R v Mackay

[1992] QCA 252

COURT OF APPEAL  [1992] QCA 252

FITZGERALD P
DAVIES JA
LEE J

No 139 of 1992

THE QUEEN

v.

PAUL ANTHONY MACKAY

(Applicant)

BRISBANE

..DATE 15/7/92

JUDGMENT

150792

JUDGMENT
LEE J:    The applicant seeks leave to appeal against sentences of three and a half years' imprisonment imposed by a District Court Judge on 22 April 1992 on each charge of one count of housebreaking, one of attempted armed robbery in company and one of unlawful wounding, with all sentences to be served concurrently.  The ground relied on is that the sentences were manifestly excessive in the circumstances.

On 11 July 1991, over nine months prior to the sentences being imposed, the applicant and his co‑offender entered the complainant's house in the complainant's absence and ransacked the premises in search of money.  The complainant returned home and found the two offenders inside his house.  He was confronted by the applicant and his co‑offender who demanded money.  On the complainant's saying that he did not have any, the co‑offender assaulted him with various objects including a bag, motorcycle helmet, umbrella, fists and feet.

The co‑offender wrestled the complainant to the floor and again demanded money.  On being told again that he did not have any, the co‑offender asked the applicant to bash him over the head.  It appears that the applicant hit the complainant in the back of the head a few times with an umbrella.  The co‑offender struck the complainant in the head with his fists, resulting in a cut to his forehead which required three stitches.

The complainant managed to call for help and held the applicant until the police arrived.  The co‑offender escaped and the applicant declined to assist the police as to that person's details.  However, he admitted hitting the complainant a few times with the umbrella.

The applicant is 19 years of age.  The sentencing Judge referred to his age, his family difficulties, the fact that the major role was played by the co‑offender, the fact that weapons less serious than guns or knives were used and to his previous convictions.  He also referred to the fact that persons should feel secure in their own homes.

The appellant's first conviction occurred on 7 March 1990 for stealing and false pretences.  He was placed on probation for two years.  Other offences that year included obscene language, inciting to resist, assaulting police, vagrancy, breach of bail, wilful and unlawful damage to property, stealing, four counts of unlawful use of a motor vehicle, breach of probation, behaving in a disorderly manner, resisting police, unlawful assault occasioning bodily harm, and a further count of stealing.  These offences commenced two months after he left home in early 1990, and were committed throughout that year.  On 23 November 1990 he was sentenced to 12 months' imprisonment on various charges and was released from custody not long prior to the commission of the subject offences.

It was submitted on his behalf that until he left home he had been a law‑abiding citizen, that he was easily led, and in this case was under the direction of the co‑offender.  He has a most supportive family and it is said that the problems which caused him to leave home have now been resolved; he in fact returned home to live prior to the date of the sentence.

It is said that he has now broken all his ties with the criminal element with which he had associated, and that his father is prepared to employ him in his business as a concreter.  His parents have chosen to move to Hervey Bay, where they intend to establish a home in an area which will remove him from the area of his previous criminal element.

It was submitted that the sentencing Judge gave insufficient weight to all of the circumstances and did not give sufficient consideration to the aspect of rehabilitation, or to the fact that the applicant was under the control or direction of the co‑offender, who was the main factor.  There is nothing, however, to indicate that the applicant was forced to do what he did.

Of some note is the fact that the offences occurred on 11 July 1991 and he was not sentenced until 22 April 1992, over nine months later.  It appears that he was placed on bail and committed no further offences during this period. It was not, however, till the morning of the trial that he indicated a plea of guilty and no doubt the reason for this long delay was the fact that it was assumed that there would be a trial.

Counsel for the respondent submitted that the range was between four to six years and relied on the unreported decision of The Queen v.    Rowe, CA 185 (1986) and The Queen v. Porter, CA 308 (1985).  In the former case, involving a man of 19 years of age who showed no remorse, the sentencing Judge imposed a sentence of six years, which was reduced to four years on appeal.  The charges were robbery with personal violence and entering a dwelling house with intent.  The violence occurred as the offender was escaping with the complainant's handbag when he pushed her, a woman of 58 years of age, out of the way.  She injured her knee, was in bed for two weeks, and suffered other psychiatric problems.

In Porter the applicant pleaded guilty to robbery in company with personal violence.  He was a member of a group which broke into homes of victims to steal money.  The plan was evolved beforehand, including the use of violence, if necessary.  His role was to remain outside in the getaway vehicle.  He was 19 years of age.  He co‑operated with the police, pleaded guilty, and had spent nine months in custody.  He was sentenced to three years, which in effect meant a sentence in total of four and a half years.  There was no recommendation.

It was submitted on behalf of the applicant that there should be a recommendation for consideration for early parole.  Reliance was placed upon the fact that he played a relatively minor role, that the robbery was not significant, and that he had returned home and was away from his criminal element.

It was submitted by the counsel for the respondent, however, that the sentence of three and a half years was at the lower end of the range, and having regard to the decision in Porter, it could not be said that this sentence was in any way manifestly excessive without a recommendation.

I have come to the view, in all of the circumstances of the case, that the sentence imposed was not manifestly excessive and that no recommendation for early release should, in the circumstances, be made.

Leave to appeal should be refused.

THE PRESIDENT: I agree with the reasons given by Mr Justice Lee.

DAVIES JA: I agree.

THE PRESIDENT:  Yes, well, the order of the Court is leave to appeal refused.  Adjourn the Court until 10.15.

THE COURT ADJOURNED AT 3.55 P.M. TILL 10.15 A.M. THE FOLLOWING DAY.

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