R v Shambrook

Case [1997] QCA 356


IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 359 of 1996
Brisbane

Before      Davies J.A.

Moynihan J.

Helman J.

[R. v. Shambrook]

THE QUEEN

v.

ROBERT MALCOLM SHAMBROOK

(Applicant)  Appellant

Judgment delivered 21 October 1997

Separate reasons for judgment of each member of the Court.  Davies J.A. and Helman J. concurring as to the orders made.  Moynihan J. dissenting in part.

APPEAL DISMISSED EXCEPT IN RESPECT OF COUNT 2 FOR WHICH CONVICTION QUASHED AND VERDICT OF ACQUITTAL ENTERED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:     CRIMINAL LAW - Appeal against conviction and application for leave to appeal against sentence for extortion and wilful damage - whether trial judge erred in not exercising a discretion to allow applications for adjournment indefinitely - whether jury’s verdicts were unsafe and unsatisfactory - whether appellant was not afforded an opportunity of a fair and proper defence - whether trial miscarried.

Counsel:Applicant/appellant appeared on own behalf.

Mr J. Henry for the respondent.

Solicitors:Applicant/appellant appeared on own behalf.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:              6 December 1996

REASONS FOR JUDGMENT - DAVIES J.A.
  Judgment delivered 21 October 1997

  1. The case below

    The appellant was convicted in the District Court on 17 July last year on six counts of extortion and one of wilful damage.  He was sentenced to an effective term of three years, that being the sentence imposed in respect of each of the extortion offences.  He was also sentenced to imprisonment for one year on the wilful damage count but the sentences were concurrent.  He appeals against his convictions and seeks leave to appeal against his sentences.

    The incidents which gave rise to the convictions occurred in late October and early November 1994.  The appellant was then 40 years of age.  He was a former police officer who had become a private investigator.  In that capacity, according to him, he was approached on 26 October 1994 on behalf of Mr. Charlie Chen in respect of a judgment which had been obtained against his company in the Magistrates Court by Mr. Barry Singleton.

    Mr. Singleton had performed some work for Mr. Chen's company pursuant to an agreement for a fixed sum.  Chen or the company had paid half of this sum to Mr. Singleton who then sent invoices and letters for payment of the other half but received no response.  Ultimately Mr. Singleton sued in the Magistrates Court and obtained judgment for $4,166.04.  A warrant of execution was then issued against the company for that sum.  The debt was never disputed.

    The appellant met Mr. Chen at the solicitor's office of Michael Chen & Associates.  A woman in that office acted at interpreter as Mr. Chen apparently did not speak English fluently.  The appellant was engaged, for the sum of $2,000, in his words, "to approach Mr. Barry Singleton to find out or to ask Mr. Singleton if he was prepared to drop the current warrant of execution against Mr. Chen's company and to see if…

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R v Shambrook [1997] QCA 356
Case
[1997] QCA 356
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the appellant, Shambrook, who was convicted of multiple charges including extortion and wilful damage. Shambrook, a former police officer, appealed against his conviction on count 2 of the indictment while the appeal on his sentence was also considered. The court was tasked with determining whether the appeal against the conviction on count 2 should be allowed and if the sentence imposed was appropriate.

The primary legal issue was whether the conviction on count 2 should be quashed and replaced with an acquittal. Additionally, the court had to assess if the sentence, an effective term of three years to be served concurrently, was within the range of a sound discretionary judgment, considering various mitigating and aggravating factors.

The court found that the appeal against the conviction on count 2 should be allowed, resulting in the quashing of that conviction and the entry of an acquittal in its place. This decision was based on specific legal grounds that warranted a reevaluation of the conviction on that count. Regarding the sentence, the court determined that it was well within the appropriate range, considering the nature and seriousness of the offences, Shambrook's background, and the comparative sentences referred to in similar cases. The court also noted that the sentence imposed was not at the top end of the range, making further mitigation unnecessary.

The court dismissed the appeal against the sentence and refused the application for leave to appeal against it. Additionally, it was held that the effective sentence should not be reduced due to the quashing of the conviction on count 2.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion on conviction appealIt follows from what I have said that, except with respect to the appeal on count 2, the appellant must fail. I would therefore allow the appeal in respect of count 2, quash that conviction and in lieu enter a verdict of acquittal. Except in that respect I would dismiss the appeal. SentenceThe sentence imposed was, as I have said, an effective sentence of three years being sentences of three years on each of the extortion offences and one year in respect of the wilful damage offence, all to be served concurrently. The appellant is 43 years of age, having been born on 16 June 1954. He has no prior criminal history. However he was, as I have said, a former police officer who might be expected to be aware of the seriousness of offences of this kind. Nevertheless he engaged in a persistent course of threatening and intimidatory behaviour.The appellant's conduct was plainly calculated to cause distress to the complainant and his family and did so. It was also aimed at defeating a legal process and showed a contempt for the judgment of a court and the rule of law. Moreover the appellant has at no time shown any remorse for his conduct.A number of sentences were referred to by way of comparison. It is unnecessary to refer to any of them in detail. The main ones were Renwick C.A. No. 244 of 1991, Stokes C.A. No. 179 of 1992, Jonasson C.A. No. 420 of 1993, Jessen C.A. No. 448 of 1996 and Bayliss, an unreported decision of the Western Australian Court of Criminal Appeal given on 3 March 1992. None of these is closely comparable to the facts of the present case but they do show, in my view, that the sentence imposed was well within the range of a sound discretionary judgment. The appellant also referred to a number of sentences imposed in the District Court, none of which was inconsistent with that conclusion.There were, it is true, some factors which pointed to mitigation of this sentence in some way. He had no prior criminal conduct and, it was said, he had assisted the administration of justice by giving evidence against corrupt officers at the Fitzgerald Inquiry. Moreover, it was said, as a former police officer his time in gaol would be more difficult than that of some other prisoners. Finally, it can be said that he has already been punished to some extent by the fact that his career as a private investigator is now at an end.In considering these factors it must be borne in mind that the sentence which was imposed was not one which, in my view, was at the top end of the appropriate range. Rather it was towards the middle of that range. In those circumstances I do not think it required to be mitigated further by, for example, a recommendation for early parole.I do not think that the effective sentence should be reduced in any way in consequence of setting aside the conviction on count 2.I would therefore refuse the application for leave to appeal against sentence.

Ratio Decidendi

Legal Principle Established

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