R v Wentt

[1995] QCA 613

COURT OF APPEAL

[1995] QCA 613

FITZGERALD P
DAVIES JA

THOMAS J

CA No 440 of 1995
THE QUEEN
v.

CLINTON GOUGH WENTT Applicant

BRISBANE
..DATE 06/12/95
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THE PRESIDENT: Mr Justice Thomas will deliver the first
judgment.

THOMAS J: The applicant is a 28-year-old offender who was convicted of house-breaking. He has no previous convictions and has been of good character until this incident. The circumstances are peculiar.

One of the complainants was a 53-year-old woman and the other her 80-year-old mother. They were watching television in their unit at about 8.30 at night. The 53-year-old complainant looked through her kitchen window and saw a naked man on her landing, who appeared to be masturbating. She knocked on her own front door to make a noise and told him to get off. He then responded by banging on the outside of the door. She went to the kitchen and took a knife. By that time the applicant had entered the unit and was running towards her mother's bedroom. She ran after him, saying, "Stop. I have a knife." He moved towards her, upon which she reached out and stabbed him twice in the chest.

He fell down outside the area of the mother's bedroom. The mother having previously retired, came out and tripped over him.

The 53-year-old complainant then told him to get out. He said he was going and ran out of the flat bleeding and still naked. He was chased and ultimately caught by police. He was taken to the hospital where his wound was sutured. When questioned by police he said he did not really remember what had happened.

The matters which are referred to in his favour include the
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following. The bizarre conduct with which he is charged was out
of character. Perhaps its occurrence becomes more understandable
when one accepts that he took marijuana, to which he said he was
unused, before the incident and felt as if he was in a dream
during this time. It was submitted that because he was stabbed
twice he has already been punished to some extent. That is a
factor that can be taken into account in formulating the
appropriate sentence. It should be remembered however that he
was only in hospital overnight and there has been no serious or
permanent aftermath to the injuries. It may also be accepted
that he is unlikely to offend and that he exhibits remorse. He
made an early plea of guilty. He was employed at the time of
sentence and had a reasonable work history.

Countervailing factors include the circumstance that house- breaking is a serious, prevalent offence and that invasions of homes, particularly of women who live alone, are seriously regarded and such persons deserve the protection of the Courts. The Crown's submissions include the observation that self- induced intoxication is not a mitigating factor and that terror was caused to two elderly ladies. It was an aggressive invasion and the intention of the entry was to commit some form of sexual offence.

The cases suggest that offences of this character, which threaten the safety of persons in their own home, are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character. Reference was made to Haijk, CA 19 of 1984,

2 May 1984, where a 37-year-old offender was guilty of conduct
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not dissimilar to that here charged. The sentence, which was
not disturbed on appeal, was two years with a recommendation for
consideration of parole after six months. In Gibson, CA 121 of
1989, there was an early plea by a 20-year-old offender who had
no previous convictions. When affected by alcohol he entered
the house of a school teacher and assaulted her. The sentence
upheld there was of seven years with a recommendation after two
and a half years.

There are cases in which a non-custodial sentence has been upheld, namely O'Connell ex parte Attorney-General, CA number 188 of 1991, and Marama, CA number 328 of 1992, 3 February 1993.

In the former case, which was an attorney's appeal, the Court
mentioned that imprisonment would have been an appropriate
sentence but declined to interfere with a
non-custodial sentence. In Marama there was an offender who was
16 years and 10 months old at the time of the offence whose
personal circumstances may be regarded as somewhat special.

When one looks at the above cases, it is impossible to say that the sentence that was imposed by the learned sentencing Judge was beyond range or manifestly excessive. I would therefore refuse the application.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The application is refused.
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