R v JL[2004] QCA 188

SUPREME COURT OF QUEENSLAND

[1] WILLIAMS JA:  I agree with the reasons of Cullinane J and the orders proposed.

[2] CULLINANE J:  The applicants, who are cousins, seek leave to appeal against sentences imposed upon them in the District Court at Townsville on 24 March 2004. 

[3] The applicant, AL was born on 22 April 1982.  He was convicted of robbery in company with personal violence after trial on 23 March 2004.

[4] The applicant, JL who was born on 25 February 1986 pleaded guilty to this offence on 2 Feb 2004.

[5] AL was sentenced to four years imprisonment and at the same time was dealt with for an offence of burglary to which he had pleaded guilty. He had already served some 180 days pre-sentence custody.

[6] JL was sentenced to three years in detention with 72 days pre-sentence custody declared. An order was made at his request that the detention be served as imprisonment. This order was made pursuant to s.270(4) of the Juvenile Justice Act.

[7] AL had a criminal history which involved mainly vagrancy offences. He was on bail at the time of the commission of the robbery for offences of unlawfully using a motor vehicle, entering premises with intent to commit an indictable offence and an offence under the Vagrancy Act.

[8] JL had a more extensive criminal history which includes a conviction for armed robbery committed in June 2000 and for which he was sentenced to 75 days detention. He has other convictions for offences of violence and also offences of dishonesty.  He was at the time of the commission of this offence subject to a community service order.  He has previously served periods of detention.

[9] The offence was committed outside the Bellevue Hotel at South Townsville on 10 July 2002.  As the complainant was waiting for a taxi he was approached by a number of persons including the two applicants.  The applicant, AL, punched him in the face and he was also punched from behind by others. He recalls being struck from a number of quarters and attempted to defend himself by blocking the punches.  He stumbled backwards onto the ground.

[10] Whilst he was lying on the ground the assault upon him continued.  He was again kicked and punched. His wallet and mobile phone were stolen from him.  It seems that the publican of the hotel came to his assistance and the attackers ran away. JL was seen by a witness who lived across the road from the hotel to hit the complainant as he lay on the ground. She saw him run off.  The publican who came on the scene saw AL together with others standing over the top of the complainant.  The others were punching and kicking him at this time. As he ran over to help the complainant he saw AL lean over and take his mobile phone and wallet.

[11] When questioned, both admitted being present but each denied they had assaulted the complainant.

[12] The complainant suffered injuries to his face in the nature of bruising and abrasions. He had sore ribs for a period but suffered no permanent injury. He was off work for a couple of weeks.

[13] The offence thus involved a cowardly and vicious unprovoked attack by a group on a man who was standing in a public street waiting for a taxi. 

[14] Each applicant contends that the sentence imposed upon him is manifestly excessive.

[15] Before us, the respondent conceded that in the case of JL, in order to maintain appropriate parity between the sentences of the two applicants there should be substituted a sentence of detention of not more than two years with a recommendation that he be released after serving 50% of that term.

[16] This is, it is said, to reflect his plea of guilty and the fact that he was a juvenile at the time and the principles applicable to the sentencing of a juvenile thus come into play.

[17] I think that this concession is both appropriate and realistic.

[18] So far as AL is concerned it was argued that the learned trial Judge had erred in principle in that he imposed a higher sentence upon AL because of his plea of not guilty.  It was in addition contended that the sentence was manifestly excessive.

[19] So far as the first of these two matters is concerned, reliance was placed upon what the learned sentencing Judge said when referring to the case of Campbell.

“He, however, unlike you, pleaded guilty to the offence.  You put the matter to trial.”

[20] However, His Honour had said a little earlier (at page 116):

“You pleaded not guilty to the robbery charge; you were convicted by a jury; you are not entitled to the credit which would normally accrue to you as the result of a plea of guilty. Your failure to plead guilty to the offence indicates an absence of remorse on your part for your offending.”

[21] When one has regard to the remarks of the learned sentencing Judge as a whole it is in my view apparent that no such error of the kind contended for occurred.

[22] What occurred is that AL was denied the benefit on sentencing which would have come with a plea of guilty.

[23] Considerable reliance was placed on the judgment in Campbell (CA No 287 of 1997 29 August 1997).  Whilst there are remarks in that case which would appear to support the applicant, I am not persuaded that those remarks should be taken as fixing an upper limit for offences of robbery in 2004.  We were referred to cases heard about that time and subsequently in which longer sentences were imposed. 

[24] Whilst it can be accepted that the sentence is on towards the top of the sentencing range, I am not persuaded it was manifestly excessive.

[25] I would, in the case of JL, grant the application and allow the appeal and substitute for the order of three years detention to be served as a period of imprisonment, a sentence of two years detention ordered to be served as a period of imprisonment with an order that he be released after serving one half of that period.

[26] I would refuse the application of AL.

[27] JONES J: I agree with the reasons of Cullinane J and the orders proposed.