R v Brown[2000] QCA 402

COURT OF APPEAL

McPHERSON JA

THOMAS JA

WHITE J

CA No 183 of 2000

THE QUEEN

v.

WAYNE GARY BROWN Applicant

BRISBANE

..DATE 29/09/2000

JUDGMENT

McPHERSON JA:  The applicant was convicted on his plea of guilty in the District Court of the offence of armed robbery with personal violence.  He was sentenced to imprisonment for six years with a declaration of having spent 111 days in custody.  Now he wishes to appeal against the severity of his sentence.

He entered the Mermaid Beach Post Office at 11.30 a.m. on the morning of 8 November 1999.  His face was covered and he was holding a toy plastic gun, as it turned out to be, and a shopping bag.  He demanded money from the postal employees and jumped on the counter and ordered them about.  He opened the cash till, the drawer of which fell on the floor, spilling its contents.

He then ordered one of the employees to get on to the floor and he pushed him down using some force to the back of the employee's head.  He tried to pick up the money, but without much success.  He shoved the shopping bag into the face of one employee, who suddenly grabbed the applicant's hand and engaged in a struggle.  The applicant eventually lost his grip on the bag and fled the scene, pursued by one or more of the postal workers.  He was caught and held until the police arrived.

It was a graphically unsuccessful enterprise, which is not to say that it did not induce fear in those who were the targets of it.  Postal workers in that part of Queensland seem to be frequent victims of crimes of this kind:  see for example R v. Martin & King [1999] 10 September, in this Court, involving another daylight robbery, on that occasion at the Post Office at Tugun.

The head sentence is, I think, within the range for an offence of this kind, perpetrated as it was on persons working in a public institution that serves the community.  It is in fact not far removed from the sentence propounded by the experienced solicitor who appeared for the applicant at the hearing.  He submitted that a head sentence of six to seven years, with a recommendation after two and a half years was appropriate; or alternatively, five years with no such recommendation.

The sentence imposed here of six years is not far removed from that result.  The real problem confronting the applicant is his age and his criminal record.  He is no longer a young man.  He was 39 at the time of the offence and is now 40 years of age.  He has a long history of offences.  It began when he was only 11 years old, and, from the time when he was 18, he sustained the following convictions.

First, some 10 or 11 counts of break and enter, together on one occasion with a schedule of numerous such offences; also possession of stolen goods on one or more occasions; some 11 or more instances of armed robbery; offences of impersonation, larceny and false pretences; being in possession of an offensive weapon on two or more occasions; and escaping lawful custody at least five different times.

I infer from some of the material before us that the applicant has an alcohol problem, and it may be, having regard to his record, that he was not properly cared for when he was young.  What goes considerably in his favour is that he has committed no offence during the last 10 years or so, apart from a minor offence of obstructing the police in 1998 for which he was dealt with in the Maroochydore Magistrates Court by the imposition of a small fine.

It is evident that he has made an effort to rehabilitate himself and had done so with some success until this offence intervened.  He shared a domestic life with a woman and her three children, and she has provided a favourable reference for him.  He has a commendation from at least one former employer, who gave the reference while conscious of the applicant's criminal history.  What is more, of course, he pleaded guilty and has shown real remorse in a letter he wrote apologising for what he had done.  To my mind, it looks genuine.  Since going to prison, it is said, he has tried to improve himself through TAFE courses.

It seems that what prompted his action on this occasion was that he was experiencing serious financial problems, and at least in part was trying to help his grandmother remain in an old people's home in which she was being looked after.

It is certainly regrettable that he returned to crime in order to try to solve his difficulties, but he does appear to understand the seriousness of what he has done and, unusually, in my experience, accepts that he must undergo punishment for his offence.

Even taking these mitigating factors into account, it remains difficult to describe the sentence imposed as excessive, harsh or severe; a term of imprisonment for six years is well within the range, as is accepted by counsel for the applicant in this case.  The applicant's outline refers to a range of from six to possibly eight years. 

Given the applicant's criminal record and his mature years, the learned sentencing Judge can be seen to have taken account of the applicant's plea of guilty, of his remorse, and of his 10 year abstinence from crime by adopting a head sentence that was at the lower, if not the lowest, level of the range referred to.

Having done so, his Honour was not required to reduce the penalty even further by making a recommendation for parole.  In any event, the applicant's submission, both here and in the Court below, was for a recommendation at two and a half years of the sentence, which is only six months earlier than the statutory halfway mark that would otherwise apply in the case of a six year sentence.

I do not consider that, having regard to the principles on which this Court ordinarily acts in considering applications of this kind, it would be proper to make an adjustment of that order; and indeed I am not persuaded that it is properly within our discretion to interfere with the sentence below.  In consequence, I would refuse the application for leave to appeal against sentence.

THOMAS JA:  The circumstances that have been mentioned by Mr Justice McPherson suggest to me that a more compassionate view of the applicant and his actions was open than the learned sentencing Judge seems to have taken.

The sentence is greater than that which I would have imposed if I had a general discretion to impose the sentence.  However, my function is limited to appellate review and I cannot say that the sentence lies outside the range available or that it was manifestly excessive.

I agree generally with what Mr Justice McPherson has said and with the order that he proposes.

WHITE J:  I agree both with the reasons of the learned Presiding Judge and with those expressed by Justice Thomas and concur in the order proposed.

McPHERSON JA:  The order is that the application for leave to appeal against sentence is refused.