R v Lawley[2007] QCA 243

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I have read the reasons for judgment of Keane JA wherein the relevant facts are set out.  I agree with his reasoning in concluding that the sentence was not manifestly excessive.

[2] It was a significant aggravating factor that the applicant was on probation at the time he committed the armed robbery in question.  At the time he committed the offence the applicant had a jumper over his head in an attempt to avoid identification, and he was armed with a knife.  In those circumstances the learned sentencing judge did not err in concluding that the sentence had to include some time to be spent in actual custody.

[3] Given the applicant's personal problems, which are detailed in the reasons for judgment of Keane JA, it was also appropriate to structure the sentence so that after serving some time in custody the applicant would be under supervision for a further period of time.  Structuring the sentence so that the applicant spent nine months in custody followed by 27 months subject to parole ensured that the applicant would receive the supervision and support which will be necessary if he is to rehabilitate himself.

[4] I agree that the application for leave to appeal against sentence should be dismissed.

[5]  KEANE JA:  On 4 June 2007, the applicant was convicted on his plea of guilty of one count of armed robbery.  He was sentenced to three years imprisonment with a parole release date of 4 March 2008, ie after nine months of the sentence had been served.  The applicant seeks leave to appeal against that sentence on the ground that it is manifestly excessive in the circumstances.

The circumstances of the offence

[6] On 18 January 2007, the applicant robbed the complainant while armed with a knife.  The complainant was working at a convenience store at the Sunshine Coast.  At approximately 11.00 pm, the applicant entered the store wearing a jumper with the hood pulled over his head and clasped at the front with a safety pin to conceal his face.  He was holding a 30 cm long knife in his right hand.

[7] The applicant walked up to the counter, raised the knife and pointed it at the complainant.  The applicant said:  "I want you to empty the till."  The complainant complied with this demand and gave the applicant $565 cash from the till.  The applicant then left the store.

[8] The incident was recorded on security surveillance cameras.  The following day, the applicant spoke to a friend about the incident.  This friend informed police, and police were then contacted by the applicant who told them that he wished to speak to them about the robbery.  He then attended the police station and made full admissions as to his involvement in the offence.  He pleaded guilty to an ex officio indictment.

[9] On 13 July 2007, the applicant refunded the balance of the proceeds of the robbery.

The applicant's personal circumstances

[10]  The applicant was 19 years of age at the date of the offence.  He had not yet turned 20 years old when he was sentenced.  He completed his schooling to Grade 12.  He had a history of learning difficulties at school.

[11]  It appears from reports of psychologists and a psychiatrist tendered on behalf of the applicant to the learned sentencing judge that the applicant suffers from Attention Deficit Hyperactivity Disorder ("ADHD") and bi-polar disorder.  He had been under treatment by a psychiatrist for some time prior to the armed robbery of January 2007.  At the time of his offence, he had moved out of home and was living with his girlfriend and his son who was then 15 months old.  He was under extreme stress and was suffering mood swings.  Unfortunately, it appears that he was also drinking alcohol and using marijuana.  At times, he forgot to take the medicine prescribed for his ADHD and depression.  These reports confirm his remorse for his offending and the prospect that ongoing therapy may reduce the risk of his re-offending.  

[12]  The applicant had been out of work for about 12 months with a hand injury, and was struggling financially.  He was heavily in debt and had just learned that his girlfriend was pregnant again and was desperate about his financial circumstances.

[13]  After the offence was committed, but before the applicant was sentenced, he separated from his girlfriend and returned to live with his parents.  Before he was sentenced, he had been in steady employment for six weeks.  He was under the care of a psychiatrist. 

[14]  On 23 May 2006, the applicant had been placed on one year's probation for two offences of wilful damage committed on 1 May 2006.  The offence of present concern was committed while he was on probation.

The sentence

[15]  Before the learned sentencing judge, the applicant argued for a wholly suspended sentence, or a sentence suspended after serving three or four months actual custody.  The learned sentencing judge did not accept those arguments.  His Honour noted the seriousness of the offence and the circumstance that the applicant had chosen a soft target to rob.  His Honour also noted that, while the applicant was on his way to surrender himself to police, he stopped off and used the stolen money to pay $160 off his credit card debt.

[16]  The learned sentencing judge took into account the extenuating features of the applicant's personal circumstances.  His Honour said:

"I accept that because of the medication that you were then taking and your compromised position emotionally, that you were less culpable than the meticulously well-planned robber, who proceeds accordingly.  I have also taken into account your background.  Certainly, it appears that your schooling was adversely affected by your undiagnosed ADHD, but you are also a very talented sportsman, and you have probably reacted more dramatically than others because of that sporting background to a hand injury, which has caused you difficulties.  Your mother and father and sister are in Court.  They have provided references in support of you, as has Crystal, your partner and the mother of your child.  I accept that you are a person of otherwise good character, but it is a very serious offence and, as the Prosecutor pointed out, you were on probation for your one previous sojourn into the criminal law, a charge of wilful damage when the armed robbery was committed."

The application

[17]  On the applicant's behalf, it is argued that the sentence imposed is manifestly excessive.  When one reflects that the maximum sentence for armed robbery is life imprisonment, and that the applicant was on probation at the time the offence was committed, it becomes apparent that this is a difficult submission to sustain, even if full regard is paid to the applicant's cooperation with the authorities and the other circumstances of mitigation including his prospects of rehabilitation.

[18]  It is necessary to state that the sentence imposed by the learned sentencing judge involved the exercise of a discretion which this Court may not interfere with unless an error of the kind identified in House v The King[1] has occurred.  It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.  Even though in some cases the sentence imposed is so "unreasonable or unjust" in the circumstances that it can be inferred that error has occurred, as was emphasised in Dinsdale v The Queen,[2] this Court may intervene only when error is apparent.  Further in this regard, it is beside the point for the applicant to refer to decisions such as R v Taylor & Napatali; Ex Parte A-G[3]where this Court refused to interfere with a decision not to impose a custodial sentence upon two young offenders who had pleaded guilty to armed robbery.  That case simply underlines the breadth of the sentencing discretion and emphasises this Court's obligation to respect the role assigned by the law to judges charged with the difficult task of balancing competing considerations of deterrence, protection of the community, denunciation of crime and vindication of victims' rights on the one hand, and rehabilitation and compassion on the other.

[19]  Reference to authority confirms that the sentencing discretion is sufficiently broad to include a sentence of three years imprisonment for this kind of offence by a young offender.  In R v Perkins & Gooley,[4] Gooley pleaded guilty to armed robbery in company.  He was aged 20 at the time of the robbery with a minor criminal history.  He had significant mental health problems.  He confessed to police and implicated his co-offender.  He had a minor criminal history and had served a term of probation.  This Court refused to interfere with a sentence of three years imprisonment, suspended after 12 months.  It may be accepted that Gooley's offence was committed in company and was, therefore, more serious than the offending by the present applicant, and that Gooley's history was marginally worse than the present applicant's, but the sentence which was imposed in that case serves to demonstrate that the sentence which was imposed in this case was not outside the appropriate range.  That decision and the decisions in R v Moss[5] and R v Casey[6] support a sentence of the order of that imposed by the learned sentencing judge.

[20]  Accordingly, I reject the applicant's argument that the sentence was manifestly excessive.

[21]  On the applicant's behalf, it was also argued that the learned sentencing judge erred in failing to give sufficient weight to the factors subjective to the applicant indicating his remorse and prospects of rehabilitation.  In this regard, it is not said that the learned sentencing judge failed to take the evidence of these matters into account.  Rather, it is said that the sentence which was imposed reflects an apparent failure to accord these considerations their appropriate weight.

[22]  Once again, the argument requires this Court to infer that error must have occurred.  On the applicant's behalf, reference was made to this Court's decision in R v Horne.[7]  But that was a case where the learned sentencing judge failed to advert at all to the circumstance that, in the long period which had elapsed between the offences and the sentence, real prospects for the rehabilitation of the offender had been established.  That was not the case here.

[23]  While the applicant must be given full credit for his prompt cooperation with the authorities and his early plea of guilty, on the evidence before the learned sentencing judge, the applicant could not be regarded as a person who had been successfully rehabilitated.  Indeed, the evidence from the psychiatrist and psychologists showed that the applicant was very much in the midst of an ongoing process of rehabilitation, and that the success of that process was far from assured.

[24]  Having regard to the applicant's personal problems, it was not contended in this Court, as it was before the learned sentencing judge, that he should be given a wholly suspended sentence even though he has, since his offending, made encouraging steps towards rehabilitation.  In his own interest, as well as that of the community, he clearly needs supervision and support of a kind he would not receive if his sentence were to be wholly suspended.  He has already been given the benefit of a probation order.  The offence in question occurred during the period of probation, and, as it happens, while he was receiving psychiatric care.  The making of a further probation order could be regarded as an unwarranted triumph of hope over experience.  To say no more, it was open to the learned sentencing judge to take that view. 

[25]  It is also to be emphasised that the learned sentencing judge was not invited to exercise his sentencing discretion by sentencing the applicant to a period of probation or to a period of imprisonment with an immediate parole release date.  The failure of the learned sentencing judge to exercise his sentencing discretion by making orders of this kind does not reveal error on his part.  It cannot be inferred that the learned sentencing judge erred in the exercise of the sentencing discretion merely because his Honour has not made a particular order when no-one suggested that such an order ought to be made.   

[26]  It was open to the learned sentencing judge to take the view that a period of imprisonment, followed by parole, will provide the applicant with needed supervision and support and the incentive to make the most of that supervision and support to refrain from further offending.  It is not to the point to say that he does not need this kind of support because he is receiving psychiatric care and is now back with his parents:  so far as anyone can now say with any confidence, he could leave home again at any time should the fancy take him.  And, of course, he was under psychiatric care before he offended.

[27]  In my respectful opinion, the sentence which was imposed by the learned sentencing judge was not manifestly excessive.  Nor can it be inferred that the sentence was affected by error in failing to give proper weight to the applicant's personal circumstances, including his remorse and prospects of rehabilitation.  The sentence was, in truth, a fair and moderate attempt to recognise the claims of deterrence, both personal and general, and to ensure that the applicant receives ongoing supervision in his own interests and the interests of society, while at the same time recognising the mitigating features personal to the applicant which substantially reduce his culpability for what must be understood to be a very serious offence.

Conclusion and order

[28]  The sentence which was imposed was not manifestly excessive nor otherwise affected by error.

[29]  The application for leave to appeal against sentence should be refused.

[30]  MULLINS J:  I agree with Keane JA.