The Queen v McCartney[1999] QCA 238

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 13 of 1999

Brisbane

THE QUEEN

v

DANIEL GARY McCARTNEY

(Applicant)

Appellant

McMurdo P

Thomas JA

Derrington J

Judgment delivered 22 June 1999.

Joint reasons for judgment of Thomas JA and Derrington J; separate reasons of McMurdo P concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.  APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SENTENCE BELOW SET ASIDE AND IN LIEU THEREOF SENTENCE OF FIVE YEARS’ IMPRISONMENT IMPOSED WITH A DECLARATION THAT THE APPELLANT IS CONVICTED OF A SERIOUS VIOLENT OFFENCE.  IT IS ALSO DECLARED THAT THE APPELLANT WAS IN PRE-SENTENCE CUSTODY BETWEEN 9 SEPTEMBER 1997 AND 2 NOVEMBER 1997, BETWEEN 14 DECEMBER 1997 AND 11 JUNE 1998, BETWEEN 7 JULY 1998 AND 3 AUGUST 1998 AND BETWEEN 4 SEPTEMBER 1998 AND 9 DECEMBER 1998, AND THAT A PERIOD OF 355 DAYS OF PRE-SENTENCE CUSTODY HAS ALREADY BEEN SERVED PURSUANT TO THE SENTENCE ON EACH OFFENCE.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 22 June 1999

1. I have had the advantage of reading the joint reasons for judgment of Thomas JA and Derrington J.  I agree with them that the appeal against conviction should be dismissed and with their reasons for so doing.

2. The applicant also claims his sentence of seven years imprisonment with a declaration that he is a serious violent offender under s 161B(3) Penalties and Sentences Act 1992 is manifestly excessive. The facts of the offences of which the applicant was convicted have been set out in the joint reasons of Thomas JA and Derrington J.

3. The applicant is now 19 and was only 18 when he committed the offences. He has an unimpressive criminal history for one so young. He was placed on probation for two years on 23 May 1997 for a number of property offences which occurred between 16 December 1996 and 6 February 1997. A few days earlier on 19 May 1997 he was convicted of the offence of breaking and entering a place and stealing between 29 December 1993 and 1 January 1994 and was sentenced to three months imprisonment fully suspended for two years. On 2 July 1997 he was convicted and ordered to perform 120 hours community service for a serious assault on a police officer on 2 April 1997. The offences the subject of the application occurred on 15 July 1997 and therefore constituted a breach of both the probation order and the operational period for a suspended sentence. On 28 August 1997 the applicant pleaded guilty to an assault which occurred on 26 January 1997. The applicant has subsequently been sentenced for a number of property offences which occurred prior to the offences the subject of this application.

4. The applicant was not co-operative with authorities and cannot claim the mitigating circumstance of remorse or of an early plea of guilty.

5. The offence demonstrated a degree of sophistication in that the two robbers organised a change of motor vehicle, obtained a shortened firearm and subsequently disposed of it together with disguising clothing worn in the robbery.

6. The most serious aspect of the offence was the degree of violence used by the applicant: the robbers threatened to kill the complainant and punched him severely, breaking his zygoma which later required surgery.  The complainant's glasses were broken and he was left tied up inside the hardware store lying in a pool of his own blood. His Honour noted the effect of the offence on the complainant who when giving evidence at the trial was reduced on a number of occasions to weeping as he recounted his experiences at the hands of the applicant.

7. A case of some comparability is R v Ilic.^[1] Ilic was convicted after a trial of one offence of armed robbery in company with personal violence.  Ilic and another robbed the Big Rooster store at Moorooka with a pistol, a sawn-off shotgun and a baton. One staff member was struck on the forehead with the baton knocking him to the ground and rendering him momentarily unconscious. It is unclear whether Ilic or his accomplice perpetrated this violence.  Ilic threatened to kill another victim if he identified him to police. Phone lines were cut.  Ilic was uncooperative with authorities.  He was 20 years old and had only one relevant prior conviction: he was on probation for unlawful use of a motor vehicle and dangerous driving and had therefore breached his probation.  Ilic was sentenced to seven years imprisonment with a recommendation for parole after two and a half years.  Ilic's appeal against sentence was dismissed.  The Court noted that the sentence was entirely appropriate and that the sentencing judge took into account in the early recommendation the absence of a criminal history of a like nature and Ilic's youth.

8. This applicant's criminal history was worse than Ilic and Ilic was sentenced prior to the 1997 amendments to the Penalties and Sentences Act 1992 which amended s 9(3) and (4) and introduced ss 161 A-D in Part 9A - Convictions of Serious Violent Offences. Despite these amendments a sentencing judge is still required to consider rehabilitation and the age of the offender: see ss 9(4)(g) and (h) Penalties and Sentences Act 1992.

9. The applicant is not currently eligible for release on parole until he has served approximately five years and seven months of the seven year sentence because of the combined effect of s 161B(3) Penalties and Sentences Act 1992 and s 166(1)(c) Corrective Services Act 1988.  The applicant had already served almost 12 months in custody at the time of his sentence and this period was subject to a declaration under s 161 Penalties and Sentences Act 1992.  He will be 24 years old before he is eligible for release from custody.

10. In R v Booth^[2] McPherson JA, with whom Thomas JA and White J agreed, when considering the effect of Part 9A Penalties and Sentences Act 1992 on sentences for schedule offences of over 10 years noted:

"... it is not the part of the proper function of the sentencing court to be astute in avoiding (the effect of Part 9A Penalties and Sentences Act 1992) by imposing a reduced sentence designed to defeat or frustrate it"

and that the totality principle established in Mill v The Queen^[3] did not override the new statutory regime.  A similar approach was taken in R v Daphney.^[4]

11. Unlike Booth and Daphney, this case involves a discretionary declaration that the applicant is convicted of a serious violent offence under s 161B(3) Penalties and Sentences Act 1992.  The exercise of that discretion, like the general sentencing discretion, will only be interfered with if there is some error of fact or law or a failure to take into account a material consideration or if undue weight is given to any circumstance or matter or if the sentence is unreasonable or clearly unjust.  See House v The King.^[5]  The sentence includes both the term of imprisonment imposed and the effect of the discretionary declaration at to eligibility for release on parole: see Postiglione v The Queen^[6] and the plain words of s 161B(3). 

12. The exercise of the discretion to declare an offender "to be convicted of a serious violent offence as part of the sentence" was most recently considered by this court in R v Bojovic.^[7] This court noted:

"While the mandatory requirements of s 161B(1) will inevitably interfere with the courts' capacity to maintain parity and consistency, the same problem does not exist in relation to sentences under s 161B(3) where an additional sentencing discretion has been conferred. In such matters the courts have the power to maintain reasonable consistency between sentences, although they will of course heed the additional emphasis that has now been placed on protecting the community from violent offenders.  As an example, if according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence toward the lower end of the applicable range.  Conversely if the judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence toward the higher end of the range.  If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s 9 of the Act.  A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in s 9(1)(a) - 9(e) of the Act."

13. The only question here is whether the learned sentencing judge failed to give sufficient weight to the youth of the applicant such that the sentence imposed, comprising as it does both the sentence of imprisonment and the s 161B(3) declaration delaying eligibility for parole for five years and 7 months, is manifestly excessive. Despite the serious aspects of the offence, the applicant's poor criminal history and lack of remorse, the sentence should not ignore that these offences occurred just a few days after his 18th birthday.  Society and the courts have always accepted youth as a factor requiring moderation of a custodial term in the interests of rehabilitation. In the circumstances a sentence requiring him to serve over five years and seven months in custody before being eligible for parole does not sufficiently take into account his youth and rehabilitation prospects and is manifestly excessive.

14. Consistent with the principles stated in Bojovic, a just sentence can be reached by either declining to make the declaration under s 161B(3) and imposing a sentence at the higher end of the appropriate range or by making the declaration and imposing a sentence at the lower end of the appropriate range.

15. The sentence suggested by Thomas JA and Derrington J of five years imprisonment with a declaration that this applicant has been convicted of a serious violent offence under s 161B(3) Penalties and Sentences Act 1992 means the applicant will be eligible for release on parole after serving four years imprisonment.  Such a sentence reflects the seriousness of the applicant's conduct whilst allowing some benefit for his youth and the prospect of rehabilitation.

16. I agree with the orders proposed by Thomas JA and Derrington J.

JOINT REASONS FOR JUDGMENT - THOMAS JA AND DERRINGTON J

Judgment delivered 22 June 1999

Appeal against conviction

1. The appellant was convicted of one count of attempted armed robbery whilst in company and one count of armed robbery with personal violence whilst in company, both in the one incident on 15 July 1997.  The appellant was then eighteen years of age and was nineteen years at trial.

2. He and an accomplice attempted to rob a hardware store at about closing time when only the assistant manager, a Mr Stark, was present.  The offenders were wearing stocking masks and were armed; the appellant with a sawn off gun and his partner with a wheel brace.  Mr Stark had earlier locked the safe and although he was not privy to its combination, they tried to force him to unlock it by threats to kill him and by punching him about the face.  As the result of this assault, his eyes were blackened, his zygoma was fractured and his lip was split.  When he convinced them that he could not open it, they stole money and a credit card from his wallet.  They then pushed him to the floor and sat on him until they tied him up and taped his mouth.  They left him lying in a pool of his own blood.

3. About two hours later, they were apprehended in a motor car by the police in relation to another matter.  After the police took possession of the car, they found a pair of shoes, the ownership of which the appellant admitted. 

4. During their investigation of the present matter, the police saw a possibility of its connection with the men whom they had apprehended.  They showed the appellant’s shirt to Mr Stark but he was unable to identify it.  However, at the police station, he happened to follow a police officer to that officer’s desk without the latter’s knowledge, and he saw a photograph of the appellant on the desk.  He immediately identified it as that of one of the persons implicated in the robbery. 

5. This evidence was of course tainted by these circumstances and was otherwise weakened by some frank admission of Mr Stark as to difficulties in his identification.  However, it was not the only evidence implicating the appellant.  During the robbery he had stepped on blood that had fallen from Mr Stark’s wounds and the prosecution was able to establish that blood on the sole of one of his shoes found in the car matched that of Mr Stark in a combination of features that made the chance of error 1 in 290,000,000.  Further, the pattern of the sole of his shoe matched a blood-mark on the floor of the hardware store that was made during the robbery.

6. Despite the appellant’s objection, the learned trial judge admitted the identification evidence.

7. The appeal against conviction relies on two grounds:

a)that the learned trial judge had wrongly admitted the evidence of identification; and

b)that his summing up to the jury in relation to the appellant’s failure to give evidence was defective.

The admission of identification evidence

8. In his summing up the learned trial judge fully warned the jury as to the dangers associated with identification evidence in general and of this evidence in particular.  He warned them that if the prosecution case had relied upon the identification evidence alone, they could not convict upon it.  He plainly instructed them that it could be used only as a factor by way of circumstantial evidence, and then only subject to all the caution appropriate to its weaknesses that he had identified. 

9. Its admission on these terms was justified.  Subject to a fully adequate warning and direction as to how it could be used, the evidence still had some probative worth which should not have been denied to the prosecution.  In any case, the other evidence against the appellant supporting the identification was very strong and there is no danger of any miscarriage of justice by its admission.

The observation on the appellant’s failure to testify

10. The passages in the summing up relating to the appellant’s failure to give evidence are as follows:

“In this particular case, members of the jury, the accused has elected neither to give evidence, nor to call evidence in his own defence.  He was under no obligation to give evidence, just as he was under no obligation to call evidence.  As I said to you, the responsibility for proof in a criminal trial lies with the Crown and you cannot infer guilt simply from the failure of the accused to give evidence or to lead in his own defence.  The consequence of the accused not having given evidence or led evidence is simply that the Crown case comes before you uncontradicted by any sworn evidence from the accused.  To put that another way, members of the jury, you have no evidence from the accused to add to or explain or to vary or to contradict the evidence put before you by the prosecution.

In this case, as I will explain more fully in due course, the prosecution asks you to draw certain inferences.  The prosecution invites you to infer the guilt of the accused from a collection of facts and circumstances to draw  inferences from facts established by the evidence.  Such inferences, members of the jury, may be more safely drawn when an accused person elects not to give evidence of facts which could obviously be within his knowledge and about which he might be capable of providing an explanation.  In such a situation then the accused’s failure to give evidence may make the inference contended for by the Crown less unsafe than might otherwise be the case.”

11. The matters that would have been within the appellant’s knowledge if he were innocent were the origin of the blood, if it was not Mr Stark’s, or, alternatively, how Mr Stark’s blood came to be on his shoe.  The form of summing up adopted by the learned trial judge on this issue was strictly in accordance with that approved in Weissensteiner v The Queen,^[8] and it cannot attract criticism.  The appellant, who was not represented, could not point to any defect and his only complaint was that the summing up had referred to the matter at all.

12. There is no merit in either of these grounds raised by the appellant and his appeal against conviction should be dismissed.

Sentence

13. There is also an application for leave to appeal against the sentence of seven years’ imprisonment and the Court’s declaration that the applicant is a serious violent offender.

14. There is no doubt but that this was a serious and violent offence.  The degree of physical injury inflicted on Mr Stark was not of the highest order but in association with the applicant's threats to kill him whilst armed with a gun and apparently able to do so had a compounding effect which elevated the violence to a serious level.  This is manifest in the result, for it caused Mr Stark serious distress which was enduring at the trial, so that he broke down in evidence and could not bring himself to compose a victim impact statement.  The applicant may not have anticipated such a result, but the consequences obviously did not interest him.

15. Additional disturbing features of this case are the applicant's bad criminal record and his lack of remorse, which was again apparent on his appeal.  His criminal record goes back to 1995 and began with insulting words, obstructing police, possession of a weapon, discharging it on land, possession of dangerous drugs and possession of a thing used in connection with smoking a dangerous drug.  That was followed by dangerous driving, several breaking and entering offences, several stealing offences, wilful and unlawful damage to property and a serious assault on a police officer shortly before this offence.  At the time of the offence, he was on probation for two years and under a separate three month suspended sentence, and was performing community service.  His proclivity to violence on this occasion should not be regarded as unusual.  Although his conviction for a further offence of unlawful assault did not take place until shortly after this offence, the assault itself had taken place in January 1997.  Whilst this later conviction would not enlarge the sentence, it may be used to dispel any mistaken belief that his prior conviction for assault was isolated and uncharacteristic. 

16. There are some mitigating features.  He is young and despite his reasonably high level of intelligence, he is also plainly immature.  He has probably failed to achieve his full potential because of his parents’ separation, but he had the benefit of a good home with his mother and sister.  Whilst the deterrence of a planned and violent crime such as this is important, rehabilitation of this young man during these formative years should not be disregarded.  He has the intelligence and personality to be a decent and useful member of society rather than a dangerous one.

17. The range of sentences in the large schedule helpfully supplied by the respondent suggests that for an offender such as the applicant in these circumstances, the appropriate range is five to seven years’ imprisonment rather than the seven to nine years suggested by the prosecution to the learned sentencing judge.  His Honour apparently saw the merit in pursuing the chance of rehabilitation by imposing a sentence at the bottom of that range, and that approach, with respect, is justified in this case.  The question then is how to adjust the sentence in the light of better information as to the proper range.  It is necessary to determine whether the declaration of the applicant as a serious violent offender should be taken into account since it requires the prisoner to serve eighty percent of his sentence before being considered for parole.   That will clearly have an effect on his prospects of rehabilitation.

18. It is the Court’s duty to carry out the requirements of the new sentencing regime introduced in 1997 by Part 9A of the Penalties and Sentences Act 1992, and sentences are not to be designed to avoid it.^[9]   However, a sentencing judge must not be blind to the consequences of the sentence being imposed, for the provisions of Part 9A do not destroy the overall sentencing discretion.

19. The question of the making of a declaration of conviction of serious violent offence under s 161B(3) of the Penalties and Sentences Act was recently dealt with by this Court in R v Bojovic.^[10]  As the sentence imposed below is manifestly excessive, it falls to this Court to consider what sentence should have been imposed.  Plainly the option available to the Court under s 161B(3) is available and the task is to frame the most appropriate sentence in the circumstances.  For the reasons mentioned above the appropriate range of imprisonment consistent with other decisions in this Court, absent the additional serious violent offender declaration, would be in the range of five to seven years’ imprisonment.

20. We take note of the example mentioned in Bojovic:

“As an example, if according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence toward the lower end of the applicable range.  Conversely if the judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence towards the higher end of the range.  If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s 9 of the Act.  A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in s 9(1)(a) to 9(e) of the Act”.^[11]

21. We also take note of the following observations which stress the need for the existence of some proper purpose for the making of the declaration, rather than the mere existence of seriousness and violence in the commission of the offence:

“In our view it is not appropriate that a declaration be made unless the overall sentence will be seen to be reasonably consistent with attaining the normal objectives of punishment.  One of the purposes for which sentences are imposed is to protect the community from an offender when it is appropriate to do so.^[12]  In a case such as the present where the essential feature was over-reaction in the course of self-defence and where the danger of repetition seems remote we fail to see why any additional recommendation over and above an adequate sentence, which in this case is eight years, would be called for”.^[13]

22. The present offence was a very serious example of armed robbery where features included disguise, the tying up of the victim and callous infliction of injury accompanied by tactics designed to induce the serious terror which resulted.  The facts reveal an unhealthy identification with criminal methods.  Over and above this there seems to be a complete absence of remorse, which is unfortunately consistent with the preceding observation.  The applicant has a significant criminal history including offences of violence.  The risk of repetition in this case is by no means slight.  The present case would seem to be one in which the need for future protection of the community may be perceived as a genuine concern.

23. We have considered various options in framing an appropriate sentence, namely reduction of the sentence to five years with retention of a declaration, and alternatively a simple deletion of the declaration.  The effect of the two alternatives might be thought to be fairly similar overall, the seven year sentence being more severe as a head sentence but less severe in relation to possible release on parole.  We have also considered an intermediate sentence such as six years with or without a declaration.  However, taking into account the relative youth of the offender, we think that the appropriate sentence in the present case is one of five years’ imprisonment accompanied by a declaration that the offender is convicted of a serious violent offence.

Orders

24. The appeal against conviction is dismissed.  Leave to appeal against sentence is granted.  The sentence below is set aside and replaced with a sentence of five years’ imprisonment with a declaration that the appellant is convicted of a serious violent offence.  It is also declared that the appellant was in pre-sentence custody between 9 September 1997 and 2 November 1997, between 14 December 1997 and 11 June 1998, between 7 July 1998 and 3 August 1998 and between 4 September 1998 and 9 December 1998, and that a period of 355 days of pre-sentence custody is time already served pursuant to the sentence on each offence.