R v Pressick, Badke and Attorney-General of Queensland

[1996] QCA 352

IN THE COURT OF APPEAL [1996] QCA 352

SUPREME COURT OF QUEENSLAND
Brisbane

C.A. No. 325 of 1996 C.A. No. 326 of 1996

[R v. Pressick & Badke and A-G]

T H E Q U E E N
v.
JOHN STEPHEN PRESSICK and
DAVID NEIL BADKE

(Respondents)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

de Jersey J.
Lee J.

Fryberg J.

Judgment delivered 20/09/1996

Judgment of the Court

APPEALS DISMISSED

CATCHWORDS:  CRIMINAL LAW - SENTENCE - Offenders admonished and discharged - Break and enter - Wilful Damage - Assault occasioning bodily harm - Complainants had been particular nuisance in area for some time - Vandalism - Not a vigilante attack - Extreme provocation.

Section 19(1)(a) of the Penalties & Sentences Act 1992

considered.

Counsel:	Mr Rutledge appeared for the appellant Mr Macklin appeared for the first respondent Mr Smid appeared for the second respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant James Varitimos for the first respondent Goodfellow & Scott for the second respondent

Hearing date: 12 September 1996

REASONS FOR JUDGMENT - JUDGMENT OF THE COURT
Delivered the 20th day of September, 1996

These are appeals against sentence by the Honourable the Attorney-General. Each of the respondents was convicted on their own pleas of guilty on 5th July 1996 to an ex officio indictment in the District Court at Brisbane of a number of offences relating to the same incident on 2nd April 1995. Pressick was convicted of one count of housebreaking, one count of common assault, three counts of assault occasioning bodily harm and one count of wilful damage on the basis that he was a party to such offences, being present, although he did not personally commit any offence. Badke was convicted of one count of housebreaking, one count of common assault, three counts of assault occasioning bodily harm and two counts of wilful damage.

He was more directly involved in some of the offences than was Pressick. Each of the respondents was admonished and discharged absolutely pursuant to the provisions of s.19(1)(a) of the Penalties & Sentences Act 1992. No compensation order was made.

Because of s.16, no convictions were recorded.

The maximum penalty for housebreaking is 14 years' imprisonment, for common assault one year, for assault occasioning bodily harm three years and for wilful damage two years (at nighttime three years). The grounds of appeal relied upon by the Attorney-General are that the sentence:-

(a)failed to adequately reflect the gravity of the offences

generally and in this case in particular;

(b)failed to take into account or sufficiently to take into

account the aspect of general deterrence; and

(c)gave too much weight to the factors going to mitigation.

As the learned sentencing judge concluded, the background leading up to the offences is of considerable importance. Both Pressick, who was born on 11th June 1954 and was 40 years of age at the time of the offences, and Badke who was born on 26th May 1972 and was 22 years of age at the date of the offences, were members of the Southside Indians Baseball Club Runcorn. The club was situated across the road from the house occupied by the complainants. The occupants of the house consisted of a group of young people of various ages. It was submitted by the defence during sentencing proceedings and not seriously disputed by the Crown, that the occupants of the house in question had for some months previous to the offences been causing a great nuisance in the surrounding area, and particularly to the members of the baseball club opposite.

Some of the incidents of particular nuisance to the club members were that a besser block wall of the canteen had been pulled down, electrical wiring was pulled on 12th March 1995, shade cloth which had been removed from the club on 26th March 1995 was later seen in the yard of the complainants' house, being used as a hammock. On the same day the shade cloth was seen to be used as a hammock, it was discovered by the respondent Pressick that some junction boxes had been destroyed at the club. The canteen had also been broken into several times, with damages totalling $1,067.90 in repair bills.

On 1st April 1995, the day before the incident, there was a children's break up day at the baseball club. Several people observed motorbikes being ridden by people from the subject house, digging up the dirt in the baseball field at the time, and riding around terrorising those children and endangering their lives. Police were called. As soon as the police spoke to them and left, these persons returned to continue the same conduct. Occupants of the house were also yelling abuse. The respondent Pressick was informed of these events later that day.

The complainants denied ever digging up the turf on the baseball field or damaging the clubhouse, but they did agree that from time to time they would take their motorbikes over to the car park and ride them around there. The Crown Prosecutor at sentencing properly stated "So, it's not simply a random entry into a house of people. There was a reason why they did this, and the Crown puts that on the record, that there was a reason": record p.11 line 17.

At the time the offences occurred, the complainants had received a formal notice to quit the house. A neighbour gave a lengthy statement which showed that the complainants were loutish, noisy and had terrorised an old lady and children in the area. The learned sentencing judge correctly referred to them as louts who had made the lives of neighbours, those in the district generally and members of the club miserable and indeed almost unbearable. Photographs tendered by the defence at the sentencing hearing showed extensive damage to the house occupied by the complainants which was not caused by the respondents. The residents in the area had called the police on numerous occasions and apparently the police could do nothing or did not have the resources to do anything effective against the complainants.

Apparently this behaviour was discussed by the two respondents and others in the clubhouse later that same evening of 1 April 1995. The respondents were consuming alcohol. At about 11:30p.m. that evening the respondent Pressick walked over to the house, knocked on the door and was allowed in. According to the complainants, he appeared to be affected by alcohol, and was mumbling and unsteady on his feet. He tried to get into one of the bedrooms and then returned to the lounge room where he made an aggressive gesture towards David Sharrock aged 16, but did not actually strike him. He then left the house. Upon returning to the other people in the clubhouse, the respondent and those people continued to discuss the events of the day. Apparently they then decided that as a last resort, some action should be taken against the occupants of the house opposite in the nature of a stern warning to them to discontinue their behaviour.

The circumstances of the actual offences are that at about 2:00a.m. on the morning of 2nd April 1995 an occupant of the house in question, 62 Dew Street Runcorn, awoke from sleeping in the lounge room to hear loud voices coming from across the street. He got up and went to the window and saw about six male persons crossing the driveway coming towards the house. This person, Rhys Patten aged about 18, heard the door being banged and went to try and open it, obviously to voluntarily let those persons in. However the door was stuck and would not open during his attempt and it suddenly burst open. Whilst the sentencing judge appears to have accepted that it may have been pushed in by those from the outside, this is not entirely clear.

There was some doubt as to precisely how the door came open and
who was responsible. It may be that the actions of those

outside combined with Patten's efforts, caused the door to open.

These six persons then entered the house. Patten says that
Badke grabbed him with both of his hands and threw him towards
the front window. Badke then approached the complainant Patten
with his fists clenched. However, Patten heard a voice say "Not
him. Leave him alone". No further violence was offered to
Patten. This constituted the offence of common assault of which
both respondents were convicted. The other occupants of the
house at this time were a man called Keith Kenny who is 17 years
of age, two brothers called David and Craig Sharrock aged 16 and
14 years respectively, a young man named Smith and Smith's
girlfriend. Some of the occupants were apparently visiting.
Craig Sharrock said that he woke up when he heard the intruders
enter the house and a male person who he did not know came up to
him as he was lying down and punched him in the head and body
about 15 times. After a while a man the complainant recognised
as Badke, returned and hit the complainant a number of times in
the back and the face. The injuries received by Craig Sharrock
were relatively minor. This attack on Craig Sharrock
constituted one of the counts of assault occasioning bodily
harm.

Craig Sharrock saw Badke walk over to a drum kit, owned by him, and proceed to kick at the bass drum, causing some $230.00 of damages, which compensation Pressick offered to pay at the hearing. His Counsel said the money was in Court and that Pressick intended to pay it to the Registrar. It does not appear whether he actually did so. No compensation was ordered.

That was one of the counts of wilful damage for both

respondents.

The second Sharrock brother, David, was asleep in the lounge room, and also woke when the group entered the house. He was grabbed by the hair by somebody and pulled him onto the ground. He was kicked and punched repeatedly. Badke kicked and punched the most, but others excluding Pressick were also directly involved. A short time later some of the group returned and again kicked and punched him. He sustained a cut to the right eyebrow and a bruise. This constitutes the second assault occasioning bodily harm for both the respondents.

Keith Kenny was sleeping in his bedroom at the time the group entered the house and said he awoke when he felt someone kicking him in the back. He was kicked and punched by about four people, and also kicked in the face. He was unable to identify any of the assailants. He received injuries to his mouth and jaw, and his teeth did not seem to sit properly according to a doctor at the hospital to which he was taken that night. He also had bruising on the right side of his back but had no difficulty breathing. This constituted the third count of assault occasioning bodily harm for both respondents.

During this melee, the other persons in the house, Smith and his girlfriend, apparently remained hidden in Smith's bedroom. When matters had quietened down, Smith went to have a look and saw the first respondent Pressick and another man, approach the front door and urge him to come outside for a fight. He declined. He also stated that he saw some members of the respondents' group wheeling a motorbike belonging to a Brett Gaske which had been stored behind the house, across the street whereupon they proceeded to drop besser blocks and rocks onto it. This constituted the count of wilful damage for which Badke alone pleaded guilty. The Crown Prosecutor submitted at the hearing that he understood a quote for damages in the order of $2,273.40 had been obtained although there was no documentary evidence. This was not accepted by Her Honour. It was also asserted that Gaske had paid $1,500.00 for the bike and sold it for $400.00, the suggestion being that he had lost $1,100.00 overall. Her Honour declined to accept any of this evidence, there being no evidence whatever as to the value of the machine before the alleged damage to it and no compensation order was made.

The police later arrived and saw the two respondents standing over on a baseball ground across the road from the house. Even when the police arrived the complainants severely provoked the police who apparently exercised considerable restraint. The police sought to interview both respondents but each declined. The police did not arrest them that night which, according to Counsel for Pressick, showed reluctance on the part of police to prosecute for those offences. It does not clearly appear whether this is so. They were subsequently arrested on 18th November 1995, over seven months after the incident. It does not appear whether the other four persons were ever charged. As indicated, there was no committal, there were early indications of pleas and the matter proceeded by way of ex officio indictment.

Her Honour considered all aspects of the case in detail and with considerable care in her sentencing remarks. Reference was made to the great deal of remorse, anxiety, concern, worry and shame felt by both of the respondents since the acts had been committed. Weight was placed on the fact that both had pleaded to an ex officio indictment. Mention was also made of the fact that both respondents were actively involved in the baseball club, and performed for many years many hours of unpaid community service in relation to that club, including coaching and other voluntary activities, particularly Pressick who had started his own earthmoving business and who was married with children and also was supporting his mother. His commitments were $2,500.00 per month. Impressive references attested to their community involvement which was not challenged. Nor were their honesty and reputations which were of a high standard. Badke had represented Queensland and Australia in baseball and worked in a bank. Her Honour took into account the effect of recording a conviction would have on his future employment.

Her Honour referred to the fact that the complainants had been a considerable nuisance in the neighbourhood, and particularly to the members of the baseball club. The complainants probably knew of the respondents' charitable work at the club and that they (the complainants) would not have been affronted by the group which entered the house, "as would some innocent law abiding, peaceful citizens being confronted by say a gang of louts particularly if they were armed with weapons or firearms." She referred to the fact that none of the group were armed or vigilantes when they entered the house, and were very seriously provoked and intended merely to issue a warning. She also noted that the injuries sustained by the complainants were to use Her Honour's words "Like the sort of injuries one would expect to see after a fairly tame game of school boy football".

Her Honour also noted that because of the physique of the respondents, they could have inflicted much more serious injuries on the complainants had they been so minded.

Her Honour also pointed out that the fact that they were affected by alcohol provided no excuse and stated in the clearest of terms that in our society people could not take the law into their own hands. She added that when people raid the house of others with intentions to cause indictable offences, particularly when armed and in company, they could expect to go to jail for up to three years. Her Honour was of the view that ordinary citizens, when they are affected by alcohol might well be more seriously provoked by the conduct of the complainants. All of the instances in question occurred over about only three minutes. Her Honour also commented that the damage to the drum kit may have been of great benefit to the neighbourhood, having regard to the noisy and rowdy conduct of the complainants generally. It also appears that the local real estate agent, despite earlier pleas and entreaties from the residents and finally only after the rent was in arrears, took steps to evict these tenants and Dew Street then returned to its normal peaceable life.

Badke had no previous convictions whatsoever and Pressick, apart from some irrelevant traffic history, had only one relevant offence as long ago as 1977 when he was about 20 years of age of malicious injury, and fined $75.00, indicating that it was not a serious offence as Her Honour stated. Her Honour considered the option of a community service order which would have been imposed except for the fact that both Pressick and Badke were already extensively engaged in real community service on a voluntary basis. Her Honour stated that she did not intend to sentence either respondent to prison or to fine either of them. Her Honour dealt with each respondent equally and concluded as follows:-

"You have three children and together with your work that you have done for the club, your standing in the community, and you, Mr Badke, with your position as a sportsman, you have already suffered and paid for your crimes by what is known as shame. This is a matter which Judges of this Court have taken into account before me in sentencing. For example, His Honour Judge Pratt in the matter of Usher, indictment number 2926 of 1994 on 10 October 1995.

Accordingly, having regard to all the facts and the circumstances, particularly the fact that it was most unfortunate that the lout who went to answer the door could not get it open, I do not intend to make any order other than that you both be released absolutely.

You are admonished and discharged.

No conviction, of course, is recorded."

The appellant referred to the need to reflect the gravity of the offences, the principal concern being the need for a general deterrence in vigilante matters and disapproval by the Court of persons who take the law into their own hands and raid other people's houses. Counsel for the appellant referred to R

v Stawicki and Meier (C.A. No. 483 and 493 of 1995) and R v Anderson (C.A. No. 434 of 1995) not as comparable factual cases, but which were said to contain statements of principle in accordance with the above submissions. However it was not contended that those statements of principle always required something more than an absolute discharge, regardless of the circumstances. Those cases are of little assistance. They involved persons who entered dwelling houses whilst armed with a knife, iron bar or other implements, with the intention of committing serious crimes therein, and one case involving very serious injuries inflicted with an iron bar. In the former case there was also the unlawful use of a motor vehicle by the offenders. Her Honour said that in such cases, a prison term was the usual penalty. It was submitted on behalf of the appellant that an appropriate sentence for the offences in the present case would have been a substantial fine in the region of $1,000.00 for each respondent.

It is true that vigilante action as such cannot be condoned by the Courts. It is a serious matter for one group of people to attempt to take the law into their own hands and mete out what might be perceived as justice to another group of people. However Her Honour pointed out that this was not a vigilante attack. The purpose of the respondents was to issue a stern and peremptory warning to a young group of louts who had terrorised the neighbourhood and made life miserable to law abiding citizens who could obtain no redress by lawful means. They suffered quite extreme provocation. This was an action of last resort and out of desperation. They did not go armed into the complainants' residence and in the end serious injuries were not inflicted upon the complainants. The housebreaking offence was of the most technical kind, given that an occupant was attempting to open the stuck door and voluntarily let the respondents and others enter when some action probably occurred from the outside.

In making the order which she did, the learned sentencing judge had due regard to the matters required by s.18 of the Penalties & Sentences Act 1992 as follows:-

(a)the offender's age, health and mental condition;

(b)the nature of the offence;

(c)the circumstances (if any) under which the offence was committed that make the offence less serious than what it would be if it had been committed under such other circumstances; and

(d)anything else to which the Court considers it proper to

have regard.

It was not contended that in an exceptional case, notwithstanding that the various offences involved maximum penalties of various terms of imprisonment, an order pursuant to s.19 of the Penalties & Sentences Act could never be made. It is correct that a case involving offences of this kind, particularly housebreaking, must be truly exceptional to warrant such a course. Her Honour took a particularly hard view against the behaviour of the complainants and a sympathetic view in favour of the respondents and regarded this case as quite exceptional. After taking into account all relevant circumstances in a detailed and careful judgment, Her Honour made the orders which she considered would meet the justice of this particular case. It has not been shown that the sentencing discretion miscarried.

The appeals are accordingly dismissed.