R v Thomas

[2000] QCA 411

[2000] QCA 411

COURT OF APPEAL

McPHERSON JA
DAVIES JA
MACKENZIE J

CA No 184 of 2000

THE QUEEN

v.

ROBERT GRAHAM THOMAS

BRISBANE

..DATE 03/10/2000

JUDGMENT

DAVIES JA:  The applicant's notice of appeal in this matter was an appeal against conviction as well as an application for leave to appeal against sentence.  The former was not pursued and should be dismissed. 

The applicant nevertheless pursues his application for leave to appeal against sentence which was one effectively of six years imprisonment with a recommendation for parole eligibility after two years, imposed in the District Court on 30 June last.

The offences for which that sentence was imposed were one of housebreaking with actual violence, one of robbery with personal violence, one of deprivation of liberty and one of unlawful use of a motor vehicle with a circumstance of aggravation.  The sentence was imposed on the first of those offences, the others receiving sentences of four and a half years, two and a half years and three years respectively.

He was also at the same time sentenced to concurrent sentences for offences relating to the possession and production of marijuana, drink driving and unlicensed driving and a cumulative sentence was imposed for breach of bail.

The applicant at the time he committed these offences,
2 June 1999, was 32 years of age having been born on
1 October 1966.  By that time he had accumulated a substantial criminal history in three States over a period since 1983 including convictions on no less than eight occasions for 42 breaking and entering offences.  His longest sentence was a period of six months imprisonment which was imposed on three separate occasions.

On the morning on which these offences were committed, the complainant, a 37 year old married woman, was returning to her home with her younger preschool aged daughter having delivered her school aged daughter to school.  The younger child remained outside to play while the complainant entered the house.  She found her elder daughter's wardrobe door open but, thinking no more about it, went to her own bedroom where she found the appellant suddenly emerging from a walk in wardrobe.  She screamed and a struggle ensued during which he knocked her to the floor and, despite her pleas, taped her eyes, mouth, hands and feet while holding her down with a knee in her back.

Although the appellant, in order to quieten the complainant during the course of their struggle, told her to be quiet and that he just wanted to leave, once he had successfully subdued her he then proceeded to ransack the house looking for other valuables.  When he had assembled all the goods which he considered worthwhile, he packed them into her car which he then drove away.

During the whole of the time that the appellant was on the premises, the complainant was understandably terrified, not only for herself but for her young daughter who was outside.  At one stage, she managed to at least partially free her hands but the appellant taped them up again, this time very tightly.  She remained on the floor for about an hour after which she was freed with the help of her young daughter.

The total value of property stolen or damaged was a little over $5,000.  The appellant was apprehended because his fingerprints were found on the window through which he had entered by breaking it and, when the police arrived at his home, they found a quantity of the complainant's property there.

When apprehended, the appellant admitted the commission of the offences, expressed remorse for his actions and said that he was drunk at the time.  The learned sentencing Judge rightly said that the applicant's drunkenness was not a mitigating factor but he also rightly took into account the applicant's expression of remorse as well as his
co-operation and his early plea.

On the other hand, of course, the prosecution case was an overwhelming one and the applicant must have realised this when he expressed his remorse and co-operated.

I have already mentioned that the incident understandably terrified the complainant.  Equally understandably, she has had some quite serious continuing problems;  fear of being alone in her house with consequent difficulty in returning home; difficulty in sleeping for some time and a nervous rash which comes and goes. 

The learned sentencing Judge said that the applicant's actions have probably changed the way that the complainant will live in her own home probably for the rest of her life.  There is no reason to doubt the correctness of that statement.  His Honour also described the complainant's condition as a severe post-traumatic stress reaction which is also an accurate description.

The applicant is plainly a persistent and long term offender particularly in breaking and entering offences.  More disturbing is the applicant's persistence in this offence.   Notwithstanding that he said he would leave and the many opportunities which he thereafter had to leave and his drunkenness, he methodically went about assembling goods of value for some considerable time after he had successfully bound up the complainant and covered her mouth and eyes with tape.  His Honour rightly described this as a very serious example of the offence.

The main submission by Mr Farmer for the applicant is that, notwithstanding these matters, the sentence is manifestly excessive and he points to cases involving home invasions in which sentences of five years or less were imposed, some of these cases involving conduct which was more violent than that involved here.

All of the cases to which he refers were applicant's appeals.  Most of them were dismissed, this Court making no specific comment on whether the sentence imposed might have been a high one.  Many of them also involved applicants much younger than the present applicant and without his long criminal history. 

On the other hand, the respondent refers us to R v. Wishart and Jenkins [1994] 2 Queensland Reports 421 in which a sentence of six years imprisonment was imposed by this Court on each of two men whose conduct resembled that of the applicant here though it must be said, in the applicant's favour, that they entered premises together and that one of them threatened the complainant with a knife.  On the other hand, one of the offenders was only 24 and had not previously been sent to prison and the other, 28, with a more serious criminal history than the other but, nevertheless, one less serious than the applicant here.  Although both applicants there admitted their offences in conversations with the police and pleaded guilty, no recommendation for early parole was made, a discount for this being allowed for in the sentence imposed. 

When all of these cases are taken into account, I do not think that the sentence imposed here was manifestly excessive and I would therefore refuse the application.

McPHERSON JA:  I agree.

MACKENZIE J:  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is refused.

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