R v. Rowe

[2008] QCA 197

SUPREME COURT OF QUEENSLAND

CITATION:	R v Rowe [2008] QCA 197
PARTIES:	R v ROWE, Simon Dulieu (applicant)
FILE NO/S:	CA No 66 of 2008 DC No 42 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Maroochydore
DELIVERED EX
TEMPORE ON:	23 July 2008
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2008
JUDGES:	Keane and Muir JJA, Mackenzie AJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to two summary offences and five indictable offences with terms of imprisonment imposed for one count of wilful damage, one count of assault occasioning bodily harm whilst armed, one count of going armed so as to cause fear, one count of common assault and one count of endangering the safe use of an aircraft – where four years imprisonment was imposed for the count of endangering the safe use of an aircraft – where all sentences were to be served concurrently – where the maximum penalty for the offence of endangering the safe use of an aircraft is life imprisonment under s 467A(1)(a) Criminal Code 1899 (Qld) – where the applicant did not have a mental illness but had a significant personality disorder and substance dependence – where the applicant has a substantial criminal history – where the applicant’s counsel argued that the sentence imposed went beyond what was warranted in order to protect society against the risk of recidivist offending – where the applicant’s prospects of rehabilitation are low – whether the sentence imposed was manifestly excessive
Criminal Code 1899 (Qld), s 467A(1)(a) Veen v The Queen [No. 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	C W Heaton for the applicant R G Martin SC for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

MUIR JA: The applicant pleaded guilty to five indictable and two summary offences committed on 1 November 2006 and was sentenced in the District Court as follows:

Count 1: Wilful damage; 12 months imprisonment;
Count 2: Assault occasioning bodily harm whilst armed; two and a half years
imprisonment;
Count 3: Going armed so as to cause fear; 18 months imprisonment;
Count 4: Common assault; 12 months imprisonment;
Count 5: Endangering the safe use of an aircraft; four years imprisonment.

All sentences were ordered to be served concurrently and no penalty was imposed for the two summary offences which were assaulting police officers. 481 days pre-sentence custody were declared as time already served in respect of the sentences and a parole eligibility date of 25 March 2008 was set as being the date at which one-third of the four year sentence would have been served had the sentence commenced when the applicant was first imprisoned.

The applicant, at the time of sentencing, was a 32 year old single man residing as a squatter on Local Authority property known as Duck Hole Creek Reserve near Caloundra. He left school during year 10 and worked as an apprentice in his father's business for about two years before leaving home and ending that occupation. After that he had various casual jobs before recommencing his apprenticeship at about 21 years of age. He concluded his apprenticeship after two and a half to three years because of increasing amphetamine use. Since then he has worked only for brief periods.

A psychiatrist who carried out a pre-sentence psychiatric assessment of the applicant concluded that he did not have a mental illness but that he had quite a "significant personality disorder (anti-social traits) and substance dependence (marijuana and alcohol)." The anti-social traits were said to be accompanied by "a particular sense of entitlement, some grandiosity and possibly persecutory idead." The psychiatrist concluded that the applicant was cognitively intact and that he had a low to average IQ.

The applicant has a substantial criminal history. He was convicted of assault occasioning bodily harm in 1993. In 1999 and 2000 he was sentenced to short terms of imprisonment for a number of offences of dishonesty. On 22 August 2000 he was sentenced to 114 days imprisonment for endangering the safety of persons travelling by railway. He had spent 113 days in pre-sentence custody.

On 29 November 2001, within a period of probation, he was convicted of intentionally endangering the safety of persons travelling by railway and sentenced to three years imprisonment. On the same day, he was convicted of assault for interference with freedom of trade and also of obstructing a police officer and sentenced to 18 months imprisonment.

On 30 July 2003 he was sentenced to 100 days imprisonment and to two years probation for common assault and for obstructing a police officer. He had spent 100 days in pre-sentence custody. In 2004, 2005 and 2006 the applicant was convicted of a variety of offences including assault, obstructing police, unlawful use of a motor vehicle, breach of a suspended sentence imposed on 29 September 2004, dangerous conduct with a weapon, two counts of stealing, serious assault and possession of tainted property. He was sentenced to terms of imprisonment for some of these offences.

I now turn to the circumstances in which the subject offences occurred. A truck driver, driving within the reserve preparatory to deliver a load of rocks, observed the applicant run towards the truck and throw a rock at it. The applicant continued to throw rocks. He climbed on the truck's fuel tank and threw rocks into the cabin. One struck the passenger side of the windscreen. Another struck the driver grazing his ribs and causing bruising. The applicant reached into the truck's cabin holding a knife which he swung twice in a stabbing motion. The driver accelerated and the applicant fell off the truck.

Police were called and the aid of a helicopter was enlisted to locate the applicant. After the pilot and a police officer flew over the reserve and located the applicant's camp site, the pilot took the police officer to the entrance of the reserve about 300 metres away where he rejoined the other police officers on the ground. The pilot then flew back to the camp site and hovered over it in order to mark its location.

When hovering about 30 feet in the air and 15 metres to the right of the camp site the pilot saw the applicant throw three objects, identified by a person on the ground as rocks, at the helicopter. The second rock passed the helicopter's landing skids. The pilot then took the helicopter higher to avoid the risk of projectiles interfering with the helicopter's rotor system. When located by police officers, the applicant violently resisted arrest.

Although the applicant sought leave to appeal against all the sentences imposed, his counsel advanced argument only in respect of the sentence for count 5. He has argued, on behalf of the applicant, that although the offence of endangering the use of an aircraft is a very serious one which carried a maximum penalty under section 467A(1)(a) of the Criminal Code 1899 (Qld) of life imprisonment, the subject offence was relatively trivial. It was submitted that the helicopter was never in any real danger from the rocks thrown by the applicant. Only one of them was seen to come near the helicopter and then only near the landing skids. The helicopter's mechanism, it was pointed out, was significantly higher up on the aircraft.

The applicant's counsel submitted that the previous offences of endangering the safety of persons travelling by railway which involved placing concrete objects on railway tracks was substantially more serious than the subject offences. That conduct, it was submitted, has the real risk of derailment and consequential injury to persons and property.

In reliance on Veen v The Queen [No 2] (1987) 164 CLR 465 the applicant's counsel warned against increasing the sentence beyond that warranted by the Crown in order merely to extend the protection of society from the risk of recidivism. It was implicitly submitted also that undue weight had been given to the prior criminal history of the applicant and his anti-social traits and that this had produced a disproportionate sentence.

The chances of a hovering helicopter being brought down by a well armed rock thrown from the ground may be thought to be slight. So too might the prospect of the pilot being sufficiently distracted to endanger the aircraft. Nevertheless the risk that the rock might strike a vulnerable part of the aircraft or that a mishap might result from the pilot's distraction, although slight, was real and the consequences were potentially grave.

It does not seem to me that it can be said that the applicant's conduct was relatively less serious than that involved in the offences relating to trains. That is particularly so as little is known about the hazards posed by the applicant's conduct in those cases.

As the applicant most probably appreciated, the helicopter's pilot was assisting police officers in their search for the applicant and there is good reason to conclude that the rocks were thrown with malicious intent. It is relevant also that the subject offending occurred against a background of offending which included offences of a similar kind.

Those offences reveal a cavalier disregard for the safety and welfare of others. The applicant's criminal history and the nature of his offending displayed a general contempt for the criminal law and suggests that his prospects of rehabilitation are far from good. It was not suggested by the applicant's counsel that his psychiatric condition should lead to a reduction in sentence, compare Channon v The Queen (1978) 33 FLR 433. I do not intend to suggest that such a submission would have been appropriate.

The sentencing Judge properly took into account the need for both personal and general deterrents. The contention that the sentence may have been increased inappropriately to protect society from the risk of recidivism has not been made out. The sentence was not manifestly excessive and I would order that the application for leave to appeal be dismissed.

KEANE JA: I agree.

MACKENZIE AJA: I agree.

KEANE JA: The order of the Court will be the application is dismissed.