Attorney-General v S[1999] QCA 398

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 228 of 1999

Brisbane

[R v S; ex parte A-G]

THE QUEEN

v

S

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McPherson JA

Thomas JA

Cullinane J

Judgment delivered 21 September 1999

Judgment of the Court.

APPEAL ALLOWED. SENTENCES SET ASIDE AND IN EACH CASE A SENTENCE OF TWO YEARS AND SIX MONTHS SUBSTITUTED.

1. THE COURT:  This is an appeal by the Attorney-General who claims that sentences imposed on the respondent for seven offences of armed robbery were manifestly inadequate.  The respondent was sentenced to imprisonment for one year on each of these counts.

2. He was born on 24 May 1981 and was 17 at the time of the offences and 18 when sentenced.  He has no previous convictions.

3. The offences were committed between 8 May 1998 and 31 October 1998.

4. The respondent was one of seven persons charged in respect of a series of nine armed robberies committed at convenience or late-night stores.  Of these the respondent was charged with and pleaded guilty to seven.

5. Four of his co-offenders were dealt with on the same day that he was sentenced.  They were about the same age as the respondent and were all first offenders.  Each of them received a 12 month intensive correction order.

6. Of these, three were involved in only one armed robbery each.  The respondent was a co-offender.  Another was involved in two armed robberies on the one day in which the respondent was not a co-offender.

7. On the nine occasions when the respondent was involved, he and the co-offender entered the shop concerned wearing a balaclava and armed.  The respondent carried a machete and his co-offender a knife.  Money and cigarettes were taken from each place.

8. It was accepted before the learned sentencing judge and before us, that the robberies were initiated by the respondent’s father who manipulated and exploited the respondent and his associates and himself participated in a number of the offences by driving the respondent and co-offenders to the place where the offence was committed.

9. The respondent’s father and another person alleged to have been involved in seven of the armed robberies (two of which did not involve the respondent) are awaiting sentence.

10. The last two of the armed robberies to which the respondent pleaded guilty did not involve his father.  There had been a breakdown in the relationship between them prior to the time that those offences were committed.

11. The sentencing remarks of the learned sentencing judge were not published.  This is because His Honour acted under s 13A of the Penalties and Sentences Act 1992 as amended.

12. Section 13A provides as follows:

"Cooperation with law enforcement authorities to be taken into account

13A.(1) This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

(2) The undertaking must be in a written declaration.

(3) The court must-

1. cause the written undertaking and the sentencing remarks under paragraph (b) to be sealed and placed on the court file with an order that it may only be opened by an order of the court, including on an application to re-open the sentencing proceedings under section 188(2); and

2. state in closed court-

1. that the sentence is being reduced under this section; and

2. the sentence it would otherwise have imposed."

13. As the Court of Appeal pointed out in The Queen v McGuire and Porter ex-parte Attorney-General (Qld) (CA No 70 of 1999, No 71 of 1999, 8 June 1999; [1999] QCA 205) this section does not require the court to reduce any sentence but provides for certain procedures to be followed in the event that a sentence is to be reduced because an offender has undertaken to cooperate.

14. The section requires that a Court when acting under it state that the sentence has been reduced under the section and also state the sentence it would otherwise have imposed.  This is to be done in closed court.

15. In arriving at the sentence which otherwise would have been imposed (the notional sentence) the court is required to take into account all considerations relevant to sentence with the exception only of the cooperation which the section contemplates.  These will include a plea of guilty, remorse, cooperation with the authorities as to the offender's own involvement and any other relevant matter.  The notional sentence may include a recommendation which would have been made.  Reduction of the notional sentence to produce the operative sentence is a product of the court's evaluation of the offender's cooperation.

16. It seems that in order to give effect to the section's evident purpose a court once it is asked to consider acting under s 13A ought to proceed to hear argument and receive material in closed court both as to whether it should reduce the sentence for the offender's cooperation and as to the reduced sentence to be imposed.  Frequently there will be material placed before the court from investigating authorities or other sources concerning the nature and extent and value of any such cooperation and this material as well as the undertaking should be sealed and made subject to the same order as the section provides for the undertaking.

17. This Court heard argument in closed court about matters relevant to s 13A.  It will be apparent that any sentence imposed or approved by this Court in such circumstances will be of no use as a precedent in other cases, because it may be affected by considerations that cannot be published.

18. There were undoubtedly important factors to be taken into account in the respondent's favour.  As well as the s 13A considerations, the respondent was only 17 at the time of these offences and had no previous convictions.  It is clear that he committed the majority of these offences under the influence of his father, who suggested and planned them and persuaded the respondent to recruit others to join him.  It also seems that there are positive signs that he will successfully rehabilitate himself from a lifestyle of drug abuse to which he was introduced at a very early age.

19. However, affording the full benefit of these to the respondent, we are of the view that the sentences imposed are not adequate.  The considerations to which we have just referred have to be balanced against the extremely serious nature of the criminal conduct of the respondent.  He was convicted of seven armed robberies committed over a period of almost six months.  Each of those involved the use of dangerous weapons and the targeting of persons in vulnerable situations providing an important service to the community.  Some of the victims have provided impact statements which reveal ongoing problems as a result of their traumatic experiences.

20. It is also noteworthy that the respondent continued to offend even after he and his father's relationship ceased and that he recruited two teenagers neither of whom had prior convictions to help in one of these offences.

21. The need for sentences which act as effective deterrents to those who might be minded to commit offences of this kind is obvious.

22. We would allow the appeal, set aside the sentences imposed, and substitute in each case a sentence of two years and six months.