R v Meiers[2001] QCA 139

COURT OF APPEAL

WILLIAMS JA

WHITE J

HOLMES J

CA No 280 of 2000

THE QUEEN

v.

RHYS WAYNE MEIERS

BRISBANE

DATE 10/04/2001

JUDGMENT

WILLIAMS JA:  I will ask Justice White to deliver the first judgment.

WHITE J:  The applicant for leave to appeal against sentence was convicted after a trial of armed robbery on 4 September 2000.  He was aged 17 at the time of the offence, having been born on 9 July 1982.

He was sentenced on 7 September 2000 to five years imprisonment and a declaration of 94 days pre-sentence custody was made.  He contends that the sentence imposed was manifestly excessive.  Mr Moynihan, who appears on his behalf, has submitted that the sentence should have been a term of imprisonment in the range of two to three years.

The applicant has previous convictions, including one for attempted robbery, to which I shall return, and he was on probation at the time he committed this offence.

The complainant, one Paul Meier, was employed as a console operator at a service station in West Mackay.  At about 2 a.m. on 7 October 1999 he was hosing down the driveway, having first locked the shop, when he was approached by the applicant who made inquiries about the price of cigarettes.

They went into the shop so that the complainant could check the prices.  Further inquiries were made about the price of certain food items.  The applicant decided not to buy and left.

At about 3.30 a.m. the complainant was hosing a different part of the driveway when the applicant returned, this time making inquiries about the price of cartons of cigarettes. 

They went into the shop and the complainant took out of store several cartons and made calculations.  The complainant started putting the stock away again and the applicant made his choice.  The complainant, who was keying in the price and the discount, turned around and saw the applicant holding a shiny 10 centimetre long steel knife with a curved blade towards him in his right hand.

He said to the complainant, "I'm sorry, man.  I've got to do this."  The applicant took a carton of cigarettes and then said, "Now the till."  The applicant appeared to the complainant very agitated and after some discussion about opening the till the complainant placed the notes on the counter and the applicant took them.

The complainant was ordered outside at knifepoint and down the road and told not to return to the petrol station until the applicant was out of sight.  When he was, the complainant returned inside, locked the door and phoned the police.

Cash of $510 and cigarettes worth $47 were stolen.  There has been no restitution made.  The only issue at trial was that of identification.

Whilst a juvenile, the applicant was dealt with for offences of dishonesty, which included a number of break, enter and steal offences.  He was given probation and ordered to perform unpaid community service.  He committed a number of offences within a short period of that appearance in Court, including on 19 September 1997, an attempted robbery in company.

He would appear to have spent four days in custody before being granted bail.  He was sentenced on 15 May 1998 by Judge Robertson in Townsville in respect of those offences.

For the attempted robbery, the details of which were not mentioned in his Honour's sentencing remarks, the applicant was given three months detention to be carried out as an immediate release order for three months on strict conditions.

His Honour imposed a further period of probation for two years with the same conditions as previously, particularly to address substance abuse.

His Honour refrained from imposing a term of imprisonment because he thought the applicant should have one last chance to avoid prison.  The applicant had a drug and alcohol problem.  He had little education and, it would appear, a dysfunctional family life.

The submissions on sentence by his counsel below stressed the bad influence of his father, by then in prison at Etna Creek, and his elder brother Shannon, with whom he was associated it would appear from the criminal history in a number of the previous criminal enterprises, who was also in prison; and his mother who had, in the past, served terms of imprisonment.

As I read the submissions of counsel below the only positive note was a reference to a man who was to marry the applicant's mother.  He ran a business and he indicated, through defence counsel, that there would be work to offer the applicant on his release from prison, it being recognised that a term of imprisonment was inevitable.

Both counsel below, correctly, in my view, relied on Moss CA 270 of 1999 as setting the parameters of the sentence.  The prosecutor sought five years, while defence counsel said that something "near the middle" would be an appropriate sentence.

His Honour below adverted to the applicant's youth but noted his quite extensive criminal history and in particular the serious warning sounded by Judge Robertson.  He noted that the offence was committed whilst on probation and involved menacing with a knife at night one whose work made him vulnerable.

He mentioned the applicant's lack of remorse and the need to protect people such as the complainant and also the need for general deterrence.

Moss is a case which has many features in common with the present.  Mather is also mentioned in Moss - that is CA 76 of 1999 - which also has some useful features. 

Mr Justice McPherson observed in Moss in the course of his reasons that the comparable sentences to which the Court had been referred suggested a range for a first offender on a charge of armed robbery to be between three and five years.

Moss was an 18 year old at the time of the offence, 19 at sentence.  He pleaded guilty on ex officio indictment.  He had an extensive previous criminal history including a number of serious assaults and some dishonesty offences.  He had served a number of short terms of imprisonment.  He would appear to have been on probation at the time he engaged in the armed robbery in question.  He had a poor upbringing.  He had a problem with drugs and alcohol.  A knife was used to threaten a video store employee at 11 o'clock at night.  No disguise was used.  Some $450 was stolen. 

A sentence of six years imposed below was reduced to five years on appeal and the recommendation for parole after serving two years was not disturbed.

As I have mentioned, Mather was considered as a useful comparative sentence in the decision of Mr Justice McPherson in Moss.  It did have some different features, although a plea of guilty on ex officio indictment, but the offender there was aged 35 years.  He had no relevant criminal history.  Indeed it was described as a minor non-indictable offence.  It was said to be out of character.  He had a drug problem.  He had a good work history and he had paid restitution and was offering to pay compensation.  No actual weapon was used.  It was pretended that it was a weapon.  It was some adapted toy crocodile.  He was in disguise and the Court said there was limited planning involved.  A sentence of four years was said to be at the high end, but not manifestly so.

Mr Moynihan has referred to a number of Attorney General's appeals where much lower sentences, mainly for armed robbery, were imposed below.

I will just mention those cases.  They are Barlow, Parkinson and Stebbens, CA Nos 310, 311 and 312 of 1994 - a decision of 16 December 1994; Taylor, Napatali, CA Nos 157 and 158 of 1999 - judgment delivered on 20 August 1999; Briese (1997) 92 Australian Criminal Reports at 75;  Ridolfi, CA No 103 of 1994, delivered on 10 May 1994; Read, CA 550 of 1994, delivered on 15 March 1995; and what became the locus classicus, Bainbridge Cullen and Ludwickie (1994) 74 Australian Criminal Reports 265.

Those cases generally suffer from the usual problem of being Attorney General's appeals in setting useful benchmarks in cases of this kind.  And further, for the most part, except for Turner and Napatali, they pre-date the amendments in 1997 to the Penalties and Sentences Act, which dealt with the approach which a Court ought to take when sentencing juveniles.

It is from Moss and Mather that I would obtain most assistance with respect to this appeal. 

Here we have a young man, but a long way from a first offender, who had a previous conviction for attempted robbery in company, who showed no remorse, whose prospects for rehabilitation were problematic, and who did not plead guilty.

This called for a substantial sentence.  However, it seems to me that his Honour below, whilst noting the relevant factors, did not sufficiently recognise the youth of the applicant and the burden of such a long sentence in one so young.

It might also be observed that five years could be regarded at the upper end of the range for an offence of this kind generally.  Here there was a knife and not the more dangerous firearm which sometimes occurs, neither was there actual violence offered to the complainant, notwithstanding of course the terrifying nature of the threat.

The philosophy of the legislation and the cases, even after the 1997 amendment as referred to in Lovell (1999) 2 Queensland Reports 79, indicates that youth is a material consideration still on penalty.  The exposure of one who has not previously served a term of imprisonment, who was just 18 years at the time of sentence, to five years in prison must mean that his Honour did not give the applicant's youth and prospects of rehabilitation sufficient weight.

I would grant the application, allow the appeal and in lieu of the sentence imposed below impose a sentence of three and a half years imprisonment.  The other declaratory orders made below should remain.

WILLIAMS JA:  I agree.

HOLMES J:  I agree.

WILLIAMS JA:  The orders of the Court will be grant leave to appeal against sentence, allow the appeal, substitute a sentence of three and a half years imprisonment for the five years imposed below, otherwise the sentence order below should remain.

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