R v Wood

[1994] QCA 297

IN THE COURT OF APPEAL [1994] QCA 297

SUPREME COURT OF QUEENSLAND

C.A. No. 184 of 1994

Brisbane
[R. v. Wood]

BETWEEN

T H E Q U E E N
v.
DAVID JOHN WOOD

(Applicant)

McPherson J.A.
Pincus J.A.

Ambrose J.

Judgment delivered 16/08/94
Joint reasons for judgment by McPherson J.A. and Ambrose J.
Separate reasons of Pincus J.A. concurring as to the order.

APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL ALLOWED. SET ASIDE THE ORDER IMPOSED BELOW SUSPENDING THE SENTENCE FOR 5 YEARS; IN LIEU RECOMMEND THAT THE APPLICANT BE CONSIDERED FOR PAROLE AFTER SERVING SIX MONTHS OF THE SENTENCE IMPOSED.

CATCHWORDSCRIMINAL LAW - SENTENCE - Deprivation of liberty and UUMV - Whether 2 years imprisonment suspended after 6 months for 5 years excessive - Girlfriend forced into car passenger seat and driven around - Serious nature of offences considered - Domestic violence orders previously ignored by applicant - Extensive criminal record - On probation at time of offence - 20 years old at time of offence.

Counsel:Applicant in person
P. Callaghan for Crown

Solicitors:Director of Prosecutions for the Crown

Hearing Date:3 August 1994

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & AMBROSE J.
Judgment delivered the Sixteenth day of August 1994

This is an application by David John Wood for leave to appeal against a sentence of 2 years, which was ordered to be suspended after serving six months of it. The sentence was imposed at the applicant's trial in the District Court on an indictment containing a total of six counts, of which he was found guilty of two. They were that on 3 December 1992 he unlawfully used a Holden sedan belonging to Kylie Ellsworth and that he deprived her of her liberty by driving her away in that vehicle.

The particular incident resulting in those charges was the culmination of a series of events arising out of a relationship between the applicant and Kylie during which they had lived together for some three years before the offences were committed. The relationship ended in September 1992 but the applicant refused to accept this state of affairs and, according to Kylie, would telephone her at her mother's house where she lived on occasions up to 20 times a day.

The two offences for which he was sentenced were committed on 3 December 1992 when Kylie was driving her car on her way to work that morning. She stopped to go to a shop. The applicant was following her car in his utility and he stopped it behind her vehicle. He got out, went to her vehicle, opened the door, forced her into the front passenger seat, and then drove the car with her in it to Woody Point, where an argument ensued. Afterwards he drove her back to where he had first accosted her that morning.

Deprivation of liberty, particularly of a person from a public place, is an offence that must always be viewed seriously. That, in our opinion, remains so even if - perhaps particularly if - it takes place in the context of a broken emotional relationship. Experience suggests that actions like that often end tragically. The maximum penalty under s.355 of the Code has remained at three years imprisonment despite periodic judicial suggestions that it should be increased. See R. v. Smallshaw (C.A. 266 of 1990, at p.6, per Williams J.) Because the offence is often committed in the course of and in conjunction with other offences such as rape or robbery, it is not easy to obtain an accurate impression of current sentencing levels for deprivation of liberty where it is the principal offence charged. However, sentences of imprisonment for 2½ years are not unusual in cases arising out of domestic disharmony. See Smallshaw, above. That was also the sentence imposed for deprivation of liberty in R. v. Myers (C.A. 133 of 1985), where the offence involved forcing a girl into a car. It was made more serious because a knife was used to threaten the girl, who was a total stranger to the accused; but there were cumulative sentences for assaults, which brought the effective term in that case to imprisonment for 3½ years.

Here the offences committed by the applicant on 3 December 1992 might more readily have attracted a lesser penalty than 2 years if it were not for the circumstances of aggravation in which these offences were committed. There had been previous disagreements between the applicant and Kylie earlier in the same year. On 12 March 1992 the applicant assaulted her and occasioned bodily harm by hitting her on the back of her head and punching her arms. In consequence she asked him to leave the house where they lived and she obtained a domestic violence order against him. Three days later on 15 March 1992 he returned to the house. She eventually let him in, but there was an argument and he forced her into his car and drove off with her. This incident was followed by a reconciliation between them which lasted until September 1992, when they separated permanently.

In early November 1992 a further domestic violence order was obtained against the applicant. It seems to have been associated in time with an appearance by him in the Redcliffe magistrates court on 10 November 1992, when he was convicted of charges of resisting and hindering police and was fined $120. It was not long after it that, on 26 November 1992, he pleaded guilty in the District Court to the assault occasioning bodily harm and the deprivation of liberty committed on 12 March and 15 March 1992. His pleas were taken before Griffin A.D.C.J., who admitted the applicant to probation for three years and ordered him to perform 240 hours of community service. The learned acting judge also made it a condition of the probation that the applicant undergo medical and psychiatric treatment. In the course of his sentencing remarks, his Honour said that a serious feature of the applicant's conduct in relation to those two offences was the way he had ignored domestic violence orders made against him.

Within seven days of that judicial admonition and the applicant's agreeing to the conditions of the probation order imposed on 26 November, he committed the subject offences. It was in this context that, in imposing the sentences now before us, his Honour stressed the deterrent aspect of the matter from the standpoint both of the public and the applicant personally.

He went on to say that behaviour like stalking, and violence related to a domestic relationship, was the type of conduct that would not be tolerated by the courts.
We agree with his Honour's approach to offences of this kind. Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from orders of that kind, the ordinary criminal law, operating as it does only after the event, arrives too late to be an effective deterrent. The wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted.

The applicant in the present case is a young man, now 22 years old, but only 20 at the time of the offences. He claimed he was in secure employment before beginning the sentence, but it seems that his employment had been interrupted at an even earlier date by the trial or the prospect of trial. His youth and the possible detriment to his employment prospects are factors that tell against a substantial sentence, although the applicant himself says he expects to get his job back in due course.

What is against him is obviously his criminal record, which is not inconsiderable for one as young as he is. Apart from the offences thrown up by his actions over Kylie, the applicant has sustained convictions for stealing and for breaking and entering as a child in 1988. In August 1989 he was convicted of wilful destruction of property and admitted to probation for 12 months.

He had not completed his probation under that order when he was convicted of stealing in March 1990, and placed on a further period of probation for 12 months. Within two months he was convicted and fined for two further offences, and a month later, for yet another offence. The offence on the latter occasion was possession of a firearm in a manner likely to cause alarm, which is something that ought not to be taken lightly in the present context. In August 1990 he breached a fine option order dating back to August 1989, and in June 1993 he contravened the probation order imposed for the bodily harm offence in November 1992 by committing a drink driving offence.

As his criminal record shows, the applicant is not a suitable candidate for community service work. This is the opinion of Ms. S.L. Hurley, who is the Redcliffe area manager for the Corrective Services Commission, in the addendum dated 19 April 1994 to her report to the sentencing court. His Honour acted on that opinion in arriving at the sentence of imprisonment for 2 years. The sentence is a heavy one, particularly when account is taken of the fact that the applicant also spent a month on remand pending bail. But, as his Honour said, he has shown a singular indifference to court orders. Of the three probation orders and two (or it may be three) domestic violence orders imposed on the applicant between 1989 and 1992, he has failed to comply with a single one. It is thus not simply a case of a young man in love acting foolishly or fondly. What he did was to persist in committing further offences in deliberate defiance of a series of orders designed to prevent him from interfering with a young woman's right to lead a normal life free from his unwanted attention and the fear of violence to her person. There is no indication that the applicant has ever shown the slightest remorse for the trouble he caused the complainant, or for the expense he had inflicted on the community.

Before this Court, the applicant, who argued the appeal in person, said that what he could not understand was why the sentences imposed on him at the trial in April 1994 came so long after the offences committed in December 1992. The explanation lies mainly in the course of events that followed the incidents in question. Committal proceedings were held in January 1993. Then, at the applicant's first trial, the jury failed to agree.

There were further committal proceedings in respect of some additional charges. The indictment (no. 657/94) on which he was ultimately tried and sentenced is a combination of two earlier indictments. It was originally dated 4 October 1993, but 28 March has been substituted apparently without noticing that the year should also have been changed to 1994. The delay is unfortunate, but the process could have been avoided if the applicant had obeyed the orders that were imposed on him late in 1992.

The question remains, however, whether a sentence of imprisonment for 2 years suspended for 5 years after serving six months of it is appropriate for a young man, now 22 years of age, who was 20 years old when the subject offences were committed. The period of suspension of 5 years is the maximum permitted under the Act, which means that if at any time during that period the applicant commits a further offence for which imprisonment may be imposed, he will be liable to serve the balance of the current sentence of 18 months.

That may well be thought to operate with undue severity having regard to the circumstances mentioned and the fact that before the period of suspension begins the applicant will already have served a sentence of six months imprisonment and spent another month in custody. His response to probation orders in the past has been such as to discourage further use of that kind of rehabilitative measure; but we consider that some additional form of restraint over his future conduct is needed.

In the result, we would allow the appeal and set aside the order suspending the sentence for 5 years; in lieu it should be recommended that the applicant be considered for parole after serving six months of the sentence imposed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 16/08/1994

I have read the joint reasons of McPherson JA and Ambrose J and agree with their Honours' conclusions.

One can understand a reluctance to send young people to
prison for behaviour in a lovers' quarrel, causing no real harm.
Unfortunately one cannot classify this case in that way; the

applicant's persistent misconduct reached a level at which the

criminal law had to be invoked.

The sentence was 2 years imprisonment, to be suspended
after 6 months. The operational period was declared to be 5

years, under s. 144(5) of the Penalties and Sentences Act 1992.

That is the maximum period: s. 144(6)(b).

Under s. 147(2), if the applicant during that period of 5 years is convicted of an offence for which imprisonment may be imposed, he must be sentenced to serve the whole of the suspended imprisonment - i.e. 18 months more - unless the sentencing court "is of opinion that it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed". This is rather a limited discretion, the exercise of which could, in the instant case, place the applicant in danger of having to serve the additional 18 months if he commits even a fairly minor offence. I note that the applicant was 20 at the date of the offence and has never been sentenced to prison before.

I agree with the orders proposed by McPherson JA and

Ambrose J.