R v Law[2001] QCA 208

COURT OF APPEAL

THOMAS JA

HELMAN J

ATKINSON J

CA No 230 of 2000  

THE QUEEN 

v. 

BRODIE SPENCER LAW

BRISBANE

DATE 31/05/2001

JUDGMENT

ATKINSON J:  Brodie Spencer Law was convicted on his own plea of guilty on two counts of armed robbery and one count of attempted armed robbery on 17 August 2000 in the District Court in Ipswich.

The learned sentencing Judge imposed a sentence of 12 months imprisonment on each count to be served concurrently by way of an intensive corrections order in the community.  The applicant for leave to appeal against sentence, the Attorney-General, submits that the sentence is manifestly inadequate and that the sentence which should have been imposed was three years imprisonment but that taking into account the fact that the respondent had already undergone 43 days of the intensive corrections order, some reduction of that is appropriate.

The circumstances of the offences are that they each occurred on the evening of 23 April 2000.  The first offence involved an 18 year old who was sitting outside the Ipswich railway station.  The respondent demanded that he give him his bicycle and the complainant, after hesitating, noticed that the respondent carried a large butcher's knife which was pointed about 4 inches from his chest.  He feared for his safety and gave the bicycle to the respondent. 

The next two offences relate to one incident.  The complainants, an elderly couple, were at the East Ipswich railway station when the respondent demanded money from each of them while armed with a knife and stole the woman's purse. The incident was video taped.  The police apprehended the respondent a short distance away on the same evening.  He was found in possession of a knife and a quantity of money. 

The respondent was 22 years of age at the time when the offences were committed.  He had spent 99 days in pre-sentence custody.  The learned sentencing Judge referred to the following matters as relevant on sentence.  Firstly, the offences in some respects were unplanned and the timing of each offence and the victims involved were accidental but the respondent had clearly been contemplating this type of offence.

Secondly, this type of offence is only too common throughout Queensland particularly in larger centres of population and carries heavy penalties.  Thirdly, the respondent had to be punished and taking into account the frequent occurrence of the offences and the need to ensure the safety of the public his actions called for a sentence as a deterrent for others who may hear of the sentence.

Fourthly, the knife used, whether very large or very small, caused fear to the persons who experienced the knife being produced at them and fifthly, a sentence of two to three years imprisonment appeared to be appropriate given comparable cases.

There is no error of principle disclosed in any of those matters to which the learned sentencing Judge referred.  He also said that he gave regard to the obligation to do what he could by way of rehabilitation.  He said that he was assisted in that by a report of Miss Hillary Lennon.

In submitting that the sentence of 12 months imprisonment to be served in the community by way of intensive corrections order was manifestly inadequate, in addition to the comparable sentence, the applicant relied upon the criminal history of the respondent.

His first recorded offence was on 9 January 1995 when he was brought before the Magistrates Court for breach of the Bail Act.  On 19 February 1995 he was convicted on charges of stealing and wilful unlawful damage to property in the night time.  He was convicted and fined and ordered to pay restitution.

On 17 March 1995 he was convicted and fined for assaulting  police, obstructing police and wilful unlawful damage to property.  All of these offences occurred in Mackay.  On 19 June in the same year he was convicted of breaching a bail undertaking, breaching the Bail Act, wilful and unlawful destruction of property in the night time and breaking and entering a dwelling-house with intent and stealing.  He was ordered to undertake community service and to pay restitution.  These offences occurred in Rockhampton.  Then on 7 October 1995 the respondent was convicted in the Mackay Magistrates Court for a breach of the Bail Act and was sentenced to 14 days imprisonment.  On 30 November 1995 in Mackay he was convicted and fined for wilful and unlawful damage to property and receiving. 

On 19 April 1996 the respondent was convicted for breaches of community service orders in the Rockhampton Magistrates Court. He was sentenced to periods of imprisonment for the offences for which he breached the community service orders. Then on 17 June 1996 the respondent was convicted in the Rockhampton Magistrates Court of wilful and unlawful damage to property for which he was sentenced to a cumulative period of imprisonment of one month.

On 25 July 1998 the respondent was convicted in the Emerald Magistrates Court for a breach of the Bail Act and unlawfully taking shop goods away.  He was fined in respect of those charges.  On 19 November 1998 he was convicted and sentenced to 14 days imprisonment for breach of a bail undertaking and on 11 December 1998 he was convicted again in the Emerald Magistrates Court with possession of a knife in a public place and behaving in a disorderly manner. He was convicted and fined.  On the same date, he was also convicted of common assault.

On 7 June 1999 the respondent was convicted in the Brisbane Magistrates Court with entering or being in a dwelling place and committing an indictable offence, one charge of receiving and a charge of obstructing police and of giving a false name and address.

He was convicted and sentenced to four months imprisonment.  He was also convicted on the same day of stealing and ordered to serve four months imprisonment concurrently with the other terms. 

On 27 November 1999 he was again convicted of stealing and he was fined and on 12 December 1999 he was convicted of unauthorised destruction of property and fined.  In the year 2000 the respondent was convicted on 31 January for the possession of dangerous drugs.  He was again convicted and fined in the Brisbane Magistrates Court.

On 17 March 2000 he was convicted in the Petrie Magistrates Court on relatively minor charges and fined.  On 13 April 2000 he was convicted of possessing dangerous drugs.  Again, he was fined.

The applicant relies not only on the length of the criminal history but also the fact that he had been sentenced only 10 days previously for a drug offence and just over a month previously for other offences.  The criminal activity, the subject of the sentence, occurred over a very short period of time and involved the production of a knife which was used to threaten three people.

As the appellant submitted, comparable cases call for a prison sentence of two to three years. 

In R v. Ridolfi, CA 103 of 1994, 10 May 1994, the Court did not disturb a sentence of probation for three years and 240 hours community service for an offence of armed robbery on an Attorney-General's appeal.  However, the respondent had just turned 18 at the time of the offences and while he had quite a bad criminal record he had never previously been sentenced to a term of imprisonment.  Since the commission of the offence he had attempted, quite seriously, to overcome his drug addiction and had returned to his family and attempted to build a relationship with them.  He had obtained employment and had offered to repay the money he had stolen and had apologised to the complainant who had accepted his apology.

In R v. Redshaw, CA 331 of 1997, 3 November 1997, a sentence of imprisonment of one year to be served by way of intensive corrections order was not disturbed on appeal for a conviction of armed robbery in company.  In that case, the appellant and a co-accused had robbed a news and convenience store at Gympie while the appellant was carrying a pistol.  His co-accused, however, had received the same sentence on a plea of guilty.  The applicant was only 17 years old when he committed the offences and had a very limited criminal history.

The cases that are probably more pertinent to the sentence which should be imposed in circumstances such as this one include R v. Bush, CA 71 of 1996, 17 May 1996, in which the Court allowed an appeal against sentence and substituted a sentence of three years imprisonment on a charge of robbery in company with actual violence to the person.  The appellant was a 19 year old man with no previous convictions of any consequence.  He committed a robbery in company with a much older man with a serious criminal history who played a more violent role in the assault on a taxi driver and who was sentenced to four years imprisonment.

In R v. Hassan El Hassan, CA 401 of 1994, 29 November 1995, the applicant robbed a taxi driver whilst armed with a broken bottle.  He was 20 years of age when the offences were committed and had a criminal record.  The applicant fled when challenged.  The court took the view that four and a half years would be an excessive sentence for a robbery of this kind and reduced the sentence to three years with a recommendation he be released on parole after having served 12 months of the sentence.

R v. Francis, CA 119 of 1996, 5 June 1996, concerned an applicant who pleaded guilty to one count of robbery and another count of attempted robbery committed on the following day.  The robbery consisted of grabbing the handbag of a woman from a motor vehicle.  The applicant was the driver of the car and his co-accused lent out of the car and snatched the handbag.  The applicant made full admissions in statements implicating his co-offender whom he claimed was the prime mover in the offence and who had committed other offences of that kind.  The applicant was only 21 years old with some minor criminal history but he had breached his probation and the community service order.  The Court did not disturb the sentence of two and a half years imprisonment with a recommendation for parole after serving 12 months.

The applicant submitted that the learned sentencing Judge gave too much weight to the rehabilitative aspect of sentencing.  The report of Hillary Lennon, on which his Honour said he relied, itself recognised that the applicant had not undertaken a probation order or successfully completed the community service order to which he had been sentenced previously and that indications were that he would experience difficulty complying with either of these community based orders primarily due to his pattern of moving from place to place.

The report recognised that he would need to address his drug and alcohol problems and that he would benefit most from a drug and alcohol rehabilitation program if it were culturally appropriate and delivered relevant aboriginal issues and values.

The applicant submitted that whilst the complainants were not injured they were certainly intimidated by the production of a knife and put in fear of their safety.  Such behaviour calls for a sentence which has a deterrent effect and it was submitted that the sentence imposed did not have such an effect. 

The applicant submitted, as I said, that the sentence which should have been imposed was three years imprisonment but the Court should take into account the fact that the respondent had already undergone 43 days of the intensive corrections order, such that a reduced sentence should be imposed.

This is a submission with which I agree.  The starting point for a head sentence in a case such as this should be three years.  However, one should take into account in this case the very early plea of guilty, the personal circumstances of the respondent, both his childhood and his present circumstances as set out in the report of Miss Lennon, and the fact that he had managed to complete 43 days of the intensive corrections order.

Taking all those circumstances into account, the proper sentence to impose in this case is a sentence of two years and three months imprisonment.  There should be a declaration under section 161 of the Penalties and Sentences Act that he has spent 113 days in custody being 99 days of pre-sentence custody from 6 May to 6 June 2000 and 12 June to 17 August 2000 and 14 days in custody from 17 to 31 May 2001. 

I would therefore allow the appeal and impose a sentence of two and a quarter years imprisonment on each count to be served concurrently and make a declaration with regard to the 113 days already spent in custody.

THOMAS JA:  I agree.

HELMAN JA:  I agree.

THOMAS JA:  The order of the Court will be that which has been stated by Justice Atkinson.  The substituted sentence is imposed in relation to each of the three counts in question.