The Queen v Johnson[1998] QCA 182

COURT OF APPEAL

PINCUS JA

DAVIES JA

SHEPHERDSON J

CA No 460 of 1997

THE QUEEN

v.

WAYNE ANTHONY JOHNSON (Applicant)

BRISBANE

DATE 27/03/98

JUDGMENT

DAVIES JA:  The applicant seeks leave to appeal against sentences imposed in the District Court on 17 November last for armed robbery in company and unlawful use of a motor vehicle with a circumstance of aggravation. The sentences were 10 years imprisonment on the first and two years imprisonment on the second with a recommendation that he be eligible for parole after serving three years. The applicant is 19 years of age, having been born on 16 January 1978.

At the time of commission of these offences the applicant was an escapee from custody in New South Wales where he was serving a minimum term of three years imprisonment from 21 December 1996 cumulative on a term that he was then serving together with an additional term of three years to commence from 21 December 1999 on two counts of armed robbery one with wounding. That sentence had been imposed on 30 August 1996. In addition he had been dealt with on a number of previous occasions in the Children's Court in New South Wales mostly for dishonesty offences but on one previous occasion, that is on 7 December 1993, for two counts of robbery in company and of assault with intent and stealing.

He escaped from custody on 5 May 1997. He and a companion then stole a vehicle from Kingsford in Sydney and drove to Surfers Paradise where the robbery was committed at about 8.20 p.m. on 13 May 1997. By this time they had picked up a third companion. After observing the shop which was later the subject of the robbery in order to ascertain its closing time the applicant and the companion mentioned entered it at the time I have mentioned. The shop was a "Mini Mart".  The applicant produced a small hand gun and his companion said to the proprietor "Give me all your cash and phone cards. We're not stuffing around."  The applicant pointed the gun at the proprietor who then opened the till. The applicant's companion then took out the cash which amounted to $695.00. At this point the proprietor's wife entered the store and the applicant trained his gun on her. A further demand was made for the phone cards and after some hesitation a box containing them was handed over. Their value was $355.00. The offenders then ran from the store.

Police were notified and a high speed chase followed ending in the vehicle containing the applicant and his companions overturning. They were then apprehended and henceforth the applicant co-operated with the police.

The applicant was of course entitled to credit for his co-operation and his plea of guilty notwithstanding that his conviction was inevitable. On the other hand it could not be suggested that there was any evidence of remorse.

It is not surprising that the proprietor and his wife have since suffered considerable stress and emotional upset in consequence of what must have been for them terrifying events  on that night. They remain agitated and nervous when working late in the shop. They find it difficult to relax. In fact the gun which the applicant was carrying was unloaded. They were not to know that and the effect on them is understandable whether it was loaded or not. However the fact that it was unloaded must, I think, be taken into account in the applicant's favour in respect of the potentiality of injury which a loaded gun may have.

Armed robbery is a prevalent offence. The learned sentencing Judge who is resident on the Gold Coast commented on the fact that the offence was all too prevalent in that area. Deterrence is therefore an important factor in sentencing for this offence.

Although the applicant is still a young man he has an unenviable record for serious violent offences, those to which I have referred committed in 1993 and again in 1996. The appropriate sentence for this offence must be considered in the light of his previous conduct and it is also relevant that he committed these offences whilst an escapee.

The learned sentencing Judge thought it appropriate, in sentencing the applicant, to disregard what punishment might be imposed on him for escaping from custody in New South Wales and the effect on him, in the future, of the terms of imprisonment which had been imposed on him there but which he still has not served. Whilst I do not think that that can be ignored it is impossible to predict the likelihood on completion of this sentence that he will be required to serve any part of that sentence in New South Wales and consequently it is impossible, in my view, to give that any more than slight weight. This is quite a different case from Postellioni, 71 ALJR 875 where it was said that the likelihood of serving another term there in Italy was inevitable.

The applicant's submission to this Court is that, having regard to the nature of the offences, the applicant's youth, co-operation and plea of guilty and the fact that he may be required to serve the balance of the term imposed in New South Wales, the sentence was manifestly excessive.

We have been referred to a number of authorities on both sides. I think it is fair to say that none of them are closely comparable to this case. For the applicant Mr Hunter relied primarily on Hayler (CA No 464 of 1993, 20 May 1994) and Burton (CA No 31 of 1994, 28 March 1994); in both those cases sentences of nine years imposed on the applicant was said by this Court not to be manifestly excessive. For that reason they are not authorities of this Court but it is fair to say that they tend to show that the sentence imposed in this case, that is the sentence of 10 years imprisonment, was a high one. On the other hand Mr Bullock for the respondent has relied primarily, it seems, on Jeffers and Ryan (CA No 185 of 1992, 10 September 1992), in particular the sentence imposed on Jeffers.

In my view the sentence which was imposed in this case, that is the sentence of 10 years imprisonment, was a high one. On the other hand it seems to me that the recommendation which was made for eligibility for parole was a correspondingly generous one having regard to the absence of any substantial factors which would justify any large reduction by way of recommendation for early parole.

Taking the sentence and the recommendation together I cannot be satisfied that the sentence which was imposed was manifestly excessive and I would therefore refuse the application.

PINCUS JA:  I agree.

SHEPHERDSON J:  I agree.

PINCUS JA:  The application is refused.