The Queen v Rogers[1998] QCA 382

COURT OF APPEAL

THOMAS JA

SHEPHERDSON J

JONES J

CA No 278 of 1998

THE QUEEN

v.

MANA ROGERS (Applicant)

BRISBANE

DATE 09/10/98

JUDGMENT

JONES J: On 7 August 1998 the applicant was convicted on his own plea of the offence of robbery, which occurred on 11 April 1997. He was sentenced to three years imprisonment. This is an application for leave to appeal against that sentence. He was at the time of the offence 32 years of age, having been born on 21 September 1965. 

On the day in question, at 6.45 in the evening, the applicant entered the newsagency/general store, operated by Mr and Mrs Austin. The business also held an agency for the Commonwealth Bank. The applicant appeared at the store, hunched over, with his shirt pulled up over the bridge of his nose and he was wearing a cap on his head.

He jumped the counter and placed himself beside Mrs Austin, causing her to scream out. He then took $1,200 from the bank cash drawer. The applicant then attempted to leave through the rear of the store, but was intercepted by Mr Austin. After a brief scuffle, the applicant made his escape from the scene.

But for this jostling with Mr Austin, the applicant's conduct could only be regarded as stealing simpliciter. Mr Austin pursued the applicant, confronted him at the taxi rank and then reported the matter to the police. The applicant was arrested later that evening at the airport. He was known to Mr and Mrs Austin and his de facto wife was a regular customer at the store.

At the time of the incident, the applicant had no prior criminal convictions, though he had been before the Magistrates Court in respect of a breach of a domestic violence order. By the time of the sentencing he had acquired convictions for possession of dangerous drugs, breach of bail and wilful destruction of property.

These are matters to be taken into account, but in respect of this offence, the applicant was entitled to be dealt with as a first offender. It was suggested that the applicant acted impulsively and was at the time affected by alcoholic liquor. The learned sentencing Judge appears to have accepted that as being the case.

It is clear also that the scuffle with Mr Austin did not result in any physical damage to him, but it is reasonable to assume that there would have been some emotional upset for both Mr and Mrs Austin. The level of sentence, imprisonment for three years for a first offender for these circumstances, is somewhat out of line with those imposed in cases of a similar kind to which we have been referred.

I note particularly The Queen v. Hans, CA 95 of 1996; The Queen v. Campbell, CA 287 of 1997 and other cases referred to during argument. It is not necessary to engage in any minute analysis of the various cases. It suffices to say that the list includes cases with more criminality attracting penalties a great deal less than the three years imposed here.

Having indicated to the Crown Prosecutor the view which this Court takes about the circumstances, particularly the charge of robbery being made out only in a technical way, the Crown Prosecutor properly conceded that the sentence is outside the discretionary range and argues now for a sentence of imprisonment between 12 and 18 months.

It follows that I come to the view that the sentence imposed by the learned sentencing Judge is manifestly excessive. I would therefore grant leave to appeal and allow the appeal by reducing the sentence to 12 months imprisonment. I would order further that that sentence be suspended after the applicant has served a period of three months in prison.

The operative period for the sentence should be two years. I note that taking into account pre-sentence custody, the applicant has now served 82 days of that sentence.

Conviction for the offence should be recorded. I should identify the period of pre-sentence custody being for a total of 19 days between 20 July 1998 and 7 August 1998. I ask counsel representing the applicant to inform him that should he commit any further offence within that operative period of two years, which offence is punishable by imprisonment, that he stands to be further dealt with on this offence.

THOMAS JA: I agree. There is some doubt in my mind whether the facts relied on are sufficient to sustain the count of robbery under section 409 to which the applicant pleaded guilty. Arguably, it was a stealing followed by a minor assault on a third party as the applicant was escaping from the premises.

Neither counsel sought to submit that the plea was inappropriate, so for the purposes of the present case I am content to assume, without deciding, that the conviction is technically sustainable on the footing that in getting away the applicant used force to overcome resistance to the money being stolen, this act being intended to enable further asportation of the money.

That artificial basis which sustains the count underlines the distinction between the cases upon which the learned Crown Prosecutor originally sought to rely to defend the sentence. Counsel for the applicant referred to a number of cases which might conveniently be called those concerning the snatching of bags accompanied by minor violence, and I think that these are considerably more comparable to the present circumstances. 

The learned sentencing Judge accepted that this was a spur of the moment, stupid act on the applicant's part. To my mind the sentence imposed was manifestly excessive and the orders proposed by Mr Justice Jones are appropriate. I accordingly agree with His Honour's proposed orders.

SHEPHERDSON J: I agree with the orders proposed by Mr Justice Jones, and for the reasons which he has given. I agree also with the comments made by the learned presiding Judge.

THOMAS JA: The orders will be those which have been mentioned by Mr Justice Jones.