R v Raea[2006] QCA 487

COURT OF APPEAL

WILLIAMS JA

JERRARD JA

HOLMES JA

CA No 275 of 2006

DC No 214 of 2006

DC No 222 of 2006

DC No 335 of 2006

DC No 432 of 2006

THE QUEEN

v

RAEA, Maara MoureaApplicant

BRISBANE 

DATE 23/11/2006

JUDGMENT

WILLIAMS JA:  I will ask Justice Holmes to deliver her reasons first.

HOLMES JA:  The applicant for leave to appeal against sentence was convicted on pleas of guilty of one count of armed robbery in company with violence, three counts of robbery in company with personal violence, one count of robbery in company, one count of assault occasioning bodily harm whilst armed in company, one count of assault occasioning bodily harm in company, two counts of receiving, two counts of attempted fraud, three counts of demanding property with menaces and one count of common assault.

She pleaded guilty also to five summary offences:  possessing property suspected of having being used in connection with the commission of a drug offence, contravening a police requirement, possessing utensils, possessing tainted property and committing a public nuisance.

On the charge of robbery in company with personal violence to which she had pleaded guilty on an ex officio indictment the applicant was sentenced to four years imprisonment suspended after 18 months with an operational period of five years.  Two hundred and sixty two days spent in presentence custody were declared as time served under that sentence.

In respect of the three counts of demanding property with menaces and the assaults simpliciter she was sentenced to six months imprisonment.  In respect of all the remaining offences on indictment she was sentenced to three years imprisonment with a date for release on parole fixed at 11th of June 2007, that date being designed to coincide more or less with the non-suspended part of the sentence on the first count.  No further penalty was imposed in respect of the summary matters.

The applicant was aged between 17 and 18 years at the time of the offences.  Those charged on indictment arose out of five separate incidents over a 12 month period.  The first of the offences occurred on the 30th of December 2004 when she was in company with her male cousin.  They began an altercation with a young couple who seem not to have said or done anything particularly provocative.  The applicant assaulted the female, holding her wrist and punching her three times in the face.  She said, when interviewed later, that she did that because she thought the girl was being smart.  That complainant sustained bruising to her right arm and cheek and a black eye.

Soon after that event the applicant approached a middle aged man using a public telephone, from behind took his mobile phone and ran off with it while her cousin hit the victim on the top of his lip with a hammer causing his lip to bleed.  When interviewed the applicant said that it was her cousin's idea to steal the phone.

The applicant was interviewed in respect of those matters and, it seems, charged on the 27th of February 2005.  She was then released on bail.  The next set of offences took place on the 26th of March 2005 when the applicant and two young female co-offenders, Tuhakaraina and Olsen, approached three young people in a group travelling on a train and demanded that they hand over their mobile phones or they would smash them.  That single event gave rise to three counts of demanding property with menaces.  Tuhakaraina grabbed the phone held by one of them and repeated the demand that the others hand over theirs.  She pushed one of the girls into her seat and opened her backpack.  When the girl stood up the applicant punched her in the nose with a closed fist.  One of the other girls in the group tried to assist the girl being assaulted.  The applicant and Tuhakaraina punched her, dragged her to the ground and punched and kicked both girls and pulled their hair.

The train drew into a station, Olsen snatched a backpack from the hands of one of the people in the group and the three decamped.  The applicant was subsequently interviewed.  She said she was intoxicated at the time and essentially admitted what had occurred.  She said she took a wallet and mobile phone which contained a camera from the stolen backpack.  She had also taken a telephone charge card and made a number of attempts to use it which led to the count of attempted fraud.  Again she was on bail.

On 11th of November 2005 the applicant and two female companions, Tuwari and Leigh, attacked two 17-year-old girls walking along a public road at about 9.15 pm in the evening.  The applicant ran up to one of the girls, punched her in the face and took her handbag containing a wallet with a small amount of money, a mobile phone and other items.  The other girl tried to intervene, Tuwari punched her in the face while Leigh punched the girl whose bag had been taken in the face, causing her bruising around the eye.

On the 3rd of December 2005 a young man going to a railway station at about midnight was unexpectedly set upon by a male person and a female person who punched him and kicked him while he was on the ground.  While that was happening surveillance footage showed the applicant taking his bag.  Later she was heard to tell the others that she had got his mobile phone.  The applicant was taken into custody a week later.  When she was interviewed she admitted to being present and telling the others to run but said it was someone else who took his bag.

As to the summary offences on the 5th of July 2005 police encountered the applicant in a park where she had some scissors with her with cannabis residue on the blades and a homemade water pipe.  She said she'd used the scissors to chop cannabis before using the pipe to smoke it.  She was given a notice to attend but did not do so, giving rise to the charge of contravening a requirement.  On 30th of August she was found in possession of a bong which she admitted to recently using to smoke cannabis, a bottle of Scotch and some cigarettes which she admitted taking from a female at a train station.  That person was identified but declined to make any formal complaint.  The applicant was charged with possessing tainted property.

On 22nd of October 2005 the applicant created a public nuisance.  She was heavily intoxicated and was yelling what were described as racially-based slurs to residents in a unit complex. 

The applicant was born in the Cook Islands and came to Australia from New Zealand at the age of 13.  She reached year 10 at school.  According to her counsel's submissions at sentence she had held a couple of unskilled jobs for an unspecified length of time.  She had a limited criminal history at the time of sentence, consisting of five breaches of bail, two breaches of fine option orders and a stealing from the person on 3rd of December 2005 for which she was fined $450.  Counsel, at sentence, attributed her offending to the use of alcohol.  Certainly the observations of the police seem to bear out an ongoing problem with alcohol.

The Court was told that before being taken into custody she had lived with her parents and found imprisonment onerous because she was used to a close family life.  While in custody she had held down a job, obtained a forklift driver's licence and was attending Alcoholics Anonymous.  The sentencing Judge was given a letter she had written saying that over nine months in custody she had had time to think about the effects of what she had done, and expressing remorse.  Appearing for herself on the appeal this morning, the applicant has again provided the Court with a letter expressing remorse.  She says that she has attended both Alcoholics Anonymous and Gamblers Anonymous courses in custody in order to keep herself occupied as well as obtaining the forklift driver's licence already referred to.  She says also that she hopes, on her release from custody, to return to a job she previously held with a linen service.

Mr Campbell for the Crown referred us to three authorities, R v Tupei [1996] QCA 509, R v Fawcett [1996] QCA 393 and R v Mitchell [2005] QCA 178.  In Tupei the 18-year-old offender had been convicted, amongst other offences, of dishonesty, robbery, armed robbery in company with personal violence and robbery with personal violence on three separate occasions.  The first of those occasions involved a bag snatch, the second with four other people decoying and rolling the complainant whose wallet was stolen with the applicant holding him down while others kicked him and hit him with a bumper bar so that he required stitches and suffered a broken nose.  And the third, assaulting a young man at a railway station, rendering him unconscious with lacerations requiring stitches, severe bruising and chipped teeth and taking his watch and keys.  Other offences were unlawful use, wilful use, breaking and entering and stealing and arson.

Sentences of seven years and eight years respectively, each with a recommendation after three years in respect of the counts of robbery with violence were set aside and replaced by a sentence of six years with a recommendation for parole after two years.  The Court in Tupei identified the dominant features of the case.  Like the applicant here, Tupei was young, had a very short prior criminal history and had made admissions.  Similarly, the property taken was of relatively small value.

As in this case there was some evidence Tupei felt some shame and recognised the effects of drugs and alcohol on his behaviour and, like this applicant, Tupei had not previously had the opportunity to undertake any rehabilitation programme.  On the adverse side was the mental and physical harm to the complainants and the mindless nature of the violence, both of which seem to have been at a significantly higher level in that case that in this.  On the other hand that case was different in that the offending involved a spate of activity over four weeks but there was a more serious set of accompanying offences in the arson and the break and enters.

In Fawcett the offender was about 20 years old.  He was sentenced to six and a-half years' imprisonment with a recommendation for parole after two years and three months in respect of two counts of armed robbery in company.  He also pleaded guilty to two other robberies, six unlawful uses of a motor vehicle, five break and enters and steals and a number of housebreaking and stealing offences.  There were many more such offences on a schedule including two other offences of armed robbery in company, one the hold-up of a service station.  It was said that the applicant's activities had cost the community in the order of $100,000.  He had a criminal history for similar offences involving violence.  A good deal of his offending was disclosed by his admissions to the police.  The Court in that case refused leave to appeal.  That matter is, in my view, of a very much higher level of seriousness than the present.

Mitchell involved a young female applicant who pleaded guilty to two counts of robbery with personal violence, two counts of stealing and other counts of wilful destruction and unlawful use of a motor vehicle.  She was sentenced to four years' imprisonment on each of the robbery offences with a recommendation for release after 18 months.  Each of those counts involved her, with two male persons as back-up, setting on a young passer-by to take their phone and assaulting them when they resisted.

The Court noted that there were no weapons used and in each case there was a single punch.  This was, it said, at the lower end of violent behaviour and in neither case caused any serious injury.  The applicant there had a problem with amphetamines.  She was 18 and 19 at the time of the offences.  The Court thought it likely that her offending was caused by her drug addiction, immaturity and desire to be accepted by her peer group.  The Court set aside the sentence, allowed the appeal and instead imposed a sentence of one year's imprisonment followed by a two-year probation order.

In this case, given that there were serious offences repeated while the applicant was on bail, and given the need to have regard to the factors referred to in s 94 of the Penalties and Sentences Act 1992, it seems to me that a head sentence of four years, while not lenient, was open.  In the applicant's favour were her lack of any substantial criminal history, her co-operation with police and her apparent remorse.  Those factors were recognised by suspension of the four-year sentence a little over one-third of the way through with a corresponding fixed parole date on the other offences.

But as in Mitchell, particularly important aspects were her youth and rehabilitation, the latter of which did seem under way after the nine months in custody.  Those aspects do not seem to have been recognised in the sentence.  This was a case in which, having proper regard to the applicant's age, her need for and real prospect of rehabilitation, an earlier than usual release was called for.

I would give leave to appeal and vary the sentences imposed in the following respects:

In respect of Count 1 on Indictment Number 432 of 2006, suspend the sentence of four years imprisonment after 12 months with an operational period of five years; declare 262 days between 10th of December 2005 and 29th of August 2006 already served on that sentence.

In respect of Counts 1 and 2 on Indictment Number 214 of 2006, Counts 4, 5, 7, 8, 9 and 10 on Indictment Number 222 of 2006 and Counts 1 and 2 on Indictment Number 335 of 2006 vary the sentence by fixing as the parole release date 11th of December 2006.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree.

HOLMES JA:  The consequence of those orders, you should understand, Ms Raea, is that you must report to a probation order and obtain a copy of the parole order between 9 am and 5  pm on the date of your release or on the next business day.  Now, you will have been told that at your previous sentence but this means that on the day you get out you do it or the following day.  If you do not you will be unlawfully at large and in breach of your parole and you may be taken back into custody.

You should also understand that there remain, as the suspended period of your sentence, three years.  So the sentence in respect of which you received four years imprisonment you will have served 12 months on at the time of your release.  It has an operational period of five years.  If you were to reoffend in the period of five years you could expect to serve the remaining three years in custody.

WILLIAMS JA:  The order of the Court will be grant leave to appeal, allow the appeal and vary the sentences as indicated in the reasons for judgment of Justice Holmes.

Ms Raea, I would repeat what Justice Holmes has just said to you.  The effect of the order is that you will be released in a couple of weeks time but if you do commit any further offences within approximately the ensuing four years then you could be taken back into custody to serve that balance of three years.  So you do face a very critical time in your life.  If you start drinking heavily with your friends or anything like that then, it seems to me, it is almost inevitable you will finish up back in gaol.

The Court is giving you this chance and it is a chance that you have to accept.  Do you understand all of that?

APPLICANT:  I do.

WILLIAMS JA:  All right.  Well the order will be as I indicated.