R v Bower-Miles & Smith

[1995] QCA 453

[1995] QCA 453

COURT OF APPEAL
McPHERSON JA
THOMAS J
WILLIAMS J

CA No 278 of 1995 CA No 279 of 1995

THE QUEEN
v.
SHANE ANTHONY BOWER-MILES and

GLEN SMITH	Applicants
BRISBANE ..DATE 14/09/95 140995 D.1 T 8/JP M/T COA95/279

They were both sentenced to imprisonment for three and a half

years with a recommendation for parole after 12 months.

The circumstances of the offence, briefly stated, were that
Trevor Box lived in a house at Jacobs Well with his brothers
Darren and Geoffrey, his sister Megan and two others named
Chris Martin and Megan Martin. On 23 May 1994 the police
seized some stolen car parts from the house of the complainant
Trevor Box. Chris Martin had, it seems, taken the parts for a
car that had been found in the bush.

The car in question belonged to one Michael Lye who accompanied police to the complainant's house in order to identify the parts. Proceedings were taken against Chris Martin who, in this connection, pleaded guilty to an offence with respect to the car or the parts. On 25 May 1994 Michael Lye went to the complainant's house to confront the occupants about the car and the parts. The applicants Bower-Miles and Smith went with him. They arrived at about 11 p.m. and pretended to be police.

Bower-Miles was carrying a wooden baton and Smith a broken pool cue. Lye was carrying two torches. They all went into the house. A fight ensued between them and the brothers Box.

Smith was punched in the face and was hit with the butt of a

rifle. Bower-Miles was successful in striking Trevor Box on
the head with the baton but he was kicked and punched by
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Trevor Box and Chris Martin. Martin also punched Smith who,
after sustaining some injuries, was chased off the scene.
Bower-Miles, meanwhile, was lying unconscious on the ground
after being struck to the ground and punched. Lye had, in the
meantime, prudently decamped at an early stage of the battle.

He was not charged with any offence.

The complainant Trevor Box sustained a scalp laceration of about 1 centimetre by 1 centimetre in dimension and some tenderness to the right shoulder. It is those injuries or one of them that is the subject of the second count of assault occasioning bodily harm. By contrast with their intended victims, Smith sustained two scalp lacerations and a broken nose. The applicant, Bower-Miles, suffered two black eyes and a 5 centimetre abrasion on the right arm. He later said he could not remember the events of the evening. That is not altogether surprising as, according to the material in the record, he was unconscious for an hour or so until the police and ambulance arrived.

He could remember only that he had earlier been drinking with
Michael Lye and it seems to have been some such drinking bout
that provided the genesis for this series of offences. In
Noble and Verheyden (1994) 73 Australian Criminal Reports 379,
at 381, this Court in the course of discussing the
significance of injuries inflicted by the victim or victims on
home invaders of this kind had this to say in the context of
an offence of a somewhat similar, but more serious, kind:
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"If an offender has assaulted another without causing

significant injury and the other has defended himself so
vigorously as to cause the offender serious injury it
would ordinarily be right to treat the injury the
offender has suffered as at least part punishment whether
or not the retaliation was within lawful bounds."

The passage to which I have referred should be read in the context of all the remarks there; but, nevertheless for present purposes, the portion I read out is the significant part. The victims in this case not only overwhelmed their assailants but seemed to have been intent on detaining them until the police arrived and, in the case of Bower-Miles at least, they were obviously successful in doing so.

The learned Judge considered that the sentence he imposed was called for by the following circumstances; that is to say, the intrusion by the applicants on the privacy of the complainant's house; the fact that it occurred late at light; the applicants were armed with offensive weapons and the occupants of the house were complete strangers to the applicants with whom they, as distinct from Michael Lye, personally had no argument of any kind.

His Honour took into account the need for deterrence and the
community concern about the apparently increasing incidence of
offences of this kind, and he weighed against it the
appellant's pleas of guilty, their remorse as he took it to
be, and their early intimation that they accepted
responsibility for this offence.
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The applicant, Bower-Miles, was only 19 years old at the time
of the offence and 20 years at the time of sentencing. He was
in employment as a furniture removalist and seems, from what
one can gather, to have had a good record of employment, in
the course of which he has been able to elicit favourable
references which were produced at the hearing including a
reference from at least one employer.

He has no previous convictions of any kind. His youth and other factors that I have mentioned may be thought to have justified a lower sentence than that imposed although it is

right to say that the Judge plainly took those factors into account in the course of arriving at the recommendation for parole which he made in both cases.

Smith, by contrast, was 29 years old at the time of the offence and 30 at sentencing. He had convictions for two minor drug offences, the second of which involved a breach of a probation order imposed in respect of the first such offence.

At the time of sentencing, he was self-employed as a brick layer. He has two children, although he is not evidently living with their mother. He nevertheless is concerned about their welfare.

The requirement of parity is obviously relevant in this case
but is not necessarily a dominant consideration when regard is
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had to the youthfulness of the co-offender Miles. On the
other hand, Smith's part in the invasion seems to have been
slightly less prominent, at least to the extent that it was
Bower-Miles who used the baton with which to strike the blow
that is the subject of the assault count in the indictment.

Carrying out an armed raid on a house in the peaceable possession of other people is a very serious offence. No one should under estimate its seriousness. The learned sentencing Judge clearly did not do so. He stressed the justified community concern at the prevalence of home invasions of this kind and, as I have already said, he took into account the applicant's remorse and early pleas of guilty although only, it would seem, to the extent of making a recommendation for parole after 12 months.

Having listened to a recitation of comparable sentences that were put before us on this appeal, I am in the end persuaded that the term of three and a half years for this offence was too severe. The injuries to Trevor Box were slight, and as far as one can gather, no one else sustained any injuries or, if they did, they were not made the subject of the charge.

The lacerations on the head of Trevor Box appear not to have
left any noticeable sequelae of any kind and it was not so
severe a cut as to require suturing. The serious element in
the offences with which we are concerned here seems to me
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clearly enough to be the entry or intrusion into the dwelling
house at night time.

However, viewed as an invasion of other persons' privacy and security, it must surely rank as one of the most unsuccessful escapades of its case. Bower-Miles was left unconscious and sustained two black eyes. It is not likely that he would go looking for a similar lesson at any time in the future.

Smith sustained a broken nose. There is therefore a basis for saying that, comparatively speaking, they received a considerable measure of punishment and one which, in the light of the injuries they reflect, might be regarded as not only merited but, in part, a return for the offence they committed.

The case is not one in which I consider it possible to ignore the outcome of the invasion that took place, or the fairly severe hiding which the assailants received. In those circumstances, I consider it right to allow the appeal. I would vary the sentence by reducing the term of imprisonment in each case of each applicant to two years in respect of each count in the indictment.

I would set aside the recommendation for parole in each case,
and, in the case of the applicant Bower-Miles, suspend the
sentence of imprisonment after he has served a term of six
months, making the operational period of the sentence two
years in his case.
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In the case of the applicant Smith, the sentence should also
be suspended after he has served six months of it, but, in his
instance, it is my view that the operational period of the
sentence should be three years. That is intended to reflect,
at least in part, the difference in their ages and the
consideration operating in favour of Bower-Miles that he is
not only young but that he has no previous convictions and
apparently good working record.
That is the order that I propose should be made in this case.

THOMAS J: I agree with what the learned presiding Judge has said but do not agree with the sentences that he would substitute. This was an ill-considered escapade aimed at discovering whether parts of the applicant's companions' motor vehicle was still in the house where the thief lived.

Unfortunately, they made their visit after a drinking session and took weapons with them. They were outnumbered and overpowered. They were not permitted to escape. They were given a severe beating. In this case, the victims have the satisfaction of having exacted their own revenge.

One is tempted to say that it served the applicants right, but
the question is: how much more do the Courts need to do to
them to satisfy community needs and expectations? It is trite
to say that some home invasion cases are more serious than
cases of armed robbery and some are less serious. This Court
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has given many decisions permitting non-custodial sentences
with respect to young offenders to stand in armed robbery
cases.

In my view, this case falls towards the less serious end of home invasion cases. Indeed, it is one where I have given serious consideration to a non-custodial sentence for this 19-year-old offender with no previous convictions, with a good work history, who made this single excursion into violence and who had already learned a very painful lesson before being sent to prison.

The reason why I think a custodial sentence is necessary is that it is important that the Court discourage vigilantism and self-helping or revenge-driven raids especially when weapons are taken.

However, in the present circumstances only a short custodial term is necessary. I do not think that a proper response from the Court demands that either offender should be required to serve more than three months before the sentence should be suspended.

Sufficient differentiation will be made between the proposed
sentences between these two offenders by applying a longer
operational period in respect of Smith. I would propose to
set aside the sentences below and replace them with the
following sentences: in Bower-Miles' case two years
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imprisonment suspended after three months with an operational
period of two years on each count, and in Smith's case, a
sentence of two years imprisonment suspended after three
months with an operational period of three years on each
count.

WILLIAMS J: The facts have been fully set out in the reasons for judgment of the learned presiding Judge. Because this was a home invasion carried out at night by at least two people who were armed with offensive weapons, I am of the view that a significant custodial sentence was called for.

That conclusion is reinforced by the fact that a potentially serious injury was inflicted on an innocent person. The two appellants had gone to the house for reasons of self-help or revenge directed against one Chris Martin who had stolen some motorcycle parts belonging to a friend of theirs.

In my view, it is difficult to differentiate significantly between the two appellants. Bower-Miles was aged 19 at the time and had no previous convictions. Smith was aged 29 and had a minor criminal history.

It follows that there is youth on the side of Bower-Miles and
that is a factor which must be reflected in the sentence
imposed; but on the other hand it was he who struck the blow
which caused the bodily harm to Trevor Box.
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I am of the view that the period of imprisonment to be served
by each should be the same but that the youth of Bower-Miles
should be reflected in a slightly longer operational period
after the suspension of the sentences being imposed on Smith.
I agree with the sentences proposed by the learned presiding
Judge.

McPHERSON JA: The order of the Court will be in the form I have stated in my reasons.

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