R v Salmon; ex parte Attorney-General - [2002] QCA 262

[2002] QCA 262

COURT OF APPEAL

DAVIES JA
WHITE J
WILSON J

CA No 155 of 2002

THE QUEEN

MICHAEL ANTHONY SALMON

(Respondent)

and

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

BRISBANE

..DATE 25/07/2002

JUDGMENT AND BENCH WARRANT

WILSON J: This is an appeal by the Attorney-General against sentences imposed on Michael Anthony Salmon by a District Court Judge at Brisbane on 18 April 2002.

There were two sets of offences. The first was a charge of breaking, entering and stealing on the 11th of March 1992. With respect to that, a conviction was recorded but no other action was taken. That is not the subject of the appeal.

The appeal relates to a serious case of home invasion. The offences to which the respondent pleaded guilty were one count of burglary with violence whilst armed and in company, two counts of assault occasioning bodily harm whilst armed and in company, and one count of child stealing. Those offences were committed on 18 December 1999. The sentence imposed was 12 months intensive correction order.

The respondent was part of a group who broke into a home unit in daylight. The group consisted of Blake Andrew Burchell, Elizabeth Daisy Dorothy Marama, the respondent and other unidentified persons, some at least of whom may have entered the house and others were in a getaway car.

The home unit was that of Mr and Mrs McAvoy who were the foster parents of the two and a half year old child. Mrs McAvoy was the aunt of the respondent and of Elizabeth Marama. Elizabeth Marama was a sister of the respondent. She was also the natural mother of the child whom she had not seen for about 12 months before the incident. Further, she was Burchell's girlfriend and there are in fact two young children of that relationship.

The overall purpose of the home invasion seems to have been to recover the child, but the respondent's principal purpose in participating was to bash Mr McAvoy as part of a personal vendetta.

Members of the group were armed with pieces of wood. The respondent led the charge. The door to the unit was smashed open and some of the group including the respondent entered.
The respondent hit Mr McAvoy in the face, jaw and ear with his fists. Mr McAvoy also suffered by the actions of other members of the group including being hit with a piece of wood. There was a struggle for possession of the child in which the respondent was involved in trying to prise Mrs McAvoy's fingers off him. She was assaulted more severely by another member of the group, unbeknown to the respondent at the time.
The child was taken and not returned for three weeks.

So the respondent was criminally responsible for the offences, both on the basis of his own involvement and on the basis that he was a party to a plan to go in company and to commit violent acts and to take the child.

Not surprisingly, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QCA 262
Decision Date: 25/07/2002

CaseChat Overview and Summary

In this case, the Attorney-General of Queensland appealed against the sentence imposed on Michael Anthony Salmon by a District Court Judge in Brisbane. Salmon was found guilty of burglary with violence while armed and in company, two counts of assault occasioning bodily harm while armed and in company, and one count of child stealing. These offences were committed on 18 December 1999 during a home invasion. The District Court Judge sentenced Salmon to a 12-month intensive correction order, which the Attorney-General considered to be too lenient.

The legal issues that the Court of Appeal had to decide were whether the sentence imposed by the District Court Judge was outside the scope of a proper sentencing discretion and whether the sentence was manifestly inadequate. The Court of Appeal had to balance the seriousness of the offences committed by Salmon against his personal circumstances, including his age, background, previous criminal history, and general character.

The Court of Appeal found that the District Court Judge had erred in taking into account the risk of Salmon committing suicide if incarcerated, as there was no evidence to support this claim. The Court also found that the sentence imposed on Burchell, one of Salmon's co-offenders, was lenient, even though Salmon seemed to have played a more central role in the incident than Burchell. The Court of Appeal concluded that an actual custodial term was warranted and that the appropriate range for Salmon's sentence was 18 months to two years suspended after six to eight months.

In conclusion, the Court of Appeal allowed the appeal, set aside the sentence imposed, and imposed a sentence of 18 months imprisonment to be suspended after six months. The Court took into account the need to achieve some parity with the sentence imposed on Burchell and Salmon's satisfactory compliance with the intensive correction order.

Orders