R v Sowden[2004] QCA 13

SUPREME COURT OF QUEENSLAND

MACKENZIE J:  This is an application for leave to appeal against a sentence of three years and four months suspended after 20 months for an operational period of five years for an offence of armed robbery.  The applicant was also sentenced to lesser periods of imprisonment, to be served concurrently, for offences of stealing and fraud and for two counts of wilful destruction of property.

The offences in question happened in the period August to November 2002.  The applicant was at that time 24 years of age.  He informs us today that - and this is, I think, reflected to the record to at least a limited extent,that he had not taken medication prescribed for a medical condition to which I will refer in the period leading to the most serious offence and was afterwards confined for treatment for a period in the Princess Alexandra Hospital.

By reason of committing the offences, he was in breach of probation imposed on 19th December 2001 in respect of an offence of burglary and two offences of fraud which had themselves placed him in breach of an earlier probation order imposed for two counts of entering dwelling houses with intent and two of stealing.

He had a history of drug abuse and, according to a report from Dr Fama, the applicant suffers from paranoid schizophrenia which is in incomplete remission.  Dr Fama observed that although the applicant may have been suffering from that condition, there was no history of any substantial incapacity.  He was not within section 27 of the Criminal Code.  Dr Fama also observed that the applicant recalled the essential elements of the charges and the history of what happened.  It was against that background of repetitive offending that the learned District Court Judge had to sentence him.

The offences of stealing and fraud consisted of stealing train sets, fishing rods and reels and a piece of jewellery belonging to the applicant's father and pawning them at a Cash Converters store.  The most serious offence for which he was sentenced, the armed robbery, involved the applicant demanding money at knifepoint from a lone woman in her dry cleaning shop.  When she delayed in complying he moved towards and menaced her with a knife, holding it about a hand span from her chest.  She handed over $250 to him.  He then ran away but information leading to his identification was observed by people in the neighbourhood and he was later apprehended.

The counts of wilful damage occurred when he arrived intoxicated at the home of an acquaintance.  He was locked out and asked to leave but tried to gain entry through a window and damaged a flyscreen in doing so.  Then he smashed the side window of the complainant's vehicle with a piece of wood and damaged a panel by kicking it.

The applicant has told us today of his hope that he may have been given an intensive correction order or a shorter sentence than he obtained.  He detailed to us conversations he had had with his counsel.  However, the learned trial Judge gave detailed consideration to constructing the sentence.  Defence counsel submitted that three years imprisonment would be appropriate for the offence of armed robbery and correctly observed that the other offences and the breach of probation had to be taken into account.  He asked for the sentence to be suspended after one third had been served.

The learned sentencing Judge thought that a global sentence of about five years would be appropriate for the overall criminality of the applicant's conduct.  He went through a rather complex analysis of how he might structure the sentence because of constraints he saw on imposing a higher sentence than justifiable for the offence of armed robbery to allow for total criminality of that and the other offences in the indictment and the need to re-sentence for the offences in respect of which the probation order had been breached.

In the end he said that he would reduce the sentence imposed for the count of armed robbery to a lower level than he might have imposed had he imposed a global sentence and imposed concurrent sentences for the other offences on the indictment and for the probation offences.  That was how the sentence was ultimately structured.

The question is whether, in the circumstances of this particular series of offending, three years and four months suspended after one-third of that period is manifestly excessive.  It will be noted that the sentence actually imposed is very close to that which was contended for by his counsel.

Even allowing for the disadvantages from which the applicant suffers because of his substance abuse and medical condition, the offence of armed robbery committed on a lone woman in a store that is a soft target by menacing her with a knife is intrinsically serious.  The applicant has also failed to be deterred by or take advantage of earlier sympathetic non-custodial orders in respect of offences similar to the lesser offences of dishonesty committed on this occasion.

In the circumstances I am not persuaded that the overall sentence imposed was manifestly excessive.  I would, therefore, refuse the application for leave to appeal against sentence.

THE CHIEF JUSTICE:  I agree.

DAVIES JA:  I also agree.

THE CHIEF JUSTICE:  The application is refused.