R v Broadhurst

[1992] QCA 151

COURT OF APPEAL [1992] QCA 151

PINCUS JA
McPHERSON JA

DEMACK J

C.A. No 124 of 1992

THE QUEEN

v.

JOHN PETER BROADHURST

Applicant

BRISBANE

..DATE 2/6/92

JUDGMENT

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020692 D.1

JUDGMENT

McPHERSON JA: The applicant pleaded guilty at the circuit

sittings of the Supreme Court at Bundaberg to an indictment
charging three counts of assault occasioning bodily harm, one
count of unlawful use of a motor vehicle, one of robbery in
company with personal violence, three of deprivation of

liberty, and one of dangerous driving.

He applies for leave to appeal against the sentences that were

imposed on him. They were imprisonment for four years and

three months on the three counts of bodily harm, six years'

imprisonment for the robbery, 2.5 years for the three counts

of deprivation of liberty, 12 months for unlawful use and 18
months on the count of dangerous driving. All sentences were
ordered to be served concurrently, except that the sentences
of four years and three months for bodily harm were made
cumulative on the term of six years for the robbery, which in

turn was cumulative upon 2.5 years concurrent for the three

counts of deprivation of liberty. The result was a cumulative
sentence of 12 years and nine months, and, when account is

taken of a further eight or eight and a half months in

custody, it is possible to view the total penalty as the

equivalent of a sentence of some 14 years or more.

There is no question about the seriousness of the offences

that led to this heavy penalty. The victim was a 75-year-old

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pensioner. He was forcibly abducted in his own car from

outside a public house by the applicant and another young man
named Cowen. He was subjected to violence including a
headlock, a kick to the groin, a heavy blow to the back of the

neck. His wallet was taken. He was threatened with death and kept in fear of his life as a prisoner in his own car while it

was driven around with him in it.

He was pushed onto the floor of the moving vehicle, covered

with a blanket and held down by the pressure of a foot. The
applicant jumped on his outstretched arm and hurt it. The
complainant was beaten with a bar across the back, to the
accompaniment of threats to his life. After he had succeeded

in getting away from the car, the vehicle was involved in a

chase by the police until it crashed. The applicant and his
accomplice escaped into the sugarcane and were apprehended
only after a long search involving the assistance of the State

Emergency Service.

The applicant was 19 years old at the date of the offence and

20 at the date of sentence. He has an extensive criminal

record including convictions for receiving, breaking and
entering, stealing, bodily harm and breach of probation. He

is a person of below average intelligence who uses alcohol to

excess and has some history of mild drug abuse. He is the

product of a broken marriage who is thought to have been

alienated from his family since he was about 10 years old. He

is easily provoked to acts of aggression and had been using

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drugs and alcohol on the night in question.

The offences committed by the applicant involved wanton and

cowardly violence and cruelty to an inoffensive old man in
which it is demonstrated that the applicant was the
ringleader. He pleaded guilty to the offence which deserved
severe punishment. Nevertheless, a cumulative sentence of
more than 12 years for this accumulation of sentences appears

to be a heavy penalty even for these offences committed by a

young man of the applicant's age. His companion, Cowen,

received an effective sentence of 12.5 years for his part in

the attack, although he had been in custody for a rather

shorter period than the applicant. On 29 April 1992, this

Court reduced that sentence to an effective term of eight

years.

O behalf of the crown, Mr Byrne, with his customary candour,

acknowledged that, comparatively speaking, the appropriate

penalty in the case of this applicant would be approximately

8.5 years. This result should, in my view, be achieved as in

the case of Cowen by reducing from six years to four years

the term imposed for robbery and by making the terms of

imprisonment of 2.5 years for deprivation of liberty

concurrent rather than cumulative on the other terms.

The result would be as follows: (1) On each of the three counts of assault occasioning bodily harm, a sentence of four years and three months to be served concurrently. (2) On the

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count of robbery, four years’ imprisonment. (3) On the three
counts of deprivation of liberty, 2.5 years to be served
concurrently. On the count of dangerous driving, 18 months’

imprisonment. On the count of unlawful use of a motor vehicle,

12 months' imprisonment. All sentences are to be served

concurrently, except that the concurrent terms of four years and three months for bodily harm should be cumulative on the term of four years, as it will be when varied, for robbery.

The effective sentence on this footing will be eight years and

three months.

The applicant's responsibility for these offences was greater

than that of Cowen, but his period of pre-sentence custody was

considerably longer. Those are the orders I would make in

allowing the application and the appeal.

PINCUS JA: I agree.

DEMACK J: I agree.

McPHERSON JA: The order of the Court will be that the

application is granted, the appeal allowed and the sentences
varied so as to reflect the orders that I foreshadowed in the

reasons I have just given.

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