R v McMullen

[1999] QCA 397

99.397

COURT OF APPEAL

PINCUS JA
AMBROSE J
CULLINANE J

CA No 247 of 1999

THE QUEEN

v.

BILLY McMULLEN  Applicant

BRISBANE

..DATE 16/09/99

JUDGMENT

PINCUS JA:  This is an appeal by the Attorney-General on the ground of inadequacy of sentence.

The respondent who was born on 2 August 1980 was sentenced for a number of offences committed last year.  The sentences were 18 months imprisonment wholly suspended for five years and three years probation.  The Attorney's contention is that there should have been a custodial sentence.

To begin with the criminal history, in 1996 the respondent was convicted of stealing and sentenced to community service.  In 1997 he had a number of convictions; he was convicted of possession of property suspected of being tainted, six charges of stealing, one of breaking and entering with intent, one of breaking and entering with intent in the night time.  In the same year there were two other offences of stealing and another of entering a dwelling-house with intent.  Then there were some convictions in late 1997, of threatening words and assaulting or obstructing police.

Those offences to which I have just referred produce various penalties, including six months detention, nine months detention to be served by way of a correctional service order, community service and probation.

Then in 1998, apart from the subject offences, there were four others, two of which were committed in the period covered by the offences to which the Attorney's appeal relates.  These four offences were of possession of property suspected of being tainted, behaving in a disorderly manner, obscene language and being found drunk.

I turn now to the subject offences.  Two were committed on New Year's Day last year.  The respondent entered a dwelling by forcing open a window and climbing through.  There were indications he searched a number of rooms.  He stole $150.  The female complainant, woken early in the morning by a noise, confronted him and he decamped.  Shortly after that he was in the laundry of a 78 year old complainant.  She screamed at him and he again decamped.  Then in April, there was another breaking and entering; $25 was taken but on the complainant waking up and demanding return, the $25 was put back. The respondent on that occasion was arrested but he escaped from custody.  Subsequently, again in the night time, a store was broken into, the plan being to grab some telephones.  The respondent initially was a look-out, while others attempted to break in, but then the respondent moved to a more active role, opened some louvred windows and set off an alarm.  He was found by police some short distance away.

That offence was discussed by the respondent with a psychologist, Mr Perros, whom I will mention later.  In that discussion the respondent told Mr Perros that the
co-offenders were "local boys from my suburb.  They planned this stuff.  They told me they had met the Mafia who had asked them to get many phones and get grands for it.  At the time I believed them.  I thought they had it all set out. But they'd never done crime before."  I notice that the complaint was that the persons who professed to be experienced had misrepresented the position.

The next offence, which was committed in August last year while the respondent was on bail, was one of unlawful wounding.  The complainant was a young man who had a party at his parents' home.  The respondent was there as a guest, apparently having been invited by another guest.  The respondent behaved badly and was asked to leave.  As he was being escorted out by the complainant, he grabbed the complainant by the throat.  The complainant pushed his hand away and the respondent then grabbed at the complainant's shirt, ripping it. 

He then took the complainant, again, by the throat and again the complainant pushed him away.  The complainant turned around to go back into the house and the respondent swung a bottle of rum down on the complainant's face.  It broke, and the complainant suffered a six centimetre laceration on the left cheek and other lacerations, including one of 11 centimetres from the angle of the left jaw to the corner of the complainant's lips.  There was a photograph tendered which shows the sewn-up victim.  One would be indeed surprised if the scarring which will ensue ever disappears.

There were two other offences involved.  One was the decamping in April which I have already mentioned.  That produced a charge of obstruction.  Another was an incident in May, when the police intercepted a motor vehicle while the respondent was a passenger and, to put it shortly, he was unco-operative and left, but was pursued and apprehended.

There were amendments made in 1997 to s.9 of the sentencing guidelines in the Penalties and Sentences Act 1992 and these have been discussed in other authorities. Under s.9(3) the principles mentioned in subs.2(a) do not apply to sentencing for an offence involving the use of violence; then subs.4 requires the Court to have regard primarily to a number of matters, the emphasis in which is, to some extent, upon the protection of the community rather than the interests of the offender.

There were two reports before the primary Judge from people who have been responsible for looking at the respondent's problems.  The major report is by Mr Perros and it is one which I have found useful.  He saw the respondent in March this year.  Some of the quotations which Mr Perros makes of the respondent's remarks to him do not suggest, to my mind at least, any great intention of remorse for past mis-spent time.  The respondent complained of the police picking him up when he had been drinking and smoking pot.  He referred nostalgically to the great time he had had in Sydney partying and taking different drugs.  He complained of
being thrown out of school because, "I went off at a teacher, an arsehole, a real fuckhead." 
Mr Perros said, "Mr McMullen tried to get me to see that his offending behaviour was largely due to some pathological effect of the combination of alcohol and drugs on his behaviour, resulting in amnesia for the index acts.  To prove his point he provided me with some other examples of these black outs as follows."  Mr Perros' comments on the respondent including a description of him as being charming, handsome, of average intelligence with a mild learning disability.  He thought there was evidence of a mood and/or anxiety disorder that could be maintaining his addiction to illicit substances.

Mr Perros expressed what I understand to be scepticism about the story that the criminality occurred during black-outs.  He thought that the respondent's behaviour was "precipitated by excessive alcohol and drug use which, acting in concert with his impulsivity, produced a state of disinhibition".
Mr Perros said that in those states the respondent was able to produce quick one-liners, intended to displace blame or guilt for stealing.  He was of the opinion that the problems appeared to have commenced when the respondent's step-father left home and he thought the respondent would benefit from regular contact with a drug and alcohol counsellor and psychiatric assessment.

The other report was from a clinical nurse of the Alcohol and Drug Service at Auchenflower:  that report says, in effect, that the respondent went to that place on occasions in 1997, that is in the year before these offences were committed.  It does not appear that those attendances achieved very much.

The impression created is of a youth whose problems are related to his inclination to use alcohol and drugs.  His background, in my view, is not especially good, nor especially bad when one considers it by comparison with common stories heard in this Court.  The Judge was told that the respondent was in employment, having obtained a job as an apprentice roof tiler.  He had a favourable reference from the employer and his counsel said that to some extent he was on a rehabilitation path.

The question is whether the respondent should have been sent to prison for the injury which he inflicted.  There was no dispute that this was entirely unjustified.  As was pointed out below the bottle of rum was intact and not broken when the victim was struck, but the danger of smashing a bottle on someone's face is evident enough.  It could have been fatal.

That offence would, having regard to the criminal record of the respondent and the other offences which the Judge had to consider, require a term of imprisonment except in quite unusual circumstances.

The primary Judge said, "there are some signs here that you are putting all this behind you and that something can be done for you and you can do things for yourself."  The signs to which His Honour referred appear to have been principally that he had a job and the employer was happy with him.  I note also that he was in employment and he saw Mr Perros in March 1999.

It is my respectful opinion that the primary Judge clearly erred in not imposing a custodial sentence.  This is a young man guilty of other criminality who has previously been sentenced to probation, to detention, to intensive correctional or to other punishment, who commits a serious act of violence, having results which could significantly affect and in a permanent way, the life of the innocent victim.

In my opinion the Court must take note of the specific indications which the legislature has given, by amending the relevant provisions of the Penalties and Sentences Act, that violent offences must be firmly discouraged.

In relation to the two summary offences which I have discussed the Judge imposed no penalty and there is no question of interfering with that treatment of the matter. 
The Judge dealt with the other offences in two different ways.  His Honour imposed 18 months imprisonment in relation to the wounding charge and wholly suspended it; in relation to the other offences, he was given the opportunity of a probation order.

The orders which I would make are:  appeal allowed.  In relation to the wounding charge, in lieu of the sentence which the learned primary Judge imposed, I would impose a sentence of 12 months imprisonment, setting aside the sentence which His Honour imposed.

In relation to the other indictable offences, in lieu of the sentence His Honour imposed which was a probation order, and setting aside that sentence, I would impose a sentence of six months imprisonment.

The remaining orders which His Honour made included recording convictions and an order that the respondent be released under the supervision of an authorised Commission officer, I would leave the recording of conviction stand and set aside the order that the respondent be released.

His Honour imposed no sentences in respect of the summary offences and I would not alter that.  In addition there was an order for compensation made, and that should also stand.
The reasons I have given and the order are the orders and the reasons of the Court.

...

PINCUS JA:  I order a warrant issue for the arrest of the respondent to lie in the Registry for seven days.

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