R v Brennan[2001] QCA 253

COURT OF APPEAL

DAVIES JA

THOMAS JA

WILLIAMS JA

CA No 367 of 2000

THE QUEEN

v.

JAMES WILLIAM BRENNAN Appellant

BRISBANE

DATE 27/06/2001

JUDGMENT

DAVIES JA:  The applicant was convicted after a trial in the District Court on 21 November last year of armed robbery.  He was sentenced to 12 years' imprisonment with a declaration pursuant to Part 9A of the Penalties and Sentences Act 1992 that the offence was a serious violent offence.

The offence occurred on 23 January 2000.  On that day, the applicant entered a TAB agency at Highgate Hill, wearing sunglasses and a cap and armed with a black metal gun, looking like a semi-automatic, approximately 10 inches long.

It does not appear from the material before this Court or at the trial whether or not this gun was real or, if real, whether it was loaded.  He pointed the gun at the face of the complainant attendant, saying: "If you don't give me the money, I'll shoot you."

Nevertheless, the complainant managed to step out of sight of the applicant, whereupon the applicant said:

 "I'm going to get the fucking money.  I'm going to shoot somebody.  I'll kill them if I don't get the fucking money."

The complainant then, inexplicably it seems to me, stepped out from behind the petition behind which he had been sheltering, and the applicant once again pointed the gun at him.  The complainant was able once again to retreat behind this partition.  The applicant then came over the counter and started grabbing money from the draw.

The complainant, who said he was fearful for his life, and there is no reason to disbelieve that, nevertheless grabbed a stool and hit the applicant with it a couple of times.  The applicant then left with whatever money he could get, which was about $560, and got into the passenger side of a utility which was parked outside and it drove away.

As Mr Reed for the applicant today pointed out to us, the utility as it turned out had been hired and was consequently fairly easy to trace.  That probably demonstrates no more than that it was neither a particularly competent nor well-planned robbery. 

The applicant is 36 years of age, having been born on 11 July 1964.  He has a substantial criminal history dating from 1981, but perhaps surprisingly, he does not appear to have committed any offences at all since 1992.  His most serious previous offences, which were both of stealing with actual violence whilst in company, were committed in 1985 and 1987; that is, two of them, one in each of those years.

Prior to the commission of those offences, he had not committed any offence which warranted a sentence of more than a fine or community service, the community service being imposed for a drink driving offence.  And since the commission of those more serious offences in 1987, his only other offence appears to have been one of receiving, which was also committed in 1987.

Armed robbery is, of course, always a serious offence.  Moreover, there were some particularly serious aspects to this offence; the threat to shoot and kill if money were not handed over and the apparent capacity to do this.  It plainly caused considerable anxiety and stress to the defendant who, the learned primary Judge was informed, was still undergoing counselling at the time of trial.

Nevertheless, it seems to me that there were a number of aspects of this case which brought it below the high end of the range for sentences for armed robbery.  Of particular importance is the applicant's previous criminal record.  Though it's quite serious, it doesn't include any previous offences for armed robbery and he had not been engaged in robbery at all since 1987.

It is true, of course, that during a substantial part of a period after 1987 he was in gaol.  As best can be gleaned from the material, it appears that he was released from gaol some time either in or between 1992 and 1995, but that still leaves a substantial crime-free period before the commission of this offence, and his criminal history over the period since 1987 was in respect to very minor offences only.

Whilst I would not wish to underestimate the fear which the applicant caused the complainant by his actions, the complainant's ability to retreat from the line of fire with what appears to have been relative ease at least gives some cause to doubt the extent to which the applicant intended or was even capable of causing the complainant serious harm. 

In those circumstances, it seems to me that the sentence of 12 years' imprisonment was manifestly excessive when regard is had to the comparable authorities, particularly those referred to by Mr Reed.  He referred us in all to four cases.  They were Lund [2000] QCA 85; Brown [2000] QCA 402; Williams [1999] QCA 505; and Amery, CA No 299 of 1990. 

The first three of these are, in my view, all of some help in assessing the appropriate sentence here.  Lund, for example, had an even more serious criminal history, including a number of armed robberies, though, rather like this case, there had been a lessening in the number and seriousness of offences in the period immediately preceding the commission of the subject offence.

The armed robbery in that case was demonstrably of a more sophisticated kind, having been carefully planned for some time, and it caused considerable psychological harm to the person in the shop the subject of the robbery.

Nevertheless, the applicant in that case was sentenced - admittedly on a plea of guilty - to seven years' imprisonment, and the declaration that it was a serious violent offence was removed by this Court.

It is true that the sentence of seven years was not one imposed by this Court, but I do not think in the circumstances of that case it was manifestly inadequate.  I do not think it is necessary to go through the other cases to which I have referred, but Brown and Williams also have similarities to this case, and they were cases in which substantially lower sentences were either imposed by this Court or accepted by this Court as correct.

Notwithstanding the absence of evidence of planning, I think that this offence was more serious than, for example, Lund because of the use of a gun and that might explain why in Lund's case the declaration was removed, the offensive weapon there being scissors.

The applicant submits the appropriate range was one of eight to 10 years.  I think that is a very reasonable submission.  In my opinion, a sentence of eight years' imprisonment would have been appropriate, having regard to the seriousness of the offence and the applicant's previous criminal history.

The applicant also contends that if the sentence was one of less than 10 years' imprisonment, this Court should not exercise its discretion in favour of making a declaration under Part 9A.  In my opinion, however, it would be appropriate to make such a declaration. 

The use of a gun, the threat to shoot and kill on more than one occasion, and the apparent capacity to carry out those threats, when considered in the light of his previous criminal history of violence to which I have already referred, in my opinion make this a case in which a declaration is appropriate. 

I would accordingly grant the application, allow the appeal, set aside the sentence imposed below and impose, in lieu, a sentence of eight years' imprisonment with a declaration that the offence was a serious violent offence.

I should also add the declaration which was made below;  that the applicant has served 299 days of the sentence, those days being between 25 January 2000 and 21 November 2000.

THOMAS JA:  I agree.

WILLIAMS JA:  In my view, a sentence of 12 years' imprisonment in the circumstances of this case was manifestly excessive.  Given the circumstances of the case, the criminal history of the applicant and the fact that this was a conviction after trial, I am of the view that a sentence of eight years' imprisonment with a declaration that it is a serious violent offence, is towards the lower end of the applicable range.

But nevertheless, I agree with the learned presiding Judge that such a sentence is the appropriate one in the circumstances to impose.  I therefore agree with the order proposed by the presiding Judge.

DAVIES JA:  The orders are as I have indicated.

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