R v Mather[1999] QCA 226

COURT OF APPEAL

McMURDO P

PINCUS JA

THOMAS JA

BRISBANE

DATE 17/06/99

JUDGMENT

THOMAS JA:  The applicant was convicted in the District Court at Bowen of armed robbery.  He was sentenced to four years' imprisonment along with an order for payment of compensation of $135.  He was 35 years old at the time of the offence and had a good work record.  He had a minor criminal history for a number of matters, but none of them amounted to an indictable offence, and none of them were similar or comparable to the present offence.

The circumstances were these.  On 11 December 1998 he went to a Shell Service Station in Bowen early in the morning.  The console operator heard someone come into the store and then saw the applicant dressed in dark overalls with a hood over his head with two holes cut for his eyes.  He was also wearing sunglasses.  He demanded money.  She asked him to go away.  He had a plastic bag which contained something that looked like a pistol and he tapped it on the counter, demanding that she fill a bag with money from the till.  He handed over a pillow case.  She saw that he was holding something that appeared to have a handle in the other hand and she was terrified.  She took $135 from the till, which was all that it contained, and handed it over.  She saw him walk across the driveway and notified the police.

The police quickly located the discarded clothing which ultimately led them to the applicant, who lived quite close by.  He told the police that over some days preceding the incident, he had thought about stealing some money from the store but his actual preparation was limited to 20 minutes before the robbery.  He used a child's toy, apparently a crocodile head on a stick, and altered it by painting it black so that if held in a certain way it might look like a gun.  He took a cushion cover, cut the holes in it for the hood and also had a plastic hammer in his pocket with the handle protruding to make it look as if he had a second weapon.

The learned sentencing Judge observed that robbery was an extremely serious and prevalent offence and that places like service stations are extremely vulnerable to such offences.  The applicant committed the offence because he was short of money and had spent the money not only on food but also on alcohol.  His Honour observed, correctly, that deterrence is an important sentencing factor.  By that, I take it His Honour was referring to general deterrence.

There are, however, a number of mitigating factors in the present matter.  These included, not necessarily in order of importance, the payment of the restitution and a further offer of compensation for the benefit of the victim who had been terrified;  he presented a reference from an employer and his counsel informed the Court of a good work history;   he had cooperated with the police and had pleaded guilty at a very early stage upon ex-officio indictment.  As already mentioned, he had no prior conviction for dishonesty or for violence.

The learned sentencing Judge indicated that he considered a head sentence of five years or so was appropriate but for matters favourable to the applicant.  His Honour accordingly reduced the sentence from five years to four and made no recommendation for early consideration of parole.

In this particular case the potential for harm was limited, the applicant using imitation weapons to effect what was described as an amateurish robbery.  The limited planning has already been mentioned, and the absence of oral threats or display of any physical force are factors which keep this particular offence at the lower end of seriousness.  The applicant has plainly demonstrated remorse. 

He committed the offence at a time when his life had been disrupted through a number of matters, including some depression following the loss of his brother.  He was also reducing his dosage of methadone.  This was described as effecting a considerable disruption to his system.  On the other hand, the victim impact statement suggests that the service station attendant was very emotionally affected by the incident.  However, she has gone on with her life although with some difficulty.

In this particular matter my mind has fluctuated considerably in the course of submissions.  The so called comparable sentences, to which reference has been made, include Dempsey, CA 261 of 1995, 22 August 1995, and Smith, CA 48 of 1998, 8 May 1998.  Smith certainly suggests a lower level in circumstances that are relatively comparable.  That, however, was the dismissal of an appeal against severity of sentence.  Dempsey, on the other hand, was the substitution of a sentence by this Court.

Whilst the circumstances in Dempsey are slightly more serious than those in the present case, and they included a second crime of breaking, entering and stealing, I cannot say that the case is substantially dissimilar from the present matter.  My impression, having regard to these two cases and a number of others, is that the sentence is quite high and perhaps at the top of the range of sentences that could possibly have been imposed in circumstances such as these.  However, I do not in the end find myself able to say that the sentence was beyond the range or outside the possible range of the sentencing discretion of the tribunal of first instance.  In these circumstances, while acknowledging some hesitation, I would dismiss the application.

THE PRESIDENT:  I agree with the order proposed by Justice Thomas and with his reasons.  I too have found the matter a difficult one.  Although the mitigating factors mentioned by Justice Thomas in this case could have justified a lesser head sentence or alternatively a recommendation for parole slightly earlier than the halfway point, I am not in the end persuaded that the sentence of four years' imprisonment was manifestly excessive, albeit at the high end of the appropriate range.

PINCUS JA:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.