R v Hill[2005] QCA 18

SUPREME COURT OF QUEENSLAND

CHESTERMAN J:  On 1 October 2004 the applicant pleaded guilty to a charge of attempted armed robbery.  He was sentenced to a term of three years' imprisonment to be suspended after he had served 12 months.  The operational period was three years.  The sentence was made cumulative upon a sentence of nine months' imprisonment for assault occasioning bodily harm.

At about 7.40 p.m. on 13 July 2004 Xiao Ling Wang was serving in a convenience store owned by her family.  The applicant entered the store wearing dark clothing, including a balaclava.  He was armed with a knife.  Mrs Wang left the counter and screamed for help.  Her husband came from a back room.  He picked up a bar stool and stood between his wife and the applicant. The applicant said nothing but began to push buttons on the cash register in an attempt to open it.  He held the knife in his right hand as he did so.

When his efforts to open the register were unsuccessful, he threw it to the floor.  By this time Mrs Wang had also picked up a bar stool and moved towards the applicant.  By good chance a police officer was passing the shop and heard the screams.  Drawing his service pistol, he entered and observed the applicant who, by this time, had dropped the knife.  The police officer threw the applicant to the ground and handcuffed him.  When his balaclava was removed, the applicant was recognised by Mr and Mrs Wang as a regular customer.

The applicant apologised to the Wangs.  He told the police officer that he needed money to pay his girlfriend's rent.  The ineptitude of the applicant's attempted robbery was explained by the fact that he was addicted to a variety of drugs.  On the day in question he had consumed a substantial quantity of Valium.

The applicant is 26 years of age.  At the time of the offence he had a significant criminal history.  In 1997, when he was 18, he was convicted of stealing and fined $300.  On 28 March 2001 he was dealt with in the Inala Magistrates Court on a number of charges of attempting to enter a dwelling house with intent to commit a crime, stealing, fraud and the unlawful use of a motor vehicle.  On all charges he was convicted and ordered to serve two years' probation and to perform 100 hours of community service.

Less than a year later, on 26 November 2001, he was dealt with in the Magistrates Court for unlawfully destroying property.  He was fined $50.  That offence occurred when on probation.  In September 2003 the applicant was again convicted of wilful damage to property.  On that occasion he was fined $300. 

More seriously, on 21 November 2003, the applicant was dealt with in the District Court on two indictments each charging him with assault occasioning bodily harm whilst armed.  The two offences were separated in time and involved different complainants.  The applicant was dealt with on both indictments by Judge McGill who sentenced him to nine months' and three months' imprisonment respectively, each to be served by way of an intensive correction order.

That form of punishment was imposed, as Judge McGill explained, "to provide conditions which I consider will help you to be rehabilitated".  His Honour accepted evidence which indicated that the applicant was remorseful and intended not to re-offend.  The learned Judge explained to the applicant:

"If you fail to comply with these requirements you will commit an offence… and you can also be brought back and re-sentenced for the offences for which you have pleaded guilty today.  You might particularly expect that if there was any significant offending that you would be ordered to serve the term of imprisonment."

It should be mentioned that the applicant has an extensive history of traffic infringements.  Between 5 October 2001 and 15 February 2004 he was apprehended on four occasions driving under the influence of liquor.  On three of those occasions he had been disqualified from holding or obtaining a driver's licence.  The pattern of conduct shows a persistent refusal to act responsibly, or to accept the consequences of his misbehaviour.

The attempted armed robbery was committed within nine months of the sentences imposed on the applicant by Judge McGill.  The later offence therefore constituted a breach of the conditions of the longer intensive correction order, making the applicant susceptible to a re-appraisal of the sentence.  The driving offences also amounted to breaches of both intensive correction orders.

Exercising the power given by s 126(4) of the Penalties and Sentences Act 1992 (Qld), Judge Howell set aside the intensive correction orders and sentenced the applicant to serve periods of imprisonment of nine and three months.  As I mentioned earlier, his Honour ordered that the sentence imposed for the attempted armed robbery be made cumulative on the earlier sentences.  The effect is that the applicant will serve nine months for the more serious of the assault charges before commencing to serve the term of imprisonment for attempted armed robbery.  That term is, however, to be suspended after 12 months.

The applicant's counsel complains that the sentence is manifestly excessive and that the applicant should have been sentenced to two years' imprisonment to be suspended after six months.  The ground for the submission is that the applicant had an unsettled and unsatisfactory childhood and adolescence for which he sought solace in drugs.  The applicant expressed early, apparently genuine, remorse and has indicated a desire to rehabilitate himself and overcome his drug addiction which is a factor in his offending behaviour. 

A further ground was that the applicant had himself terminated the attempt to rob the Wangs and had dropped his knife before the police officer entered.  It seems, however, that the applicant may not have proceeded with the robbery because of the determined resistance of the Wangs.

We referred to two cases which, in my opinion, indicate that the sentence imposed here was well within the appropriate range.  R v Moodie CA 439 of 1998 and R v O'Brien CA 190 of 1995 were both cases of attempted armed robbery.  The facts in Moodie are very similar to these.  There are also close similarities in the offenders' histories and personal circumstances.  In one the sentence was five years and in the other four years.

Viewed against the benchmark of these cases, the sentence imposed here cannot be criticised.  Indeed, the suspension of the sentence after 12 months is a substantial amelioration, reflecting no doubt the Court's belief that the applicant is genuine about his desire for rehabilitation despite his lack of success in achieving that result in the past. 

It was entirely appropriate to make the sentence cumulative.  If the totality principle applies to sentences as short as these ones, the principle was duly recognised by the suspension.  I would refuse the application.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

McPHERSON JA:  The application for leave to appeal against sentence is refused.