The Queen v De Villiers[1999] QCA 422

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

JONES J

CA No 165 of 1999

THE QUEEN

v.

ADAM MICHAEL DE VILLIERS

(Applicant)Appellant

BRISBANE

DATE 07/10/99

JUDGMENT

JONES J:  Adam Michael De Villiers appeals against sentences imposed by the District Court at Ipswich upon his conviction following pleas of guilty to eight offences on 18 January 1999.

Details of the offences are:

24 July 1998, one count of armed robbery in company for which he was sentenced to five years' imprisonment;

30 July 1998, one count of armed robbery in company for which a penalty of three years' imprisonment was imposed;

1 August 1998, two counts of armed robbery in company together with one count of doing grievous bodily harm with intent, one count of wounding, and one count of unlawful use of a motor vehicle.  For the principal of these offences, he was sentenced to eight years' imprisonment.

The grounds of his appeal are that firstly the sentence is manifestly excessive, secondly that there is no parity between his sentence and the sentence given to a co-offender, Desmond John McPherson.

The appellant was born on 14 June 1981 and therefore was at the time of the offences little over 17 years of age.  He had to be sentenced in accordance with the principles set out in the Penalties and Sentences Act 1992.

In respect of each of the charges, the appellant was in the company of the co-accused, McPherson.  McPherson also pleaded guilty to the offences and was later sentenced by the same Judge.

On the material available, the conduct of McPherson involved the use of a knife in each of the robberies to threaten either a hostage or a person in charge of the funds which were to be taken.

McPherson's conduct caused the learned sentencing Judge by way of comparison with the conduct of the appellant to observe:

"You do not seem to me to be the main offender involved in these offences.  You did not actually use a knife and even on the occasion that you carried a knife you did not actually threaten anybody with it.  You are very much on the periphery for count 2 on indictment 1".

That is the second of the offences I mentioned.  Later, Her Honour went on to say that the appellant was not the main perpetrator.

In her remarks, when sentencing McPherson, the learned sentencing Judge said:

"On 18 January 1999 I sentenced your co-accused, Adam De Villiers to the total of eight years' imprisonment with a recommendation after three years for those offences.  He was older than you in that he was 17 years of age and therefore an adult.  However he had no previous conviction and his involvement in these offences was less serious than yours in that he was the driver for one of the robberies and he was not the person who was armed on each occasion as you were."

It is clear from these two passages that the learned sentencing Judge was well aware in respect of each of the proceedings, of the fact that McPherson's conduct carried a higher level of criminality than the conduct of the appellant.

The appellant had no previous convictions, whereas McPherson did.  All factors suggest that if McPherson were to be sentenced under the same legislative regime, he would have received a more severe penalty.

That is not the case.  Mr McPherson was required to be sentenced as a juvenile and the appellant as an adult.  The principles appropriate to McPherson's sentencing are set out in sections 3 and 4 of the Juvenile Justice Act, particularly section 4C(1) which provides that detention in custody should be only as a last resort and section 109 subsection 2 paragraph (e) which calls for detention for the shortest appropriate period.

For the appellant, the offences involved serious violence, to which I will soon make reference.  Regard therefore has to be given firstly to the terms of section 9, subsection 3 of the Penalties and Sentences Act which removes from consideration the principles set out in subsection 2, namely that imprisonment should only be imposed as a last resort.

On one view it may seem strange that three months' difference in age could make so much difference in penalty.  But the line has to be drawn somewhere and the fact that it is drawn at 17 years of age is not a matter which can be ignored. 

Ages and time limits feature in the creation of all manner of legal obligations and rights.  The fact therefore must be accepted that the learned sentencing Judge was bound to sentence McPherson as a child and to sentence the appellant as an adult.  In my view, the "parity rule" therefore does not apply.

Turning now to the circumstances of the various offences.  The first robbery occurred at 10.30 p.m. on 24 July 1998 when the appellant and co-accused entered the Eagle Boys Pizza shop at East Ipswich. 

McPherson was wearing a balaclava and carrying a hunting knife.  Upon entering the store McPherson immediately grabbed a customer, a 17-year old girl, and held the knife to her throat.  The appellant then demanded money of the manager of the store and he was given $1,900 in cash.  The appellant was at that time in possession of a small knife but it was not used in any threatening manner.

The second robbery occurred six days later.  On this occasion McPherson entered a BP service station wearing a balaclava and carrying a knife or a machete.  The appellant knew that McPherson intended to rob the service station but he remained outside in a car by which they were able to effect a getaway.  In the course of the robbery McPherson was given $360 from which the appellant received $250.

The next set of offences occurred on 1 April 1998.  It commenced with the stealing of a car outside the Ipswich General Hospital.  The appellant and McPherson in the company of two other offenders drove the vehicle to Hervey Bay.  There they selected a convenience store to rob.  It was night time. 

After surveying the scene the appellant and McPherson entered the store while the other two remained in the car.  McPherson was again wearing a balaclava and armed with a knife.  At the time four women were in the store including the shop assistant, Mrs Watson.  McPherson grabbed her around the throat and held the knife to it, pushing the point into her neck.  The appellant and McPherson demanded the money.  The appellant approached one of the other women, Mrs Muller, and grabbed her purse.  Mrs Watson obtained a cash drawer which was placed into a calico bag that the appellant was carrying.

Whilst this was happening two men, Mr Osborne and Mr Muller, entered the store.  Mr Osborne was a part-owner of the store and Mr Muller was the husband of the woman whose purse was taken.  A struggle ensued during the course of which McPherson stabbed Mr Osborne causing him serious physical injury.  The appellant in the meantime was fighting with Mr Muller continually hitting him over the back of the head with the money drawer which had been placed in the calico bag. 

The appellant and McPherson were able to overcome the two men and they then fled the scene.  The appellant was obviously aware prior to embarking on this robbery that McPherson intended to use the knife to threaten the victims.  The appellant himself quickly resorted to violence once there was a prospect of his being apprehended.

A mere recitation of the facts illustrates the seriousness of their behaviour.  Further reflection upon the harm done to the victims, the physical damage to Mr Osborne and the psychological damage no doubt caused to the other victims obviously calls for a very significant punishment. 

The prosecutor, both at the time for sentencing submissions and now before us, concedes that Her Honour's sentence was towards the top of the range for the offence but argues that it cannot be said that she erred in imposing such a head sentence for this combination of offences. The question also arises whether the learned sentencing Judge made sufficient allowance for factors which she did consider when making her recommendation for early release.  She then referred to the appellant's young age;  the absence of any prior conviction;  his lesser role in commission of the offences;  lack of parental supervision in his teenage years;  his cooperation with the police;  and his early indication of a plea of guilty.

Of these, the important aspects appear to me to be the appellant's young age and the fact that despite his being forced out of home and living on the streets from the age of 15 he had no prior convictions.  These offences were committed over an eight-day period.  For the appellant, his conduct was in the nature of a criminal spree with little evidence of any deliberate planning. 

The principal motivation for the offences appears to have been to finance McPherson's drug habit.  Further reference is made in the appellant's submissions that there are positive signs that he will undergo successful rehabilitation. 

Weighing all these matters and considering the list of cases referred to us by counsel for the appellant I have come to the view that Her Honour's penalty is excessive, importantly, having regard to the appellant's young age and lack of prior convictions.

In attempting to consider his conduct and its effect and attempting to assess the benefits of having a shorter period in gaol for one so young I have come to the view that the appropriate sentence should be six years' imprisonment with a recommendation for consideration for release after serving a period of two and a half years.

THE CHIEF JUSTICE:  I agree that the application should be allowed to the extent of substituting orders as indicated by Justice Jones for the reasons he has assigned.

DAVIES JA:  I also agree.

THE CHIEF JUSTICE:  Those will then be the orders of the Court including, of course, an order that the appeal be allowed.

...