R v Whitby and Johnson

[1996] QCA 12

IN THE COURT OF APPEAL	[1996] QCA 012
SUPREME COURT OF QUEENSLAND

C.A. No. 428 of 1995 C.A. No. 438 of 1995

Brisbane

Before Fitzgerald P.

McPherson J.A.

Mackenzie J.

[R. v. Whitby & Johnson]

T H E Q U E E N

v.

TONY JOHN WHITBY and

STEPHEN RICHARD JOHNSON

(Applicants)

Fitzgerald P.
McPherson J.A.

Mackenzie J.

Judgment delivered 16/02/96

Reasons for judgment by the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY JOHNSON

DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE BY WHITBY GRANTED.
APPEAL AGAINST SENTENCE BY WHITBY ALLOWED.

SENTENCE IMPOSED ON WHITBY BELOW VARIED BY REDUCING IT FROM 4 TO 2 YEARS IMPRISONMENT FOR ATTEMPTING TO DO GRIEVOUS BODILY HARM, AND FROM 9 TO 6 MONTHS IMPRISONMENT FOR WILFUL DAMAGE.

CATCHWORDS	CRIMINAL LAW - SENTENCE - Wilful damage and attempted grievous bodily harm - cutting the brake lines of a motor vehicle - EVIDENCE - Whether evidence adduced on the voir dire of one accused is admissible on the sentence of the co-accused. R. v. Lowe (1984) 154 C.L.R. 606 referred to.
Counsel:	S. Hamlyn-Harris for the applicant Whitby D. Lynch for the applicant Johnson J. Costanzo for the respondent
Solicitors:	Legal Aid Office for the applicants Director of Public Prosecutions for the respondent
Hearing Date:	30 January 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 16th day of February 1996

The two applicants Whitby and Johnson seek leave to appeal against sentences imposed in the Supreme Court. In the case of Whitby the sentence was imprisonment for 4 years for attempting to do grievous bodily harm (which it is convenient to refer to as count 2) and for 9 months for wilful damage (count 3). Johnson was sentenced to imprisonment for 2 years for the attempt and to 6 months for the wilful damage offence. The sentences were ordered to be served concurrently.

Originally both applicants were also charged with attempted murder (count 1). However, when arraigned at the trial Whitby pleaded guilty to both wilful damage and to attempted grievous bodily harm. His plea to that charge (count 2), which was presented as an alternative to count 1 (attempted murder), was accepted by the Crown, and he was discharged from the more serious charge. At the trial Johnson at first pleaded not guilty; but, after taking evidence on voir dire, the learned trial judge ruled that confessional material consisting of records of police interviews should be admitted in evidence at the trial. Johnson was then arraigned again, and pleaded guilty to attempted grievous bodily harm (count 2) and to wilful damage (count 3). He was discharged from count 1.

The offence of wilful damage was constituted by secretly cutting the brake lines of a car belonging to the complainant Mrs Marilyn Burns. When Mrs Burns later drove her vehicle, the brakes failed and the car took her at speed down a steep hill towards a creek. She eventually brought it to a stop by using the handbrake and putting the automatic gearshift into the parking position. Needless to say, when she got out of the car, she was crying, shaking and very upset.

Mrs Burns, who was some 43 years old, lived in the Gympie district and had known Whitby (who was 19) for about two years through bean picking activities in which they were both employed. She treated him like a son, and he called her Mum. Through Whitby she had met Johnson (aged 23), whom she had known slightly for only about two months or so before the incident.

At the hearing on sentence some difficulty was experienced in elucidating all of the facts relevant to the individual criminal responsibly of the two applicants. Unlike Johnson, Whitby had it seems made no statement to the police. Evidence of Johnson's statements had been given before the judge on voir dire; but, simply in that character, they would not have been admissible against Whitby on sentence. On sentence counsel for the Crown offered to tender the taped records of interview with Johnson, but they were not tendered. Instead the hearing on sentence proceeded, in accordance with the practice in Queensland, on the basis of prosecuting counsel's statement from the Bar table. So far as Whitby was concerned little or none of what was said in this way was contradicted by his counsel.

According to the matters recited, the underlying motivation for the offences was that on the Wednesday before the accident (which took place on a Sunday) Whitby approached Mrs Burns with a request that she lend them her car. He explained that he wished to go to Kingaroy to pick up Johnson's brother and bring him back to Gympie. The brother had missed a bus on which he had been planning to travel. Whitby offered to pay Mrs Burns $250 for the loan of the car, and to fill it up with fuel. Mrs Burns declined to lend him their car. She had previously had an accident with the car, and her ex-husband had had to repair it. Whitby then asked if Mrs Burns would sign the paper to enable them to rent a car. She also declined to do that, and suggested that Whitby approach his father. Neither Whitby nor Johnson was fully licensed to drive a car. Johnson was present throughout the conversation.

Mrs Burns' attitude to these requests was plainly prudent and responsible, but in the days that followed it provoked a markedly unfriendly response from Whitby. On one occasion at work he told her to shut up, but he refused to tell her what was wrong. She became upset and wanted to resign her job, but her employer persuaded her not to do so.

The idea of cutting the brake lines seems to have originated not long before the incident on Sunday. Johnson lived with Whitby and his defacto wife. On the preceding Saturday, Johnson and Whitby were said to have watched a video at Whitby's place. There was a scene in the film in which a woman driving a Mercedes down a hill had tried to apply the brakes. Her efforts were unavailing as her husband had previously sawn through the brake lines. When they went to work next day, Johnson suggested they do something to Mrs Burn's car adding "Let's cut her brakes". He borrowed Whitby's keys from him, opened the boot, and took out a small pair of pliers. He then told Paul Hesketh to cut the lines, but he refused to do so. So did two other boys Stephen and Danny, aged 8 or 10, who were children of the employer. After both Johnson and Whitby had again unsuccessfully pressed Paul Hesketh to cut the lines, Johnson crawled under the car with the pliers and cut them. Hesketh, who was aged about 10, was the son of Whitby's defacto and lived with his mother, Whitby and Johnson in the house or flat they occupied.

In this particular, the sequence of events on the Sunday, Johnson's own confession diverged from the account given by Hesketh. Johnson said that Whitby had asked or told him to cut the lines and he had agreed to do so. The learned judge drew the attention of counsel for Whitby to the point, but it appears not to have been contested in his address. Johnson's counsel said his instructions from Johnson were that he specifically denied having originated the idea of disabling the car brakes, or that he had derived it from watching the video. There was, however, evidence in the taped records of interview that with Whitby's encouragement the boys had let down the tyres of Mrs Burn's car.

In these circumstances, and without taking sworn evidence from the witnesses, it was not altogether easy to decide which of the two applicants bore the major part of the responsibility for committing the offences, although plainly both of them were criminally responsible under s.7 of the Code for what had been done. That being so, much depended on the basis on which the prosecutor invited his Honour to proceed in sentencing the two offenders. Asked by the judge to state "in a nutshell" what was the Crown case as to the criminal responsibility of each offender, counsel eventually responded by saying that their criminality was equal and that it was "not clear" who was the instigator of the offence.

What counsel for the Crown said in answer to that question was qualified by reference to Johnson's mental state. There was psychiatric and psychological evidence that Johnson suffered from some degree of intellectual disability. His verbal I.Q. was only 68 (which Dr Mulholland said was in the "mild handicap range"). On the other hand, his performance I.Q. was 92, "which was well into the average". When it came to cutting the brake lines, or even understanding how it could be done and what its consequences were likely to be, there is little doubt that Johnson was, intellectually speaking, well qualified. One of the police interviews, referred at the sentence hearing, had focussed on questions like these, and it was plain from Johnson's answers that he had a useful, if not considerable, working knowledge of cars and car engines.

According to Dr Mulholland, the areas of intellectual impairment from which Johnson suffered were in abstract reasoning and "formation of social judgment". Social judgment may be supposed to include assessment of the proportionality of any vengeful conduct undertaken in response to an apprehended wrong by someone else. Killing or seriously injuring a person who refuses to lend a car is not the normal response to be expected from an average person even in changing times like these. Johnson was, on standard sentencing principles, entitled to have that consideration taken into account in his favour even if it did not entirely or even substantially eliminate his criminal or moral responsibility for his actions, of which he plainly foresaw the possible consequences for Mrs Burns.

There are no previous sentencing examples of cases of this kind; or, if there are, counsel were, not surprisingly, unable to locate them. Johnson, it has been mentioned was 23 years old at the time of the offence and 24 when sentenced. His intellectual disability has been noticed. Apart from that consideration, he might well have expected a substantially more severe sentence than he received. Deliberate conduct which is foreseen as involving such potentially serious consequences to life and limb merits custodial punishment. The effective sentence of two years imprisonment in Johnson's case should not be disturbed. His application for leave to appeal should be dismissed.

Johnson was the person who in fact cut the brake lines of the car after other younger persons present had declined to do so. In his sentencing remarks the learned judge observed that it was not clear who was the instigator of what happened; but, he added:

"there could be no doubt as to who bears the greater responsibility in this matter. And, of course, it is you Whitby because you in some way took advantage of Johnson's mental incapacity. You will suffer a more serious penalty than will Johnson".

There is nothing to suggest that Whitby's intellectual functioning was in any way impaired. In one respect, he may be thought to be morally at fault to a greater degree than Johnson. After all, Mrs Burns had befriended him and treated him like a son. She was entitled to expect that he above others would take steps to prevent others from injuring her as an act of revenge. The difficulty is, however, to identify any material on which his Honour was entitled to act in reaching his conclusion that Whitby undoubtedly bore the greater responsibility in the matter because of the way in which he took advantage of Johnson's mental incapacity. There is a statement from the Bar table at sentencing that Whitby knew or must have known of Johnson's mental condition, but there is nothing specific to show that he appreciated its impact on Johnson's' capacity to form "a social judgment". On the other hand, from interviewing Johnson, Dr Mulholland concluded that Johnson was afraid of Whitby, by whom he had been physically assaulted, threatened and intimidated for many years.

If that were so, the difference in the sentences imposed on the two applicants would be readily explicable on the ground adopted by his Honour. Even, however, if a suspicion be admitted that his Honour's conclusion might in reality be correct, what Dr Mulholland said was not admissible against Whitby. Dr Mulholland's evidence was given on the voir dire concerning the admissibility of Johnson's confession. His source was what he had been told by Johnson himself. That evidence could not be acted on against Whitby, who did not take part in the voir dire and, having already pleaded guilty, was presumably not even present in person or by counsel when the evidence was given. The problem then is that if Dr Mulholland's testimony is excluded from consideration, there is no other material on which his Honour could have reached the conclusion as to Whitby's responsibility that he expressed so strongly. It seems clear that counsel for the Crown did not attempt to adduce the voir dire material for the purpose of sentencing Whitby but, as we have seen, was content to let the process proceed essentially on the basis that the two applicants shared criminal responsible equally.

At 19 years of age, Whitby was younger than Johnson when the offence was committed even if he was presumably more socially aware and responsible than Johnson. He pleaded guilty at trial, even if at a late stage, but some time before Johnson did. He is young and has no previous convictions of any kind. Without being able to shaft home to Whitby responsibility for the idea or its execution, it is difficult to escape the impression that, viewed objectively on the material in the appeal record, his conduct was not manifestly more reprehensible than that of Johnson. When other mitigating factors are taken into account, such as age differences, the early plea, and Johnson's action in actually cutting the brake lines, Whitby's grievance at the disparity in the sentences imposed may well be justified: cf. R. v. Lowe (1984) 154 C.L.R. 606.

We would therefore allow the appeal in Whitby's case and vary the sentence imposed for attempting to do grievous bodily harm by reducing it from 4 to 2 years imprisonment and from 9 to 6 months in the case of the offence of wilful damage.

In other respects the sentences appealed against by each applicant should be stand. The application by Johnson (CA No. 438 of 1995) is dismissed.