R v Norton[2007] QCA 320

SUPREME COURT OF QUEENSLAND

DOUGLAS J:  The principal issue in this appeal against sentence is whether the learned sentencing Judge failed to take into account adequately matters of mitigation arising from the applicant's limited criminal history, good work history and his cooperation with the authorities, including his plea of guilty, by fixing a parole release date later than he should have done based on normal sentencing practice in Queensland.

The applicant pleaded guilty to charges that he committed attempted robbery in company, unlawfully entered a vehicle with the intent to commit an indictable offence in the night in company and unlawfully used the motor vehicle.

He was sentenced on 11 April 2007 to imprisonment for 18 months for the charge of attempted robbery in company and to a further eight months imprisonment cumulatively on that sentence, at least in respect of the offence of unlawfully using a motor vehicle and possibly in respect of both of the second set of offences.

He had spent 127 days in presentence custody between 6 December 2006 and 11 April 2007, which was deemed to be time already served under the sentences.  The learned District Court Judge fixed a parole release date at 14 December 2007, just over a year after the applicant was first incarcerated on remand.

The applicant was born on 26 April 1988 and was aged 17 at the time of the attempted robbery and 18 when he committed the other two offences of unlawfully entering and unlawfully using a motor vehicle.  The charge of attempted robbery related to events that occurred on 30 August 2005 while the other offences occurred on 4 December 2006.

His criminal history tendered to the learned sentencing Judge showed that he had entered a dwelling and committed an indictable offence on 24 March 2006 and had failed to appear in accordance with an undertaking and breached bail.  For those offences he was given 18 months' probation on 11 July 2006 with no conviction being recorded.  Subsequently, he was charged with unauthorised dealing with shop goods, an offence that occurred on 13 June 2006 and with imposition for an offence that occurred on 25 July 2006.

He was fined in respect of the unauthorised dealing on 27 July 2006 and convicted and not further punished for the charge of imposition on 29 January 2007.  Those three groups of offences in his criminal history occurred after the attempted robbery and before the other two offences dealt with by the Court in this matter.

When the applicant was arrested he was a single man employed at a nursery.  At the time of the commission of the offences of unlawfully entering a vehicle and unlawfully using a vehicle he was on probation pursuant to the Magistrates Court order made on 11 July 2006.  He was also on bail for the attempted robbery offences having been arrested on 30 August 2005.

The offence of attempted robbery occurred when the applicant and a co-offender approached a 16 year old boy who was walking from his high school to his home.  He was talking on his mobile phone, was then approached by the applicant and another man who told him to hand over his phone.  The applicant asked him what type of phone he had and whether he had any money. 

Eventually his assailants, who included the applicant, demanded that he hand over the phone.  One of them, not the applicant, grabbed him and threatened to smash a bottle into his face.  He was also punched and kicked in the right leg inside the right knee by the applicant causing him a lot of pain.  He was knocked to the ground, but jumped up and ran into a neighbouring yard where he received help. 

His victim impact statement indicated that he felt more vulnerable, anxious and depressed after the event and concerned about the effect it had upon his ability to enjoy himself.  He had no lasting physical injuries.

The applicant was interviewed by police, he identified the other assailants and admitted being the person who had kicked the complainant and also that he had punched him in the head.  He told the police that he did not intend to rob the complainant, but that it was his other two co-offenders who had been attempting to rob him.

One of those co-offenders was dealt with as a juvenile in the Childrens Court and received two years' probation.  The other pleaded guilty to attempted armed robbery in company before another District Court Judge and received two years' imprisonment suspended after 241 days with that period declared to be time already served in presentence custody.  That man was about 25 or 26 and had a more extensive criminal history than this applicant.

The other offences to which he pleaded guilty occurred on 4 December 2006, more than 15 months after the first offence.  The offences occurred at about 10.45 p.m. at night when the older brother of the applicant approached three young people who were eating at a picnic table in a park. 

The co-offender, a man called Tappin, approached the group, produced a knife, which he held to the throat of the complainant, demanded his wallet, was told that it was in the car about 100 metres from where they had been sitting and was then taken to the car.  The complainant gave Tappin his wallet which was empty, as Tappin had by then been told. He also gave Tappin his mobile phone and car keys. 

At this stage the applicant came over on a signal from Tappin.  Until then he had been about 100 metres away apparently sniffing paint from a bottle.  The applicant when he arrived said that he really did not want to take the car, but then agreed with Tappin that he would drive it.  He drove away with Tappin and they were apprehended with the car the next day.  There were no threats made by Tappin in the presence of the applicant and no evidence that the knife used by Tappin was visible when the applicant became involved in the offences.

His pleas were treated as timely pleas.  They followed a committal hearing on the statements provided by the prosecution without cross-examination on his behalf.  The total of the two periods of imprisonment to which the applicant was sentenced was two years and two months.  His Honour, having regard to the applicant's age and his plea of guilty, fixed a parole release date one year and eight days after he had been taken into custody, which took into account the 127 days he had been in custody.

The main submission for the applicant was not that the length of the combined periods of imprisonment was excessive, but that the learned sentencing Judge erred in failing to moderate the total period of 26 months appropriately for the matters of mitigation. 

The comparable authorities suggest that the head sentences were within an appropriate range - see for example R v Francis [1996] QCA 217, R v Monday [2000] QCA 491 and R v RW [2003] QCA 301.  His Honour did not say that he had reduced the head sentences to take into account anything in mitigation, although one can speculate reasonably that he may have reduced the second term of imprisonment for reasons of totality.

Mr Moynihan for the applicant submitted that his Honour, in fixing a parole release date of 14 December 2007, produced the result that the applicant will have served over 12 months of a 26 month period of imprisonment one month short of the mid-point of the sentence. 

In arguing that that was a manifestly excessive sentence Mr Moynihan submitted that the learned sentencing Judge failed to give sufficient weight to the applicant's youth, relatively minor criminal history, the moderation usually attending the sentencing of young offenders to promote rehabilitation, the applicant's early pleas of guilty, particularly in respect of the later indictments where the plea was entered on the day it was presented, his cooperation with the authorities on the attempted robbery charge by his admission of his involvement and the provision of a statement identifying his co-offenders and his good work history.

He submitted that a more appropriate release date would have been at approximately one-third of the 26 month period of imprisonment or after nine months in accordance with common sentencing practice in Queensland - see R v Hoad [2005] QCA 92 at paragraph 31.

The respondent submitted that his Honour's sentence was appropriate in the circumstances and drew our attention to the likely reduction of the second term of imprisonment for reasons of totality.

In my view there were significant matters of mitigation to take into account in sentencing the applicant.  It is anomalous that the parole release date fixed is only slightly less than one half of the overall sentence in a case where the applicant pleaded guilty in a timely way, is young, has cooperated with authorities and has a criminal history that is relatively minor.  Had his sentence been covered by sections 184 and 185 of the Corrective Services Act 2006, for example, his parole eligibility date would have occurred after half his sentence.

As Mr Moynihan submitted, he will now have served almost 10 months' imprisonment of a sentence totalling 26 months and will have to serve very nearly half that sentence if the decision below stands.  It is common experience for a parole eligibility date to be fixed at a period significantly less than half the head sentence when mitigating factors such as those applicable to this applicant are taken into account. 

The parole release date fixed by his Honour is not a sufficient recognition of the matters that should have been taken into account in mitigating his sentence.  It seems to me that his Honour did err in failing to fix a parole release date at an earlier stage than 14 December 2007 and that it is appropriate that the sentence should be varied to fix his parole release date as today, 2 October 2007.

His Honour also declared that the time served in presentence custody by the applicant was deemed to be time served in respect of the offences charged in both indictments when the declaration should only have been made in respect of the later offences charged in Indictment 959 of 2007.  Accordingly, that issue should be corrected also.

I would allow the appeal and vary the order below to the effect that the date the offender be released on parole be fixed at today, 2 October 2007.

I would also pursuant to section 161 of the Penalties and Sentences Act declare that the applicant spent 127 days in presentence custody between 6 December 2006 and 11 April 2007 and that that period be deemed time already served under the concurrent sentences of eight months' imprisonment imposed in respect of the offences charged under Indictment 959 of 2007.

HOLMES JA:  I agree.

JONES J:  I agree.

HOLMES JA:  The orders will be as Justice Douglas has indicated.

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