R v Walker

Case [2019] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

R v Walker [2019] QCA 180

PARTIES:

R
v
WALKER, David Colin
(applicant)

FILE NO/S:

CA No 292 of 2018
DC No 609 of 2018
DC No 613 of 2018
DC No 1955 of 2018
DC No 2001 of 2018
DC No 2007 of 2018
DC No 2355 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 17 October 2018 (Richards DCJ)

DELIVERED ON:

10 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2019

JUDGES:

Morrison and Philippides JJA and Applegarth J

ORDER:

Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on a plea of guilty – where the applicant seeks leave to appeal the sentences imposed for a series of violent robberies and assaults – where the applicant was convicted of crimes including: armed robbery in company and with personal violence, torture, burglary, assault occasioning bodily harm while armed and in company and assault causing bodily harm – where some of the sentences imposed were imposed with a declaration that the offences were a serious violent offence (SVO declaration) – where the central contention by the applicant is that there should have been no SVO declaration – where the applicant submitted that he should have received the same sentence, or at least no worse a sentence than his co-offender because the applicant was not the main offender – where the applicant submits that he was acting with restraint during the course of some of the offences where the outcome could have easily been much worse – whether the issue of parity arises – whether the sentence imposed was manifestly excessive

R v Civcija[2018] QCA 83, cited
R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited
R v Dang[2018] QCA 331, cited
R v Randall[2019] QCA 25, cited

COUNSEL:

The applicant appeared on his own behalf
M T Whitbread for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  The applicant seeks leave to appeal his sentences, imposed for a series of violent robberies and assaults.

  2. On 5 March 2017 the applicant committed an armed robbery when he intercepted a man walking to a shop to buy milk, forcing him back to his garage where the man was threatened with a metal pole and a crowbar.  Around the applicant’s neck was a chain inside clear plastic casing.  The applicant stole a number of items including a laptop, credit cards and cash, mobile phones and the man’s car.  During the course of the robbery the man was threatened not only by the pole and crowbar, but also with the prospect that, as the applicant told him, the applicant would come back with some bikies.

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Details
AGLC
R v Walker [2019] QCA 180
Case
[2019] QCA 180
Decision Date

CaseChat Overview and Summary

The applicant, who was convicted on a plea of guilty, appeals against the sentences imposed for a series of violent robberies and assaults. The applicant contends that the sentences imposed were manifestly excessive or inadequate, and specifically that there should have been no declaration that the offences were serious violent offences (SVO declaration). The applicant submits that he should have received the same sentence, or at least no worse a sentence than his co-offender because the applicant was not the main offender. The applicant argues that he was acting with restraint during the course of some of the offences where the outcome could have easily been much worse.

The central legal issue in this appeal is whether the sentence imposed was manifestly excessive or inadequate, and whether the issue of parity with the co-offender arises. The applicant submits that the sentence imposed for the assault occasioning bodily harm while armed, in company, which was to be served cumulatively with the sentence for torture, was manifestly excessive. The applicant also contends that the sentence imposed was manifestly excessive having regard to parity with his co-offender, Sting. The court considered the totality of the offending, the nature of the offences, and the applicant's criminal history. The court noted that the applicant was a mature man with a serious criminal history involving previous offences of violence. The court also noted that the applicant was on bail when the initial armed robbery was committed. The court considered the factual features of the offending, noting that the house invasion and torture were the result of a planned attack.

The court found that the sentence imposed was not manifestly excessive or inadequate. The court noted that the applicant had served 579 days in custody, which was declared as time served. The court found that the sentences imposed were appropriate in all the circumstances. The court found that the issue of parity with the co-offender did not arise, as the applicant was not the main offender. The court refused the application for leave to appeal against sentence.

Orders

Orders of the court

Application for leave to appeal against sentence is refused.

Background

Background to the litigation

The assault was captured on CCTV[14] and revealed that the complainant was hit at least 20 times by the applicant. The complainant sustained a compound laceration and fracture to the left little finger, an undisplaced fracture of the left ring finger and the right little finger and a fracture to the fibula. There were also left temporal lobe contusions and a subdural haemorrhage, bilateral fractures to the eyes and a non-displaced fracture on the right temporal area. He had concussion with post-traumatic amnesia that lasted for 11 days, leading to poor new memory formation, sensitivity to light and sound, nausea, double vision, reduced concentration and fatigue. He was in hospital for about two weeks.[14]Exhibit 8.Additional facts In the course of submissions at the sentencing hearing the applicant’s Counsel advanced a number of matters, without objection, relating to his background and motivation for the events. It was said that the applicant, when a child, had been the subject of sexual abuse at the hands of an uncle and also a soccer coach. The reaction to that abuse, as well as learning of the abuse of his own sister at the hands of that uncle, had “contributed to a deep-seated hatred … of anybody who offers harm to children or to those who he sees as being a threat to children”.[15] It was said that on the basis of communications before attending the house, the applicant had understood that the offer of sexual services had come from an underage person. Counsel made it plain that this was not being suggested as a matter of mitigation, but simply a matter of context.[16][15]AB 65 line 45 to AB 66 line 1.[16]AB 66 line 14. The applicant was subjected to violent treatment by his father, apart from the sexual abuse to which he was subjected. In spite of that he had what was described as an “otherwise relatively unremarkable childhood”, finishing schooling and then qualifying as a plasterer. However, he turned to illicit drugs at a young age, eventually moving to methylamphetamine by about age 18. The use of that drug had led to an increase in aggressive behaviour and ultimately a descent into violence in his relationships. That led to the Department of Child Safety removing his child from his and his partner’s care. However, by the time of the sentencing he had had a new relationship, and a four year old daughter. His drug use was said to have resulted in the collapse of his business. Since being in custody he had participated in a drug offender intervention program, and had applied to do other courses.Approach of the learned sentencing judge The learned sentencing judge referred generally to the nature of the charges, noting that the applicant was a mature man with a serious criminal history involving previous offences of violence. Her Honour also noted that when the initial armed robbery was committed the applicant was on bail. Her honour then reviewed the factual features of the offending noting that the house invasion and torture were the result of a planned attack. The same was said of the attack on the prisoner whilst in custody. In respect of that offence her honour described it as a cowardly attack which was persistent, and in which the applicant was an enthusiastic participant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 17 October 2018 the applicant was sentenced as follows:Indictment 609/18(a)count 1, armed robbery – four years’ imprisonment, with a declaration that the offence was a serious violent offence (SVO declaration);Indictment 613/18(b)count 1, torture – nine and a-half years’ imprisonment, with an SVO declaration;(c)count 2, burglary – seven years’ imprisonment;(d)count 3, assault occasioning bodily harm, while armed and in company – seven years’ imprisonment with an SVO declaration;(e)count 4, armed robbery, in company and with personal violence – seven years’ imprisonment and an SVO declaration;(f)counts 5-9, convicted and not further punished; andSummary charge for prison assault(g)assault causing bodily harm, while armed and in company – 12 months’ imprisonment, to be served cumulatively on the sentence of nine and a-half years for torture. Of the 17 other summary offences, the applicant was convicted with no further punishment. The applicant seeks leave to appeal against the sentences imposed on two grounds. The first is that the sentences were manifestly excessive “having regard to the cumulative effect of the Assault occasioning bodily harm while armed, in company sentence”. That is a reference to the 12 month sentence to be served cumulatively with that applicable to the torture. The second ground was that the sentences were manifestly excessive, “having regard to parity with co-offender … Sting”. The applicant had, by the time he was sentenced, served 579 days in custody. That time was declared as time served.Circumstances of the offending Two agreed schedules of facts were tendered at the sentencing hearing. The first[3] relates to the first incident the subject of indictment 609/18.[3]Appeal Book (AB) 91.First armed robbery – indictment 609/18 At the time the applicant was 32 years of age, and the complainant was 39. Early in the morning of 5 March the complainant left his unit to purchase milk. He carried a bag with him containing his wallet (which contained $690 and bank cards), two mobile phones, a small knife, a power kit and medication. The bag also contained a small amount of methylamphetamine and a set of digital scales. While walking to the shop the applicant drove past him. The complainant crossed the road and saw the car driving back towards him. The applicant pulled up next to the complainant, asking him the name of the street. He then got out and asked what the complainant had in his bag. The applicant said he was a wanted criminal, driving a stolen car and “I don’t give a fuck about anything”. He then said “I’ve been getting fucked around all night, I had to sleep behind the Maccas carpark”, and “So I’m going to get something back and I’ll start with you”. The applicant told the complainant he had weapons in the car, and that he had a gun. He was wearing a big chain around his neck (about 60 centimetres long) inside a clear plastic casing. He told the complainant to show him what else he had. The complainant was worried about his wife and children and said that he had things in the garage. The applicant then pulled a metal pole, about 50 to 60 centimetres long, out of the front seat of the car and threatened the complainant.