R v Moss[1999] QCA 426

COURT OF APPEAL

McPHERSON JA

DAVIES JA

JONES J

CA No 270 of 1999

v.

TERRY ANDREW MOSS

(Applicant) Appellant

BRISBANE

DATE 08/10/99

JUDGMENT

McPHERSON JA: The applicant for leave to appealagainst sentence in this matter was convicted on his own plea of guilty in the District Court at Townsville. The offence of which he was convicted was armed robbery, and the sentence imposed in respect of it was imprisonment for six years, with a recommendation for parole after two years.

What happened was that on the night of 26 November 1998 the complainant, who was a 19-year-old university student, was working alone at a Video Ezy store at the time when the applicant came in. It was then about 11 p.m., and the applicant chose a video and walked to the front counter where the complainant was waiting to serve. After a brief conversation, the applicant turned away, and then turned back again to face the complainant.

He produced a knife from his clothing, where it had been concealed, and pointed it at the complainant. The knife was about 20 centimetres long, with a black handle and had a serrated blade. The applicant said to the complainant, "I'm going to make this real simple for you. I'm going to take all your money and you're going to give it to me now."

The complainant backed away and the applicant made as if to climb over the counter. The complainant then put his hands in the air and moved to the cash drawer. When he began removing money from the till, the applicant took his foot off the counter. The applicant demanded $50 and $100 bills.

Two customers entered the store at about this time and the applicant hid his knife from their view. He told the complainant to "fucking hurry up", and then reached over the counter and removed the money from the till before leaving the store. The sum taken was about $450.

The robbery had, meanwhile, been recorded on video tape. The applicant wore no disguise, and was recognised by a member of the public after the police had made a media release. His fingerprints were located on the front counter in the video shop.

The applicant had, in the meantime, left Townsville and travelled to Perth via Darwin and Alice Springs. He was ultimately extradited from Western Australia and remanded in custody. He pleaded guilty to an ex officio indictment in respect of the charge, on a case which has been described as, which no doubt was, overwhelmingly strong.

The Crown Prosecutor, at the sentence hearing, submitted that the starting range for an offence of this type should be four years. At the request of the learned sentencing Judge, the prosecutor obtained statistics about the number of armed robberies which had been recorded in the last months in the northern region, which includes the Townsville district and the Townsville region. Those statistics refer to robberies from shops, service stations, convenience stores and video stores.

The Crown Prosecutor submitted that the aggravating features of this robbery were that a knife was used, the employee was alone, the applicant persisted with the offence after customers had entered the store, and that the applicant was on probation. For the defence reference was made to the applicant's poor background and upbringing, as being an explanation, at least in part, for his criminal history, which began when the applicant was a juvenile.

There was an offence, or more than one offence, in the Rockhampton Magistrates Court, which gave rise to the probation to which I have already referred. That offence or offences in Rockhampton were sought to be explained in the context of their being associated with a failed attempt to effect a reconciliation between the applicant and his father, whom the applicant had not seen for some 10 years.

It was submitted on behalf of the applicant at the hearing that he had very little recollection of the subject offence of robbery because he was under the influence of a mixture of drugs and alcohol. It seems clear that the offence was not the result of financial need, as the applicant was earning relatively good money at the time by working on a mango farm.

The offence was, there is no doubt, unsophisticated, in the sense that no disguise of any kind was used and it was fairly open to expectation, even on the part of the applicant, that he would be identified in committing an offence in that fashion. It does suggest that the activity in question was unplanned, and this perhaps goes some way to support the idea that it was precipitated by using alcohol and cannabis.

Of course that, as has often been remarked, does not excuse, though it may perhaps go some way to explaining, what happened. The applicant has been undertaking, and before sentence while in custody was undertaking, a program designed to help him suppress his tendency to abuse substances of this kind.

At the time of sentencing the applicant, who was born on 7 May 1980, was aged 19, and he was only 18 at the time of the offence. He has, however, a considerable prior criminal history, most of the offences having been committed at a time when he was a juvenile.

In the particulars that are given in the record and which are summarised in the applicant's outline, it appears that in 1995 he was twice dealt with for a total of some three counts of aggravated assault in Darwin.

In the case of the first two, sentences of four months' imprisonment were imposed. In respect of the later one he was released on entering into a good behaviour bond after three months' detention.

Then in 1996, there were convictions for unlawful use of a motor vehicle, unlawful entry, aggravated assault, assault, unlawful entry, stealing, doing criminal damage, and so on.

These sentences are described as having been reconsidered at the end of 1996, with the result that the applicant was sentenced to imprisonment for six months and 14 days which was suspended at some stage.

However, in May 1998, he was before the Rockhampton Magistrates Court on a charge of assault occasioning bodily harm, together with a charge of stealing, and one of wilful damage, in respect of which he was sentenced to imprisonment for three months and probation for 24 months. He was ordered to pay restitution of $8660.

There is no doubt that, judging by what is said about his childhood, he had an unfortunate background in that both his mother and father seem, at an early stage of his life, to have concerned themselves very little with his welfare.

The problem is, however, that the offence here is a serious one. It carries a maximum of life imprisonment and comparable sentences to which we have been referred, or to which we have access, suggest a range for a first offence of this kind that is ordinarily between about three and five years.

The real basis of the application for leave to appeal before us in this Court can, I think, be fairly summarised by saying that it is submitted that the sentence of six years imposed in this case is, by a substantial margin, beyond that imposed in the case of The Queen v. Mather (CA 76 of 1999) which is a case in which a sentence of four years was imposed for a robbery that was not dissimilar in its circumstances.

The other point that is made with some force is that His Honour in the present case appears to have considered it necessary to initiate an increase in the appropriate sentencing range, and to do so on the assumption that the current range determined in this Court is an inadequate deterrent.

So far as that point is concerned, I consider that there is really nothing in the informal statistics to which His Honour had reference to establish a perceptible increase in the offence in the area considered by His Honour in recent times, or an increase to such an extent as to justify His Honour's initiating the sentencing increase referred to.

His Honour certainly placed great reliance on the factor of deterrence in arriving at the sentence he did, and the question is whether the factors to which I have referred justify an enlargement in the basic or head sentence which His Honour seemed to consider was justified.

The facts of the present case are in my view, both as to the method by which the offence was committed and the personal background of the offender, more serious than that in The Queen v. Mather. The case of Mather was one in which no dangerous weapon was in fact used to perpetrate the offence. It must be added that in that case some attempt at a disguise was made, but both cases are similar in the respect that the offender seems to have engaged in the offence in a fairly precipitate fashion. It may be added that, in Mather's case, there had been some planning, and in this there is no evidence of planning of any kind.

More cogent, however, is the fact that in Mather's case the offender had a good work record, with no previous convictions for dishonesty or for violence. He was somewhat older than the applicant in this case and, in every respect that is relevant to this matter, his offence seems to have been well outside the normal range of his behaviour or previous character.

What His Honour did in this case was to impose a higher head sentence or tariff, accompanied by a fairly generous recommendation for parole which was designed to reflect the personal factors operating in favour of the applicant.

For my part, I think that the process or practice of maintaining the tariff, and reflecting mitigating personal factors by means of a recommendation for parole, is perhaps a desirable approach because it maintains consistency in sentencing. However it is my view that in this case His Honour's initiation of a new range of sentences for armed robberies of this kind is not justified by the circumstances as he saw them or by such differences as there are between this case and The Queen v. Mather. Morevoer, in that case, it may be noticed that when it came on appeal a sentence of four years imprisonment was said by Mr Justice Thomas, with the concurrence of the other two members of the Court, to be "quite high", and possibly at the top of the range. I think it also correct to say that some allowance has always been made in cases of this kind for the fact that the applicant is a young first offender, by which I mean a first offender in respect of a violent offence of this kind. When all those matters are considered, I think that the disparity of two years in the head sentence between this case and The Queen v. Mather cannot fairly be justified.

Having regard, however, to my view that this is a more serious instance of armed robbery than that in Mather, and that it has certainly had an adverse effect on the victim who was serving the community in a vulnerable position, I consider that an appropriate sentence in this case would have been five years rather than the six years imposed, or the four years imposed in The Queen v. Mather.

It follows, in my opinion, that the application for leave to appeal should be granted. The appeal should be allowed and the sentence imposed below varied by reducing it from a sentence of imprisonment for six years to a sentence of imprisonment for five years.

The other orders including the order with respect to parole, and the order declaring the period of custody to be time served under the sentence, are not intended to be disturbed by what I have said.

DAVIES JA: I agree with his Honour's reasons and with the orders he proposes. I would like, however, to add some remarks to his Honour's remarks about the comments of the learned sentencing judge both during the course of argument and in the course of his sentencing remarks which are, in my view, properly construed of demonstrating an intention to set a new range of sentences for offences of armed robbery based, as he thought, on some statistics which he had sought and obtained.

My first comment is that nothing is more likely to lead to inconsistency and consequently justifiable senses of grievance than different District Court judges setting different ranges for particular kinds of offences.

When the range is to be changed that should be done as appropriate by this Court not by individual judges of the District Court.

The second is that there's nothing wrong with looking at statistics or with looking at the prevalence of offences, but that should be done sensibly and on the basis of reliable statistics, and I agree with the remarks of the presiding Judge that the statistics in this case weren't reliable.

They didn't show, for example, that offences for armed robbery in the Townsville area were increasing, or decreasing or remaining static, or, indeed, that they were worse in the Townsville area than in any other city of commensurate size.

The third comment I want to make is that some of the remarks made by his Honour during the course of argument about this Court were wrong, were unnecessary and were inappropriate.

JONES J: I agree with the orders proposed and the reasons for them suggested by the presiding Judge and with the remarks of Mr Justice Davies.

McPHERSON JA: Yes, I think I should add my agreement with what Mr Justice Davies said.

The order will be as I have stated. That is to say the application is granted. The appeal is allowed and the sentence imposed below is varied by reducing it from six years imprisonment to five years imprisonment.