallen in with an older person, who was a bad influence, whilst he was still at a very impressionable age. It was his co-accused who had supplied the applicant with the alcohol which, it was submitted, had badly affected his judgment on the night in question. The applicant was said to have been in some fear of his co-accused and to have been "mesmerised" by him.

It was further submitted that the sentencing Judge gave insufficient weight to the applicant's assistance to the authorities and that giving evidence against his co-accused will place the applicant in danger. The applicant has shown remorse by his willingness to give evidence, his plea of guilty, his early cooperation, his apology to the complainant given during the course of the record of interview and by not cross- examining the complainant at the committal proceeding, thereby saving her from additional trauma.

Further, it was submitted that, contrary to the finding of the sentencing judge that the offences would not have occurred but for his implicit encouragement, there was nothing the applicant could have done to prevent the offences being committed. However, there is nothing in this point.

It has also been submitted that the sentencing Judge failed
to pay due regard to subsection 9(4) of the Penalties and
Sentences Act 1992 in that for young first offenders, even in

the case of serious offences, custodial sentences should be used only as a last resort. Other options such as community service or probation or a wholly suspended sentence would have been appropriate. Reliance was placed upon favourable references which depicted the applicant as a decent young man for whom the offences were totally out of character.

It was submitted on behalf of the prosecution that this was a brutal and chilling crime and that, while the applicant was not the principal offender, he entered the unit and did nothing to prevent the assault on the complainant or to assist her later.

Young first offenders are kept out of prison, if possible, even in respect of serious offences. This is in accordance with the statutory policy of the Penalties and Sentences Act and in the community's best interests. While other factors, such as punishment and deterrence, continue to be material, rehabilitation is an especially important consideration in relation to such persons, whom it is sought to keep out of the corrupting influence of the prison environment. Nonetheless, especially when there is actual violence involved, sometimes a custodial sentence cannot be avoided.

Despite all the favourable factors personal to the applicant, the wounding of the complainant, an aged woman asleep in her own residence, is such an offence, subject at least to one matter. While his presence, encouraging Wehramann, and the objective probability that an assault on the complainant would occur in the course of the burglary make the applicant criminally liable for the offences, the degree of his culpability must be more closely assessed in order to determine whether it is unavoidable that he be imprisoned.

The applicant was very young, presumably immature, intoxicated, scared of Wehramann and heavily influenced by him. Sometimes, a young person might indeed be "mesmerised" by an older criminal, as it was submitted for the applicant had occurred in this case. That would bear heavily on the appropriate sentence. But, with some regret, we do not think that there is a sound basis for that conclusion in this case.

Once that point is decided against the applicant, his involvement assumes very serious proportions. He knew that his co-accused had been in trouble with the law, was prone to violence, and was antagonistic to the complainant, yet the applicant remained with him, drinking and talking, although his co-accused was proposing burglary. When Wehramann left his unit, the applicant followed him and then, having observed his co- accused carrying a piece of wood, he followed him first into the complainant's unit and then upstairs. He was aware that the complainant might be hit or even killed, yet he remained and actively assisted his co-accused. Even after the first assault, he stayed in the complainant's unit until Wehramann was ready to leave. Thereafter, he ignored the complainant's plight, although she could have died before help arrived.

It is earnestly to be desired that the applicant can recover from this episode in his life, and there is some hope that that may occur. However, taking everything said in his favour into account, together with his personal circumstances and his co-operation and willingness to give evidence against Wehramann, a term of imprisonment was the only sentence reasonably open. The sentencing judge was right not to suspend the sentence which he imposed which was, correctly, the minimum possible in the circumstances.

The application for leave to appeal must be refused.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Twenty Third day of September 1994

For the joint reasons given by the President and

Cullinane J. I agree that in this case the application for leave

to appeal should be refused.