R v Street

[1992] QCA 214

IN THE COURT OF APPEAL [1992] QCA 214

SUPREME COURT OF QUEENSLAND Appeal No.100 of 1991

T H E Q U E E N

v.

DAVID JOHN STREET

Appellant

JUDGMENT OF THE COURT

Delivered the 20th day of July, 1992

On 6 March 1992, the appellant was convicted in the Trial

Division of the commission of a criminal act contrary to
section 539 of the Criminal Code. The offence charged was
that on or about 11 August 1991, with intent to do some
grievous bodily harm to one Julian Peter Ashton the appellant
attempted to procure one Robert Vincent Pearce to do some
grievous bodily harm to the said Julian Peter Ashton. He was
sentenced to imprisonment for 4 years with a recommendation to
be considered for parole after 1 year of that period, and has
also applied for leave to appeal against his sentence.

The case against the appellant was based on a number of

discussions concerning the castration, if not the killing, of
the new boyfriend of his former girlfriend. The discussions
commenced on 26 July 1991 and continued until the appellant

was arrested on 12 August 1991.

Initially, the appellant asked an acquaintance, Slee, if

he knew anybody "that could do a job" on the other man. Slee,

who was drunk, claimed that he could assist.

On 5 August 1991, the appellant telephoned Slee and said

that he "wanted to get his girlfriend back and the only way he could do it was to put her current boyfriend out of the way by doing a castration". The price was discussed. Slee was also

asked whether he could obtain the appellant's former
girlfriend's telephone number if the appellant provided her

address.

On the following day, the appellant visited Slee and gave
him a Sydney address for his former girlfriend, who had moved
to Sydney at the end of July 1991. Until then, she had been
living for some months with Ashton, who did not accompany her
to Sydney but continued to have telephone contact with her
during August.

The appellant continued to seek the telephone number from Slee. According to the appellant's statements to Slee, he wanted to make sure that his former girlfriend was the person residing at the address which he had given to Slee. He proposed to telephone the number connected to that address for that purpose. From what he said, he did not want the wrong person to be injured if he was mistaken as to the address.

On 11 and 12 August, a number of conversations between

the appellant and undercover police officers were tape

recorded.

On 11 August, an arrangement was made between the

appellant and Slee for the appellant to telephone Slee on the following morning so that a meeting between the appellant and the man who was to perform the castration could be arranged.

In two conversations between the appellant and Slee, on

the morning of Monday, 12 August, 1991 there were discussions
involved the price which the appellant would be required to
pay, which Slee said that he had been able to reduce to
$700.00 "because you're a mate of mine", a request by the
appellant concerning the telephone number, and arrangements

for a meeting that night.

The meeting took place, and a police officer who was

introduced to the appellant as the person who would carry out
the castration was present. On that occasion, the appellant
confirmed that he wanted the castration carried out. Further,
when asked whether "you definitely don't want him killed, you

just want him castrated", the appellant replied "well, if you

can get him killed, that's fine". The police officer informed
the appellant that the address which he had given Slee did not
exist and the appellant said that he would check his sources
for his ex-girlfriend's Sydney address. He also provided a
description of the person whom he considered to be the
boyfriend of his former girlfriend, saying: "He's got dark
hair, he's about 32 years of age, European. He runs a Trash
and Treasure on Sunday at the City Markets". The appellant
also agreed that the castration should occur on the following
Wednesday, and that he would supply an airline ticket to
Sydney as soon as the name and whereabouts were confirmed and
would pay the money to a bank account.

Ashton did not meet the appellant's description or run a

"Trash and Treasure ... at the City Markets."

The argument for the appellant, shortly stated, was that

it could not safely be concluded that he either intended or
attempted to procure harm to Ashton, whom he did not know, and
reliance was placed upon the discrepancies between Ashton's
circumstances and those of the person described by the
appellant as well as the inaccuracy in the details of the
address given by the appellant for his former girlfriend.
Apart from the doubt which these errors were said to raise in
relation to whether or not Ashton was the intended victim, it
was submitted that they suggested a doubt whether the

appellant really intended that any person be harmed.

However, neither singly nor in combination did the

circumstances justify a conclusion that the jury's verdict was

unsafe or unsatisfactory.

The discussions in which the appellant engaged provided

ample basis for a conclusion that he intended to cause harm to
his former girlfriend's new boyfriend and, having that
intention, that he had begun to put it into execution by means
adapted to its fulfilment by the conversations which he had
and the commitments which he made. While it might have been
open to the jury to have a doubt whether a person who made the
mistakes which the appellant did really intended what his
conversation suggested, there is no possible footing upon
which it could be asserted that it must have had such a doubt.

Similarly, it was plainly open to the jury to have no

doubt that Ashton was the person whom the appellant intended
should suffer grievous bodily harm. That intention primarily
related to the appellant's former girlfriend's new boyfriend
who, at the time when the intention was formed, was Ashton.
The fact that the appellant was mistaken concerning Ashton
appearance or occupation or the women's dress did not

necessarily throw a doubt upon that conclusion.

Accordingly, the appeal against conviction should be

dismissed.

Additional considerations arise in relation to the

application for leave to appeal against sentence. A report
from a psychologist indicates that the appellant is suffering
from personality disorders. The material available to it has
led the Court to conclude that whatever the appellant's
intention at the time, and despite the point to which he had
proceeded, it was extremely unlikely that he would have
continued to the point at which any other person would have
been in serious physical danger. He was substantially engaged
in an activity aimed at self-aggrandisement in his own eyes

and in the eyes of Slee.

The appellant had been in custody for 7 months prior to

sentencing, and has since been in custody for a further 4
months. There is no suggestion that there is a substantial
risk that he will engage in similar conduct, and it is
apparently accepted that he is not a danger to the community
as he has already been permitted unsupervised leave from
prison. He was present in the Court, unescorted, when this

proceeding was heard.

In the circumstances, the sentence imposed upon the

appellant was inappropriate and should be set aside. He would
benefit from a substantial period of probation, and the
appropriate sentence is a period of 6 months imprisonment
followed by a period of 3 years probation. The Court was
informed by his counsel that the requirements of Section 197
of the Corrective Services Act have been complied with.

Accordingly, the appeal against conviction is dismissed

and the application for leave to appeal against sentence is
allowed. The period of imprisonment imposed upon the
appellant is set aside and lieu thereof it is ordered that a
period of imprisonment for 6 months followed by probation for
3 years be substituted.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND Appeal No.100 of 1991

T H E Q U E E N

v.

DAVID JOHN STREET

Appellant

The President
Mr Justice McPherson

Mr Justice Davies

Judgment of the Court delivered the 20th

day of July, 1991

Appeal against conviction dismissed. Application for leave to

appeal against sentence allowed. Set aside
period of imprisonment imposed and in lieu
thereof order that a period of imprisonment for
six months followed by probation for three
years be substituted.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.100 of 1991
Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice Davies

T H E Q U E E N

v.

DAVID JOHN STREET

Appellant

JUDGMENT OF THE COURT

Delivered the 20th day of July, 1992

MINUTE OF ORDER:Appeal against conviction dismissed.

Application for leave to appeal against
sentence allowed. Set aside period of
imprisonment imposed and in lieu thereof
order that a period of imprisonment for
six months followed by probation for three

years be substituted.

CATCHWORDS:

Counsel: Mr A. Rafter for the Appellant

Mr J. Costanzo for the Respondent

Solicitors:Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date: 20.07.92