R v Rongonui and Saalfeld

[1999] QCA 42

99.42

COURT OF APPEAL

DAVIES JA PINCUS JA SHEPHERDSON J

CA No 409 of 1998 CA No 410 of 1998

THE QUEEN
v.
STEPHEN LEE RONGONUI and

LISA JANE SAALFELD	Respondents
and
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 25/02/99
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PINCUS JA: These are appeals by the Attorney-General in which
it is said that the two respondents received sentences in the
District Court which were far too lenient. The sentences were
imposed in respect of offences of assault occasioning bodily
harm in company whilst armed and armed robbery in company.
Each of the respondents was sentenced to two and a half years
imprisonment with a recommendation for parole after 10 months.

Each notice of appeal mentions an offence or offences other than those which attracted the sentence of two and a half years and it is not perfectly clear from the notice whether it is intended to complain of the sentence imposed in respect of the other offences. Counsel for the Attorney has informed us that that is indeed the intention but it does not appear to me to be of much consequence, because the substantial issue is whether the sentences of two and a half years can be altered.

The respondent Rongonui was 19 years of age at the time the offences were committed early in 1998 and the respondent Saalfeld was 36 then. Each of them was convicted of an assault occasioning bodily harm in company whilst armed, committed on 6 February 1998. Having a grievance against one Tille, Saalfeld lured him to a house where he was assaulted by a group including Saalfeld, Rongonui and two other men, the weapons used being a socket extension bar and a pick handle. The other two men have not been identified. Tille was left with a nasty gash to the forehead and other, lesser, injuries.

There was a dispute of fact which the learned primary Judge
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tried, as to whether Rongonui had assaulted Tille with the
socket extension bar and the Judge was not prepared to find
beyond reasonable doubt that he had. Rongonui was therefore
sentenced on the basis that although he was party to the
assault he did not himself attack the victim. Tille was, in
fact, threatened with torture by Saalfeld but managed to
escape.

The second batch of offences with which we are concerned were committed a week later on 13 February when the respondents committed the offence of armed robbery on one Wendy Jackson and also the offence of deprivation of liberty. They went to the victim's home while she was giving her children breakfast one morning. Saalfeld had a knife and threatened Jackson with it and told her to get her purse. The threat was that Saalfeld would hurt Jackson in front of her children. Jackson went to the bank in a car driven by Saalfeld. Rongonui was sitting in the back with Jackson.

Saalfeld snatched Jackson's card and demanded the pin number
and was given the wrong number. After being threatened with
the knife again Jackson gave the correct one and Saalfeld
withdrew $650. When dropped from the car, not at her home,
Jackson was told by Saalfeld, "If I hear anything about this
I'll come back and finish you." The offence of armed robbery
was punished by a sentence of two and a half years, as I
mentioned, and the offence of deprivation of liberty by six
months imprisonment.
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The third batch of offences with which we are concerned was
committed by Saalfeld, not much later, without any assistance
from Rongonui. On 5 March 1998 seeing her neighbour on the
verandah of the neighbour's house Saalfeld called out to the
neighbour and asked what she was staring at. On being told
that she was waiting for the school bus Saalfeld began abusing
her, jumped the dividing fence holding a knife and said, "I'm
going to kill you, you bitch, if you don't shut up." She
approached the complainant, stabbed the knife into a cupboard
on the verandah and called out as she left, "If you call the
cops I will fucking shoot you." There were two offences here,
assault and wilful damage, and they were punished with six
months imprisonment each.

In the submissions on behalf of the respondents there is a reference to an offence committed on 28 April 1998, but it appears to be common ground that is irrelevant for the present purposes. Of the two offenders, Saalfeld appears to be the more culpable, as being older, being the leader of the two and being solely responsible for the offences of 5 March. On the other hand, Saalfeld's criminal history is not as bad as that of Rongonui, who has a number of assaults on his record as well as two armed robberies.

Saalfeld had no very significant offences in her record until
23 July 1997 when she was convicted of unlawful assault and
attempted armed robbery, the circumstances of the attempted
armed robbery being regarded as not of great seriousness; she
was given six months imprisonment wholly suspended for 12
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months. The present offences were committed during that 12
months and the learned primary Judge activated the six months
imprisonment.

The Attorney's appeal runs into the initial difficulty that what the Judge did accorded in substance with the Crown Prosecutor's submission below. As is submitted on behalf of the respondents, that is a point in their favour. The matter is worse for the Attorney than that, however, because there is an affidavit from Saalfeld explaining the circumstances in which she was induced to plead guilty to the charges of robbery and deprivation of liberty. She says in the affidavit that she had originally given instructions that she wished to go to trial on those charges and plead guilty to the other charges. She was advised that on a plea of guilty to all the charges the Prosecutor would submit that a head sentence of two and half years should be imposed, with a recommendation for parole after nine months; she decided to plead guilty to all the charges.

None of that, it appears, is in dispute. No similar representation or promise was made to Rongonui but the matter seems to have been argued on the basis, on the whole a defensible one, that taking the circumstances of the two offenders all in all, there should roughly be parity between them.

Mr Bullock, of course, on behalf of the Attorney, concedes the
difficulty which he is in and urges us nevertheless to
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interfere with the sentences. They are certainly puzzlingly
low. If one has regard only to the basic facts of each and
looks at the position of Saalfeld - she is a mature woman
involved in a series of quite serious offences involving
violence and threatened violence over a short period - one
would think that she exhibits some dangerous characteristics
which needed to be carefully curbed by the Court. It does not
appear that that occurred.
What the Crown Prosecutor submitted before the primary Judge,
partially quoted, is as follows:

"As far as the parity principle is concerned, at the end of

the day, notwithstanding Saalfeld took a leading role in
the offences, the sentence that Your Honour would impose
on both Saalfeld and Rongonui would at the end of the day
be not terribly different, for the reason that Rongonui
has a much worse criminal history for offences of

violence.

My submission is that a head sentence in respect of Saalfeld

in the order of two and a half years is appropriate.
That includes - I am taking into account here the
activation of the suspended sentence, Your Honour, in

full.

It has been a relatively late plea in relation to this matter.
However, it is only after speaking to Mr Johnson that we

have been able to solve these matters satisfactorily. In

my submission, I submit that she is still entitled to
some recognition of that and a recommendation for early
parole perhaps after nine months would not be

inappropriate in the circumstances."

Mr Johnson was counsel who appeared for Saalfeld below;

Mr Shanahan appears for her at present.

In the Judge's sentencing remarks he said, in effect, that he
was initially surprised at the suggestion that a two and a
half year sentence should be imposed, but on careful
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consideration of the facts he thought it was appropriate.
His Honour was influenced by information which was placed
before him as to the background of the offences, particularly
so far as Saalfeld was concerned; the submission being in
effect that the relationships between the parties were such as
to make her violent conduct and her participating in the
robbery more excusable that it would otherwise appear to be.

I must say that, for myself, it is difficult to understand how His Honour was persuaded that the sentence of two and a half years was appropriate for the whole batch of offences, and were it not for the circumstances I have previously mentioned, it would be difficult to avoid elevating the sentences. My own view is that, on the information before the learned primary Judge, a sentence of two and a half years with recommendation for parole after having served ten months seems clearly low.

But what happened was that, in effect, an arrangement was made by the prosecutor below with the defence on the basis of which Saalfeld acted; she must have reasonably assumed that counsel being agreed on the sentence, she would get a sentence in that area, which she did. And it would seem unfair, as far as Rongonui is concerned, although he was not a party to any such arrangement, to sentence him to any higher period of imprisonment than Saalfeld received.

In these circumstances my opinion is that there is nothing which can be done about the matter and the appeals must be 250299 T8/TMT4 M/T COA29/99

dismissed.
DAVIES JA: I agree.
SHEPHERDSON J: I agree.

DAVIES JA: The appeals are dismissed.

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