R v Rhode

[2001] QCA 328

[2001] QCA 328

COURT OF APPEAL

DAVIES JA
THOMAS JA
BYRNE J

CA No 185 of 2001

THE QUEEN

v.

JASON PAUL RHODE  Applicant

BRISBANE

..DATE 13/08/2001

JUDGMENT

DAVIES JA:  The applicant pleaded guilty in the District Court on 9 July this year to the offences of attempted arson, entering a dwelling house with intent with a circumstance of aggravation and assault occasioning bodily harm.  These all occurred on 26 January this year.

On the same day on which he pleaded guilty, he was sentenced to imprisonment for two years in respect of the attempted arson, 18 months in respect of the offence of entering a dwelling house with intent with a circumstance of aggravation and 12 months' imprisonment for the offence of assault occasioning bodily harm.  Each of the sentences were suspended after serving six months' imprisonment with an operational period of three years.

The applicant is 29 years of age, having been born on 27 April 1972.  He has a small and quite old criminal history, his only prior offences having occurred in 1991.  They were offences of stealing and permitting his place to be used for the possession of a dangerous drug in February of that year, for which he was given probation for one year, and an offence of breach of that probation in April of that year for which he was fined.

On the night on which these offences were committed, the complainant and the applicant had been drinking together with others in the applicant's house.  The applicant went to sleep on the verandah of the house.  He was woken by his wife who told him that she had come upon the complainant sniffing at the anus of the applicant's six year old daughter.  The applicant then ordered the complainant out of the house and the complainant left.  He walked home.  That was about two o'clock in the morning.

The applicant apparently resolved to go to the complainant's house and assault him.  He then went in company with another to the complainant's house, entered the house uninvited, and assaulted the complainant by punching him a large number of times.  The estimates are varied between 10 and 30 blows.  In either case, it involved serious violence, including apparently holding the complainant by the hair with one hand, while punching him in the head with the other.

He was ultimately pulled away by the complainant's house mates.  He admitted afterwards that his companion had warned him not to do this, but he did it anyway.

Shortly afterwards he was interviewed by police at his home.  He admitted that he had given the complainant a bit of a "touch up", as he put it, and told the police why.  When told by police not to go anywhere near the complainant again, the applicant replied, "Next time you see him, he will be burning," and started laughing.  He was again warned not to do anything stupid.

He then assembled four petrol bombs using glass bottles, petrol, rags and returned with them to the complainant's premises.  He knew there were occupants in the house.  He threw one of the petrol bombs at the premises, having lit it.  It landed on cement steps.  There was a fire but the dwelling did not catch alight, more, it was said, by good fortune than by anything else.  Three people were in the house at the time.

Again, the applicant was interviewed by police.  He said he lit the petrol bomb and "threw it and hoped the cunt burns in hell".  He later said that his intention was that he would kill the complainant if he could.  However he did in fact desist after throwing the first bomb because he thought that perhaps he should not be doing it. 

The offences of entering the complainant's residence and assaulting him in his bed with such violence were themselves serious offences.  They involved vigilante style action including the invasion of another's residence.  More than once this Court has emphasised the need for deterrence in cases such as this.

The attempted arson was even more serious in that it appears to have involved an expression of intent to do personal harm to the complainant, if not to kill him.  Whilst it is true that the applicant desisted in this attempt it was not merely one of recklessness that others might be harmed but involved at least at one stage an intention to harm the complainant and perhaps even to kill him.

There were factors in the applicant's favour which no doubt persuaded the learned sentencing Judge to impose a sentence, which he did, including the partial suspension of those sentences.  He had a stable relationship with a woman and some children and he had apparently a good work history. 

But when one has regard, in my opinion, to the seriousness of the offences as I have described them, I do not think that the sentences which were imposed were manifestly excessive.  Indeed, I think they were appropriate.  I would therefore refuse the application.

THOMAS JA:  I agree.  The two factors that persuade me that the sentence was not excessive at all are firstly that this was an example of vigilantism which persisted after fair warning to desist.  Secondly, the use of molotov cocktails deserves the utmost discouragement.

To my mind, people who use someone else's alleged sexual transgression as a pretext for massive retaliation deserve strong deterrents.  If conduct of this kind is not strongly discouraged, private trial and punishment will become a prevalent feature of life.  I therefore think that the sentences were entirely appropriate and agree with the order proposed.

BYRNE J:  Except that I regard the sentences as lenient, I agree with what the other members of the Court have said and agree in the orders proposed.

DAVIES JA:  The application for leave to appeal against sentence is refused.

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