R v Wilkins

[1996] QCA 238

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 182 of 1996

Brisbane

[R v. Wilkins]

THE QUEEN

v.

STEVEN ROBERT WILKINS
  Applicant

Fitzgerald P

Williams J

Byrne J

Judgment delivered 19/07/96

Judgment of the Court

LEAVE TO APPEAL GRANTED.  APPEAL ALLOWED.  THE SENTENCE IMPOSED SET ASIDE AND IN LIEU THEREOF ORDER THE APPLICANT BE IMPRISONED FOR TWELVE MONTHS TO DATE FROM 15 APRIL 1996.

CATCHWORDS:     CRIMINAL - APPEAL AGAINST SENTENCE - being in a dwelling house with intent and assault occasioning bodily harm in company -  accused was heavily intoxicated and had poor recollection of the events - plea of guilty - comparatively minor role - sentence reduced to 12 months imprisonment.

Counsel:  Self represented

Ms L Clare for the respondent

Solicitors:Queensland Director of Public Prosecutions for the respondent.

Hearing Date:   15 July 1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 182 of 1996

Brisbane

[R v. Wilkins]

BeforeFitzgerald P

Williams J

Byrne J

THE QUEEN

v.

STEVEN ROBERT WILKINS
  Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 19th day of July 1996

The applicant, Steven Robert Wilkins, seeks leave to appeal against a sentence of two years' imprisonment with an eligibility to apply for parole after serving nine months imposed on him in the District Court at Gympie on 15 April 1996 for the offences of being in a dwelling house with intent, and assault occasioning bodily harm in company.
           The applicant pleaded guilty to those two offences when arraigned, but his co-accused, Forrester and Nicholas, pleaded not guilty then to charges of entering a dwelling house with intent and assault occasioning bodily harm in company.  All of the charges arose out of the same incident which occurred on 23 October 1995.  After the applicant pleaded guilty the learned judge proceeded immediately to sentence him.  The trial of Forrester and Nicholas was stood over to the next sittings, but on that occasion each entered a plea of guilty to both offences.  Each of Forrester and Nicholas was sentenced to imprisonment for 2 years and 9 months, with a recommendation that each be eligible to apply for parole after serving 11 months.  It is important to note that Forrester and Nicholas were charged with entering the dwelling house within intent, whereas the applicant was only charged with being in the dwelling house with intent.  The distinction was important.  Forrester and Nicholas formed the intention to commit the indictable offence, namely assault, before they entered the dwelling house, whereas the applicant only formed that intent after he had actually entered.
           The applicant's pleas of guilty appear to have been entered on the basis that, because of the considerable quantity of alcohol that he had consumed earlier in the day, he had no complete recollection of events giving rise to the charges but accepted that he became involved in the incident to a sufficient extent to make him guilty of each offence.  As already noted the difference between the charges laid against Forrester and Nicholas and those to which the applicant pleaded guilty indicated that the prosecution was accepting that the applicant was not a party to any plan made prior to entering the dwelling house to unlawfully assault the complainant; that position was reflected in submissions made by counsel for the prosecution to the learned sentencing judge.  His Honour was sceptical about that.  He queried both counsel on the basis that commonsense suggested that the applicant must have been party to some pre-concert prior to entering the complainant's home.  That culminated in the learned judge putting to defence counsel:  "Why shouldn't I hear evidence to decide for myself whether the circumstantial case is to make the finding whether there was a pre-concert or whether there is not?"  Neither counsel sought to lead evidence, and both were content to submit that the court should sentence on the basis that the applicant was not party to any pre-concert.  In the course of sentencing remarks the following observations were made by the learned judge:

"... I am not overly impressed by the prisoner's alleged islands of memory, in that he can conveniently not remember quite a few matters.  I think the prisoner can.  I think he can remember a few more things than he alleges.  ... Courts do not have to accept anything regarded as inherently unreasonable or inherently impossible and courts do not like to be seen to be naive, courts do not like having their intelligence insulted.  In relation to cooperation in the administration of justice, there is allowance for a plea at first arraignment, but, because I form an unfavourable view of your alleged recollection, your cooperation in the administration of justice is not what it might otherwise have been seen to be."

Those adverse findings as to the applicant's credibility were made without the learned sentencing judge hearing from the applicant in the witness box.  There was no basis on which such conclusions could be reached.  There was nothing "inherently unreasonable or inherently impossible" in the account put forward on behalf of the applicant.  It was not disputed that the applicant, together with Forrester and Nicholas, had consumed a considerable quantity of alcohol during the day; indeed the applicant had a stubby of beer in his hand immediately prior to the incidents in question occurring.  There is nothing "inherently unreasonable or inherently impossible" in a person having only patchy recollection after being highly intoxicated.  A perusal of the applicant's criminal history shows quite a number of alcohol-related offences.  Clearly he is a person who over the years has had a drinking problem.
           If the sentencing judge was not prepared to proceed on the basis on which the pleas were entered by the applicant and accepted by the prosecution he had no option other than to receive evidence as to the relevant facts.  He could then have decided what were the proper facts on which to sentence.  Short of doing that he was not entitled to form an unfavourable view of the applicant and to allow such an unfavourable view to impact upon the sentence imposed.  It is always a difficult problem facing a sentencing judge on a busy circuit day; but where a judge is not happy with proceeding to sentence upon a basis put forward by both prosecution and defence counsel, he has no option but to hear evidence as to the material facts.
           The person assaulted was Justin Cross.  He was involved in a relationship with Tracey Lawson who had previously been in a relationship with Brian Lawson.  That latter relationship lasted for about six years.  Brian Lawson and Forrester were friends.  Nicholas also appears to have known the Lawsons.  Apparently Forrester and Nicholas believed that Cross was the cause of the breakdown in the relationship between the Lawsons.  As previously noted, Forrester, Nicholas, the applicant, and some others had been drinking for some time on 23 October 1995.  At about 4.00pm on that day those persons were in a vehicle which arrived at the home in which Cross and Tracey Lawson were living.  Forrester introduced the applicant to Cross and Tracey Lawson.  The three accused persons brought some alcohol, mainly beer, with them and Cross was offered a drink.  He initially declined but Forrester insisted that he accept.  Whilst the group was drinking on the verandah Forrester said to Cross, "I've got to have a talk to you".  The two then walked a short distance down the verandah where Forrester said to Cross:  "I have to fucking bash you.  I have to bash you because Brian's my mate."  Cross then attempted to explain to Forrester that he had "the wrong story" and whilst he was doing so Tracey Lawson sat on Cross' lap; she tried to diffuse the situation.  Nicholas moved to the end of the verandah near where Forrester was, and the applicant went inside the house so that the opened French doors were between him and Cross.  Nicholas said words to the effect:  "It's going to be one of us.  One on one.  But which one."  That was said a couple of times and there was more talk about the relationship between Brian and Tracey Lawson.  An argument developed and in the course of it the applicant said:  "You're nothing but a dog."  Tracey Lawson replied:  "I don't even know you.  How can you call us a dog?"  The applicant responded by saying, "I know a dog when I see one and you're a dog."  It was at that point that the applicant threw the stubby which he was holding; it hit Cross on the back of the head but did not cause him any injury.  Thereafter Forrester attacked Cross by punching him numerous times to the head.
           According to the prosecution case Nicholas and this applicant were just standing by and weren't actually involved in the initial fight.  Cross pushed Forrester away and made it into the house.  He was followed by all three accused.  Nicholas held Cross by the shirt and Forrester again began punching him in the head.  The struggle went from one room to another.  Tracey Lawson tried to grab either or both Forrester and Nicholas and pull them off Cross.  She managed to drag Forrester off Cross, but Nicholas then started punching and kicking from behind.  It was at that point that the applicant grabbed Tracey to stop her from assisting Cross.
           After that Nicholas kicked Cross, and both Forrester and Nicholas landed more punches.  Tracey Lawson tried to reason with the offenders and ultimately the three accused left the room in which Cross was.  About that time one of Tracey's children tried to ring the police but the applicant took the phone from her and hung it up.  She tried again shortly afterwards but on this occasion the applicant pulled the phone out of the wall and said, "You don't want to do that."
           After that the applicant threw a punch at Cross which missed and then the complainant fled the scene by running down the front stairs.  Nicholas followed and caught him as he tried to start his car.  Nicholas grabbed Cross by the hair but ultimately Cross was able to start the car and drive off.  The three offenders left after about 15 minutes.
           It is clear from the prosecution case that the applicant did not know either Cross or Tracey Lawson prior to the day in question and had no reason to attack either of them.  Clearly once Forrester and Nicholas started the argument and it got to the stage of a fight the applicant became involved; indeed he appears to have initiated the physical contact by throwing the stubby.  There was clearly an assault by three men in company but so far as the applicant was concerned on the prosecution case he was not party to a preconceived plan to assault Cross.
           When interviewed by investigating police the applicant denied being involved in the assault.  Generally he admitted he was there, admitted he saw the fight, and maintained it was basically an argument initially between Forrester and Cross with Nicholas becoming involved.
           In his submissions on the facts, counsel for the applicant before the sentencing judge said that the applicant did not know the people at the house where the vehicle stopped, and thought that it was just another group of friends of Forrester's that they were visiting.  He became aware of an argument developing on the verandah.  Counsel then went on:

"His instructions are that he had been drinking all day, in fact, he had a stubby in his hand when he walked in, when he thought it was a social visit.  He was fairly intoxicated and he doesn't have a good memory of what happened.  It was just - in respect of the throwing of the stubby after the antagonism erupted, and, as you have heard, he is alleged to have joined in and called them dogs, his memory is patchy.  Mrs Lawson said, "Well, how do you say that?  You don't even know us?"  He just said, "I know a dog when I see one."  He has no recollection of saying that, but he accepts the Crown case in that respect.  From that point on, it seems that it was Mr Forrester's and Nicholas' matter, that he just tagged along from that point in time, and, as my friend indicated, he doesn't have a recollection of some of the things alleged against him, but he has to accept the Crown case because he is not in a position to deny it."

There was some suggestion during submissions on sentence that the applicant might give evidence if necessary at the trial of Forrester and Nicholas.  It is difficult to fully comprehend some of the exchanges between bench and bar with respect to that.  Clearly counsel for the applicant appeared at all times to be saying that his client's recollection was patchy, but he could say that the only other people in the house at the time of the assault were Forrester and Nicholas.  The learned sentencing judge was prompted to say:  "What use may I make in relation to sentence, on one view, his reluctance to name those who were committing the offence with him?"  We have some difficulty in comprehending what was involved in that observation.  Clearly the applicant was implicating Forrester and Nicholas but at the same time asserting that his recollection of specific events was poor.
           Reference has already been made to some of the observations made by the sentencing judge when imposing sentence.  In addition to what has already been recorded he described it as "a manifestly cowardly attack" which involved "the combined force of three males".  He went on to say that the "community is heartily sick of people being the subject of attacks by criminals in their own homes."  None of those observations was in any way challenged on appeal.  What were challenged were the observations on the applicant's credibility leading to the conclusion that because of the unfavourable view formed of the applicant he would not get the allowance in the administration of justice that otherwise he might have been entitled to.
           Finally it should be noted that the learned sentencing judge accurately recorded that the applicant's "role is the least of the three".
           Whilst this was a serious assault committed in company it was by no means a bad example of that type of offence.  The injuries suffered by Cross were not serious; two black eyes, a swollen mouth and jaw, a bruised and swollen nose, minor abrasions and bruises over his body.
           Further, though the applicant had a reasonably lengthy criminal history there were no prior offences involving violence.
           In our view the learned sentencing judge erred in making an unfavourable finding as to the credibility of the accused when he was not entitled to do so.  Based on that unfavourable finding he then proceeded to impose a sentence which he impliedly acknowledged was heavier than would have been imposed if he had accepted the position adopted by both the prosecution and defence.
           This was in fact a case where a man, reasonably heavily intoxicated, participated in an assault by his two companions on the complainant without his being a party to any preconceived plan to do so.  He was not directly responsible for any injuries sustained by the complainant and his role in the whole affair was minimal.
           In the circumstances we have come to the conclusion that the sentence imposed was manifestly excessive and it cannot be supported by a consideration of comparable cases.  Given all the matters to which reference has been made, in particular the guilty plea, the appropriate sentence was twelve months' imprisonment.  We would not make any recommendation for earlier eligibility for parole.
           In the circumstances leave to appeal should be granted, the appeal allowed, the sentence imposed set aside, and in lieu thereof it be ordered that the applicant be imprisoned for twelves months, such sentence to date from 15 April 1996.