R v Kassulke

[1994] QCA 474

IN THE COURT OF APPEAL [1994] QCA 474

SUPREME COURT OF QUEENSLAND

C.A. No. 325 of 1994.

Brisbane

[R v. Kassulke]

T H E Q U E E N

v.

GARY KENNETH KASSULKE

Applicant

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Pincus J.A.
McPherson J.A.
Lee J.
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_

Joint reasons for judgment of McPherson J.A. and Lee J., Pincus

J.A. separately, dissenting in part.

Judgment delivered 08/11/1994
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED, APPEAL ALLOWED. RECOMMENDATION FOR PAROLE MADE BELOW SET ASIDE, IN LIEU THEREOF RECOMMEND THAT APPLICANT BE CONSIDERED FOR PAROLE AFTER THREE YEARS. SENTENCES OTHERWISE IMPOSED BELOW CONFIRMED. ________________________________________________________________ _

CATCHWORDS:CRIMINAL LAW - sentence - applicant committed 6 armed robberies and associated offences when 17 - access to firearms and ammunition - had suffered from attention deficit hyperactivity disorder all his life - had developed a morbid preoccupation with firearms - head sentence of 10 years imposed - whether considering applicant's youth and plea of guilty head sentence and parole recommendation should be reduced.

Counsel:Mr S Herbert Q.C. with him Mr S O'Neil for the
applicant.
Ms L Clare for the Crown.
Solicitors:J A Sherwood & Company for the applicant.
Director of Prosecutions for the Crown.
Hearing Dates:27, 28 October 1994
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 325 of 1994.

Brisbane
[R v. Kassulke]
BeforePincus J.A.
McPherson J.A.

Lee J.

T H E Q U E E N

v.

GARY KENNETH KASSULKE

Applicant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 08/11/1994

The applicant youth has been sentenced to 10 years imprisonment for one of a series of offences including 6 armed robberies, and lesser sentences for others in the series; he makes application for leave to appeal against the sentences; there was a recommendation for parole at the expiration of 3½ years. The applicant was born on 7 May 1976 and the offences were committed between September 1993 and January 1994 while he was 17 years of age. The application is based principally upon his youth and upon evidence that the applicant's offences had been due in part to a "personality trait dysfunction" having its origins in his infancy.

Speaking generally, the evidence before the sentencing judge shows the applicant to be a person of unusual personality, who developed what has been described as a pathological interest in firearms; in all the robberies loaded guns were used.

It is unnecessary to set out full details of each offence, but some account of them must be given. There were four offences of armed robbery in company, and as to one of those it is admitted that the victim was wounded by a bullet fired by the applicant. Then there were two armed robberies committed by the applicant alone, one offence of stealing and one of unlawfully using a motor vehicle.

The first robbery was that in which the wounding occurred and which attracted the 10 year sentence. An arrangement was made by the applicant and one Robb (then aged 15) to see a Mr Connors who had advertised a pistol for sale. For some reason these boys were shown the pistol. Presumably encouraged by that, they and another person made an arrangement to see Connors again. Shortly before the appointed time they came to where Connors was working, accompanied by a third person; the applicant wore a balaclava and the other two wore masks. The applicant and the third person each had a rifle and Kassulke threatened Connors with his rifle; Connors moved sideways and the applicant fired a shot. It is common ground that Connors suffered a slight injury, but there is a dispute, which does not appear to be of much consequence, as to whether the wound was caused directly by the bullet fired by the appellant or was from a ricochet. Connors was tied up and the three offenders stole the pistol which had been advertised, and other weapons and equipment.

The second count related to a robbery at a Pizza Hut. The applicant and a co-offender, Johnson, travelled in the applicant's parents' car whose number plates had been changed. The applicant wore a balaclava and carried a pistol which was loaded. An employee was threatened with the gun and thereby induced to open the register, from which $1,000 was stolen. The third robbery was rather similar to the second. The fourth involved a video store and on this occasion the applicant was not disguised, but was, again, armed with a loaded pistol.

The fifth count involved circumstances in which there was implemented a plan, to which the applicant was a party, to stage a fake robbery at a service station where he was employed. This was done at a time when the applicant was on duty at the service station. The sixth count was another armed robbery in company, on the video store which was the subject of the fourth count. The seventh was an armed robbery at a Chinese restaurant raided by the applicant and Robb, again disguised and armed with pistols. There were a number of patrons in the restaurant at the time; the proprietor complains of health problems since the robbery.

The circumstances of the eighth count, unlawful use of a motor vehicle, led to the termination of this spate of offences.

The applicant, Johnson and Robb stole a Holden car. When Robb and Johnson were driving it, the following night, they were intercepted by the police and went with them to the service station at which the applicant worked; he told a false story about the car, but was arrested and then released. When Robb was arrested he was allowed to get in the police car having on his person a loaded pistol, which he left under a seat in the car when he went into the police station. The applicant became aware of this having happened and told a detective, one Godfrey, about the presence of the gun underneath the front seat of the car, when Godfrey happened to call at the service station where the applicant worked. According to Godfrey, the applicant told him that he had been "arrested by two arsehole policemen for stealing a car" and wished to know "what he should do if he'd left something in the police car that he might be in trouble for". On Godfrey inquiring further, he was told about the gun under the seat. The police then looked in the car and found the gun; on the following day they raided the applicant's home, acting under a search warrant. This rational response to the situation, on the part of the police, made the applicant as his counsel below said "very angry" and he proved unco-operative on that occasion; when the police were shown a shotgun and some ammunition, he told them they would find no more and that he had buried the rest. They continued their search and found more munitions; during that time the applicant remarked:

"I can't believe you're doing this. I did you a favour the other night. You could have been dead just like that".

He then said, in effect, that he had not killed one of the policemen because the police had "my friend's name, his licence, and you told the police station". When asked why he had so many guns he said, "In case anything like this happens, I can get my hands on more". Subsequently, the applicant decided to co-operate and about a fortnight after the search he told the police about the offences which became counts 2 to 7.

Counsel for the applicant, Mr Herbert QC, laid emphasis upon the fact that the applicant pleaded guilty to all the offences in question, and also stressed his co-operation with the police prior to that time. As to the latter aspect, it is true that the applicant gave the police information, but his reaction to their investigations, at least in the early stages, tended to show aggression and resentment rather than remorse.

To come to the psychiatric and psychological elements of the case, the applicant's counsel placed before the sentencing judge a report by a psychiatrist and one by a psychologist, each of which reports expressed an opinion that the applicant had suffered from attention deficit hyperactivity disorder (ADHD) for all of his life. The psychiatrist's opinion was that the applicant suffered substantially from this disorder until he was about 9 years of age when he improved, but continued to be a "behavioural problem" thereafter. The psychiatrist said the applicant's parents said that the applicant "remains impatient, impulsive, is only able to see immediate issues in front of him and tends to be a black and white thinker". The psychologist suggested that the deficiencies of the applicant should abate with treatment. Each talked of the applicant's preoccupation with firearms. On that subject and on his activities with guns the applicant made some statements to the psychologist which should be quoted:

"I loved my guns, and nobody was going to take them from me. I'd decided I would have a shoot out with the police. I thought I had the right to keep the guns..."

"Some of the stuff I had even the police wouldn't get a hold of. I even had a vest. I wore it in some robberies."
"I just didn't want people messing with me...I wanted to give the impression I'm not to be stuffed around with I just wanted to protect myself and my family"
"I just had to have bigger and better guns"
"[Doing the robberies] is a real buzz. You're very alert."

On the evidence, the applicant is afflicted by what the psychiatrist has described as "personality trait dysfunction with emotional immaturity, emotional dependence, emotional lability, impulsivity and a morbid preoccupation with firearms".

The psychiatrist has also said that he had "engaged in repetitive anti-social behaviour which grows out of his morbid preoccupation with firearms superimposed upon his residual ADHD and personality trait dysfunction...". As was pointed out by Brennan J in Channon (1978) 20 A.L.R. 1, 4:

"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct... An abnormality may reduce the moral culpability of the offender...; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period".

This and other authorities dealing with the problem are discussed in reasons of this Court in Dunn (C.A. No. 29 of 1994, 13 May 1994).

It was stressed on behalf of the applicant that, apart from the victim of the first robbery, no-one was hurt during these criminal activities; but the applicant's statements to the police suggest that they might have been fortunate that he did not shoot at one of them and that he certainly contemplated doing so. Although one would hope that some treatment might assist the applicant, he seems to have a well entrenched obsession with guns, and there is I think a risk that when released from custody he may constitute a serious danger to others, and particularly to the police.

Some discussion took place concerning the applicant's prior criminal history. The psychiatrist's report, which was tendered on behalf of the applicant below, set out the following criminal history.

October 1991Unlawful use, driving unlicensed and dangerous

driving - admonished and discharged.

January 1993Unlawful use, attempted stealing with actual violence whilst armed and unlicensed firearm - nine month supervision.
Speeding offences X 4
Unlicensed driving - 1991
Dangerous driving - 1991

The Court was told that all these offences were committed while the applicant was a child, and so s. 114(1) of the Juvenile Justice Act 1992, on the face of it, precluded evidence of them, since apparently a conviction was not recorded in any of these cases. It is not absolutely clear whether the exclusory provision in s. 114(1) may be waived on behalf of the former child; nor, it has to be said, is it easy to understand why a court sentencing for offences committed by a 17 year old (regrettably, a not uncommon task) should be required to do so on an incomplete version of the offender's recent history. That remark is particularly apposite to the present case where, on the history given to the psychiatrist, the applicant had been, not long before the armed robberies here in question, ordered to undergo 9 months supervision in respect of an attempted robbery with an unlicensed firearm. It should be added that counsel for the applicant below gave the judge a rather vague account of that incident which made it seem to be of little significance.

But the better view is that the prohibition in s. 114(1) is absolute and that the evidence that the applicant was found guilty of the matters which have been listed should not have been admitted, even when in an exhibit tendered for the applicant. It does not appear, however, that the point is necessarily of much consequence, because although these earlier offences were discussed by counsel for the applicant, both before us and before the sentencing judge, the Crown places no reliance upon them.

Mr Herbert argued that the decision of this Court in Bainbridge & Ors. (C.A. No. 284, 285 and 286 of 1993, 25 October 1993) demonstrates that the 10 year head sentence is too high, having regard to the schedule of comparable sentences annexed to the reasons in that case. Mr Herbert conceded, on the other hand, that none of the cases there mentioned may be directly compared with the present; we have not been referred to any authority in which one has the combination of multiple robberies with loaded guns committed by such a young person.

Although, as Ms Clare pointed out for the Crown, the Bainbridge schedule of offences by 17 year-olds is a collection of decisions of single judges, it nevertheless may be useful as

suggesting a pattern of sentencing at first instance. The highest sentences imposed, according to the schedule, were of 5 years, and this suggests that over the period surveyed a sentence of 10 years imprisonment imposed on a 17 year-old in respect of a series of armed robberies would have been regarded as very heavy indeed. Certainly, the present is a very bad case, but in my opinion it is difficult to avoid the conclusion that the 10 year head sentence was somewhat beyond the appropriate range; I would reduce that head sentence to 8 years.

One could not interfere with the non-parole period fixed by the judge (3½ years) if the head sentence stood, but in view of the reduction in the head sentence which I propose, it appears to me there should be a consequential reduction in the non-parole period, to 3 years. This is not to say that I am of opinion that it would be safe to release the applicant after 3 years. The parole authorities will no doubt do the best they can to determine the likelihood of his re-offending at that stage, keeping in mind especially the question whether the applicant is shown to have entirely abandoned his dangerous obsession with guns and their use.

That is, I would grant the application, allow the appeal, reduce the 10 year sentence imposed below to an 8 year sentence and reduce the period after which the applicant is eligible to apply for parole to 3 years.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & LEE J.

Judgment delivered the 8th day of November 1994

For six armed robberies, four of which were committed in company, one involving discharge of a firearm which wounded the victim in his own home, we do not regard an effective head sentence of imprisonment for 10 years as excessive. We say this despite the circumstance that the applicant is a young offender, and that he has, or has had, some psychiatric problems. Those are factors that in our opinion ought, in a matter like this, properly to be taken into account in considering whether or not a recommendation for early parole should be made.

Approached in that way, a reduction to 3 years in the time to be served by the applicant before being considered for parole is slight and perhaps so marginal as not to justify intervention by this Court. We are, however, in agreement with that part of the order proposed by Pincus J.A.

We would allow the appeal to the extent only of reducing from 3½ to 3 years the period after which the applicant should be considered for parole.