R v Woods, Munday and Denholm

[1995] QCA 489

IN THE COURT OF APPEAL	[1995] QCA 489
SUPREME COURT OF QUEENSLAND

C.A. No. 290 of 1995.
C.A. No. 296 of 1995.

C.A. No. 305 of 1995.

Brisbane

[R v. Woods & Ors.]

T H E Q U E E N

v.

BRUCE LYLE WOODS
KENNETH HILTON MUNDAY
and STANLEY WARREN DENHOLM

(Applicants)

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Pincus J.A. Dowsett J. Lee J.

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Judgment delivered 07/11/1995

Reasons for Judgment of the Court
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THE APPLICATION BY BRUCE LYLE WOODS FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED. THE APPEAL IS ALLOWED. THE SENTENCE IS REDUCED TO ONE OF TWELVE MONTHS IMPRISONMENT.

THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE BY KENNETH
HILTON MUNDAY AND STANLEY WARREN DENHOLM ARE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - whether manifestly excessive - whether in sentencing the applicant Woods the trial judge took into account offences of which he had not been charged or convicted.
Counsel:	Mr T Glynn for the applicant Woods. Mr R Collins for the applicant Munday. Mr D Lynch for the applicant Denholm Mr D Bullock for the respondent.
Solicitors:	Price and Roobottom for the applicant Woods. Legal Aid Office for the applicants Munday and Denholm. Director of Public Prosecutions Queensland for the respondent.
Hearing date:	27 October 1995.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/11/1995

These applications for leave to appeal against sentence are by three men, each of whom has been convicted of an offence committed at a house at Ipswich on 10 November 1994. Two of the applicants, Messrs Woods and Munday, were convicted after a trial; Denholm pleaded guilty to a charge of common assault. Munday was charged with and convicted of common assault committed on Karyn Maree Matis. Woods was charged with and convicted of assault occasioning bodily harm committed on one Ian Joseph Ryan. Woods was also charged with other offences alleged to have been committed about the same time as that of which he was convicted; one of those was common assault. He was found not guilty in respect of these other charges - i.e. the charges other than that of assault occasioning bodily harm. It should be noted that a fourth offender, one Roberts, was convicted of assault on Matis and sentenced to 12 months imprisonment; he applied for leave to appeal but has abandoned the application.

On sentencing, the Crown submitted that Munday and Denholm, two of the applicants, went to the Ipswich house to intimidate and threaten Karyn Matis. The Crown also contended that the applicant Woods was at the house as a result of pre- concert with what was, according to the record, said to be "the other prisoner", which presumably should be "other prisoners". The judge was asked to find that Woods was at the house as a result of a pre-arrangement to intimidate Ryan and Matis. In his remarks on sentence the judge seems to have accepted these contentions. The judge said:

" I am left in no doubt that Woods was the vanguard of a move by the four accused onto these premises wherein Ryan and Matis and the children were for the time being residing. The group of four, led by Woods, had decided that Matis was an informer as though such activity were a punishable offence instead of a civic duty. These four decided they were going to move Matis on. They descended on the premises. Woods engaged Ryan at the rear of the premises whilst the other three presumed to take Matis to the front yard where she was threatened, abused and assaulted. They attempted to move her on, this girl who was, in fact, a native of the area and had spent most of her life apparently in that region and knew it well. She was of the area. Those are the proper facts and the proper background to these matters.

These were in truth terror tactics which must be met with severity. "

Each of the participants other than the applicant Denholm was sentenced to the maximum sentence; Denholm was sentenced to 9 months and there was a recommendation that he be eligible for parole after serving 4 months. Munday was sentenced to 12 months imprisonment and Woods to 3 years.

Woods

On the view of the matter the judge took, Woods came to a house occupied by Ryan and his girlfriend or defacto wife Karyn Matis, with a view to achieving the result that Matis would move away. As we have mentioned, and it is desirable to reiterate, the judge explicitly found that Woods engaged Ryan at the rear of the premises while the other three took Matis to the front yard where she was threatened, abused and assaulted. The judge’s finding implicates Woods in what was done to Matis, in the sense that it has been found that Woods was a party to and indeed the leader of an attempt to frighten Matis away, in the course of which she was assaulted.

It is clear of course that the judge could not sentence Woods, for his assault on Ryan, on the basis that he was a party to the assault on Matis under s. 7 of the Code, for example by having kept Ryan engaged so that the others could more readily attack Matis, or under s. 8, on the basis that an assault on Matis was an offence of such a nature that its commission was a probable consequence of the prosecution of an unlawful purpose shared by the four offenders. In fact Woods was acquitted on a charge of having assaulted Matis; that was an alleged incident other than the one which is described above in the quotation from the judge’s reasons.

The question is whether in punishing Woods, as his Honour has done, on the basis that he was connected with what was done to Matis, his Honour has infringed the rule against punishing for offences with which the offender has not been charged. It is true that the judge did not explicitly include in the punishment imposed on Woods a component in respect of his connection with the Matis assault, but the part of his reasons quoted above indicates that, so far as his Honour was concerned, the principal element in the culpability of all of the offenders was the attempt to move Matis on by what his Honour called "terror tactics". The inference that Woods was punished in relation to the assault on Matis may be drawn also from the fact that he was sentenced to 3 years imprisonment, the others only to 1 year or less. If one disregards completely the attack on Matis, in considering Woods’ sentence, 3 years must be excessive and that is conceded.

It is also significant that, in carefully phrased remarks on sentence, in which the circumstances of the attack on Matis are explained, the judge does not actually mention any details of Woods’ assault on Ryan, that being the only offence of which he was convicted. In the respondent’s outline it is said in relation to Woods that "The overall events of going to see Matis and to move her on were the background and put the assault in context". That is not an accurate description of the judge’s approach to the case. The assault on Matis was by no means truly in the background, but was the principal theme of his Honour’s remarks on sentence. We were referred to the analysis of this Court in Dales (C.A. No. 32 of 1995, 4 August 1995, unreported) in which the effect of the authorities on the question of what circumstances may properly be taken into account on sentence is discussed; see especially at pp. 51, 52.

In our opinion the conclusion is inescapable that Woods has been sentenced on the basis that he was involved with respect to the assault on Matis, as the leader of the group which came to the house to intimidate Matis, in the course of which process she was, quite predictably, assaulted. The attack on Matis must have been treated as a circumstance accompanying the offence of which Woods was convicted; it was indeed the principal matter taken into account. So the sentencing process has, so far as Woods is concerned, miscarried.

This renders it necessary to reconsider the sentence imposed on Woods. The assault on Ryan caused an injury to Ryan’s lip necessitating four stitches and it is not suggested that there was any permanent disadvantage to Ryan from that injury. There were said to be, also, some bruises. We are entitled to take into account that the assault was committed in Ryan’s home and that associated with it there was verbal abuse and other offensive behaviour, but we are not entitled, in our view, to sentence on the basis that a connected circumstance was the assault on Matis. The surrounding circumstances appearing in the record (not including those relating to Matis) make the assault one deserving imprisonment, although little physical damage was done. Woods is 41 years of age. He committed some offences of dishonesty as a youth, since then he has been convicted of a number of relatively minor offences and one, five years ago, of assault occasioning bodily harm, for which he was fined $500. In short, he has only a moderate criminal record.

In our opinion the sentence of 3 years imposed below should be set aside and Woods should be sentenced to 12 months imprisonment.

Munday

We have already explained that Munday was convicted only of common assault, that being an assault on Matis, the judge’s view of which is set out above. Munday arrived at the house with Roberts and Denholm, uninvited, and Denholm later told the complainant Matis to get outside and then pulled her outside. Munday accused her of being a police informant, whereupon Roberts threatened to kill her, and pushed and shoved her. Denholm - not Munday, it should be noted - restrained Roberts and told her to go inside and pack her things and leave. The view the judge took was that this was an attempt by persons who were simply intruders, to force Matis from the house. It is true that there is no evidence that Munday physically attacked Matis, but he was a member of the group other members of which were attacking her and indeed threatening her with death. His presence and the accusation he made constituted a not insignificant part of the process of intimidation which was going on.

Ordinarily, one might not expect a sentence of imprisonment to follow from participation in an assault, where the offender personally did nothing more than make an accusation and give (so to speak) support by his presence, but this was in our view a sufficiently serious assault, considered in its context, to justify substantial punishment being imposed on each of the perpetrators. Further, the accusation against Matis of being a police informant, made by Munday, seems to have stimulated the others’ actions

Munday is 40 years of age. He committed some offences in his teens, since then his only offences have been drug offences and one of making a false statement to obtain a benefit, five years ago. For the drug offences he has been sentenced to community service in 1983, given a bond in 1984 and been substantially fined and placed on probation in 1987; the 1990 offence produced a fine of $500. He seems to have no offence relating to personal violence in his record.

Although the sentence imposed is by no means a light one, it does not appear to us that we should alter it. In reaching this conclusion we are influenced by the fact that the case was one in which much depended on the extent to which the victim was put in fear; that, the primary judge was, having seen and heard her evidence, in a good position to assess. The judge plainly regarded the attack on Matis, and the associated threats to murder her, which she took seriously, as a grave matter. We would dismiss Munday’s application.

Denholm

Denholm’s part in the matter has already been explained, but it is desirable to reiterate that it was Denholm who got Matis out of the house and that Denholm threatened her after Roberts threatened to kill her. What Denholm said was "I feel like cutting your head off too". As the judge mentioned, Denholm attempted to restrain the attack on Matis by Roberts. He is 34 years of age and has been convicted of five relatively minor offences, the most significant penalty imposed on him having been a fine of $500.

Mr Lynch, for Denholm, contended that the judge had added to his sentence on the basis that Denholm was guilty of another, uncharged, offence, but we can see no basis in the judge’s reasons for that suggestion. The sentence imposed was, again, not a light one but we are unpersuaded that it can properly be called manifestly excessive.

We would grant the application by Woods, allow his appeal and reduce his sentence to one of twelve months imprisonment. We would dismiss the other applications.