SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA: There is nothing I wish to add to the reasons for judgment of Fryberg J.  For those reasons the application for leave to appeal against sentence should be dismissed.

[2]  JERRARD JA: In this application I have read the reasons for judgment and order proposed by Fryberg J, and agree with His Honour that the head sentence of five years imprisonment has not been shown to be manifestly excessive, for the reasons Fryberg J gives.  However, I was persuaded by the applicant’s counsel that the learned judge’s sentencing remarks did not make clear if any allowance had been made for the applicant’s plea of guilty, and in the circumstances I consider that an allowance should have been made.  I would have allowed the application and the appeal, to the extent of varying the sentence for five years imprisonment by an order that the applicant be considered eligible for post prison based community release after he has served two years of the term.

[3]  FRYBERG J: On 9 November 2005 the applicant pleaded guilty to armed robbery in company with personal violence.  On 24 November 2005 he was sentenced by McMurdo J to imprisonment for five years.  No recommendation for early eligibility for post-prison community based release was made.  The offence was not declared a serious violent offence.  He now seeks leave to appeal against that sentence.

[4] The applicant, a drug user, went to purchase drugs from a man named Brown.  Brown had no drugs, so the applicant travelled as a passenger in a vehicle with him and a man named Witsen to obtain some.  In the vehicle Brown donned a balaclava and the men told the applicant that they intended to do “a job” and to collect some property from a house to reduce a debt they owed, apparently to a drug pusher.  The applicant did not know the owner of the house.  Initially he was also unaware that the men and two other people, a woman named Van Achterberg (who regularly used the house) and a man named Fishburn, had made a plan to rob the owner.  When he realised that Brown and Fishburn intended to carry out a robbery, the applicant offered to keep watch and alert them if necessary.  He saw that Brown was carrying a rifle.  After the others entered the house the applicant waited in the car for about half an hour.  He then looked through the back door of the house where he saw Brown wearing a balaclava and holding the rifle.  Brown motioned for him to be quiet so he walked away.  Later he returned to the front door and saw Brown mopping the tiles.  There had been blood on the tiles.  He was told to wipe the door handle for fingerprints, which he did.  He then left with Brown.  A considerable amount of property was stolen; a trailer was brought to the premises and used to help carry some of it away, although the applicant may have left the scene by the time that happened.  The applicant later pawned some of the stolen property.  He claimed that he had stolen it from Brown and had not received it as proceeds of the robbery.  He subsequently rode with Brown on a motorbike stolen from the house.  The owner of the house was murdered (bashed with a hammer, not shot), but the applicant was not involved in that.

[5] Witsen was found guilty of murder and armed robbery in company with actual violence.  For those offences he was sentenced to life imprisonment and imprisonment for 10 years respectively.  The robbery was declared a serious violent offence.  Fishburn pleaded guilty to manslaughter and armed robbery in company with actual violence.  For these offences he was sentenced to imprisonment for nine years and eight years respectively.  Van Achterberg also pleaded guilty to manslaughter and armed robbery in company with actual violence and was sentenced to imprisonment for eight years and six years respectively.  Brown has yet to be tried.

[6] The applicant was aged 24 at the time of the offence in August 2003.  He had a criminal history dating back five years from that time, but it consisted largely of summary offences for which he had been fined and which did not involve serious violence. Apart from his being a drug user (if that is indeed exceptional), there was nothing unusual in his background; and he claimed to have ceased using drugs since being allowed bail.  The sentencing judge was given little information about his employment history.  No favourable references were tendered.

[7] The applicant agreed to be interviewed by police when located a number of days after the apprehension of the other participants.  Much of the evidence for the version of events referred to above came from that interview, but it does not seem that the applicant was completely frank with the police.  For example, he initially claimed that he had nothing to do with the motorcycle, but later acknowledged that he and Brown had been riding it together after the offence.  His concern seems to have been to distance himself from the murder.  It is unclear at what stage his intention to plead guilty was communicated to the Crown. Although subsequent to committal proceedings, it was a timely plea. 

[8] The applicant submitted that the sentencing judge must have given inadequate weight to his plea of guilty; that he is in a comparable position to an offender who brings to the notice of the authorities criminal conduct that was not known and confesses to that conduct; and that there is a disparity between the sentence imposed on Van Acterberg and that imposed on him.  He submitted that his involvement in what was admittedly a serious armed robbery was so peripheral as to place him in a fundamentally different category from his co-offenders.  When these matters were taken into account, he submitted, it is apparent that the judge must either have adopted an excessive notional head sentence or failed adequately to moderate whatever head sentence he did adopt.

[9] Four suggested comparable cases were cited.  R v Granato[1] was a case where the applicant was convicted of burglary and of committing a malicious act with intent to do grievous bodily harm.  Essentially it involved a home invasion in company in order to inflict a revenge beating.  I find it too different from the present case to be of assistance.  R v Rankin[2] was a similar case, but also involved a count of attempted armed robbery with personal violence.  The applicant in that case was a hired hitman.  A sentence of imprisonment for five years was reduced on appeal by ordering that the imprisonment be suspended after the applicant had served two years, but only because the sentence was out of line with that which had been imposed upon the person who hired the applicant.  McPherson JA said, in giving reasons for judgment, with which the other members of the Court agreed, that the offence and others like it were “particularly serious and should be visited with heavy penalties.”[3]R v Couper[4] and R v Renata[5] were also home invasion cases and did not involve convictions for robbery.  The overall circumstances were less serious.  I find them unhelpful.

[10]  The respondent relied upon R v Houldsworth & Crossman.[6] In that case the applicant, Houldsworth, was sentenced to six years’ imprisonment for armed robbery of a service station.  He was the driver of the getaway car, was not as heavily involved as his two co-offenders in planning the robbery and had been persuaded to join in the enterprise.  The principal offenders wore balaclavas and carried knives.  They were sentenced to imprisonment for six and a half years each.  The applicant's sentence was reduced to four years’ imprisonment on parity grounds.  He had only a minor criminal history.  His initial reluctance to join in the robbery contrasts with the conduct of the present applicant, who volunteered to assist.

[11]  There is no reason to suppose that the judge made any error in relation to the applicant's plea of guilty.  He took into account the fact that the applicant had participated in a record of interview.  The applicant did not bring this offence to the notice of the authorities - he was located after others had been apprehended.  His involvement was serious in that he knew a robbery was to be committed and that one of the principals was armed with a rifle and was wearing a balaclava.  He must have known that there was a real risk of serious harm to the householder.  He offered his help under no pressure from the participants.  Having seen Brown mopping up, he assisted by wiping fingerprints from a door handle.  He was completely indifferent to the fate of the victim of the robbery, whose motorcycle he subsequently used and some of whose property he pawned when he must have known the owner had been murdered. 

[12]  I see no disparity between the sentence imposed upon him and that of the six years’ imprisonment imposed upon Van Achterberg, who was aged only 18 at the time and was under the influence of older men.  She was upstairs in the house when the violence took place and told police that it was totally unexpected by her.  The plan had been for her and the owner of the house to be tied up.  She did not know a gun was to be used.  It is true that she assisted in cleaning up the house and removing property, but she acted in fear of Brown who had threatened her.  Unlike the applicant, she had given a statement to police and was willing to testify against her co-offenders.  The sentencing judge overlooked none of these matters and found that Van Achterberg had shown genuine remorse.  Fishburn, who took a more active part in the robbery, was sentenced to imprisonment for eight years for that part.  The applicant's sentence is proportionate to those of Van Acterberg and Fishburn.

[13]  I would dismiss the application.