R v Brookes[2001] QCA 112

COURT OF APPEAL

McPHERSON JA

WILLIAMS JA

BYRNE J

CA No 7 of 2001

THE QUEEN

v.

MICHAEL JAMES BROOKES

BRISBANE

DATE 22/03/2001

JUDGMENT

McPHERSON JA:  The applicant seeks leave to appeal against a sentence of three months imprisonment imposed after his own plea of guilty in the District Court in respect of a single count of robbery in company with personal violence.

The circumstances of the offence are that on 14 December 1999 at about six in the evening, the complainant was waiting at the Murarrie Railway Station.  He was approached by the applicant and two other individuals, H and J.  Both the other two associates were, it may be noticed, juveniles.

J asked the complainant and one of his friends for money and then moved away, only to return with H.  A demand was then made for the complainant's watch and when it was not delivered J punched the complainant on the right jaw before taking his skate board.  He again demanded the watch and hit the complainant over the head with the skateboard.  H took the complainant's hat, demanded his shoes, and then punched him in the right eye.

When the complainant attempted to escape from this dilemma, the applicant Brookes who had been some little distance away until then, moved around so that the complainant was confronted by all three youths.  The complainant was punched again by the juveniles and, on this occasion, the applicant, and he was kicked by H and by J.

While he was on the ground, the applicant took the complainant's shoes and the offenders removed themselves from the scene.  As a result of this treatment, the complainant suffered a black eye, a cut lip, swelling to the face and back of the head, and soreness to the stomach and rib area.  He was also shocked and dizzy.

The personal circumstances of the applicant are that he was aged 18 at the time of the offence and 19 at the date of sentencing.  He has a prior criminal record including dangerous driving, two counts of unlawful use of motor vehicles, wilful damage at night, four counts of stealing and attempted unlawful use of a motor vehicle, two counts of receiving, three counts of breaking, entering and stealing and, on a later occasion, unlawful use of a motor vehicle, three counts of breaking, entering and stealing and so on.

These convictions were recorded in both the Children's Court and the District Court during 1997 and 1998, the last of these offences having been in late 1998.

The maximum penalty for an offence of this kind is 14 years imprisonment.  On behalf of the applicant it is submitted that the sentence was manifestly excessive, that he was not the principal protagonist in the criminal activity, that he was 18 years old at the time and had no previous convictions for violence, and, principally, that the Judge under-rated, or took insufficient account of, the prospects of rehabilitation of this applicant.

In that regard it should be noticed that he has had various forms of community service by way of penalty or treatment, and it is said that he responded well to them.  However, that was before he became involved in this offence, and for my part, I cannot see that her Honour was bound to give more weight to the prospects of rehabilitation than she in fact did in this case.

So far as the penalty is concerned, a sentence of three months imprisonment is consistent with, for example, the penalty imposed in R v. Anderson (CA 303 of 1997), and it does not seem to me that on any view of the matter a penalty of that degree of modesty can be regarded as excessive for an offence of this kind.

Apart from those matters, the factors that obviously weighed with her Honour in imposing the sentence that she did included the fact that the aspect of the offence in which the applicant was involved was, on one view, the most serious part of it.  It looks to my mind very much as if a degree of planning went into it in the sense that continued resistance by the victim was met by a further individual joining the group of the offenders in such a way as to impress him with the fact that there was no escape from what they were aiming to do.

It seems unlikely to my mind that that state of affairs resulted simply by accident.  The offence, of course, involved the use of considerable violence which took place without provocation and for motives simply of greed.  It came from three offenders against one victim and can fairly be described as a cowardly attack in a public place where the complainant had every right and reason to be.

Although this is the applicant's first offence as an adult, he was not by any means a first offender and he has received the benefit of probation, community service and an immediate release order in the past.  There was no good reason, so far as I can see, to believe that continuing these methods of attempting to rehabilitate the applicant would have achieved much more than it already had.

There is, as her Honour observed, plainly a strong deterrent element in sentencing for offences of this kind and in the circumstances in which it took place.

Apart from that question of rehabilitation it seems to me, from reading the written outlines, that the underlying complaint is one of disparity in sentencing between the applicant and the other offender who has been apprehended who is H. 

He received a non-custodial sentence from his Honour Judge Pratt although it may be added that he had also spent 142 days in custody.  The simple answer to the complaint about disparity is that H was a juvenile and the applicant is an adult.  The Juvenile Justice Act 1992 (Qld) retains the policy, now at least partly removed from the Penalties and Sentences Act 1992 (Qld), that with young offenders a custodial sentence is designed to be exceptional.  It is not the function of a sentencing Judge to attempt to "even up" the two different sentencing regimes.

Her Honour here did not fall into that error by attempting in any way to do so.  Having regard to the applicant's experience in the Children's Court and, in fact, in one instance the District Court, he must be aware of the different sentencing regimes that prevail in respect of children and adults.  It may explain why he stood back and participated in the robbery only when his presence was required to ensure that the complainant did not escape.  It may also explain, although I do not say that this is the fact, why his two more active associates happen to be juveniles.

The lucky days when the applicant was subject to the less severe sentencing regime of the Juvenile Justice Act are now over, at least for him.  Youth no longer possesses, since 1977, quite the same mitigating weight or cogency as it had before then.  See, for example, R v. Lovell [1999] 2 QdR 79.

The applicant must be aware now that if he participates in offences with juvenile associates, there is likely to be a disparity in the sentences imposed on him and on them.  It is something he cannot, of course, complain about here.  His duty as an adult is to discourage juveniles from committing crimes and not to assist them in doing so.

The learned sentencing Judge, in my opinion, made no error of judgment or discretion in the sentence she imposed or in the reasoning that led her to it.  In my view, the application should be dismissed.

WILLIAMS JA:  This was a particularly serious offence involving some planning committed by the applicant who had previously been given the benefit of probation, community service and an immediate release order. 

The sentence imposed was not manifestly excessive.  I agree with what has been said by Justice McPherson on the issue of parity of sentencing as between this applicant and the co-offender H.  The application should be refused.

BYRNE J:  I would also refuse the application for the reasons given by the presiding Judge and by Justice Williams, with which I agree.

McPHERSON JA:  The application for leave to appeal against sentence is dismissed.  Order that a warrant issue for the apprehension of the applicant.  Such warrant to lie in the registry for seven days or such other period as may be allowed.

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