R v Treptow & Attorney-General of Queensland

[1995] QCA 582

[1995] QCA 582

COURT OF APPEAL

FITZGERALD P McPHERSON JA LEE J

CA No 326 of 1995
THE QUEEN
v.
RODNEY JOHN TREPTOW Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE
..DATE 26/10/95
261095 T4/SJ M/T COA95/330
THE PRESIDENT: This is an appeal by the Attorney-General
against sentences imposed in the District Court at Brisbane on
19 July 1995. The accused was convicted on two counts of
attempting to strike with a projectile to prevent lawful
detention for each of which he was sentenced to three and a half
years imprisonment with a recommendation that he be considered
eligible for parole after 18 months and one count of serious
assault for which he was sentenced to imprisonment for three
years, the sentences to be served concurrently.

The respondent is 25 years old and his criminal history involves offensive conduct and malicious damage, for which he was fined.

He had also been convicted, on three occasions, of driving under the influence in another State, for which he received a sentence of three months imprisonment and a period of suspension of his licence, I think for two years.

Before midnight on 14 April 1994 the respondent and another person, one Stephen Camac, were involved in a police car chase in the New Farm area during which the respondent repeatedly shot at police vehicles with a point 22 calibre rifle while Camac drove the vehicle in which the respondent was a passenger. The police chase ended in the Brunswick Street Mall and the respondent and Camac fled from their vehicle. They were subsequently surrounded by armed police and each shot himself with the rifle. Camac died but the respondent survived and was subsequently charged and convicted.

Both Camac and the respondent had been drinking and had driven
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through a red light at a speed of about 100 kilometres per hour.

Police gave chase and that led to the events which I have described. The respondent said that they had decided to try to escape the police as they were worried that if they were apprehended for the driving offences that they would have to serve the gaol sentence for the previous offences of driving under the influence in Victoria.

There were a number of police vehicles involved in the chase, which was carried out through the streets of Fortitude Valley, and there were a number of shots fired by the respondent attempting, he said, to immobilise the vehicles although I have already referred to the offences for which he was convicted.

When the respondent shot himself the bullet entered his lower jaw and penetrated his tongue and the roof of his mouth and entered into the lower part of the front of his brain. As a result, he suffered an open penetrating head wound with acute bleeding inside the brain. He was operated upon and made a full recovery with no permanent disability except for a mild visual defect.

The sentencing Judge, before imposing sentence, had received
extensive submissions from both the counsel who represented the
respondent and the Prosecutor and it is convenient to
repeat some of His Honour's remarks. His Honour said:
"The risk which the police officers in the present case were

involved in were, in my opinion, substantial and the Court has to reflect the seriousness of it and keep in mind at all times the need to deter others from committing offences such as these. The Crown in this case has said that the range of sentence is between five to six years."

261095 T4/SJ M/T COA95/330

I will then set out from the record at page 276 across to the top of page 278 line 10 noting that in the course of his remarks His Honour referred to a concession effectively made by counsel for the Prosecution that a range of five to six years was appropriate and the respondent's counsel's reply that that was more appropriate to an attempted murder charge and that a lesser sentence should be imposed. In my opinion His Honour was quite incorrect in that view and an attempted murder charge in these circumstances would have attracted a sentence of imprisonment considerably in excess of six years.

In the course of his submissions the Prosecutor had also acknowledged that the respondent should be given credit for really immediate remorse, as he described it, and he said that he could not argue with a sentence of five years imprisonment with a recommendation for consideration for release on parole after two.

Before this Court the counsel for the Attorney-General has relied upon the obvious error made by the sentencing Judge in his remarks concerning the appropriate sentencing range for an offence of attempted murder and it is submitted that accordingly this Court should re-sentence.

The respondent submits that the sentencing Judge was in a particularly good position to consider the matter having had the opportunity of observing the respondent, which is true of course, and went on to submit that the sentence imposed is not so far outside the range contended for by the Prosecution that 261095 T4/SJ M/T COA95/330

intervention by this Court is appropriate.
I am unable to accept that. I think that the Prosecutor adopted
an extremely lenient position in the Court below and that the
Judge, misunderstanding the significance of the Prosecutor's
submissions and misunderstanding what would be an appropriate
range for an offence of attempted murder, plainly erred in
principle.

On the other hand, it seems to me that this case does not and should not be used to establish an appropriate sentencing range in circumstances such as the present where there are no special considerations applicable. Here, there seem to me to be three.

One is the position adopted by the Prosecutor below, quite deliberately, in the course of comprehensive sentencing submissions. The other is that there seemed to be personal factors associated with the position of this respondent unspecified apparently so far as I've been able to tell in the material but obviously influencing both the Prosecutor and the sentencing Judge. And thirdly, there is the position conceded by the Prosecutor in relation to remorse.

In the circumstances, I would allow the appeal and set aside the sentences imposed below in relation to the counts of attempting to strike with a projectile to prevent lawful detention but leave the sentence imposed in relation to the count of assault stand as the Attorney-General did not seek to interfere with that sentence. In relation to the counts of attempting to strike with a projectile to prevent lawful detention, I would in each case impose a sentence of five years imprisonment with no 261095 T4/SJ M/T COA95/330

recommendation for consideration for release on early parole.

McPHERSON JA: I agree.

LEE J: I agree.

THE PRESIDENT: The appeal is allowed and the other orders will be as I have indicated.

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