R v Matthewson[2001] QCA 4

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

MACKENZIE J

CA No 226 of 2000

THE QUEEN

v.

ALLAN TREVOR MATTHEWSONApplicant

BRISBANE

DATE 30/01/2001

JUDGMENT

MACKENZIE J:  The applicant was sentenced on an ex officio indictment to concurrent terms of imprisonment for a variety of offences of dishonesty. 

There were eight offences of armed robbery, two of which were further aggravated because they were committed in company.  There was one offence of attempted armed robbery in company.  For each of these offences he was sentenced to 10 years imprisonment.  That level of sentence had the consequence that a declaration that he was a serious violent offender applied.

There were nine offences of burglary and cognate offences committed on homes and business premises.  For these he was sentenced to five years imprisonment.

There was one offence of stealing from the person in which he was the driver of a getaway vehicle used after an accomplice snatched a handbag from an elderly pensioner as she left a shopping centre. For this he received two years imprisonment.

There were also two offences of stealing property, a wooden trunk and a lawn mower on display outside shops.  For these he received 12 months imprisonment.  The burglary, breaking, entering and stealing and attempted breaking and entering offences were committed between 13 August 1997 and 29 December 1999.

At first the method of operation was to steal furniture from antique shops by smashing display windows.  Later it was to enter residences and commercial premises and steal electrical goods and other easily saleable items.  The value of the property stolen, in these offences, was in excess of $30,000. The cost of replacing broken glass was almost $4,000.

The robberies were committed between 8 January 2000 and 4 February 2000, with two exceptions on convenience stores.  The others involved a pharmacy and a fast food outlet.  The attempted robbery, which was just before the last robbery, was unusual in that it was an aborted demand for money at the Greenslopes Fertility Clinic.

In this case, as in the case of all the robberies, a knife was used for the purpose of enforcing the demand for money.  The total amount of money stolen in these offences exceeded $2,800.

The applicant complains only about the sentences of 10 years.  It was conceded that, in the event that the sentence was reduced, a declaration that he was a serious violent offender was still appropriate.

One of the principal arguments was that the sentencing discretion had miscarried because the learned sentencing Judge had failed to impose a sentence at the lower end of a range determined after making due allowance for factors in the applicant's favour or, alternatively, that he had failed to make due allowance for matters in the applicant's favour.  This, it was submitted, was required under the principle developed in The Queen v. Bojovic, Court of Appeal 4 of 1997, The Queen v. McCartney, Court of Appeal 13 of 1999, and The Queen v. Staines, Court of Appeal 462 of 1998.

It was, I should add, conceded that it was not obligatory to do so, but the principle, it was submitted, was one which the learned sentencing Judge ought to have applied.

It was submitted that there were a number of factors in the applicant's favour for which an appropriate allowance had not been made, and that the sentence was outside the range which was appropriate if proper allowance for them had been made.

One factor identified in submissions as being in the applicant's favour was the plea of guilty on ex officio indictment after making full admissions.  Those admissions did not extend to naming all of those with whom he had associated in committing offences, but nonetheless Mr Moynihan submitted that he was entitled to consideration for admitting his part in them.

The saving of resources and the remorse inherent in the plea of guilty, it was said, were factors to be taken into account.  That is, of course, consistent with principle.

It was also submitted that the learned sentencing Judge had not given due weight to a number of factors concerning the robbery offences.

It was submitted that they were amateurish and unsophisticated and that detection was inevitable, that they lacked planning and premeditation, and that neither actual violence nor a firearm had been used.

It was submitted that those characteristics were distinguishing features in cases where sentences above 10 years had been imposed.

As against those factors it may be observed that the method of operation was nonetheless effective.  Further, there is nothing in the record supporting the view that the offences were committed on the spur of the moment.

Although the record is silent as to how the applicant was apprehended, it appears that he was caught red handed with respect to the last offence and there is also information that the number of the getaway car was taken in respect of his escape from the place where the second last offence was committed.

Prior to that the offender's identity had remained unknown for about two and a half years which, in a way, belies the submission that detection was inevitable.

It was also submitted that a substantial cause of the applicant's offending was addiction to heroin.  There is no reason to doubt that on the basis of the information before the Court.

In this regard remarks in The Queen v. Hammond [1997] 2 Queensland Reports 195 at 199 and 200, to the effect that in some cases that fact may support a conclusion that the accused person's weakness of character is as a drug addict, not as a criminal, were relied on.

In my view the extent to which that approach is applicable depends on the facts of the particular case as the passage relied on itself suggests.  It is also said in the passage that the other side of the coin is that continual offending on that basis may suggest that rehabilitation will be difficult.

It is plain from what the learned sentencing Judge said that he understood that he was applying the principle that the sentence at the lower end of the appropriate range was the proper method of sentencing.

The question thus raised is really whether the range accepted by him was correct, or whether a lower range of eight to 10 years contended for on behalf of the applicant was correct.

It was contended that eight years or, perhaps, nine years with a declaration that he was a serious violent offender, was the appropriate sentence.

The applicant was, at the time of sentencing, a man of 30 years of age with a criminal history, although not as serious as is often the case in cases of this kind.  He had some relatively minor drug convictions and offences of dishonesty in 1995 for which he was fined by a Magistrate.  More importantly, however, in February 1999 he had been imprisoned for 15 months with a non-parole period of five months with 115 days of pre-sentence custody to be taken as time served.

The offences for which he was sentenced on that occasion included stealing, receiving, breaking and entering and unlawful use of a motor vehicle, committed in what the sentencing Judge described as a "sustained course of criminal conduct between April 1998 and October 1998".

It is apparent from this that the offences for which he was then sentenced in the District Court were committed within the period covered by the present indictment.

Although the record does not indicate it, the Court was informed that he had not confessed on that occasion to the offences which are the subject of the present appeal which fell within that period.

Although the record is also silent on the issue, we were informed that the applicant had served his full time, subject to remissions, and was released on or about 16 August 1999.

It follows from that chronology that a number of the offences which are the subject of the present appeal, especially the robberies, were committed within a short time of his release from prison, a circumstance which must count against him to a significant degree.

We were also informed, although the learned sentencing Judge was not informed of this, that the prisoner had been arrested on count 8 at the beginning of October 1999 and, therefore, counts 9 to 21 were committed while he was on bail.  That, again, is another feature which seems to me to count against the accused.

It is a case of demonstrated quick recidivism involving serious offences, even though, overall, the accused's criminal history is not as lengthy as one often sees.

The offences resulted in the loss of over $38,000 to various complainants, none of which has been recovered.

On nine occasions people in vulnerable situations were subjected to the threat inherent in having a knife presented at them for the purpose of obtaining money.  Even though no actual violence was inflicted directly to the victims, it was legitimate for the learned sentencing Judge to have regard to the likely effect on the victims.

The learned sentencing Judge dealt with that subject in a moderate way and there is nothing in the submission that he gave undue emphasis to it, nor to his perception that offences of this kind were common.

I have taken some little time to outline the nature of the offences involved in this particular case and the chronology since it seems to me that the submission by Mr Moynihan, concerning the level of sentencing, may in some circumstances have had some validity.

However, it seems to me that when the particular facts of this case are taken into account, and while 10 years may be regarded as a lengthy sentence, I am not persuaded that the learned sentencing Judge erred in treating such a period as being at the lower end of the range after allowing, as the record shows he did, for factors in the applicant's favour.

The authorities to which the Crown has referred, to my view, support a view that 10 years is not out of range for these robberies although some of those cases involved weapons other than knives.

Overall I am not persuaded that the sentences of 10 years imprisonment are manifestly excess and I would therefore refuse the application for leave to appeal.

DAVIES JA:  I agree.

WILLIAMS JA:  Particularly given that the robbery offences were committed after the applicant had been released on bail with respect to count 8, the bag snatching offence, I am of the view that the sentenced imposed was well within range.  I agree with all that has been said by Justice Mackenzie and the order he proposes.

DAVIES JA:  The order is as indicated by Mr Justice Mackenzie.