The Queen v Lund[2000] QCA 85

COURT OF APPEAL

PINCUS J A

DAVIES J A

Mc PHERSON J A

CA No 386 of 1999

THE QUEEN

v

MARK ANDREW LUND  Applicant

BRISBANE

DATE 17/03/2000

JUDGMENT

Mc PHERSON J A:  The applicant was convicted on his plea of guilty in the District Court at Bowen of one count of armed robbery for which he was sentenced to six years imprisonment.  In addition, a declaration was made that a serious violent offence had been committed.  There was also a declaration in respect of time that the offender had spent in custody before sentencing, but that is of no moment in this application.

The circumstances of the offence are that on 4 May 1999 the applicant, together with a man called Jessop, carried out an armed robbery at a fish shop known as Something Fishy.  Through having come to know a young woman employee of the shop, the applicant had become familiar with the staffing and procedures at the fish shop that was later the target of this robbery.  It is not unimportant to notice that the information that he had was obtained in March 1999, which was about two months before the offence was committed.

Jessop, the co-offender, said that he met the applicant in Victoria, and that in April they travelled together to Airlie Beach.  Once they were there, the applicant told Jessop of the fish shop describing it as an easy place to rob.  On the day of the robbery Jessop took a bag with dark clothing in it, and both he and the applicant walked from the place where they were staying, which was Club Crocodile, to Airlie Beach. 

Jessop said he would do the robbery and the applicant instructed him to put on the dark clothes, and gave him a cooler bag in which to store the money and a pair of scissors with which to menace the victims.  The applicant also instructed Jessop to tell the people in the shop that he "meant business" and that he wanted their money.  He directed Jessop to the back door, and, while the applicant acted as a lookout, Jessop entered the shop.

Jessop demanded and received $1,166 from the two young women working in the shop that night.  He then left through the rear door.  The applicant met him, and they decamped disposing of the clothing in some mangroves nearby.  Jessop handed the money to the applicant and they returned to their room at Club Crocodile.  Jessop a little while later went out to find a friend of his and, when he returned, the applicant had gone taking all the money with him.

Jessop initially denied his involvement in the robbery but, when confronted with evidence of his identity, he admitted that he had taken part in it.  The applicant himself denied he had been involved, claiming that all he had done was to rob the robber.  However, in the course of time he must have changed his mind because in the end he pleaded guilty on the morning of the trial.

The personal circumstances of the applicant are that at the time of the offence or of sentencing he was 32 years of age, having been born on 27 April 1967.  He seems to have had a good upbringing which he has obviously not used to advantage.  He was the son of a military policeman and he went to Indooroopilly High School, which, however, he left at about junior level.  He worked in a car exhaust or muffler business for a while, in I think it was Victoria, but his work history is not attested to in great detail and there is a long period where it is difficult to know what, if anything, he was doing.

He has, however, a substantial criminal history.  In Queensland it consists of a few drug-related offences in about 1984, a conviction for stealing in the same year and a drug offence in 1999.  More recently he appears to have committed some relatively minor driving offences in South Australia, as well as some other offences of a relatively negligible kind.  In respect of those offences he was given what is called a suspended sentence bond in South Australia, and he was in fact still subject to that suspended sentence or bond at the time the subject offence here was committed.

It is in New South Wales that one finds the major entries in his criminal history.  He was convicted of some offences of dishonesty as a child; but, putting those on one side, the record shows that in 1998 he was convicted of some seven offences of robbery.  According to the record at page 23 there were five counts of assault and robbery with an offensive weapon in 1988, an assault and robbery with an offensive weapon, a conspiracy to rob while being armed and an assault and robbery with an offensive weapon, all of them dealt with at the Liverpool District Court sittings in about early 1988.

In addition to those offences, he asked for three counts of armed robbery and two counts of stealing a motor vehicle to be taken into account when he was being sentenced.  The upshot sentence in respect of those offences appears to have been five years for the first group of five robberies and a further five years cumulative for some or all of what remained.  In 1988 he was also dealt with for escaping from lawful custody, and in 1991 for breaking, entering and stealing and stealing a motor vehicle.  For the last two offences he received some 18 months and 12 months imprisonment respectively.

His record is therefore certainly not good, and it is apparent that he has not ceased offending even if, so far as records go, there appears certainly to have been a reduction in serious offences of this kind until the present offence was committed.  As to it, the learned Judge said that the offence of robbery on the fish shop was carried out in a sophisticated manner.  That description may not be entirely apt but his Honour was plainly correct in saying it showed that a degree of planning and premeditation had gone into the robbery.

There can be little doubt that the applicant promoted and counselled Jessop into carrying out the robbery and that the planning and method of its execution reflected, as the Judge thought, the applicant's previous experience in offences of this kind.

It also seems to me to be true to say in this context that, were it not for the applicant, Jessop would not have committed the offence; or so his Honour thought, and it is difficult, I think, to disagree with that conclusion.

Not surprisingly, the experience of being confronted by an armed robber has had a lasting effect on the female victims serving in the shop.  One of them declined to give a victim impact statement, but she has apparently abandoned her job at the shop there.  The other victim, a Ms Keating, did provide a statement in which she said she suffered fear and anxiety.  Her sleeping pattern has been disturbed.  In order to get to sleep, she now considers she drinks more than she did before.  She is reluctant to go out of the house and is distrustful of strangers, especially men.  The fact that these symptoms are not unusual in a person who has gone through an offence of this kind does not relieve the applicant of the responsibility for what he has done to other people.

So far as Jessop is concerned, he was sentenced by another District Court Judge to a term of imprisonment for four years suspended after a year.  The Judge in question thought five years would have been appropriate in his case, but imposed a lower sentence because Jessop had given a s 13A statement and had pleaded guilty to an ex-officio indictment.  He was expected to give evidence against the applicant whose plea of guilty, as I have said, was given only on the morning of the trial.

It is right to say that Jessop was also cooperating closely with the prosecuting authorities in ensuring that the applicant was brought to justice.  Jessop had only minor drug and driving convictions, and in 1996 two convictions for false pretences, for which relatively small fines were imposed.  He had some training and ability as a chef and the Judge who sentenced him considered that he had prospects of rehabilitating himself.  He was only 24 years old at the time, in comparison to the applicant's age, which I have said was 32; and this was Jessop's first robbery or other serious offence of that kind.

From a sentencing standpoint, the contrast with the applicant here is, to my mind, so obvious as not to require further elucidation.  In the applicant's case, his Honour considered that a head sentence of seven years was appropriate, but he reduced that sentence to six years to reflect the plea of guilty and maintain a semblance of parity with Jessop's case.  To my mind, such a term of imprisonment - that is, six years, or even seven - was not manifestly excessive for an offender with the applicant's criminal history, when taken with the planning and premeditation on his part that accompanied this robbery.

His Honour did, however, make a declaration under section 161B(3) that this was a serious violent offence.  The effect is that the applicant will serve 80 per cent of his sentence, or about four years and 10 months of the six year sentence imposed, before becoming eligible for parole.  It is the declaration to that effect that is the principal target of this application.

In the end, I have come to the conclusion that the circumstances did not warrant such a declaration.  All robberies are serious, and by definition they involve violence or threats of violence towards the individuals involved as victims.  They are usually the product of human selfishness in which the offenders seek to obtain money in order to indulge some weakness or preference of their own, at the risk of causing serious suffering, pain, and stress to those who are the targets of their attention.

It is regrettably true that the offence in this case does not differ much at all from so many others of its kind.  It falls into a general pattern indistinguishable from many other kinds of robberies with which we are depressingly familiar.  The relevant part of the Penalties and Sentences Act gives little detailed assistance in determining how the discretion to make the declaration is to be exercised.  However, if it was intended to apply more or less automatically to all robberies of what I might call the corner store type, it is difficult to see why the discretion was conferred at all.  The legislature must have been aware of the frequency with which those robberies are occurring and coming before the Courts when the relevant part of the Act was introduced.

In terms of actual violence and seriousness, this offence was really no worse than most others of its type.  In my respectful opinion, exercise of the declaration-making power under section 161B(3) should, in general, be reserved for cases of robbery possessing some special feature that mark them off from others and calls for the additional punishment that is involved in these cases.

To my mind, R v Collins (C A 238 of 1998) was an instance of an offence of that character.  Threatening victims with immolation by pouring petrol on or near them is something which, in my view, would ordinarily qualify an offender for treatment under the more severe category provided for in the Penalties and Sentences Act.

In this instance there was certainly a degree of cunning in the applicant's conduct, as I would see it, in procuring Jessop to commit this offence, and thus perhaps avoid being identified himself.  But it does not seem to me to add, either sufficiently or at all, to the seriousness or the violence of the offence itself, or to provide a good enough reason for denying the applicant the benefit of the ordinary operation of the parole provisions of the Corrective Services Act.

To my mind no identifiable reason appears why the declaration should have been made in this case, consistently with the general purposes for which the statutory provisions in that Part of the Penalties and Sentences Act may be seen to exist.  I do not think, for example, that, with such a comparatively large period of time having elapsed since the earlier robbery offences, it would be right or would have been right to make the declaration on the ground that the applicant had previously committed robberies as long ago as 1988.

That feature does not, by itself, persuade me to believe that a Judge would be justified in thinking that there was a likelihood of his re-offending in that way, either in 1999, when this offence occurred, or at some date in future if he is permitted the ordinary benefit of the parole system at the time when it would otherwise start to operate in his favour.

All matters considered, I think this was not a case where making the relevant declaration can properly be justified by reference to the nature of the offence or the conduct of the offender, or even, if it is relevant, to his much earlier offending in this way in 1998.  I would therefore allow the appeal to the extent of eliminating the declaration from the sentence imposed by the learned Judge when sentencing in the District Court at Bowen.

PINCUS JA:  Although since his release from prison about five years ago the applicant has not committed any particularly serious offences, I was at first inclined to think that the Judge's declaration, to which reference has been made in the reasons just delivered, was within the scope of the proper exercise of judicial discretion.  It appears to me that the previous violent offences are a relevant factor to be taken into account.

What has, in the end, persuaded me to agree with Mr Justice McPherson is a matter to which his Honour referred, and that is the substantial gap in time between the previous serious offences, committed when the applicant was 19 years of age, and the present offence.  I also take into account the circumstances of the present offence which have been recounted by his Honour, and therefore agree with the order proposed.

DAVIES JA:  I agree that neither the violence involved in this offence nor the combination of that with his previous criminal history were of sufficient seriousness to justify the making of the declaration which his Honour made, and I therefore agree with the orders proposed.

PINCUS JA:  The orders of the Court will be application granted; appeal allowed to the extent of deleting the declaration which his Honour made that the offence constituted a serious violent offence within the meaning of the Penalties and Sentences Act 1992, that that declaration is to be deleted and sentence otherwise confirmed.