R v Slattery[2001] QCA 108

COURT OF APPEAL

McMURDO P

MOYNIHAN J

DUTNEY J

CA No 354 of 2000

THE QUEEN

v.

MICHAEL JOHN SLATTERY Applicant

BRISBANE

DATE 21/03/2001

JUDGMENT

DUTNEY J:  The applicant pleaded guilty in the District Court to an offence of armed robbery in company, for which he was sentenced to a term of three years' imprisonment suspended after nine months for an operational period of three years.  He seeks leave to appeal against that sentence.

Apart from the applicant, the co-offenders were aged respectively 14, 15 and 15.  The applicant was aged 21 at the time of the commission of the offence.

Briefly the circumstances of the offence were as follows.  The applicant was the driver of the motor vehicle used in connection with the robbery at the Matilda Service Station at Wardell Street, Enoggera.  On the day of the offence, 24 January 2000, the applicant was drinking with the co-offenders in a park.  The applicant was asked by one of the co-offenders to drive the group to the service station.  According to the applicant's account when interviewed by the police:

"They pulled me aside and asked if I would be willing to park the car round the corner while they went into the servo and stole money, and because I had a couple of beers in me, I agreed to do it."

The robbery occurred at 11.30 in the evening.  The applicant says he was not aware a knife would be used in the robbery, but did concede thinking one of the co-offenders might pretend to have a gun in his pocket.

During the robbery, the co-offenders covered their faces by wrapping shirts around their heads.  One demanded money, $560 and some cigarettes were stolen.  The co-offenders returned to the vehicle where the applicant had remained throughout.  The vehicle was apparently some blocks from the scene.  One of the co-offenders had been involved in a robbery at the same service station only a couple of days earlier.  The applicant's share of the proceeds amounted to only $20.  To some extent this may reflect the relative importance the parties placed on the applicant's role.

Ordinarily one could anticipate a significant period of actual imprisonment for involvement in an armed holdup.  The applicant had previous convictions.  He had been fined $300 for stealing in November 1999, only a couple of months prior to this offence.  He also had some minor drug convictions in November 1999 and September 2000.

Despite the fact that the sentence imposed of three years' imprisonment suspended after nine months, is high for a driver with little relevant prior criminal history.  It would not necessarily be considered outside the appropriate range, particularly if the adult had encouraged the juveniles to involve themselves in the crime.  Despite this, the applicant says that it is manifestly excessive on the facts of this case and so grossly disproportionate to the sentences imposed on the co-offenders who actually carried out the robbery that it warrants intervention.

The sentences imposed on the co-offenders were respectively apportioned for the 14 year old, 12 months' probation for the 15 year old who had previously robbed the service station and community service for the remaining 15 year old.

For the applicant, it is submitted that the sentencing Judge ought to have had regard to the sentences imposed on the co-offenders in sentencing the applicant for what was submitted was his relatively minor role in the crime.  Notwithstanding that the co-offenders were sentenced under the different sentencing regime of the Juvenile Justice Act 1992, there is some support for this submission in Harvey v. Bennett & Bennett, COA Nos 443 and 449 of 1998, 26 February 1999.

In that case, the adult offender was sentenced to two years' imprisonment suspended after four months, and the juvenile to eight months' detention to be released after four months for one count of grievous bodily harm.  In reducing the sentences, the Court remarked on the unfairness of sentencing one offender to a term of imprisonment and not the other, despite the different sentencing regimes.

The sentencing regimes under the Juvenile Justice Act and the Penalties and Sentences Act are so different that ordinarily no useful comparison can be made.  However it must be noted that in Bennett, the disparity in ages was little more than a year.  Here it was at least seven years.  This is an important distinction, particularly where a psychological assessment of the applicant carried out for the sentencing found him to be of good average intelligence, albeit with poor impulse control and a tendency to act without proper consideration of the consequences.  This does not suggest the applicant was of such a level of immaturity or diminished intelligence as to be overborne or unduly influenced by his juvenile co-offenders.

Despite the obvious difference between this case and Bennett, I consider where the co-offenders were dealt with so leniently it would have been appropriate for the learned sentencing Judge to at least consider the sentences the co-offenders received, even if only for the purpose of indicating why they provided little or no guidance for the proper sentence for this applicant.

Having regard to all of the matters to which I have referred, I consider the sentence imposed on the applicant to be both so high and so grossly disproportionate to the penalties imposed on the juvenile offenders as to constitute a basis for interference by this Court.

Despite this and notwithstanding he was not physically present at the time and did not know of the knife, I consider involvement in a knife robbery on a service station or any other business, particularly at night, usually warrants a custodial sentence as a deterrent to others.

Having regard to the age discrepancy between the applicant and the co-offenders, I do not consider there should be a relative parity of punishment that might otherwise have been the case.  The applicant should be dealt with on his own merits as an adult offender.  The applicant has already served 131 days in custody.  This is a little over four months' actual imprisonment.  I consider a term of imprisonment of 131 days followed by probation would in the circumstances of this case be consistent with sentences imposed or upheld by this Court in R v. Carlton, Ex Parte Attorney-General Court of Appeal No 289 of 1990, 26 November 1990, R v. Read, Ex Parte Attorney-General Court of Appeal 550 of 1994, 15 March 1995, and R v. Taylor & Napatali (1999) 106 Australian Criminal Reports 578.

I would allow the application, set aside the sentence imposed below and substitute therefor a sentence of 131 days' imprisonment followed by two years' probation.

THE PRESIDENT:  I agree.  It seems odd that an apparently intelligent 21 year old would involve himself with 14 or 15 year old juveniles in such serious offending behaviour.  But this is not a case where the adult offender acted as puppet master, instigating the offence and leading innocent youths into criminal conduct.  On the contrary, he was asked by the juveniles to drive them to the scene of the crime.  He parked his vehicle some distance from the premises which were robbed and his role seems to be less than that of his juvenile co-offenders.

The applicant is perhaps fortunate that his co-offenders were juveniles.  Were they adults, it would be more difficult for him to establish that the sentence imposed was manifestly excessive.  Despite the very significantly different approach of the sentencing regimes for juveniles and adults, on the unusual circumstances of this case, some consideration should have been given by the learned sentencing Judge to the sentence imposed upon the juvenile co-offenders.

Taking all the relevant factors set out by Justice Dutney in his reasons, it seems unjust that the applicant for his lesser role is here sentenced to a substantial period of imprisonment while his co-offenders who played a more significant role were dealt with so much more leniently.

That is not to say an offender who chooses to commit offences with juveniles will necessarily receive a lesser sentence than if his co-offenders were adults.  Indeed in many cases, that may be an aggravating feature leading to a heavier penalty.

The applicant at 21 is still a young man.  His offending behaviour suggests he has a problem with substance abuse.  It is particularly concerning that he committed a minor drug offence whilst on bail for this offence.  He has not previously had the benefit of a probation order.  It seems likely that such an order would benefit both him and the community.

I am conscious of the seriousness of the offence, but after weighing up all the competing interests in the case, I am persuaded that the sentence imposed at first instance was manifestly excessive and that the sentence proposed by Justice Dutney is appropriate.  I understand the applicant has consented to such an order which has been explained to him by his lawyers and I agree with the order proposed by Justice Dutney.

MOYNIHAN J:  In my view, it has not been demonstrated that the sentence imposed was outside the exercise of a sound sentencing discretion.  The trial Judge in particular properly took into account and gave considerable weight to the fact that the applicant was a willing participant in the enterprise which he knew was to involve the robbery at night of a service station where there was a single attendant.

His Honour placed great stress on the need to deter people from engaging in activities of this kind directed against what is commonly called "a soft target."

Bennett, which has been referred to, to my mind is an obverse situation to this and is of no application to the present circumstances.  I have grave reservations about the notion that people ought to be advantaged in sentencing because their co-offenders are sentenced under the different juvenile regime, but it is unnecessary to decide that consideration here. 

As I say, the trial Judge was properly entitled to take into account the circumstances to which I have earlier referred, and to give weight to the need for deterrence notwithstanding the way in which juveniles may have been dealt with, and I would refuse leave.

THE PRESIDENT:  The order is as proposed by Justice Dutney.

MR RAFTER:  Your Honour, it's necessary for the order to stipulate the place at which he must report and the appropriate place is Chermside.

THE PRESIDENT:  So it's on the terms and conditions under Section 103 of the Penalties and Sentences Act and he is to report to Chermside.

MR RAFTER:  My instructing solicitor has explained to him all of the requirements and has obtained his consent to a probation order.

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