R v Sagiba; ex parte

[1999] QCA 468

99.468

COURT OF APPEAL

McMURDO P THOMAS JA WILLIAMS J

CA No 281 of 1999
THE QUEEN
v.

FRANK CYRIL SAGIBA	(Respondent)
ATTORNEY-GENERAL OF QUEENSLAND	(Appellant)

BRISBANE
..DATE 05/11/99
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THOMAS JA: The respondent was convicted of a variety of
offences and sentenced to concurrent terms, the longest
of which was four years' imprisonment.

This is an appeal by the Attorney-General on the ground that the sentences were manifestly inadequate. The offences were committed between October 1998 and April 1999. During that period the respondent turned 19. He was born in Thursday Island and educated in and around the Port Douglas and Mosman areas. The offences were committed in those areas, most of them in Port Douglas.

Fifteen indictable offences were charged, involving the breaking and entering or attempted breaking and entering of nine separate premises. In addition, there were nine summary offences, seven of which were of being found unlawfully in a yard.

The respondent has no previous convictions and was described as being from a good family, as having previously been a good worker and as having been a good productive member of the community.

The offences were described by counsel for the Attorney- General as amounting to a six month spree of offending in and around Port Douglas. The worst aspect of these offences is that during three of the burglaries, the respondent indecently assaulted the female occupant of the premises.

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Another feature is the persistence of the conduct in that
while on bail for the first three burglaries and indecent
assaults, he continued to offend. In February he was
dealt with in the Magistrates Court on some offences of
entering premises and committing an indictable offence,
and was granted probation for 12 months and ordered to
perform community service. However he continued to
offend, notwithstanding the probation, and therefore fell
to be resentenced on those matters as part of the present
sentencing exercise. The last offences in the series
included the final three burglaries and five incidents of
being unlawfully in a yard. These were committed after
he had absconded on bail.

The circumstances of the first offence are that a woman who lived in a unit with her 12-year-old daughter in Port Douglas went to sleep on the lounge. The back door had been left open. The respondent entered and lay on top of the complainant, simulating intercourse with a sheet between them. When the complainant fully awoke, she reacted with shock and the respondent left.

A few weeks later, he broke into the house of a 22-year-
old woman who lived with her husband and two young
children. She awoke to find the respondent fondling her
pubic area on the outside of her clothing. He kissed her
on the cheek and neck. Upon becoming fully awake, she
realised that it was not her husband. The respondent ran
off, leaving behind a baseball cap.
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A few days later, the respondent returned to the unit of the first complainant, this time gaining entry by tearing a flyscreen. The complainant was walking to the toilet when the respondent took hold of her. She struggled, and he momentarily touched her pubic region and tried to push her legs apart. He fled when she screamed. He had stolen $30. When questioned about these matters, he confessed.

The offences which are the subject of an ex officio indictment included the breaking and entering of an industrial shed and spraying a vehicle with black paint, stealing cigarettes from the patio of a residence and various burglaries in some of which money or jewellery to the value of up to $350 was taken. Some of the complainants have suffered greatly as a result of the respondent's actions, and serious family repercussions have ensued.

Counsel for the Attorney-General submitted that a term of
four years' imprisonment does not adequately reflect the
level of persistent criminality, or take account of the
risk of reoffending. The latter proposition however is
at this stage quite speculative and distracts attention
from the primary factors that should lead to the
formulation of an appropriate sentence. Major
considerations include the need for general and specific
deterrence. The serious features of the respondent's
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conduct have already been stated and need not be
repeated.

In the District Court, the Crown Prosecutor submitted that a term of six years' imprisonment would accommodate the factors of youth and cooperation. It was submitted in this Court that the learned sentencing Judge would seem to have taken that figure as a starting point and then to have discounted to those same factors, resulting in a double reduction in arriving at the figure of four years.

Reference was made to Green, CA 190 of 1996, judgment
given on 2 August 1996, in which a sentence of 10 years
with a recommendation for parole after four years was
regarded as an appropriate response to a series of
offences by a
25-year-old offender. The offences included his burglary
of a convent and an indecent assault upon a Sister of
Mercy. In all respects, Green is considerably more
serious than the present matter and it cannot be regarded
as comparable. He was 25 years old and had a substantial
history of housebreaking offences committed over an
extended period.
In the offence involving the convent, he was armed with a
knife with a six to eight inch blade and he engaged in
persistent threats and misconduct. His offences also
included an armed robbery.
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Counsel for the respondent has pointed out that in order
to arrive at the sentence of six years, which is the
sentence which counsel for the Attorney-General submits
should now be imposed, one would have to justify a
starting point of eight years' imprisonment in order to
give proper account to his cooperation and his pleas,
including a plea to offences on ex-officio indictment.
He submits that such a starting point is not appropriate
to this 19-year-old offender who has no previous
convictions and whose rehabilitation may be thought to
have a better chance than some others that come before
the Courts on like offences. A sentence of eight years'
imprisonment upon a young offender, he submits, would be
more appropriate to a case of a significantly larger
number of offences carried out over a longer period and
exhibiting the hallmarks of professionalism, or involving
property of substantially greater value than that
involved in the present matters.
It is difficult to understand the motivation of the
respondent and little explanation for it has been
offered. His conduct reveals strangely persistent and
serious offending. However no psychological or social
insights are available other than that he drifted into
bad habits. The assaults within the homes of other
persons are worrying despite the fact that there was no
substantial violence. The evidence however suggests that
apparently remorse and shame exists on the part of the
respondent and if this is so, it is at least an indicator
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of promise for the rehabilitative process.

In my view, the submissions of counsel for the respondent describing the type of conduct for which a young offender with no previous convictions will receive a sentence of eight years' imprisonment are substantially correct. My view upon reading the papers was that perhaps a sentence of five years' imprisonment might have been a satisfactory response and might have been more appropriate than the four year sentence which was imposed, but that it was difficult to say the four years was manifestly inadequate. Such a view is not one which satisfies the tests necessary for interference with a primary sentence upon an appeal by the Attorney-General.

Such an exercise is not one of substituting one

discretion for another when the variation of opinion is
not substantial.

The sentence was in my opinion perhaps low, but not such as to call for the intervention of this Court. I would dismiss the appeal.

THE PRESIDENT: I agree with Justice Thomas that the appeal should be dismissed and with his reasons.

I would only add that the facts suggest to me that the
respondent has an alcohol problem which will need to be
addressed if he is to be successfully rehabilitated.
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WILLIAMS J: I agree.

THE PRESIDENT: The order is the appeal is dismissed.

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