The Queen v Perks[1997] QCA 312

COURT OF APPEAL

PINCUS JA

McPHERSON JA

de JERSEY J

CA No 256 of 1997

CA No 264 of 1997

THE QUEEN

v.

TROY ADAM PERKS and

ASHLEY JOHN JAGGARDApplicants

BRISBANE

DATE 29/08/97

JUDGMENT

de JERSEY J:  The applicants are two of four offenders who together committed three offences in September 1996.  They were unlawful use of a motor vehicle, burglary and armed robbery in company.

They pleaded guilty.  C, a 16 year old has not yet been dealt with.  Of the other three the applicant Jaggard who represents himself was 21 years old with no prior criminal history.  He was sentenced for the robbery to five years imprisonment eligibility for parole after 18 months. 

The other applicant Perks, represented here by Mr Kimmins, filled the role of lookout.  He was 18 years old at the time also with no prior criminal history sentenced to three years imprisonment for the robbery, consideration of eligibility for parole after 12 months.  The third co-offender Dohnt has not appealed.  He was 19 years old with a minor past record.  He was given five years with 18 months non-parole period.

All three of the co-offenders whom I have named received concurrent sentences of 12 months imprisonment for the burglary and three months imprisonment for the unlawful use of a motor vehicle.

On the relevant evening C stole the motor vehicle.  The four offenders drove around for a time.  In the course of that they selected at random the complainant's house as their target.  The applicant Perks was driving the motor vehicle.  He stopped outside the complainant's house and the other three left the vehicle and went into the complainant's house.

One of them, as Perks must have appreciated, was armed with a crowbar.  At this time the complainant was recovering from a head operation.  He was asleep and the three offenders woke him by shining a torch into his eyes.  The 16 year old, C, held the crowbar over his head as if to strike him.  The complainant screamed.  He was told, "Get your wallet or you'll get this", by reference to the crowbar.  They took his wallet, $20 and a keycard forcing him to disclose the PIN number for the keycard, saying they'd return if he gave a wrong number.

In the course of this the complainant's elderly mother came out but was ordered back to bed by the offenders.  She was in poor health at the time under treatment for breast cancer and with a heart condition.  The incident has had a profound effect on her quality of life.  The complainant's daughter heard the men smashing the door open and the car idling outside.  She now has panic attacks brought on by associated noises.  The complainant himself is being treated by a psychiatrist for a post-traumatic stress disorder.  He has flashbacks.

The learned sentencing Judge distinguished between the three offenders on the basis of their respective roles.  Dohnt and Jaggard who had accompanied C into the house were imprisoned for five years, 18 months non-parole.  Perks, who was the driver, was sentenced to three years imprisonment with eligibility for parole, consideration after 12 months.  As I have said, the juvenile C has not been dealt with.

For the applicant Perks a number of matters were particularly urged before us.  First, his being a young first offender - at the time he was 18 years old.  Second, that he had suffered a deprived upbringing.  Third, his early plea of guilty.  Fourth, that he has reasonable prospects of future employment.  Fifth, that it was described as a spur of the moment offence.  Sixth, his role being confined to acting as lookout.  Seventh, the prospects of rehabilitation.

It was particularly urged that His Honour failed to have sufficient regard to section 9 subsection 4 of the Penalties and Sentences Act and that had he done so he would have imposed a non-custodial penalty such as an intensive correctional order or a wholly suspended sentence.  Any response which would have facilitated that applicant's immediate release from prison.

I note that counsel for the applicant Perks submitted before the judge that a head sentence of two to five years would be appropriate, although he did add reference to the prospect of suspension and a recommendation with relation to early parole.  Perks has now been in custody for approximately three months and Mr Kimmins urged that we secure his release now.

As to Perks' role, it is not right to say that he was only the driver and the lookout.  While there is no basis for concluding that Perks was initially apprised of any great detail of any intended plan, he did know that he was a member of a party using a stolen vehicle, that his three companions were to commit a robbery, that they left the car for that purpose, one of them being armed with a crowbar and he apparently remained in the car idling to facilitate their departure after committing the crime. 

He might reasonably have expected, particularly from the intended use of the crowbar that things might well have gone awry with very bad consequences.  His role should in that way be put into proper perspective.

Mr Kimmins relied particularly on the decision of the Court of Appeal in Bainbridge reported in 1994 74 Australian Criminal Reports 265.  In that case the Court reviewed sentences imposed for armed robbery and robbery in company on 17 year old boys and they were generally non-custodial, although the schedule attached to the judgment shows that that was not always so.  In fact there is quite some variety in the penalties which appear to have been imposed.

With relation to section 9(4) of the Penalties and Sentences Act, the Court said at page 268:

"That provision gives legislative support to the view which as appears from the above document has long been the view of Courts with respect to youthful first offenders.  It need hardly be said that the younger the offender generally, the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment, though there are, of course, some cases which are so serious that notwithstanding youth and the absence of relevant previous convictions, the offender must go to gaol."

The learned Judge was not referred to Bainbridge and was not referred specifically to section 9(4) although he would obviously have been aware of it.

We were urged that because Perks was only 18 years old at the time, because he had no prior criminal convictions and because he played a substantially lesser role than the others, he should not have been imprisoned.  I have already said something as to his role and suggested that it is not right to limit it to his having been simply a lookout or a driver.

There is also the question of parity.  All of the offenders were under 25 years of age, which is the age to which

section 9(4) refers.  It is patently clear that those who went inside the house were properly imprisoned and this needs to be borne in mind when assessing the treatment given to Perks. 

It does seem right when approaching Bainbridge to appreciate that the Court's focus was there on 17 year olds.  The schedule refers only to 17 year olds and the Court made the point in the passage to which I have referred, that "The younger the offender generally, the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment".

Of course there is a degree of artificiality in trying to be too precise about these assessments and Mr Kimmins rightly responded, "Well, why shouldn't the approach taken in Bainbridge apply also to an 18 year old." 

I return to that point in a moment.  May I first refer to the particular seriousness with which home invasion cases have generally been regarded, the point being made in Gills, CA No 443 of 1995 in these terms:

"The offence of entering and robbing persons who are going about their ordinary affairs in the supposed safety and security of their homes is plainly a very serious one.  Of late there has been an increase in the incidents of this offence which has not, unnaturally,caused justifiable community concern.  The offence is made more serious in a case like this where an armed band enters a private home and attacks a quite innocent occupier with whom they have no connection whatever.  The obvious purpose, and it succeeded, was to create terror in the occupant or occupants of the house and it must be met with severe punishment as a deterrent."

There is arguable justification for treating home invasion cases in a special category even apart from the other particularly serious situation of incursions into places to which the public have resort.  That having been  said, there are cases, post Bainbridge, which suggest that the three years visited upon Perks was not inappropriate.  In particular I mention the case of H, CA No 209 of 1995, which was a home invasion case where a 15 year old was sentenced to three years' detention.  He did go inside the house in that case but, it is said, was not personally associated with all that occurred.

There are also the armed robbery cases of Groves and Bourke which concern the sentence given to the driver of the getaway vehicle.  They were robbery cases but have some relevance here obviously.  Groves is CA No 113 of 1995 and a 27 year old who pleaded guilty with no relevant prior criminal history who was a drug-dependent epileptic and had assisted the police with other information and was given a four year term of imprisonment suspended after 12 months for three years.  He was older, of course, than Perks, considerably older, but there were other features of that case which alleviated his position which are not present in this one.

Closer in age was Bourke, CA No 34 of 1994, the applicant there being 21 years old.  He pleaded guilty, had no substantial prior criminal history, and was imprisoned for four years with a recommendation for parole after 15 months.

I see those two cases and H as providing some support for the three year term imposed upon Perks.  I take the force of the point made by Mr Kimmins with relation to section 9, subsection 4, and an unduly narrow reading of Bainbridge with relation to whether it is to be confined to 17 year olds or whether the principle of it extends beyond that.  Of course the principle of it extends beyond that but, as is obvious, the older the offender, the less call he has for the sort of treatment which section 9, subsection 4, presupposes.

It is also right to say, as did Mrs Clare for the Crown, that the pattern of sentencing in relation to serious offenders indicates what is probably obvious anyway, but that is that the more serious the offence, the less significant the personal circumstances of the offender in the sentencing process. 

This was a very serious offence and I consider that there was, indeed, an argument that the five years was on the light side with respect to those who entered the house.  But allowing for the consideration of parity and giving full weight, in my view, to the personal circumstances of Perks, I consider that the term of three years imposed upon him for the robbery with parole recommended after 12 months was not manifestly excessive.  It might have been thought a little high, but notwithstanding that, it certainly did not, in my view, fall into the category of being manifestly excessive.

As to the other applicant, Jaggard, who appeared for himself before us, there was no particular additional circumstance which he urged in support of his application which I have not already covered in dealing with the case of the applicant Perks.  I think it unarguable but that the five years' imprisonment imposed upon him with parole recommended after 18 months was well within range and that it could not be described, obviously as follows from that, as manifestly excessive.  I would, for those reasons, refuse each application.

PINCUS JA:  I agree.

McPHERSON JA:  I agree.

PINCUS JA:  Both applications are refused.