R v Doolan

[1998] QCA 386

[1998] QCA 386

COURT OF APPEAL
McMURDO P
McPHERSON JA

SHEPHERDSON J

CA No 175 of 1998
THE QUEEN
v.

SHANN LLOYD DOOLAN Applicant

BRISBANE
..DATE 08/10/98
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SHEPHERDSON J: Shann Lloyd Doolan has sought leave to appeal
against sentences imposed on him on 14 May 1998 in the
District Court at Townsville. The applicant had been tried by
a Judge and jury on the following offences committed on
8 February 1997 at Townsville:
Count 1Entering the dwelling house of Alic Joseph Drier in the

night-time with intent to commit an indictable

offence therein; and

Count 2 Unlawfully assaulting Drier and thereby doing him

bodily harm and at the time being armed with a
knife and in company with James Ray Wood.

Wood was charged with the same offences and both were convicted on 13 May 1998 after a joint trial which had lasted three days.

On Count 1 the applicant was sentenced to four and a half years' imprisonment suspended after serving two years of that term and the learned trial Judge declared an operational period of five years.

On Count 2, the applicant was sentenced to two years' imprisonment to be served concurrently. The sentences imposed on Wood were count 1 - two years' imprisonment suspended after serving four months of that term and an operational period of two years. Count 2 - four months' imprisonment concurrent with the sentence in Count 1.

The applicant was born on 5 January 1964 and so was 33 years
old when he committed the offences. The complainant Drier had
known the applicant for about 15 years and in early 1996 he
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had lent the applicant $20. Despite repeated requests, the
money was not repaid and animosity developed between Drier and
the applicant with threats being made on both sides.

Drier was 28 years old at the time of the offences and he resided with his common law wife, Janine, who was a cousin of the applicant. In early 1997, Drier saw the applicant in a Townsville nightclub. Drier was with Janine and he offered the applicant an end to hostilities between them. The applicant responded with a threat, a fight ensued and the applicant ended up unconscious on the ground. Police were called. Drier was a boxer.

The next morning the applicant and four or five other people came to the home of Drier and Janine. The applicant wanted to fight Drier but he declined. Before leaving, the applicant smashed some louvres, smashed a few pot-plants and kicked Drier's car.

About a week later - at about 3.00 a.m. on 8 February 1997, Drier was asleep in the lounge room of his high-set home. Janine was asleep in another room. Drier gave evidence that he was expecting that the applicant might come around again and he lay on the couch trying to keep awake. He fell asleep and awoke to see James Wood holding open the front door and holding a knife in one hand. Drier had known Wood for about three years.

Drier also saw the applicant running through the door straight
at him saying words to the effect "I've got you." Drier
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jumped to his feet and swung the applicant bodily into a door.
Fearing for his safety because he had seen the two men, one
with a knife, Drier, jumped over the balcony to the ground
several metres below. He later found he had fractured his
right ankle. The applicant and Wood followed Drier over the
balcony but Drier despite his injury was able to re-enter the
house and lock the doors.

The telephone was not working and Janine went next door to telephone the police. Drier told the applicant that Janine had gone next door to call the police. The louvre window was smashed and both offenders left with threats shouted by both sides.

Shortly afterwards the police found both offenders near a motor vehicle belonging to the applicant's mother. Both the applicant and Wood subsequently denied being involved in the incidents at Drier's house although at trial Wood gave evidence that he had gone alone to Drier's house and had there been attacked by Drier before he fled. In evidence, Wood denied having had a knife.

At trial medical evidence was called to prove that on the morning of 8 February Drier had attended the Townsville General Hospital presenting with a swollen right ankle on which he could not properly walk. X-rays showed a fracture of the distal fibula of the ankle.

The learned trial Judge when sentencing the applicant and Wood
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referred to the applicant having shown no remorse and to his
having lied to the police about his involvement; to Drier's
injuries having been caused by jumping from a highset house to
the ground to avoid an assault by either the applicant or Wood
such that the injury was caused indirectly by their conduct;
the fact that "offences of this kind are becoming prevalent in
the community" and the need for deterrence; to the applicant
having planned the attack on Drier when Wood was armed with a
knife and both having entered Drier's home at about 3 a.m.
with a vehicle parked some distance away "obviously with a
view to avoiding detection".

The learned trial Judge was satisfied that the applicant was the driving force behind the commission of the offence.

Addressing Wood in his sentencing remarks the learned trial
Judge said, on page 204:

"I think your involvement came about largely as a result of

misguided loyalty to Doolan and probably it seems as a
result of some misinformation that was communicated to
you as to the circumstances of an earlier altercation
between Drier and Doolan. You will be treated much more
leniently on that account and because of the fact that
your history and references are much more favourable to
you than your co-offender. You were given a false
account of an earlier incident which no doubt encouraged

your participation."

I turn to the applicant's prior criminal history. His Honour
said in his sentencing remarks:
"There is a marked contrast in your criminal history; you,

Doolan, having approximately 10 previous convictions for dishonesty, many breaches of Court orders, a number of offences relating to the use of cannabis, street offences for disorderly conduct and your record includes three previous convictions for assault occasioning bodily harm as well as the previous conviction for entering a dwelling house in the night-time with intent. You have

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served short periods of imprisonment for the last

mentioned offences when convicted as a much younger man.

You are now at an age when you have to accept greater

responsibility for your conduct. You seem to me to have

acted, despite your increased age, with great immaturity.

After rejecting a peace offering in the nightclub and

responding with a threat you engaged Drier in a fight in
which he was not willing to participate."

The applicant, as I have said, has served some short terms of imprisonment and his criminal history shows regular appearances in Court between 24 February 1978 and mid-1997.

The learned trial Judge noted the marked difference in the criminal histories of Wood and the applicant. Wood had not previously been sent to gaol but a 1993 appearance in the Townsville Magistrates Court for possession of a pipe used in connection with smoking a dangerous drug and a 1994 appearance in the same Court on a charge of behaving in a disorderly manner appear in his criminal history.

The applicant has argued that the learned trial Judge erred in exercising his sentencing discretion in the following way:

1.Failing to give due weight and consideration to the

applicant's lack of criminal convictions for recent

comparable offences.

2.Failing to give due weight and consideration to the fact

that the complainant's injuries were caused indirectly by

the applicant.

3.Placing undue emphasis on the comparative sentence offered
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up by counsel for the prosecution.

4.Giving undue weight to the circumstances of the co-accused

Wood to justify the disparity in sentences between the applicant and Wood.

5.Failing to consider properly the principles relating to

parity of sentences.

I should say now the sentencing comments of the learned trial
Judge do not disclose a failure to properly consider parity of
sentencing and I see no reason to believe that there is any
cause for a justifiable sense of grievance on the part of the
applicant. In relation to Wood, when sentencing, His Honour
had said:

"You have good references, a relatively good work history, and

a past history of offences which I do not think are
relevant for the purpose of the present sentence."

It has been argued that Wood was the man with the knife whereas Doolan did not have the knife; however they were both jointly charged and it was obviously a section 8 case and Doolan has to bear the same responsibility as Wood for having had the knife in his possession at the time.

The comparable sentence referred to the learned trial Judge
was The Queen versus Tony Michael Frazer, CA 252 of 1997 in
which judgment was given on 5 August 1997. This was a case in
which Frazer had been sentenced to an effective term of
imprisonment of four and a half years for one count of
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burglary and one of assault occasioning bodily harm committed
in company and while armed.

Frazer had pleaded guilty. Frazer's convictions on these offences caused an earlier suspended sentence to be activated and served cumulatively to the four and a half year sentence.

The offences which attracted the four and a half year

sentence involved Frazer and a co-offender going to the
complainant's house at night-time, shouting to his 14-year-old
stepson to come out and throwing objects at the house.

The complainant, a 62-year-old pensioner, came to the verandah and Frazer and his companion forced their way into the home breaking a locked door. The complainant was knocked to the ground and kicked and struck with a rock weighing about four times more than a house brick.

Frazer was an instance of a home invasion, as was the present
case, and in the judgment of Mr Justice McPherson, with whose
reasons other members of the Court agreed, His Honour
described home invasions as follows:

"An offence towards which the Courts have consistently adopted

an attitude of some severity in terms of sentencing. All
the worst features of such offences appear to be present
here in that it was an attack that was motivated by an
intention to take the law into their own hands in order
to enforce what appears to have been a civil claim of a

kind alleged to exist against a 14 year old stepson."

A little later His Honour said:
"One of the worst features of this kind of behaviour is that
it involves very often a number of people assisting one
of them to get square with someone else in a way that a
single individual would probably not dare to do if he was
on his own."
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For a number of years now the Courts have regularly and consistently warned that home invasions will not be tolerated and will attract substantial sentences by way of deterrence.

I mention The Queen v. Daniels CA 159/90 judgment of the Court
of Criminal Appeal of 17 September 1990; The Queen v. J F
Anderson CA 134/95 judgment delivered 1 February 1996 and The
Queen v. Inkerman CA 294/97 and CA 302/97 judgment delivered
29 August 1997 and The Queen v. Jackson CA 145/98 judgment
delivered 16 July 1998.

In the present case, the applicant might well count himself fortunate that he was not more severely dealt with. In my opinion, the applicant has failed to show that the sentences imposed were manifestly excessive or that the learned trial judge erred in the exercise the sentencing discretion. I would refuse the application.

THE PRESIDENT: I agree the application should be refused for the reasons given by Mr Justice Shepherdson.

McPHERSON JA: I agree with what has been said and that the application should be refused.

THE PRESIDENT: The order is the application for leave to appeal against sentence is refused.

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