R v Jagers

[2017] QCA 303

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jagers [2017] QCA 303

PARTIES:

R
v
JAGERS, Dane Luke
(applicant)

FILE NO/S:

CA No 348 of 2016
DC No 70 of 2016
DC No 97 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Bundaberg – Date of Sentence: 25 November 2016 (Clare SC DCJ)

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2017

JUDGES:

Sofronoff P and McMurdo JA and Bowskill J

ORDERS:

1.   The application for leave to appeal against sentence is refused.

2.   The Verdict and Judgment Record be corrected so as to record that upon count 4 on the indictment the offender be imprisoned for a term of seven years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDER – where the applicant and two co-offenders assaulted two complainants – where one of the applicant’s co-offenders hit one of the complainants on the forearm and head with a spirit level – where the applicant poured fuel over the complainants and threatened to light the fuel – where the applicant made verbal threats to the complainants – where the applicant held an angle grinder above one of the complainant’s fingers and made verbal threats to her – where the applicant and his co-offenders were convicted of common assault, assault occasioning bodily harm and two counts of torture – where the applicant had a significant criminal history – where the applicant’s co-offenders did not have as extensive criminal histories as the applicant – where the applicant was given a head sentence of seven years’ imprisonment – where the applicant’s co-offenders each received a head sentence of five years’ and three and a half years’ imprisonment respectively – whether the discrepancy in the three sentences indicates that the sentencing judge failed to have regard to the parity principle

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the applicant was convicted of common assault, assault occasioning bodily harm and two counts of torture – where the applicant’s counsel at sentencing submitted that a mitigating factor was that the applicant had attempted to remove one of the complainants from danger at one point during the offending – where the applicant had otherwise not shown remorse for his offending – whether counsel’s submission exacerbated the applicant’s sentence

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited

COUNSEL:

L D Reece for the applicant
G J Cummings for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P AND BOWSKILL J:  In the early morning hours of 14 December 2015 Joshua Senior and Jessica Robertson, who were both 24 years old, came to the house of an acquaintance of theirs, Kia Thomas, with the intention of selling her some methylamphetamine.  When they arrived at Thomas’s house they found her together with the applicant, Dane Luke Jagers.  The four of them spoke for a while and then, suddenly, two other men burst into the room.  These were Beau Wynne and Shaun Simpson.  They had been hiding in the kitchen.  Somebody kicked Robinson in the side of the face.  She did not see who had kicked her.  She looked up from the floor and saw Wynne and Simpson standing near her, armed with metal spirit levels.  She owed Simpson about $10,000 for drug purchases.  Wynne or Simpson shouted at her, “Where’s my money?” and threatened to club her with the spirit levels.  Simpson hit Senior on the right forearm with his spirit level, cutting him.  The applicant grabbed Senior’s collar, pulled him forward and punched him in the face with his fist.  He then took a bottle filled with some kind of fuel, perhaps petrol, and splashed it over Senior and Robertson.  He began to click a cigarette lighter near Senior.  Simpson smashed Senior over the top of his head with the spirit level, wounding him.  The applicant said to Senior, “Get off my fucking couch you maggot, you’re bleeding on my fuckin’ couch”.  He pulled Senior up and made him sit on the coffee table.  He said “If I had it my way I would be taking this fuckin’ little cunt out to the forestry!  I still just might!”.

2. The applicant took some rope and tied Robertson’s hands together in front of her body.  He told her to get up and led her half way up the hallway but then brought her back to the couch when his co-offender, Thomas, called out to him.  Wynne had told Senior that he would have to transfer ownership of his vehicle to him.  He found the methylamphetamine that Senior had intended to sell to Thomas.  He took it and told Robertson and Senior that, accounting for the vehicle and the drugs, their debt was now $5,500.

3. The applicant and his co-offenders then decided that they would put the complainants in a car and drop them off somewhere.  They told Robertson and Senior that they were to explain to anyone who asked that they had been bashed with a bat by unknown people.  The applicant handed each of them a bullet and said, “Look at them and look at them good, cause if you ever open your mouths these will be used”.  He then took a witness statement and held it in front of Robertson’s face and said, “If I ever see one of these with your name on it, it doesn’t matter how long I go to jail for, I will find you and kill you”.

4. The applicant picked up an angle grinder, plugged it in and started it, spinning the cutting disk.  He held this above Robertson’s fingers and asked her if she understood.  He turned it off and on again and held it close to Robertson’s throat and said “If this was to happen again, next time it’ll be worse”.

5. Senior could not walk.  Simpson and the applicant carried him to a vehicle.  Simpson and the applicant then drove Robertson and Senior and left them in the street.

6. Senior had suffered a large laceration to the top of his head.  He had a weakness in the range of movement of his legs.  Subsequently at a hospital he was found to have suffered a non-depressed linear skull fracture and a laceration.  He was transferred to Royal Brisbane Hospital.  He complained of limited movement in his legs.  He discharged himself before being treated.  The applicant was later sentenced on the basis that Senior had suffered no ongoing permanent injuries.

7. The applicant and his co-offenders, Wynne and Simpson, were arrested.  They all declined to be interviewed.

8. Earlier in the year, on 20 August 2015, the applicant and his partner, Lindsay Mastroieni, had engaged in a violent altercation.  The applicant chased Mastroieni, caught her and punched her in the nose and face.  He threatened to kill her.  Police finally found him three months later.  He was arrested, charged and released on watch house bail.  While on bail he committed the offences against Senior and Robertson.  In respect of those he was charged with common assault (count 1), assault occasioning bodily harm, while armed, in company (count 2) and torture (counts 3 and 4).

9. The applicant’s criminal history was not insignificant.  After a series of public nuisance offences, in 2013 he was convicted of producing dangerous drugs which, together with some associated offences, resulted in a prison sentence of two years.  Two years later, in 2015, he was convicted of unlawful possession of weapons, possession of dangerous drugs, possession of a knife in a public place and a serious assault on a person over 60.  He is a self-confessed daily user of methylamphetamine.

10. At the sentence hearing his counsel submitted that his acts constituting the offences were “meant to scare both complainants”.  They certainly did that.  By pleading guilty to the offence of torture he is taken to have accepted that he intended to inflict at least severe emotional suffering.  His counsel submitted that the applicant had no intention physically to injure the complainants.

11. During the course of his submissions the following exchange occurred, of which we will only quote the most relevant parts:

    “COUNSEL:--- Well, he did remove the female complainant from the garage.

    …

    COUNSEL: Your Honour, that was a device to get her away from the situation.  He wanted to remove her from the situation.  And he just took her into the kitchen as this part of his device ---

    HER HONOUR: Are you telling me that your client was the compassionate one here?

    COUNSEL: No, your Honour, I’m not ---

    HER HONOUR: He’s the one that threw petrol over these people ---

    COUNSEL: That’s right.  I’m not rising to that suggestion, your Honour.  All I’m saying is he tried to remove the female complainant out of that situation where it was taking place in the garage.  But he – he admits the allegations in the statement of facts.  After some 11 months or so in prison he has had time to reflect ---

    HER HONOUR: Is there anything else that you can point to that would support that claim that he at some point, after intending to torture her, was endeavouring to assist the female complainant, apart from taking her out to the car or towards the car after saying that he would ---

    COUNSEL: No, he – first of all he took ---

    HER HONOUR: ---take her to the forest?

    COUNSEL: First of all, he took her into the kitchen, your Honour, with the rope around her hands.  It was loosely tied, I’m instructed.  And then he left her there.  Then he went back to the garage and then came back.  Your Honour, that’s the only point that I wish to make to you is that it ---

    HER HONOUR: I ask you that because it just – in light of his behaviour, the sorts of threats that he made and the way in which he backed them up, the level of sadism, that appears to be behind those threats, I can’t help but express some scepticism about a claim that he was taking her away for her benefit.

    COUNSEL: Well, he wanted to remove her from the situation.  That’s the highest I would put it, your Honour.  It was a mixture between scaring both of them, which we admit to, but removing her at one stage and that’s the context I put it in.  I repeat that all his actions that night ---”

12. The learned sentencing judge, Clare DCJ, intimated to counsel that if he wished to press that submission he would have to call his client or some other evidence to prove it.  She said that it was a submission that seemed to lack credibility in light of the agreed facts.

13. The invitation to call evidence to support that submission was never taken up.

14. In sentencing each of the three offenders, Clare DCJ said that the offences amounted to organised thuggery and that these were offences that had to be firmly denounced.  She said that issues of community protection and general deterrence were fundamental.  We would respectfully agree.

15. Her Honour observed that the applicant was responsible for the majority of the threats that were made as well as some of the physical violence.  Although he was not the one who had cracked Senior’s skull he was a party to that assault.  He was the one who threatened the use of petrol and the angle grinder.  In these respects he was responsible for the worst of the psychological torture.

16. Her Honour said:

    “I do not accept that you took to – you took Ms Robertson to the kitchen out of concern for her.  Such a suggestion in the context of the whole of the facts would defy – would seem incredible.  You created or added to the terror for Ms Robertson by taking her, in the circumstances in which you did, while she was bound and after claims that you would like to take her to the bush.  I am satisfied that terror is exactly what you intended.”

17. Her Honour took into account the applicant’s criminal history.  She noted that after his release from prison for the offence of producing methylamphetamine he committed a series of further drug and weapons offences as well as assaults upon his girlfriend and another person.  Five days before committing the torture events he had accepted a probation order in respect of the possession of a flick knife.

18. Her Honour concluded:

    “The circumstances of your conduct back in December of 2015 demonstrate a capacity for extreme cruelty and therefore raise the risk of harm, and, therefore, you present a risk of serious harm to other people.  You have pleaded guilty.  Your counsel has offered an apology, but today I have seen no indication of genuine remorse from you.”

19. Her Honour sentenced the applicant to seven years’ imprisonment for the torture of Senior and five years’ imprisonment for the torture of Robertson.  She sentenced him to imprisonment for three years for the assault occasioning bodily harm which was count 2 and 12 months’ imprisonment for count 1, the charge of common assault.  Her Honour also sentenced the applicant to 18 months’ imprisonment in respect of the summary offence of assaulting his girlfriend.  All these terms of imprisonment were ordered to be served concurrently.

20. Simpson, who had fractured Senior’s skull, was sentenced to three years’ imprisonment for assault occasioning bodily harm as well as five years’ imprisonment for the torture of Senior and four years’ imprisonment for the torture of Robertson.  He had no relevant criminal history and, while on bail, had attended counselling and had resumed working.

21. While Wynne had been armed with a spirit level he was not alleged to have caused any significant physical injury himself.  Nor did he make the most explicit or graphic of the threats.  Like his co-offenders he had been an amphetamine addict.  He had previous convictions for trafficking in that drug.  He had been on parole when he committed these offences.  At the time of sentence he was in prison for those earlier drug offences with his sentence to expire on 21 January 2019.  Her Honour imposed sentences that were to be cumulative upon the existing sentences and, for that reason, moderated the length of the sentence that she would otherwise have imposed in order to avoid the sentence being oppressive.  He was given a sentence of three and a half years for his torture of Senior and three years for the torture of Robertson.  For the bodily harm of Senior he was sentenced to imprisonment for two years and for the common assault of Robertson he was sentenced to imprisonment for 12 months.  All of these sentences were to be served concurrently.

22. The applicant now applies for leave to appeal his sentences on two grounds.  These are that the sentences offended the principle of parity and that his counsel’s submission to the effect that the applicant had acted to remove Robertson to get her out of danger had been made without instructions and had exacerbated his sentence.

23. It is convenient to deal with this last ground first.

24. It is not easy immediately to grasp the point sought to be made by this ground.  The applicant failed to show any remorse.  He pleaded guilty to these offences but that, without more, does not necessarily indicate any remorse on the part of the offender.  An apology was offered to his victims through his counsel but such formulaic apologies hardly show even regret for having done the criminal acts.

25. From time to time counsel do make submissions by way of mitigation which are of a character that a sentencing judge is not prepared to accept.  Ordinarily, a sentencing judge’s refusal to accept a submission in mitigation cannot, and does not, lead to an increase in a sentence because there is no rational, or even conceivable, reason to justify any such increase.  However, it is possible that there may be cases in which a submission in mitigation that is rejected demonstrates, by the making of the submission itself, an aggravating feature in an offender’s case.  In such a rare case it would incumbent upon a sentencing judge who intended to take that aggravating feature into account to identify it and to explain its significance to the resulting sentence.

26. In this case it is impossible to infer that her Honour proceeded to take the mere fact of the making of that submission into account by way of increasing a sentence that she would otherwise have imposed.  Nothing in her Honour’s sentencing remarks suggests that she did that.  In our respectful opinion Clare DCJ was right to conclude that the applicant had shown no remorse and that his late and formal apology was of little weight.  If it had been true that the applicant had momentarily sought to protect Robertson against the acts of his fellow offenders that would have worked to ameliorate his sentence very much.  Of course nothing like that happened and her Honour put that consideration to one side.

27. In our opinion there is no merit in this ground and it should be rejected.

28. The applicant also argued that there was a lack of parity between his sentence and the sentence imposed on his co-offenders.  As we have said, Simpson had been sentenced to a head sentence of five years’ imprisonment.  Wynne had been sentenced to a head sentence of three and a half years’ imprisonment.

29. The reasons for the differences in the sentences imposed on these three offenders are perfectly obvious.  Although the applicant was not the leader of the three, his role was the most significant in terms of the application of psychological torture.  It was he who threatened murder and disposal of the body in a forest.  It was he who applied the fuel to their bodies and threatened to burn them.  It was he who produced the angle grinder which he turned on and with which he threatened to amputate Robertson’s fingers.  It was he who produced the bullet cartridges as symbols of his intention to murder his victims if they complained.  He had a significant criminal history which evidenced his proclivity to violence and cruelty.  He showed no remorse.  Simpson’s role was lesser in the affair and he showed evidence of insight by his post-offence efforts at rehabilitation.  Wynne’s involvement was, likewise, less than that of the applicant and his continued imprisonment for other offences required an amelioration of the sentence that would otherwise have been imposed.  But for that factor, which was absent in the applicant’s case, his sentence would have been closer to Simpson’s.

30. The applicant also submitted there was a lack of parity, having regard to the time each of the applicant and Simpson was required to serve in custody.  Relevantly on count 4 Simpson’s sentence of five years’ imprisonment was suspended after serving 158 days (about five and a half months), the period of time Simpson had already served in custody after his arrest and prior to being released on bail.  The applicant was recommended for parole eligibility at 21 April 2018 (after serving one-third of his seven year sentence, being 28 months).

31. There is, objectively, no basis for complaint in respect of this aspect of the sentence either.  The applicant’s plea of guilty was reflected in the early recommendation for parole eligibility, at the one-third mark, consistent with the recognised practice in Queensland.  There were no circumstances which called for a greater reduction than that in the applicant’s case.  He was a mature offender, older than both his co-offenders, had a serious and concerning criminal history, committed these offences in breach of a probation order imposed less than three weeks’ earlier, whilst on bail for another offence of assaulting his former partner, and had shown no remorse.  The only circumstance justifying a recommendation for parole earlier than the half way point which would otherwise apply was his plea of guilty.

32. In contrast, Simpson had no relevant criminal history, had a good work history, the offending was shown to be out of character, “the culmination of a downward descent through the misuse of ice”, whilst on bail he had taken proactive steps towards rehabilitation from his drug dependency, and he was remorseful.  Those matters led the learned sentencing judge to express the view that there was less need for personal deterrence in his case, because of the substantial evidence of progress towards rehabilitation.  The purpose of general deterrence was served by the head sentence.  In those circumstances, it was plainly open to, and indeed appropriate for, the learned sentencing judge to ameliorate Simpson’s sentence to a greater extent, by suspending it after the time already served.

1. In our view this ground too ought to be rejected.

2. For these reasons the application for leave to appeal against sentence should be refused.

3. McMURDO JA:  I would grant leave to appeal, allow the appeal and re-sentence the applicant to an overall period of imprisonment of five years with immediate eligibility for parole.

4. The facts of this case are set out in the judgment of the President and Bowskill J.  But for one consideration, the applicant’s offending made it open to the judge to impose the sentences which were ordered in his case.  That consideration is the disparity between them and the sentences imposed upon the applicant’s co-offender, Mr Simpson.

5. The applicant and Simpson were parties to the same offences of torture.  There were differences in their participation in those offences: the judge found that the applicant had been “responsible for the majority of the threats as well as some of the physical violence” and said that the applicant had been responsible for the “worst of the psychological torture”.  However Simpson had inflicted the blow which fractured Mr Senior’s skull, as one of several blows by him with the use of a heavy metal object (a spirit level) with which he had armed himself in readiness for this attack.  The criminality of each of them was high although there were those differences between what each of them did to Mr Senior and to the other complainant, Ms Robertson.  Significantly, there was no submission by the prosecutor to the sentencing judge that there was any difference between the respective levels of criminality of the applicant, Simpson and the other co-offender (Wynne).

6. The applicant was seven years older than the others, but none of them was very young: they were each aged 25 at the time of the offences and 26 when sentenced.

7. The applicant had a serious criminal history.  Most relevantly, in 2013 he had been sentenced to two years’ imprisonment for producing methamphetamine.  After his release, he had committed drugs and weapons offences.  He had also assaulted his former girlfriend whom he had chased into a shop.  And in the course of assaulting her, he pushed away an elderly woman who was nearby.  He had continued to use drugs and only a few days before the subject offences, he had accepted a probation order for the unlawful possession of a knife.

8. Simpson was found not to have had a relevant criminal history.  Her Honour had the impression that the subject offences were “the culmination of a downward descent through the misuse of ice”.  Simpson had become addicted to the drug and this had cost him his job.  The judge accepted that Simpson was committed to changing his ways.  Whilst on bail he had resumed work and re-established his contact with his wife and family.  She accepted that Simpson was remorseful and that the need for personal deterrence in his case, because of what she saw as the substantial evidence of Simpson’s progress towards rehabilitation, was relatively small.

9. In contrast to Simpson’s position, the judge said that the applicant was not genuinely remorseful.  She said that although the applicant had undertaken a course in relation to substance abuse, after his arrest in December 2015, he was in need of “much, much more … assistance” and his prospects were not as favourable as those of his co-offenders in respect of future offending.  But it thereby appeared that her Honour must have accepted that the applicant, like Simpson, had been affected by the misuse of ice.

10. The prosecution did not suggest, and the judge did not find, that the applicant was the leader of this group of three.  Rather, all three were apparently equal participants.  It may be noted that it was Simpson who was said to have been owed by Robertson a drug debt of $10,000, which led to the three going to this house and to the conduct which ensued.

11. The judge was correct to see Simpson’s case as different to that of the applicant, because of the absence of a significant criminal history, the existence of genuine remorse and the good prospects of rehabilitation in Simpson’s case.  There was also a significant difference between the applicant’s case and that of the other co-offender, who was to receive a cumulative sentence for which the totality principle was relevant.  However the level of criminality of Simpson was of the same order as that of the applicant.  They were equal partners in an attack upon the complainants which they had planned and together carried out.  The seriousness of the applicant’s conduct was matched by the physical violence inflicted by Simpson.  Each was encouraged to do what he did by the other’s participation.

12. Simpson received terms of five years and four years for the torture offences, as against the terms of seven years and five years imposed in the applicant’s case.  Moreover Simpson was required to serve about five months in custody, whilst the applicant was required to serve at least 28 months in custody.  Consequently, for offences in which the two men were equal participants, the applicant has a period of imprisonment which is 40 per cent more than in Simpson’s case, and will have to spend more than five times as long in prison (and perhaps longer).

13. In Lowe v The Queen,[1] Gibbs CJ said that “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”  In Green v The Queen,[2] French CJ, Crennan and Kiefel JJ said that “[w]here there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive” and that “[d]isparity can be an indicator of appealable error.”  In a proper comparison in assessing a sentence imposed on a co-offender, all components of the sentence must be taken into account, not only the head sentence.[3]

    [1](1984) 154 CLR 606 at 610.

    [2](2011) 244 CLR 462 at 475 [32].

    [3]Postiglione v The Queen (1997) 189 CLR 295 at 302 (Dawson and Gaudron JJ).

14. The different personal circumstances of Simpson warranted a lower sentence in his case.  In particular, what the judge regarded as his progress towards rehabilitation, of which his remorse was a factor, justified what was a very short period of actual custody.  However there was also a marked disparity in the head sentences.  Those two aspects of the sentences combine to make this a case where there is such a disparity as “to give rise to a justifiable sentence of grievance”.  Consequently, in my view there was an appealable error in this case and the Court should re-sentence the applicant.

15. As the plurality said in Green, if an appeal is allowed on the ground of disparity, a court in re-sentencing is not required to achieve identity of punishment.[4]  Because the degree of criminality of these two offenders was not different, I would impose the same head sentences in the applicant’s case.  The applicant’s plea of guilty warranted a parole eligibility date fixed at the one third mark.  For a period of imprisonment of five years, that date was 21 August 2017.  I would therefore fix the date of this judgment as the parole eligibility date.

    [4](2011) 244 CLR 462 at 475 [32].

16. I would order as follows:

    1.Upon counts 3 and 4 on the indictment 70/16, vary the terms of imprisonment to four years and five years respectively.

    2.Fix the date of the delivery of this judgment as the date upon which the applicant is eligible for parole.