R v Moodie[1999] QCA 125

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

FRYBERG J

Appeal No 439 of 1998

THE QUEEN

v.

JOHN GEOFFREY MOODIE 

(Applicant) Appellant

BRISBANE

DATE 14/04/99

JUDGMENT

DAVIES JA:   The applicant pleaded guilty on 2 November 1998 to the offence of attempted armed robbery on 16 May 1998.  He was sentenced in the District Court to five years imprisonment for that offence and the learned sentencing Judge made a declaration pursuant to section 161A(3) of the Penalties and Sentences Act 1992 that the applicant was convicted of a serious violent offence.

This had the consequence that the applicant would not become eligible for parole until he had served more than 80 per cent of that sentence and prevented him also from obtaining remissions for good behaviour in serving that sentence.  The applicant seeks leave to appeal against the sentence imposed.  However, he does not contend that the sentence of five years imprisonment was outside the range which would've been appropriate for the offence committed here.

The contention is rather than when the declaration is added to that sentence the total sentence imposed was manifestly excessive.  The question before this Court then involves, in effect, only the declaration which was imposed.  The circumstances of the offence were as follows:  late in the morning of 16 May 1998 the applicant walked into a pharmacy and pointed a knife at a 72 year old male pharmacist who was sitting near a computer terminal in the dispensary area of the pharmacy.

The pharmacist grabbed the knife by the blade and twisted it, breaking it off at the handle.  As he stood up the applicant pushed him causing him to fall backwards striking his right shoulder and face against some shelves.  He was slightly injured.  The applicant then dropped the knife and ran from the store.  He had previously warned the shop assistant who was in the act of running out of the store to call the police not to go "or I'll kill him". 

As appears from what has been said so far the attempted robbery was a rather incompetent affair.  In addition the applicant was a registered customer of the pharmacy and was recognised by the shop assistant and as well he drove a hire car to the pharmacy to commit the robbery.  For these reasons he was quickly apprehended although he initially gave a false alibi.  Indeed he contested the identification evidence in a committal hearing before pleading guilty. It appears that he was heavily drugged at the time of the attempt.

The applicant has apparently a long term drug problem having first used heroin at age 14.  He has had a difficult early life like many such offenders.  He had a not insubstantial criminal record mostly for offences of dishonesty and drug offences.  He had been imprisoned on several previous occasions the longest being one of two years imposed in August 1993 for a number of offences of receiving, false pretences, forgery and uttering. 

He had only one previous conviction for a violent offence, that being one of assault whilst armed with an offensive weapon for which he was sentenced on 5 February 1992 to two months imprisonment and six months probation.  No particulars were given about that offence but having regard to the sentence which was imposed it could not have been a very serious example of the kind.  It was said that the aged pharmacist was generally shaken up by the incident and, as a result of his face being struck on some shelving as he fell he has a slight scar on his face.  However no victim impact statement was put before the Court and it is not suggested that there will be any lasting psychological consequences. 

No substantial submissions were made to the learned sentencing Judge on the question whether a declaration should be made by him pursuant to section 161B(3)(b) of the Penalties and Sentences Act.  Nor did His Honour explain his reasons for making the declaration which he did, simply saying, "I consider, having regard to the circumstances of the offence, that I have little option but to make such a declaration."  Mr Devereaux for the applicant also submitted that the Judge should have indicated his intentions so that submissions could have been made and that it was not sufficiently done in this case.

Whether that is so or not in my view a Judge should indicate an intention to make that declaration so that counsel do have, particularly counsel for the offender, has an adequate opportunity to make any submissions which he or she thinks might be appropriate to that question.  In my view the learned sentencing Judge was wrong in this case in making the declaration which he did without giving adequate reasons for it and was wrong in thinking that the circumstances of the offence gave him little option but to make such a declaration.  For those reasons the exercise of his sentencing discretion in my view miscarried and the declaration should be set aside.  There were, in my view, a number of factors which militated against the making of the declaration. 

In the first place, as I have already mentioned, the applicant notwithstanding a long period of drug dependence and of criminal conduct has not shown any substantial tendency towards violence in the past.  Secondly, and perhaps more importantly, the fact that he was easily disarmed by a 72 year old man indicates that he did not pose a serious threat of serious violence in this case and, as has already been mentioned, no serious violence eventuated.  Rather he was a heavily drugged man incompetently attempting a robbery in what appears to have been a rather befuddled state.  For those reasons I do not think that this was an appropriate case in which to make a declaration.  I would therefore grant the application and allow the appeal only to the extent of setting aside the declaration made by the learned sentencing Judge that the applicant was convicted of a serious violent offence.

THE CHIEF JUSTICE:  I agree.

FRYBERG J:  I agree but I would note that the obligation of the Judge referred to by Justice Davies to flag his intention exists in the context where the Crown Prosecutor has not made submissions on the subject.

THE CHIEF JUSTICE:  The application is granted and the appeal allowed and the orders made by the learned Judge varied to the extent of deleting the declaration made under section 161B(3)(b) of the Penalties and Sentences Act.