The Queen v Lovell[1998] QCA 36

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 408 of 1997

Brisbane

[R. v. Lovell]

THE QUEEN

v.

NICHOLAS PETER LOVELL

(Applicant)

Davies JA

Pincus JA

Byrne J

Judgment delivered 6 March 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

WARRANT TO ISSUE FOR APPREHENSION OF APPLICANT.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 6 March 1998

I have read the reasons for judgment of Pincus J.A. and Byrne J.  I agree with Byrne J. that, for the reasons which he gives, the application should be refused and a warrant issued for apprehension of the applicant.  I also agree, for reasons which he gives, that no declaration should be made pursuant to s. 161B(4) of the Penalties and Sentences Act 1992.  And I agree with Pincus J.A. that amendments made to s. 9 in 1997 have the consequence that the youth of an offender, whilst still relevant, does not have the weight which it had, especially where violence is used or physical harm caused to another person, in considering whether a term of actual imprisonment should be served.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 6 March 1998

I have read the reasons of Byrne J and substantially agree with them.  There is a question whether what the applicant did "involved the use of . . . violence against another person" within the meaning of s. 9(3) of the Penalties and Sentences Act 1992 in the form it assumed when the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 came into force on 1 July 1997.  Counsel referred us to two groups of authorities;  of those the most important are De Simoni (1981) 147 C.L.R. 383 and Butcher [1986] V.R. 43.  In De Simoni the High Court construed s. 391 of the Criminal Code (W.A.) which is in the same terms as s. 409 of our Code.  It defines robbery in terms which include the expression "uses or threatens to use actual violence to any person or property".  Gibbs CJ, who delivered the leading judgment, said:

"Actual violence means no more than physical force which is real and not merely threatened or contemplated.  Personal violence means violence to the person - bodily violence". (393)

In Butcher the expression construed was "an act of violence" and that was held to include a threat of violence;  the case was followed in McCrossen [1991] Tas.R. 1.  In the present case it is unnecessary to consider whether a threat would be enough, for here there was physical force used by the applicant against the proprietor in the struggle for the cue, referred to by Byrne J.  It is true that the struggle was initiated by the proprietor, but that was lawful self‑defence.  Although I have the impression that the force used in that struggle was not very great, and the case is not an especially bad example of the use of violence against a person, it nevertheless falls within the provision I have mentioned:  s. 9(3)(a) of the Penalties and Sentences Act 1992.

As appears from the analysis of the legislative changes in question, in the reasons of Byrne J, the sentencing law has been altered, so far as it applies to cases like the present, in the direction of encouraging the imposition of prison sentences.  Although the youth of the offender is still made a relevant factor by the statute, it appears to me that its weight is diminished, in cases caught by the new s. 9(3) of the Act and that the applicant’s sentence is therefore a correct one.  It is plain that not all of the decisions of this Court and indeed of the Court of Criminal Appeal relating to young offenders may necessarily be used in future as guidance, in cases governed by s. 9(3) of the Penalties and Sentences Act 1992 as amended.

With reference to the declaration sought pursuant to s. 161B(4) of the Act, I agree with what Byrne J said about the respondent’s position;  I add that the present would not have been an appropriate case in which to make such a declaration.

I agree that the application for leave to appeal must be refused and a warrant issued for the apprehension of the applicant.

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 6 March 1998

At about 6.30 pm on 4 July last year, the applicant entered a corner store in Toowoomba to rob it. The store was annexed to a house where the 43 year old proprietor lived with his wife and 2 year old child. The applicant, then a month short of his 19th birthday, was armed with a pool cue which had been given to him by his accomplice, a 17 year old youth who remained outside the store to act as a lookout.

The proprietor answered the store bell and walked from his house into the store. There he was confronted by the applicant, who had disguised himself by pulling clothing over his face. The applicant held the cue in both hands, raised it menacingly to head height, and demanded that the proprietor give him money. The proprietor retreated to the doorway between the store and the kitchen of his house. The applicant approached and again demanded, “give me money”. The proprietor then grabbed the cue. A struggle ensued during which the proprietor was forced off balance and lost hold of the cue. He then withdrew into his house, closing the door behind him. By that time, the applicant was pushing buttons on the cash register trying to open it. When that failed, he moved towards the door, kicking against it twice before trying once more to open the cash register. The proprietor returned to the store. When the applicant saw him, he demanded that the proprietor open the till. The proprietor said that he would not hand over any money until the applicant got rid of the “bat” he was still holding. The applicant approached the proprietor who again retreated through the door, closing it behind him. The applicant kicked the door heavily about three times, knocking it out of alignment before returning to the cash register. The proprietor returned. The applicant again demanded that the till be opened. The proprietor told him to “get rid of that bat” first. The conversation went on in this vein until the applicant walked to the entrance of the store and proceeded down the front stairs. The proprietor called out, “throw the bat out”. Moments later, he saw the cue on the footpath. Then he ran to the front door, pulled down a roller door, and locked the applicant out.

Soon afterwards, the police found the applicant not far from the store. He admitted the offence, claiming that he had been dared to attempt the robbery and promised a $100 reward by his co-accused. The applicant's counsel, however, disavowed the dare suggestion. The explanation offered for the offence was that the applicant's rent was in arrears, he wanted money, and the shop was nearby - about 150m from the house which the applicant and his co-accused occupied. Reliance was also placed upon the applicant's statement to the police that he had been “disinhibited” by drugs ingested shortly before the offence was committed. Earlier in the afternoon, the applicant had taken marijuana and beer.

The applicant's personal circumstances were these. In 1996, after leaving school mid-way through year 12, he completed his schooling with above-average marks. He had been employed in various jobs since leaving school. He had been before the criminal courts previously when fined $50 for obscene language.

An early plea of guilty was notified.

The applicant seeks leave to appeal against his sentence of six months imprisonment to be followed by three years probation.

The offence was committed three days after the Penalties and Sentences (Serious Violent Offenders) Amendment Act 1997 came into force. The most important of the amendments for present purposes concerns s. 9(2)(a) of the Penalties and Sentences Act 1992, by which:

“In sentencing an offender, a court must have regard to ... principles that -

1. a sentence of imprisonment should only be imposed as a last resort; and

2. a sentence that allows the offender to stay in the community is preferable ...”.

As from 1 July 1997, by s. 9(3) of the Act:

“the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence -

1. that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

2. that resulted in physical harm to another person.”

It is not necessary to decide whether the threat of personal injury inherent in the menacing way in which the applicant, armed with the pool cue, approached the proprietor constituted “violence against” the latter. For the applicant's use of physical force in the struggle plainly amounted to “violence against” the proprietor; and that actual violence took place in the commission of the offence. Accordingly, the “principles” stated in s. 9(2)(a) did not apply to the sentencing.

By s. 9(4) of the Act,

“In sentencing an offender to whom subsection (3) applies, the court must have regard primarily to the following -

1. the risk of physical harm to any members of the community if a custodial sentence were not imposed;

2. the need to protect any members of the community from that risk;

3. the personal circumstances of any victim of the offence;

4. the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

5. the nature or extent of the violence used, or intended to be used, in the commission of the offence;

6. any disregard by the offender for the interests of public safety;

7. the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

8. the antecedents, age and character of the offender;

1. any remorse or lack of remorse of the offender;

10. any medical, psychiatric, prison or other relevant report in relation to the offender;

11. anything else about the safety of members of the community that the sentencing court considers relevant.”

Of course, the sentencing guidelines in s. 9(2)(b)-(p) are also relevant.

For offences mentioned in the new s. 9(3), the shift in emphasis from the “principles” stated in s. 9(2)(a) to having “regard primarily” to the considerations expressed in s. 9(4) diminishes somewhat the value of the guidance to be derived from cases of violence decided under the previous sentencing regime.  That is particularly true of those decisions where the sentencing discretion was constrained by the former s. 9(4), which provided that a Court may only sentence a first offender under age of 25 years to imprisonment if, having considered all other available sentences and taken into account the desirability of not imprisoning a first offender, the Court was satisfied that no other sentence is appropriate. The 1997 amendments reflect a legislative conviction that less hesitation by the Courts in requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the Court is required by s. 9(4) to pay primary regard are “the past record of the offender, including any attempt at rehabilitation and the number of previous offences of any type committed” (g), and “the antecedents, age and character of the offender” (h).

Here the voluntary ingestion of the drugs was immaterial, the offender was almost 19, the pool cue was used to intimidate, actual violence was used against the proprietor and his property, and the offence involved some persistence. The sentencing judge described the offence as prevalent in the district and, appropriately enough, emphasized general deterrence. As the sentencing discretion was not constrained by s. 9(2)(a), notwithstanding the resource savings associated with the plea of guilty and the risk that the offender's prospects of rehabilitation might be diminished by his suffering imprisonment, the sentence imposed was not beyond the range of a sound sentencing discretion.

The respondent sought a declaration pursuant to s. 161(B)(4) of the Act that the applicant had been convicted of a serious violent offence as part of the sentence. No such declaration was sought at the sentencing, and there has been no appeal by the Attorney-General against the sentence. In these circumstances, it is inappropriate for this Court to consider whether the facts of the offence constituted “serious violence ...” within the meaning of s. 161(B)(4)(a)(i) and, if so, whether the declaration ought to have been made.

The application for leave to appeal against sentence is refused.

The applicant was admitted to bail pending the determination of this application. A warrant should issue for his apprehension.