Woods, Terry Wayne v The Queen

[1998] TASSC 25

25/1998

PARTIES:  WOODS, Terry Wayne
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 57/1996
DELIVERED:  2 April 1998
HEARING DATE/S:  3 March 1998
JUDGMENT OF:  Cox CJ, Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When refused - Generally - Convicted of numerous offences against the person, property and sexual offences - Whether eight years' imprisonment in addition to five months in custody on remand was manifestly excessive for home invasion involving robbery, violence and indecent assault.

Aust Dig Criminal Law [1014]

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Co-offenders - Discrimination between co-offenders - Offenders with different circumstances.

Aust Dig Criminal Law [837]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  D G Coates
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  25/1998
Number of pages:  6

Serial No 25/1998
File No CCA 57/1996

TERRY WAYNE WOODS v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
SLICER J
2 April 1998

Order of the Court

Appeal dismissed.

COX CJ

The appellant was convicted on indictment of a first count of aggravated burglary, a second count of assault, a third count of aggravated assault, a fourth count of aggravated armed robbery, a sixth count of aggravated burglary, a seventh count of assault and a ninth count of indecent assault and was acquitted on the fifth and eighth counts which charged assault.  He was originally charged with one Simon John Harris, but Harris pleaded guilty to the eleven counts brought against him arising out of the incident and gave evidence on the appellant's trial implicating him.

In substance the two men armed themselves, Harris with a loaded sawn off rifle and the appellant with a cudgel, and travelled at night to the isolated country residence of the complainant Moore, his de facto wife Dennis and her six year old son Ashley.  The appellant believed, on the basis of false information given to him, that Moore had illegally entered his property some time previously and had caused damage and had stolen property.  Both offenders were disguised with a stocking or balaclava concealing their faces.  Their common intent was to assault Moore and to take property from the home.  They burst into the premises virtually simultaneously from the front and back doors and Harris struck Moore with his rifle but.  When he fell to his knees he was struck by the appellant about the head and body.  While Harris stood guard over all three occupants of the house, the appellant ransacked the premises looking for money and drugs.  During the course of this trespass which continued, with a break followed by a second entry to the premises, for about 2½ hours, Moore was assaulted by Harris with the gun, by the appellant with his cudgel and he was kicked and punched.  Each of the occupants was held prisoner and robbed of money or other property.  Both offenders demanded money or goods to the value of $2,000.  When they first left the premises, Ms Dennis attempted to telephone for help, but both the appellant and Harris came back and offered further violence to the two adult occupants of the house.  After some time Ms Dennis went upstairs with the child to the bedroom and the appellant followed her there and put his hand between her legs, touching her vagina.  He repeated the demand that Moore should deposit $2,000 or one pound of cannabis seven days hence at the Wilmot Dam or he would burn the house down with her in it and that he would "do her over".  Several times during the course of this criminal invasion of the complainants' home Harris discharged the rifle in the air.

All the complainants were understandably traumatised by this outrageous, completely unexpected and unprovoked conduct.  Both adult complainants have suffered clear symptoms of Post-Traumatic Stress Disorder.  The learned trial judge's description of Moore as "an emotional wreck" as a result of the incident is fully justified by the material before him, as is his finding that the child exhibits some indicia of traumatic stress but appears to be coping well, although his future prognosis is uncertain.  The conduct of the two offenders was persisted in for a lengthy period of time in circumstances where the victims had little hope of attracting help.  When the female complainant attempted to reconnect the disconnected telephone and to raise the alarm, both offenders returned and inflicted further violence.  It was an extremely grave series of offences deserving heavy punishment and condemnation.

The learned trial judge found that the appellant was the instigator of the plan to invade the home and to assault Moore.  He was perfectly entitled to reach such a finding, having regard to Harris' evidence and the appellant's admissions in a video taped interview with the police tendered on the trial.  Some of the assaults of which he was convicted, the learned trial judge noted, were on the basis of abetting Harris in the violence he inflicted on the complainants rather than of being inflicted personally by the appellant.

The appellant's first complaint is that the sentence imposed upon him of eight years' imprisonment from the date of sentencing, namely 30 May 1996, was manifestly excessive.  He had been in custody since 21 December 1995.  The learned trial judge specifically recorded that he had taken into account the periods each offender had been in custody in determining their sentences.  Thus the appellant was effectively sentenced to a little over eight years and five months' imprisonment.  The co-offender Harris had been in custody for a period of two months less than the appellant and his sentence of six years and six months was, by comparison, effectively one of six years and nine months' imprisonment.

The appellant had a long history of previous offences of dishonesty starting from the age of twelve years.  He was first imprisoned in 1978 at the age of eighteen and has received numerous prison sentences throughout the intervening period of seventeen years until these crimes were committed.  In June 1994 he received a sentence of four months' imprisonment for possession of stolen property and in December of that year one of three months' imprisonment, wholly suspended, for stealing.  In February 1992 he received a sentence of one month's imprisonment for common assault.  There are numerous other convictions for offences against the traffic and drug laws and more than one for escape.  He accordingly had no claim to leniency by reason of his antecedents.  Equally his defence on the trial being one of denial of being at the complainants' premises at all on the night in question, there was no basis for any discount by reason of remorse or contrition.  For the combination of crimes committed by the appellant in the course of terrorising the complainants over a period of 2½ hours, the penalty was not, in my view, manifestly excessive.

The appellant's second ground of appeal is that the learned trial judge erred in imposing a sentence upon the co-accused which was so disparate from his own sentence as to engender a justified sense of grievance which the Court should rectify by an appropriate reduction in his sentence.  As I have said, Harris received an effective sentence of six years and nine months.  The charges against him were greater in number and he was convicted on eleven counts, compared with the appellant who was convicted on seven.  Harris' offences were two counts of aggravated burglary, one of aggravated armed robbery, five of assault, two of aggravated assault and one of demanding property with menaces.  The appellant concedes that Harris' criminal culpability is no greater than his own.  While his written submission claims that Harris, who was armed with a loaded firearm, showed more aggression and willingness to use violence to achieve his ultimate goal of securing valuables that were demanded, it also contains the concessions that "both of us were of the same intent and as such both principals in the first degree" and "it was our common intent to use whatever means that were at our disposal at the time to ensure that our demands were met".  While his Honour said he regarded the appellant as the instigator of the plan to go to Ms Dennis' home and to assault Moore, he did not assert that the appellant had any greater criminal responsibility for crimes committed by them both while at the house.  He said only "your attitude of violence and hostility during that home invasion was plainly on a par with that exhibited by Harris".

In my opinion there were ample reasons for discriminating in respect of penalty between the two offenders.  Harris' previous record was nowhere near as extensive as that of the appellant.  Relevantly at the age of 33, when sentenced, he had a conviction in 1987 for two charges of assault for which he was placed on probation, convictions for burglary and stealing in 1988 when he was sentenced to six months' imprisonment and in 1994 he was given a wholly suspended sentence of three months' imprisonment for possession of stolen property.  Second, he had pleaded guilty and given evidence against the appellant, and the learned trial judge accepted him as being genuinely remorseful for his actions.  Third, although the number of offences committed by Harris were greater, the appellant's offences had the further dimension that he had sexually assaulted the female occupant of the house as she endeavoured to comfort and protect her child and at that time uttered threats of further harm should the property demanded not be delivered.  For these reasons alone the learned sentencing judge was justified in imposing a lighter sentence on Harris.  One which was approximately one year and eight months shorter than that imposed on the appellant cannot properly be said to have produced a miscarriage of justice which this Court should rectify.  At the conclusion of the hearing the Court dismissed the appeal.  These are my reasons for doing so.

CRAWFORD J

I agree with the Reasons for Judgment of the Chief Justice.

SLICER J

I have had the advantage of reading in draft form the reasons for judgment of the learned Chief Justice and agree with both his reasoning and conclusions.  It is for those reasons that I joined in the decision of this Court to dismiss the appeal.