The Queen v Breeze[1999] QCA 303

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 105 of 1999

Brisbane

THE QUEEN

v.

MICHAEL ROBERT BREEZE

(Applicant)

Pincus JA

Davies JA

Demack J

Judgment delivered 6 August 1999

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

DIRECT THAT THE INDICTMENT BE AMENDED BY SUBSTITUTING FOR THE WORDS "WITH ACTUAL VIOLENCE" THE WORDS "WITH A THREAT OF ACTUAL VIOLENCE"

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 August 1999

1. This is an application for leave to appeal against sentence, the applicant having been convicted of robbery in company whilst armed.  He was sentenced to imprisonment for 2 years and a recommendation was made that he be considered for release on parole after 8 months.  It is contended for the applicant that, because of his age and other circumstances, he should not have been imprisoned. 

2. The offence was committed on 27 February 1997 when the applicant was 16 years of age.  The prosecutor told the sentencing judge that three males including the applicant and a female went to a convenience store near the Royal Brisbane Hospital;  they made a minor purchase and left the store, but shortly after that went back to it.  There, according to the female to whom we have referred, one of the three males walked up to the counter and the complainant woman asked if she could help him.  The person in question, Evan Martin, pulled a screwdriver from his pants, slammed one of his hands upon the counter and said to the complainant, "Open the fucking till".  She started to scream and ran off to where the female providing this information could not see her.  Then, according to the account given to the sentencing judge, Martin and the applicant ran around the other side of the counter, Martin going to the area where the complainant had gone and the applicant "sort of standing in between, half in the doorway and half out".  The third male, Adrian Fulton, then attempted to open the cash register and the female making these observations left the scene.

3. The complainant said, according to the prosecutor below, that the three males rushed in, one of them carrying a long iron or metal bar with a sharp end.  The complainant said that that male, who was it appears Evan Martin, pointed the long bar at her chest area;  it was about 10 or 15 cm away from her chest.  She told him, in effect, to take the cash register away because she was in fear of her safety and one of the other males said "Don't cry".  One of the other males came around behind the counter to the area where the complainant was standing;  according to her, one of them had a metal bar which he was carrying in his right hand above his shoulder and very close to her, pointed downward towards her.  She attempted to move towards the exit door;  she could not go out the side door, she said, because it was locked;  she felt trapped, because the door was locked and two males were standing in front of her, blocking her path.  One of them kept saying, "Don't cry, don't cry" and he was rubbing her arm with his other hand;  each of them was still carrying a metal bar in his hand.  She said, "I won't cry, but you do not hurt me".  The two males stopped holding the bars above their heads and instead held them down by their sides.  She saw the males go into the residential part of the premises and noticed that the cash register drawer was empty and the coin tray missing from it. 

4. A man who came into the store and saw what was going on pursued the three males, who fled from the back of the store.  The police came and managed to apprehend the applicant, who was still running with the cash register drawer, which contained $56 in coins.  He was interviewed by the police and told them that he had entered the store with the three other people and that, just prior to going into it, one of the others had given him a screwdriver and told him to pull it out when the other fellow pulled his out.  He said he jumped the counter and stopped the complainant from telephoning the police and helped by carrying the coin tray away.  He said he went behind to settle the complainant down as she was going "hysterical and crazy" and that the complainant tried to get out but was prevented from getting out of the store.  Information which the applicant gave enabled the police to contact the other offenders.

5. The defence barrister told the judge that the applicant had been adopted at the age of 2½ from an orphanage and was brought up by the adopted parents until he was about 11 and then went into foster homes.  At the time the offence was committed he had a job at a cafe.  He said that the applicant thought that he had stayed in front of the counter near the door and followed the (complainant) lady towards the back of the shop.  The applicant said in his record of interview, and still continued to instruct his counsel, that he said to the complainant, "Look, I'm not here to hurt you.  I don't even know why I'm here.  Stop screaming.  Just settle down".  Counsel for the defence said that dove-tailed with what the complainant said, in that she said one of the offenders was trying to calm her down whilst, in effect, comforting her.

6. At the time when he came before the court for sentence the applicant had been in custody for 103 days and that was because he had, after appearing before the court on a couple of occasions in answer to the charge, decamped to Sydney.  Counsel said that, since returning to Brisbane, the applicant had been engaged in money-making activities and also in an establishment called a youth committee to assist street kids in Caboolture.  It was said that he was heavily involved with a church at Caboolture and references were tendered from people connected with the church, which were of a favourable kind.

7. The judge who sentenced the applicant had sentenced Fulton, one of the other two people involved in the offence.  Fulton's criminal history was much more extensive than the applicant's and he had on prior occasions been sentenced to imprisonment.  The judge mentioned in his sentencing remarks relating to this applicant that Fulton had been sentenced to 4 years imprisonment, in the context of having served some activated previously suspended sentences.  It does not appear that his Honour regarded the sentence imposed on Fulton as a guide to that which the applicant should receive.  Among the matters which the judge mentioned as being taken into account were the plea of guilty, the fact that the applicant had repeatedly failed to answer his bail, the fact that there were no previous convictions and that as the judge held, violence had been used against the complainant, within the meaning of s 9(3) of the Penalties and Sentences Act 1992.  There is discussion of that issue below.  The judge also mentioned that the applicant had co-operated in a record of interview and apparently named the other offenders.  His Honour said that although brief, some planning had been involved;  he dealt with the applicant on the basis that he did not have a screwdriver initially, but was passed one.

8. In Truong (CA No 438 of 1998, 19 February 1999) it was held in this Court that the amendments to s 9 of the Penalties and Sentences Act 1992 made by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 ("the 1997 amendment") were applicable in respect of sentences imposed after 1 July 1997, in relation to offences committed before that date.  It is not contended that we should do otherwise than apply that decision, which distinguished decisions of this Court on other, rather similar, points.  We would therefore not make any comment upon the reasoning in Truong were it not for the fact that the court there indicated that it would not "at this stage be prepared to depart from the view taken by this court in R v Mason and Saunders . . . in relation to the non-application of Part 9A to offences committed before 1 July 1997".  That implies, as it seems to us, that the reasoning in Truong might be such as to throw the decision in Mason and Saunders [1998] 2 Qd R 186 into doubt.

9. The decision in Truong was contrary to the decision in Mallard and White (CA Nos 450, 452 of 1997, 17 April 1998).  Truong should in our opinion be followed, rather than Mallard and White, since in the earlier case the point was said to have been "effectively" conceded and received only brief discussion. 

10. The Court gave as one of the reasons for its conclusion in Truong that the factors prescribed in s 9 of the Penalties and Sentences Act are procedural.  It is not, with respect, evident that laws relating to the matters taken into account in determining the level of sentence are other than substantive;  for example, if the Parliament decreed that no or little discount should be given for a plea of guilty or for co-operation with the police, that would be a change in the substantive law.  The decision of the High Court in Siganto (1998) 73 ALJR 162, relied on in Truong, should not be regarded as expressing a reasoned conclusion on the question, which was in issue before the Court of Criminal Appeal of the Northern Territory but not in the High Court appeal, whether a certain amendment to Northern Territory sentencing laws, argued to have retrospective effect, was applicable.  In the reasons of the High Court on the appeal in Siganto, one finds it mentioned (para 13) that special leave to appeal against the part of the decision of the Court of Criminal Appeal dealing with retrospectivity was refused.  A reading of the transcript of the argument on the application for special leave shows that no reason was given for that refusal;  the discussion during the course of the argument makes clear that at least one reason, other than that the judges thought the Northern Territory decision on that point to be correct, was under consideration.  Reference to the report in the Northern Territory Court of Criminal Appeal shows that the court interpreted the Northern Territory provision corresponding to s 11(2) of our Code in such a way as to treat the reference there to the "law in force" as the law constituting the relevant offence:  (1997) 97 A Crim R 60 at 67.  We do not well understand why a change in the law governing punishment for an offence should be beyond the scope of s 11(2) simply because the section constituting the relevant offence is unchanged.  The court also, as to the same provision, expressed "doubt" whether it applied and made observations to the effect that a provision fixing a minimum non‑parole period or one abolishing remissions would not fall within the provision.  The reasons for these views were that the maximum penalty was unaltered, that remission is a matter for the executive not the court, and that the fixing of a non-parole period is a benefit.  It is by no means clear to us that these reasons justify the conclusion towards which they tend, which is that no change in provisions relating to punishment is within s 11(2) of our Code, other than an increase in the maximum possible punishment. 

11. The Explanatory Notes to the bill which became the 1997 amendment included the statement that the legislation would not be retrospective:  see Queensland Acts 1997, Explanatory Notes, Vol 1, 319.  There is discussion (at 320 and 321) of a specific question of retrospectivity relating to provisions of the Act which were in issue in Mason and Saunders;  but the relevant bill was plainly put before Parliament on the basis that it would not, in general, have retrospective operation and reference was made to that in the course of debate:  see Queensland Parliamentary Debates, Vol 341 at 897.

12. It is our opinion that Mason and Saunders should continue to be followed, on the question of retrospectivity.

"Violence"

13. Because of the decision in Truong, which should be followed, the amendments to s 9 made by the 1997 amendment which came into force were relevant to the sentencing of the applicant which took place after that Act came into force.  A question discussed by the primary judge was whether s 9(2)(a) of the Penalties and Sentences Act 1992 governed the sentencing of the applicant.  If it did, the court was obliged to have regard to the principles that:

"(i)a sentence of imprisonment should only be imposed as a last resort; and

(ii)a sentence that allows the offender to stay in the community is preferable".

The primary judge held that the principles mentioned in s 9(2)(a) did not apply, being excluded by s 9(3):

"However, 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".

His Honour arrived at this conclusion on the basis that the applicant's offence involved the use of violence;  otherwise, his Honour said, "the law could properly be regarded as an ass".

14. It is true that on some occasions a threat of violence without any application of violence can be extremely upsetting to the person threatened.  But that does not mean that the distinction between actual violence and threatened violence is unreal or asinine;  it is recognised, for example, in the Code definition of the offence with which the applicant was charged:  s 409.  As was pointed out during the hearing in this Court, the applicant was erroneously charged with stealing with actual violence, whereas in fact the Crown case was based on threatened violence.  No point was taken with respect to that error, presumably because of the court's wide powers of amendment of indictments, and in particular the power to amend after verdict now given by s 572(3) of the Code.  Further reference is made to that point, below. 

15. As was pointed out on behalf of the applicant there has been some discussion of the meaning of s 9(3) in Barling (CA No 304 of 1998, 5 February 1999) where the applicant was convicted of arson of a caravan.  Having had a disagreement with the complainant who it appears ordinarily lived in the caravan, the applicant set it alight and it, together with its contents, was destroyed.  It appears from the reasons given in this Court that the sentencing judge held that s 9(3), set out above, applied, apparently on the basis that the applicant by damaging the caravan had caused great emotional disturbance to the complainant's mother, who believed that her daughter (the complainant) had been inside the van.

16. It was held in this Court that the case did not fall within s 9(3).  The Chief Justice expressed the view that the offence did not involve violence against a person in terms of s 9(3)(a), nor physical harm to another person in terms of  s 9(3)(b).  His Honour was unwilling to depart from the natural or ordinary construction of these provisions -

" . . . especially because the provision potentially affects the level of punishment there is particular reason not to adopt an unnecessarily broad construction".

17. The expression "violence" has now acquired what might be called resonances which have perhaps broadened its meaning.  In some contexts it seems to be used as descriptive of any act, whether violent in the ordinary sense or not, to which the user of the word strongly objects.

18. However, in this context, the expression "the use of . . . violence against another person" cannot be given so broad a meaning.  In McCrossen [1991] Tas R 1, Green CJ had to construe a provision in the Tasmanian Criminal Code enabling a person convicted of a crime "involving an element of violence" to be declared a dangerous criminal.  Green CJ held that:

"Applying the meaning which the common law has given to the word 'violence' I hold that for the purposes of the [relevant provision] the making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence". (6)

In reaching this conclusion, his Honour applied Australian and English decisions, referred to at pp 5 and 6 of the report.  Of those the most significant is, as it seems to us, Butcher [1986] VR 43, in which the question was whether a Victorian provision relating to sentencing and including the expression "a crime the necessary elements of which include violence" applied.  Butcher had killed a man in the course of a robbery, but it appeared that the Crown could not prove this had been done deliberately;  Butcher had threatened the man with the knife.  The question was whether robbery under Victorian law is a crime "the necessary elements of which include violence" and the court held that it is, on the ground that robbery, although it may be effected by threat, was at common law regarded as a crime of violence.  The court reached its conclusion by holding that:

"If threats are made personally to intimidate or seeking to intimidate, this is also . . . violence" (50).

19. The decision is capable of being distinguished, on the ground that the question here is not what are the necessary elements of the offence of robbery, but rather whether what was actually done involved the use of violence against a person.  At the heart of the decision, however, is the view that at least in the context of commission of a robbery, a threat of violence to induce compliance is itself regarded as violence.  It appears to us that the proper course is to apply these authorities, with the result that, for reasons other than those which the primary judge gave, we are of opinion that his Honour's conclusion that the present case is caught by s 9(3)(a) of the Penalties and Sentences Act 1992 is correct.

20. It was pointed out by counsel that in Lovell (CA No 408 of 1997, 6 March 1998) the opinion was expressed in this Court that:

"[A]mendments made to s 9 [of the Penalties and Sentences Act 1992] 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".

Pincus JA suggested in that case 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) . . . ".

Although the contrary view was put forward by the Crown, it appears to us likely that under the sentencing regime in force when Bainbridge (1993) 74 A Crim R 265 was decided, it would have been held that the proper sentence in the instant case was non-custodial.  This is by no means the worst robbery one can imagine;  although the holding of a screwdriver necessarily involved a threat of violence, the applicant's attitude towards the victim was, on what the judge was told, largely consoling rather than aggressive.  Nevertheless, it does not appear to us possible to say that the learned primary judge erred in imposing the sentence which he did.  In reaching that conclusion we have taken into account as a point against leniency that, after being arrested and bailed for this offence, the applicant committed a number of other offences.  None of these appear to have been particularly serious;  they are relevant as arguing against giving the applicant "credit for having lived a law abiding life in the period between crime and sentence":  McInerney (1986) 42 SASR 111 at 113, discussed in Kellerman v Pecko [1998] 1 Qd R 419 at 421, 423.

In summary -

21. (1)Following Truong, the amendments to s 9 of the Penalties and Sentences Act 1992 which came into force on 1 July 1997 must be applied to the applicant, although he committed the offence before that date.

22. (2)Although in the course of the robbery violence was threatened to the victim without physical force having been applied, the case falls within the description in s 9(3)(a) of the Act.

23. (3)The harsher sentencing regime introduced by the amendments to s 9 justifies the sentence imposed.

24. We mentioned above the error in the indictment, which charges actual violence rather than the threat of violence.  It appears necessary, to correct the Court's records, that the indictment be appropriately amended.

25. We order:

1. Application for leave to appeal against sentence refused.
2. Direct that the indictment be amended by substituting for the words "with actual violence" the words "with a threat of actual violence".