R v John Andrew Schultz and Christopher Alexander Inge No. SCCRM 97/6, 97/8 Judgment No. 6098 Number of Pages 13 Criminal Law and Procedure (1997) 68 Sasr 377

[1997] SASC 6098

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

COX, PERRY AND WILLIAMS JJ

Criminal law and procedure - burglary - sentence - the appellant, together with another man, broke into a house occupied by a 68 year old man late at night - the other man battered the occupier to death using a piece of wood, which the occupier had picked up to defend himself, and a claw hammer - the dead body of the occupier was then doused in petrol and incinerated - the appellant did not take part in the assault, but attempted to smash a tv set - he admitted to breaking into the house with the intention of damaging property, but nothing more - held, on appeal, that in the circumstances, the appellant's plea of guilty to burglary meant that he stood to be sentenced for breaking into the house with the intention of damaging property - while he must necessarily be taken to have had the intention of taking such measures against the occupier as might prove to be necessary to effect that purpose, he was not to be sentenced for the violent assault on the occupier which led to his death - sentence of 12 years imprisonment with a non-parole period of seven years on the burglary charge and an associated charge of being an accessory after the fact to murder reduced to seven and a half years imprisonment with a non-parole period of five years. Criminal Law Consolidation Actss85, 168 and 241, referred to.

Criminal law and procedure - murder - sentence - the appellant pleaded guilty to murdering a 68 year old man after breaking into his house late at night, in company with another man - be battered the victim to death by striking him about the head with a piece of wood, which the occupier had picked up to defend himself, and a claw hammer - subsequently the body of the occupier was doused with petrol and incinerated - the appellant, who was at the time 23 years old, had a long record of prior convictions - there was evidence that he was of borderline intelligence, and had a long history of seizures consistent with traumatic brain damage - the victim had sexually abused the appellant and the appelant's sisters over a period of time about eight years before the attack - held that a non-parole period of twenty years was not manifestly excessive. Bricis (1996) 186 LSJS 217, considered.

Criminal law and procedure - sentencing - allowance for plea of guilty - there can be no rigid formula for the deduction to be made for a plea of guilty, and each case must turn on its own individual circumstances - sometimes no deduction or only a small deduction may be called for, eg where the defendant is caught red-handed or where a late plea is made after the commencement of the trial. Moyle (1996) 186 LSJS 462, considered.

ADELAIDE, 20 March 1997 (hearing), 4 April 1997 (decision)

#DATE 4:4:1997

Appellant John Andrew Schultz:

Counsel: Mr K Borick - Solicitors: Dixon Gallasch

Appellant Christopher Alexander Inge:

Counsel: Mr G Barrett QC - Solicitors: Camatta Lempens

Respondent R:

Counsel: Ms W Abraham QC - Solicitors: DPP (SA)

Order: appeals dismissed.

COX J

1. I would allow Schultz's appeal and substitute for the sentence imposed upon him by the sentencing Judge a head sentence of seven years and six months with a non-parole period of five years, both to run from 6 December 1995. I would dismiss the appeal by Inge. I agree with the reasons of Perry J.

PERRY J

2. The two appellants were charged in this Court on an information alleging that on 5 December 1995 at Thebarton, together, they murdered Alfred Henry James Slee.

3. Upon arraignment the appellant Inge pleaded guilty to the charge of murder, but the appellant Schultz pleaded not guilty.

4. Subsequently Schultz was re-arraigned on an ex officio information alleging two counts, namely burglary (Criminal Law Consolidation Act S168), and assisting the co-accused Inge to escape apprehension and prosecution (S241). Schultz pleaded guilty to both of those counts.

5. Following submissions for leniency made by counsel on behalf of the appellants, the learned sentencing judge imposed the mandatory penalty of life imprisonment upon the appellant Inge, against which he fixed a non-parole period of 20 years.

6. As to the appellant Schultz, the learned sentencing judge imposed one sentence for the two offences, namely a term of imprisonment for 12 years as to which he fixed a non-parole period of 7 years.

7. Both appellants appeal by leave.

8. In the case of the appellant Inge, he complains that the non-parole period is manifestly excessive and that the learned sentencing judge gave too little weight to his plea of guilty, his remorse, and a number of other mitigating factors.

9. In the case of the appellant Schultz, there is one ground of appeal, namely, that the sentence was manifestly excessive.

10. The victim of the offences was a 68 year old man who lived alone. The appellants, who had been drinking together, went to his house late at night. Inge was known to the deceased, but the latter refused to let them in. Inge then removed a wire screen from a window and climbed inside, the appellant Schultz following.

11. The deceased had armed himself with a piece of wood. The learned sentencing judge proceeded on the basis that Inge took the wood from the deceased and while Schultz held the deceased, battered him with the piece of wood and later with a hammer, until he was dead.

12. The evidence as to where the hammer came from and whether Schultz had anything to do with the hammer is unclear.

13. At a comparatively early stage before Inge had completed his assault on the deceased, Schultz remained in another room and was not directly participating, so that in the immediate sense it was the appellant Inge who was responsible for the murder of the deceased. That position was eventually accepted by the Crown and is reflected in the variation in the charges eventually brought against Schultz and the Crown's acceptance of his plea to those charges.

14. Schultz found a can of petrol in the house and handed it to Inge. Petrol from the can was poured over the dead body of the deceased and ignited. The learned sentencing judge was unable to come to a decision as to which of the appellants poured the petrol over the body of the deceased. He observed that for the purpose of sentencing it did not matter.

15. After the body was ignited, the appellants left the house taking with them the piece of wood, the hammer and the window screen. The first two items were disposed of in the Torrens and the screen into the water at Outer Harbour.

16. The next day, after speaking to his father, Schultz saw a solicitor who took him to the police where he made a statement confessing to what had happened.

17. There is no indication in the papers that Schultz had any contact with the victim before that night. But the learned sentencing judge accepted that as a child, Inge had, with his parents and family, lived in the house next door to that occupied by the deceased. Inge alleged that from about the age of thirteen and for about two years thereafter the victim had sexually abused him and his two sisters when the three of them visited the deceased's house from time to time. Inge left home at the age of sixteen, but the deceased's conduct and other unsettling childhood experiences left him emotionally disturbed. He resorted to alcohol and drugs.

18. Inge came into conflict with the law in his early teens and was convicted of a number of offences including damage to property, arson and breaking into property. He had at least one spell in gaol, in 1992.

19. At the time of the offending the appellant Inge was 23 years of age and the appellant Schultz 26. Schultz had no relevant record.

20. Inge's sister, one of the children who had been allegedly sexually abused by the deceased, was Schultz's girlfriend. On the night in question she became upset and spoke to Schultz about the abuse which she and her siblings had suffered. Although Schultz denied this, the appellant Inge said that Schultz became very angry and suggested going to the victim's house. Schultz maintained that it was Inge who suggested going there. At all events, Schultz drove the appellant Inge to the deceased's house where the offences were committed.

21. The learned trial judge sentenced the appellant Inge on the footing that he did not intend to kill the victim but merely to cause him grievous bodily harm.

22. He accepted that the appellant Schultz did not have any specific intention upon his entry into the house "except perhaps to break up Slees' furniture."

23. It is necessary to look a little more closely at the material which was before the learned sentencing judge, and in particular the material which had a bearing on the extent of Schultz's involvement and what must be taken to have been his intention on entering the house.

24. The burglary count to which Schultz pleaded guilty particularised that offence in terms that, in company with Inge he "broke and entered the dwelling house of (Slee) with intent to commit an offence therein." The offence was not specified. Mr Borick for Schultz asserted on the hearing of the appeal that the offence referred to was the offence of "damaging property in the house". Ms Abraham for the Crown did not dispute that assertion.

25. Section 168, which defines the offence of burglary, does so in terms that it is committed by a person who, inter alia, breaks and enters the place of residence of another, intending to commit an offence to which the section applies:

26. The definition of an offence to which the section applies is contained in a note to the section. The note reads: "ie larceny or offences of which larceny is an element; an offence against the person; or an offence involving interference with, damage to, or destruction of, property punishable by imprisonment for three years or more."

27. I have referred to the observation by the learned sentencing judge that the only intention attributable to Schultz was "perhaps to break up" to the deceased's furniture. Later he said "you, Schultz, held Slee while you, Inge hit him."

28. Mr Borick joined issue with the latter observation. He drew attention to the fact that during the police interview with his client, which took place on the day following the incident, the most he admitted to in terms of physical contact with the deceased was touching him in the circumstances set out in the following passage from the record of his interview (references to "Harry" are to the deceased and "Chris" or "Christopher" refer to Inge):- "Q. How long had, how long after Chris had entered the room did you go in.

A. Five, ten seconds.

Q. Okay, what, what was the first thing you saw once you entered into the room.

A. Christopher and Harry, side by side. I couldn't make out where their hands were or anything, and as I said, as I got through I believe Harry must have been off balance because Chris must have spun him around a little because he came to me and um I put my hands out because I saw him coming and I just pushed him away. I didn't push him very hard. He didn't fall over or anything, it was sort of like it was just more of a reflex action because he was just coming towards me. I just put my hands out and pushed him away and I, I just stood there, basically watching and letting Christopher do the talking. I felt well he'd been the one molested, I'm sure he's got some things to say, and um so then I don't know if Harry was trying to defend himself or get away, because then they were leaving the bedroom and heading down the hallway. I remained in the room for another, five, ten seconds, looking around, letting my eyes adjust, then I left the bedroom and walked to the hallway."

29. Apparently the learned sentencing judge based his comment as to Schultz holding the deceased upon a submission put to him in that regard by Mr Barrett QC of counsel for Inge.

30. In the somewhat unsatisfactory context of a conflict between something said by Schultz during the course of his formal record of interview and an assertion by counsel for the co-accused, I think that this court should take the view that the former should prevail and that the sentencing should have proceeded on the basis of what was contained in the record of Schultz's interview.

31. Furthermore, there was no material before the learned sentencing judge from which he could properly infer that Schultz, upon entering the house, had an intention to do other than damage property, except that one must assume that this was accompanied by an intention to take what steps might prove necessary to restrain the occupier to enable that purpose to be achieved.

32. In the course of his interview with the police, Schultz said, when speaking of Inge's intentions as they appeared to be in a conversation which they had before driving off to the deceased's house:- "I imagined he (Inge) wanted to go around there and give Harry a hard time, hassle him a little about it and abuse him. It didn't enter my mind that it would get any more serious than that."

33. Elsewhere in the interview he said: " ... there was no mention of causing physical harm and I had no intention of doing so either."

34. Later again he said: "Q. Did you at any stage say that he was going to rough him up, or assault him before you got to the house.

A. No, I spoke about that just as we got there and said, 'so what are we doing, you know break up this place, tell him that people remember and hope he's happy with himself you know, make sure he's got the guilts about it, and make sure he remembers what he did', but you know I made no mention of assaulting him, just I did make mention of busting up his place a bit.

Q. You made mention of creating damage inside the house.

A. Yes, I did.

Q. What did Chris say he was going to do.

A. He didn't answer, not that I recall.

Q. He didn't say anything to you at all.

A. Not that I recall, I don't remember his reply.

Q. What did you believe he was going to do.

A. I think that he'd heard me and that's what was going to happen.

Q. Did he specifically say what he was going to do, did you say to him what you were going to do.

A. I told him that what we'd do, we'll just go in and bust the place up a bit and just, you know tell him, remind him what, what he did, basically, so see if he remembers, and just you know bust his place up a bit, just so he remembers, so he would still feel guilty about it, you know, but you know, either tell him that maybe you know might tell some people about it, might bring it out into the open now, just to you know, just to let him know just so he'd think about it, think about what he'd done to those kids, that's all."

35. At another point during the interview, he said, "I would say I went there for the intent to destroy some property."

36. Section 85 of the Criminal Law Consolidation Act which deals with the offence of damaging property, provides for a range of penalties depending on the extent of the damage. In the case of a completed offence where the damage exceeds $2,000 (but does not exceed $25,000) the penalty is imprisonment for three year (see s85(3)(a)).

37. Schultz's plea of guilty to the burglary count is intelligible only upon the basis that at the time of breaking and entering the deceased's house, he had an intention of causing damage to property exceeding $2,000 but not exceeding $25,000. The evidentiary basis for reaching such a conclusion was, to say the least, shaky.

38. The case illustrates the problems which arise when the factual basis for a plea of guilty is not clearly established before the sentencing court.

39. In the somewhat unsatisfactory state of the evidence as to Schultz's involvement, I would accept Mr Borick's submission that it was not proper to sentence Schultz on the footing that he held the deceased while Inge struck him or that when he broke and entered the house, his intention was to commit anything other than damage to property of the order which I have indicated. That is with the qualification which I have already expressed, namely, that Schultz must be taken to have intended that between the two of them, they would do what was necessary to subdue the deceased so that the object of "busting up his place" could be achieved.

40. I do not think that it would be right to take into account, in sentencing Schultz on the burglary count, the very violent assault on the deceased committed by Inge, culminating in his death. That is not to say that an assault may not be an aggravating circumstance in the context of a burglary charge, for example, where it is committed to facilitate some other object of the burglary, eg theft. But that is not the case here. Inge's conduct in battering the deceased to death was not an incidence of carrying out the burglary, or a common incidence of burglary, such as putting the householder in fear.

41. On the count of assisting Inge to escape apprehension and prosecution, for which the maximum penalty is 10 years, it was relevant to have regard to the fact that Schultz handed to him the can of petrol, albeit in circumstances in which the court could not satisfactorily determine which of the two poured it over the body, or for that matter set alight to it. On that count, Schultz also fell to be sentenced for his involvement in driving Inge away from the premises, and in assisting in the disposal of the items taken from it.

42. When the matter is looked at in that way, it seems to me that the sentence of twelve years imprisonment with a non-parole period of seven years must be regarded as excessive. The narrow factual basis upon which Schultz fell to be sentenced did not warrant a sentence of that order.

43. Schultz was a young man with no relevant prior convictions. His prior good character was supported by two written character references tendered before the learned sentencing judge.

44. In all the circumstances I would allow the appeal by the appellant Schultz to the intent that the sentence imposed upon him be quashed and that in substitution for it there be imposed a sentence of seven years and six calendar months imprisonment with a non-parole period of five years, both to run from the date upon which he was taken into custody, namely, from 6 December 1995.

45. I turn to the appellant Inge.

46. Mr Barrett for Inge referred to the fact that his client and his client's sisters had been sexually abused by the deceased. But that course of conduct was concluded some

eight years before the murder was committed. In any event, the victim of sexual abuse has no warrant to kill the abuser.

47. Mr Barrett also emphasised that although his client had a long record of prior convictions, there were no previous appearances for offences of violence.

48. The learned sentencing judge had the benefit of reports given with respect to Inge from a clinical neuro psychologist and from two psychiatrists. It appears clear from these reports that while not suffering from any identifiable psychiatric disorder, he is of borderline intelligence. He also has a history of head injury and probable seizures, which might be linked to brain damage of which the neuro psychologist found some evidence.

49. There seems little doubt that he had a confirmed dependency upon alcohol, cannabis and other substances.

50. Mr Barrett urged upon the court that it was Schultz who took the lead, who suggested that they call on the deceased, and who drove him to the deceased's house.

51. He further put forward the submission that neither of the appellants went to the deceased's house with the intention of assaulting him.

52. However, the conclusion that Inge eventually did form an intention to inflict grievous bodily harm is inescapable.

53. In putting his submissions as to the discount for the plea of guilty entered by his client, Mr Barrett drew attention to remarks made by me in the course of the judgment given in the matter of R v Moyle.

54. That case involved an appeal against a sentence imposed for a plea of guilty to murder, the circumstances of the offence being that the appellant had set alight to the driver of a stationary car and incinerated him. In that case I said: "In reviewing the sentence, it has been accepted that, both before the learned trial judge and by Mr Rofe QC before this court, the appropriate allowance for a plea of guilty falls within the range of a deduction of the order of 15-25%. In this case, however, the plea of guilty was made very late in the day, indeed on the day on which the trial of the appellant for murder was due to start. Not only does that indicate that the reduction for the plea of guilty should be towards the lower end of the allowance which ordinarily could be made for that aspect of the matter but it also detracts from the suggestion that he was contrite as is said to have been demonstrated by his early confession to which I have referred."

55. I did not mean to convey in that passage that in all cases a deduction for a plea of guilty should be made within the range of 15-25%. There will sometimes be cases in which no deduction or only a very small deduction should be made; for example where the defendant was caught red handed or where the plea is made during the course of trial.

56. There can be no rigid formula for the deduction to be made for a plea of guilty and each case must turn on its own circumstances.

57. Here the plea of guilty was made very late, just before the trial was due to commence. However, as Mr Barrett points out, the learned sentencing judge accepted the proposition that the delay in advancing the plea was not attributable to the appellant and was associated with the obtaining and evaluation of expert evidence as to the appellant's psychiatric and psychological state.

58. Mr Barrett referred to a number of instances of non-parole periods set in murder cases But it is difficult, if not impossible to make any useful comparison between non parole periods set for murder or any other offence, given that non parole periods must necessarily reflect idiosyncratic features personal to the defendant, to a greater extent than in the case of the head sentence.

59. Mr Barrett conceded that in setting a non-parole period for murder, age was a factor which must be taken into account. As to that, see the remarks of Doyle CJ in Bricis, when he said: " ... when fixing a non-parole period in relation to a life sentence, the age of the prisoner is material. The non-parole period must be an appropriate proportion of the balance of the prisoner's life. It necessarily follows from that that in the case of relatively young offenders the non-parole period will generally be of very considerable length. That is an inescapable consequence of the duty of the Court to maintain an appropriate proportionality between the length of the non-parole period and the duration of the head sentence."

60. Inge was 23 and his relative youth counts against him in determining the appropriate non-parole period. But I accept that, nonetheless, one can separately make some sort of allowance for youth in favour of the defendant. But, for the reasons identified in Bricis, it would be an unusual case in which that could cancel out the allowance to be made the other way.

61. This was a brutal assault on a frail old man of 68 years, alone in his house late at night. His life was battered out of him by the use of a piece of wood, which he had initially armed himself with in a futile attempt to defend himself, and a claw hammer. The incineration of the body of the deceased was a circumstance of aggravation.

62. In my opinion, Inge has failed to demonstrate that the non-parole period was manifestly excessive.

63. I would dismiss Inge's appeal.

WILLIAMS J

64. The circumstances giving rise to these two appeals against sentence have been comprehensively reviewed by Perry J. I agree that the appeal by Inge should be dismissed.

65. In the appeal by Schultz the pith and substance of the burglary offence leads me to the conclusion that the sentence fixed by the Sentencing Judge - albeit severe - properly reflects an appropriate penalty for the particular crime; Schultz set out to terrorize his victim and in this sense it is an offence against the person.

66. Burglary is a special offence. The elements of the crime are complete at the moment in the night when the offender, in the course of housebreaking, enters the premises with the intention of committing any one of the crimes enumerated in s168 of the Criminal Law Consolidation Act. At first sight it may seem odd that the offence of burglary crystallises at the point of entry into the premises coupled with an intention to commit a crime which otherwise remains inchoate. However, the historical justification for this special offence has often been restated as being - the prevention of fear and risk of physical danger which arises from encounters with intruders on private premises; forced entry by night carries with it the risk of causing the householder to become seriously alarmed or seriously affronted. See for example: Frieberg on Sentencing in Victoria (1985) at 543-544, Howard on Criminal Law (5th ed) 269 Note 11.

67. Counsel for Schultz places some emphasis upon the fact that Schultz' intention upon breaking into Slee's home was to do property damage. The underlying assumption behind this submission is that an intention to effect property damage should attract a lesser sentence than if Schultz had gone to the premises with a view to causing harm to Slee personally.

68. The reality of the factual situation is acknowledged by Schultz when in a statement to the police he described his state of mind as he drove with Inge to Slee's house: "...Prior to getting there, no solid plan had been made about what was going to happen, I was all for going and breaking up his place a bit and letting him know what he'd done was not forgotten....there was no mention of causing him physical harm and I'd had no intention of doing so either...."

69. Although defence counsel maintains that Schultz was intending only property damage, my conclusion is that Schultz, in concert with Inge was looking for a confrontation with Slee in which Slee would be "given a message". Terrorism of the victim was the root purpose of this nocturnal and unwelcome visit. That Schultz intended to participate in this crude communication by breaking up Slee's property is not a matter which carries weight with me in terms of mitigation of sentence. The purpose of Schultz' actions was, at the least, to provide reinforcement to Inge in his endeavours; he intended to use an attack on Slee's property as his instrument for terrorising Slee. The proposed encounter was intended to induce personal trauma and fear in the victim. The gravamen of Schultz' behaviour is that it was a personal attack upon the sensitivities of an old man in the confines of his home. If Slee had not been present the communication of "the message" could not have been as effective. For sentencing purposes Schultz' conduct should be characterised as an offence against the person.

70. In my opinion a charge of burglary is an apt response by the Director of Public Prosecutions to this act involving intended property damage for the purposes of terrorising Slee. This is so despite the fact that burglary in the public mind is more often linked with offences of dishonesty.

71. In a review of sentencing principles, Lord Lane CJ said: "Within the house the activities of the burglar are of great significance. Questions of disturbance, ransacking, vandalism, fouling and hooliganism are all relevant: so too is the amount and value, both in monetary and personal terms, of any objects stolen.

The effect of the burglary on the victim and the family is of obvious importance. It is trite but still sometimes overlooked that dwelling house burglary is in a very real sense an offence against the person as well as an offence of dishonesty. Even without direct personal injury, the victims of burglaries can suffer anxiety and distress which may last for many years and which far outweigh the value of the goods actually stolen." - (See R v Mussell
(1991) 1 WLR 187 at 193.)

72. In assessing the offending by Schultz I do not need to look beyond the situation which existed as Schultz (following Inge) crossed the window ledge of Slee's home.

73. Schultz went with Inge to give him aid and comfort. He drove Inge to the premises and followed him into the house - up to this point acting in concert with him. From the moment of entry a situation of confrontation was deliberately brought about in which, in relation to the old man, the intruders were clearly the superior force by reason of their numbers and by reason of the fact that they were physically in the prime of life. It was an explosive situation which had the potential for tragic consequences. Schultz is to be dealt with for his part in creating this most dangerous situation in which the householder was obviously to become seriously alarmed. It does not greatly assist Schultz to say that he had no intention to do personal injury. Surely he must have expected that the old man would be alarmed if not terrorised. Slee's encounter with the intruders was an immediate consequence of the breaking and entry and Schultz must be punished for his part in bringing about that dreadful confrontation although he was not responsible for the subsequent excesses on the part of Inge which led to Slee's murder.

74. Schultz went to the victim's house without any definite plan. He may have been unable to articulate properly his underlying purpose but his acknowledged intention to damage Slee's possessions can only have meaning in the context of harassing Slee or of exacting retribution from him. This was a serious crime against the person and in this particular case of burglary a comparison with the sentence which might be appropriate in a case of intended theft or property damage does not seem to me to be apt. The facts of the present case demonstrate why a heavy sentence for burglary is sometimes appropriate.

75. In helping to dispose of the evidence, Schultz continued to give aid and comfort to Inge but the burglary offence should be regarded in the circumstances as the paramount crime.

76. The Sentencing Judge was required to form an opinion as to Schultz' intentions and as to the gravity of the offending. However, it was unnecessary in the present case for His Honour to resolve the conflicts upon the evidence as to the part played by Schultz within the house. He has not been charged with assault or arson; Schultz' intended harassment of Slee is sufficient to support the sentence.

77. Householders are entitled to enjoy security and peace within the home; in my opinion Schultz' offending (in terms of his intentions as he entered Slee's home) is such a serious affront as to require a sentence of the order which the Sentencing Judge imposed.

78. In my opinion Schultz should be dealt with upon the footing of his involvement in a calculated effort to inculcate Slee with fear and alarm. I would dismiss the appeal against sentence.

79. During argument upon appeal the sentencing process itself came under scrutiny. In my view, the way in which this process was carried through was unexceptional. The Sentencing Judge was entitled to seek the assistance of counsel as he did. In view of the responses which he received from counsel the factual basis upon which Schultz should be sentenced was formally established so as to remove the uncertainties appearing upon the face of the papers. Nothing more was required procedurally in order to do justice to Schultz.

80. In the course of his sentencing remarks Millhouse J observed that Schultz held Slee while Inge hit him. During argument upon the appeal it was submitted that at first instance counsel for Schultz had disputed that Schultz held Slee. Upon my reading of the transcript before Millhouse J, the holding of Slee by Schultz was not disputed.

81. Mr Barrett QC on behalf of Inge put to the Sentencing Judge Inge's story which relevantly was as follows: "My instructions are that Mr Slee came at my client with a piece of wood. My client pushed him away and himself picked up the piece of wood that Mr Slee had in his hand. My instructions are that the co-accused then climbed in through the window and he, the co-accused, grabbed hold of Mr Slee. My client then started hitting him with the piece of wood that Mr Slee himself had had first and then dropped, having been pushed way. The co-accused claims saying things like, 'Get it off your chest, tell him what you think of him', but the co-accused wasn't doing anything other than holding him at that stage." [See T348-349].

82. Mr Borick, counsel for Schultz, then commented upon the "story which you have heard from Mr Inge through counsel". [T354]. Mr Borick summarised Schultz' version of events as follows: "My client's version is that he had no idea that Inge was going to behave in this way. He was in the other room in the house, which, partly, is confirmed by Inge's story. He remembers Slee asking Inge to get out. He said the room was dark. He could see Slee was trying to push Inge out and, at one stage, he could see Mr Slee had lost his balance."

83. At no stage during sentencing submissions before Millhouse J did counsel for Schultz address the allegation that Schultz held Slee. However, he submitted that Schultz should be sentenced by reference to his own version of the facts.

84. At three separate points in his record of police interview Schultz described the events immediately after he climbed through Slee's bedroom window. He acknowledged that he was "feeling very vague" [T295] and claimed that Slee was "thrown towards" Schultz after grappling with Inge [T297]. It is not easy to piece together exactly what Schultz claims to have happened. Despite his claimed "vagueness" Schultz in his statement displays precision in his description of Slee's movements as Schultz entered the bedroom; notwithstanding this, Schultz then asserts that darkness prevented him from observing Inge's hands and arms with which Slee must have been "grabbed a little" [T312].

85. Recognising that there were differences in the version of events put forward by Inge and Schultz respectively, Millhouse J invited Mr Borick to identify the differences [T359 l1]. In response, counsel for Schultz then listed the differences as follows: 1. That it was Inge who suggested going around to Slee's house "to sort the bloke out" [T359 l8].

2. "When they got into the house Inge says "that my client said 'Get it off your chest. Tell him what you think of him'. That is in dispute." [T359 l20].

3. The other specific area of dispute concerned the handling of the petrol [T359 l24-38]; and comments allegedly made by Schultz in this context - "The car needs a drink". That topic was disputed.

4. "The next point of dispute is that Inge says that my client poured petrol over Mr Slee. That is in dispute."

5. The next point of dispute is that "Inge says he saw Schultz with a hammer in his hand standing near the television set. According to Inge he said 'I think I've killed him' and then Schultz passed him the hammer and said 'Make sure he is'. Inge says he went back and bashed him with a hammer. That is in dispute. Mr Schultz did not hand him the hammer. He didn't know where the hammer came from and did not tell Mr Inge to go back to finish him off." [T360].

86. I can find no mention of a dispute being raised concerning Inge's claim that Schultz held or restrained the victim. Moreover, the question as to whether Schultz held Slee was not a matter of complaint in terms of Schultz' appeal notice.

87. However Mr Borick told the Court of Criminal Appeal that in the case of Schultz: "The plea was put forward on the basis of not holding him as he was being hit and not handing the hammer".

88. I consider that Schultz should be dealt with upon the basis of his intention as he entered the premises irrespective of what happened thereafter.

89. Schultz went to the premises to terrorise Slee and to provide support to Inge. Damage to Slee's property was only the vehicle for inflicting suffering upon Slee.

90. In placing emphasis upon the "property aspect" of Schultz' conduct, Mr Borick is following a well worn track as regards the form of his argument. In the case of the hypothetical soldier who shoots to kill in battle, the question has been asked as to whether he does so in order to injure the enemy or in order to defend his country (see McKernan v Fraser 46 CLR at 403 citing Sir Godfrey Lushington's 1906 example). Similarly the question may be asked with respect to Schultz as to whether upon entering the premises he intended to destroy the furniture or to put fear into the heart of Slee. (The relationship between intention, object, purpose and motive as discussed in McKernan v Fraser need not now be pursued). The real root purpose attaching to Schultz' actions was to frighten Slee and Schultz' intentions must be a reflection of his undisputed purpose.

91. In the course of Schultz' interview with the police [T282] he described how "I put my hands out...and just pushed him away. I didn't push him very hard". This is now put at the forefront of Mr Borick's argument despite the "vagueness" to which Schultz refers in his police interview.

92. In view of the way in which the matter was explored before Millhouse J I do not regard the Sentencing Judge's remarks as being in error.

93. The real question concerns Schultz' intentions as he entered the house. An assault has not been charged (nor has arson) and there are limits to the extent to which the Court for sentencing purposes upon the present information should have regard to events in the house. Clearly, Schultz' intention was to frighten and by his presence to give support to Inge. This is the essence of his offending which I consider to be serious. In my opinion the sentence is not manifestly excessive.

94. In the result I would dismiss the appeals by Schultz and Inge respectively.