The Queen v Smith[1998] QCA 164

COURT OF APPEAL

PINCUS JA

DERRINGTON J

WHITE J

CA No 48 of 1998

THE QUEEN

v.

COLIN ANTHONY SMITH

BRISBANE

DATE 08/05/98

JUDGMENT

PINCUS JA:  Mr Colin Anthony Smith applies for leave to appeal against a sentence imposed in the District Court by His Honour, Judge Hoath, on 20 February 1998.  The applicant was convicted on a plea of guilty and sentenced to imprisonment in respect of an offence which consisted on his having stolen from one Ukalovic with threats of actual violence, a sum of money, namely $330, the property of one Edward Warren.  At the time he pretended to be armed with a dangerous weapon, namely a firearm. 

What happened on the day in question was that Ms Ukalovic was working at a convenience store at Woodridge at 4.20 p.m, she being a 15 year old schoolgirl.  The applicant entered the store wearing sunglasses and the hood of his jumper over his head.  Ms Ukalovic attended to another customer and when that customer left the applicant came to the counter and said, "Don't argue, give me all the money".  On saying this, he lifted up the front of his jumper and what appeared to Ms Ukalovic to be the handle of a gun was sticking out of the top of his jeans underneath his shirt.  In fact it was not the handle of a gun; it was a mobile phone.  Ms Ukalovic however, deterred by what she thought was the handle of a gun, did not object when the applicant demanded the money out of the till.  She opened the till, grabbed the money and handed it to the applicant.  He then left the store; she pressed an alarm and the police arrived.  The police located the applicant and when shown security photographs, he admitted his offence.  The principal mitigating factor which was pressed before the primary Judge was that the applicant has a problem with alcohol and was drunk at the time.  The circumstances are rather sad as the applicant is a person who appears to me to be a man of some intellectual ability and would have, one would think, a promising future if he could conquer the problems which he has explained to us today.

The judge sentenced the applicant to a term of imprisonment of three years, suspended after six months, with an operational period of four years.  The applicant suggests that he should not have been sent to prison at all and some lesser penalty such as a community service order should have been imposed upon him.  He has argued the matter capably today and we have had the assistance of a written submission from him, in which he has made a number of points of substance.  He refers to his plea of guilty which was of course taken into account in his favour, the fact that there really was not a firearm used, that he has a good work history, that he has been involved in community Aboriginal affairs and that he has been remorseful. He also refers to the fact that - and it is a fact - that the prosecutor below suggested the possibility that there might be a wholly suspended sentence.  The expressions used were:

"In my submission, a sentence of imprisonment either wholly or partly suspended would be within range, but given his cooperation and apparent contrition, perhaps a community based order could be imposed."

That does not seem to me to have any great relevance, but it is correct, as it seems to me, that some judges might have imposed a non-custodial sentence.  To do so, however, in my opinion, would have been unorthodox.  The applicant is a mature person, he is not one who is entitled to the benefit of being very young; he was 35 when he committed this offence.  It must almost invariably be the case, as it seems to me, that such an offence, of stealing with threats of use of what is thought to be a gun, would have to attract a custodial sentence in the case of a mature person.  In my view, the authorities and the practice of the Courts, support that proposition. 

What the applicant has told us today, in his submissions, is in effect that since this offence was committed and since he was charged, he has made strenuous attempts to get his life together, to (as I understand it) discontinue his association with past undesirable companions.  He now says, in effect, that he is languishing in prison where he has been since he was sentenced in February, achieving nothing.

I accept all that, but it appears to me that he must face the fact that what he is doing in prison is being punished and that it is necessary, because of the prevalence of these offences, that people be punished for committing them.  It is a matter for concern, as the judge below pointed out, that these offences are seemingly still quite prevalent, despite the penalties which are imposed, commonly more substantial than the penalty imposed upon the applicant.  I agree with the primary judge's view that this was a case in which imprisonment was necessary and was properly imposed.  I do not think that the judge's view of the matter involved an excessively harsh approach, although one must feel some sympathy for the applicant and I express the hope that his future will be bright once he emerges from prison in August and is able to control his own affairs again.  It seems to me clear that the application should be refused and that is the order which I propose.

DERRINGTON J:  I agree.  I should like to make it clear that the point of the appeal as to whether the learned trial Judge was wrong, and it is certainly impossible to say that his sentence was wrong, even if one might have been disposed to impose another sentence; and by that I do not mean that I necessarily would have at all.

WHITE J:  I agree.

PINCUS JA:  The application is refused.