R v Sherman[2007] QCA 322

SUPREME COURT OF QUEENSLAND

KEANE JA:  On 20 September 2007, the applicant was convicted on her plea of guilty of one count of armed robbery.  She was sentenced to two years imprisonment with parole fixed at 14 December 2007, that is after serving approximately three months in actual custody.

The applicant was also disqualified from holding a drivers’ licence for a period of 12 months.

The applicant seeks leave to appeal against her sentence on the ground that it was manifestly excessive in all the circumstances.

The offence was committed on 7 October 2006.  At the time the applicant was living with her co-offender Brett Schultz. He was a drug addict.  He had no prior convictions.

Schultz decided to rob a liquor store at Ellengrove.  The applicant had previously worked at the liquor store, but she did not knowingly contribute to the planning of the robbery.

She tried to persuade Schultz not to do it.  Schultz was, however, determined to go ahead with his plan.  He said that he would do it whether or not she helped him.  She thus had a choice.  She chose to help him.  She drove him to and from the liquor store.

Schultz was armed with a wooden bat.  The applicant knew that he was so armed.  He waited in the stairwell outside the store until 8.00pm when he knew that the two young female attendants, one of whom had been friendly with the applicant, would be counting the day's takings. Schultz entered the store waving the bat and demanded money.  One of the young women threw a pencil case containing the day's taking of $1,808 to him.  Schultz then left the store in the vehicle driven by the applicant.

The applicant did not receive any of the proceeds of the robbery.

When interviewed by police, the applicant admitted that she knew that Schultz intended to commit the robbery even though Schultz had earlier told the police that, although she was driving the vehicle, she did not know that he had intended to commit the robbery.

The applicant was 22 years old when she committed the offence.  She was 23 years old when she was sentenced.

The applicant is the mother of a five year old child.  She was six months pregnant with her second child when she was sentenced.  She became pregnant by Schultz after the offence was committed.  The learned sentencing judge fixed the date of the applicant's release two days before she is due to give birth.

The applicant has a minor criminal history of drug use.  On 20 September 2006, that is two and a half weeks before the robbery, she was placed on a four month good behaviour bond for drug possession on 7 August 2006.

The applicant has a good work history.  Those who have worked with her speak well of her, save, of course, the young store attendant who understandably feels betrayed by the applicant.

The learned sentencing judge was told that, since the robbery, the applicant has moved to Toowoomba to live near her mother, and that she has stopped using drugs or alcohol.

The learned sentencing judge recognised that the criminality involved in the secondary role played by the applicant in the offence was less than that of her co-offender.  This recognition was reflected in the heavier sentence imposed on Schultz, who was sentenced to three years imprisonment with a fixed parole date of 20 March 2008, that is after serving six months in actual custody.

The learned sentencing judge accepted that the applicant was genuinely remorseful for her part in the offence.  His Honour also noted that the applicant's family support will assist her in what his Honour described as "the continuing rehabilitation process".

The learned sentencing judge also took into account the applicant's youth, her cooperation with the authorities and her plea of guilty at an early stage.  In the upshot, however, the learned sentencing judge did not regard these features of the case as warranting a sentence which did not involve a period of actual custody.

The applicant accepts that the head sentence of two years imprisonment cannot be the subject of any legitimate criticism.  The applicant submits, however, that if the learned sentencing judge had given sufficient weight to the amateurish nature of the offence, the applicant's accessorial responsibility, and the circumstances of mitigation personal to the applicant to which reference has been made, a non-custodial sentence would have been imposed.

It must be said immediately that an applicant who seeks to argue that the inclusion of a component of actual custody in a sentence for armed robbery renders the sentence manifestly excessive for that reason, assumes a heavy persuasive burden, even in the case of a young offender with no previous convictions.

While a non-custodial sentence may be within the bounds of a proper exercise of the sentencing discretion in some cases of young offenders with no or minor criminal history - see R v Taylor & Napatali; ex parte Attorney-General (1999) 106 A Crim R 578; R v Dullroy & Yates; ex parte A-G [2005] QCA 219 - and while it must be recognised that the rehabilitation of young offenders is important - see R v Bainbridge & Ors (1993) 74 Crim R 265, R v Lovell [1999] 2 Qd R 79 - it must also be recognised that a custodial sentence is usually within, and, indeed, should be expected to be part of, the sound exercise of the sentencing discretion for an offence as serious as armed robbery.

There is a useful recent discussion of the authorities in this regard in the reasons of Jerrard JA in the R v Getawan [2005] QCA 350.

While it is true that the offence in question was poorly planned and amateurishly executed, it was no less terrifying for the young female store attendants who were the victims of the robbery.  It is apparent from their victim impact statements that the robbery has had a continuing adverse effect upon their health and happiness.  There can be no denying the seriousness of this offence, or the legitimate interest of the victims in the proper punishment of the offenders. 

There are reasons for optimism in relation to the rehabilitation of the applicant; but that process is, as the learned sentencing judge recognised, far from being an accomplished fact.

In my respectful opinion, even if full weight is given to the unsophisticated nature of the robbery, to the lesser criminality of the applicant's part in the offence, and to the circumstances of mitigation personal to the applicant, it cannot be said that the learned sentencing judge had no alternative in terms of a sound exercise of the sentencing discretion but to impose a non-custodial sentence.

As to the circumstance that the applicant will complete her pregnancy in gaol, the learned sentencing judge has done what can be done to ensure that the applicant's child will not be born in prison.  That this unfortunate possibility remains open does not make the sentence excessive.  There is, in any event, no reason to think that appropriate arrangements cannot be made for the safe delivery of the applicant's baby.

The sentence imposed on the applicant was, in my respectful opinion, not manifestly excessive.  The application for leave to appeal against sentence should be refused.

JERRARD JA:  I agree.  I add that the issue is not whether the Judges sitting on this appeal would each of us ourselves have imposed that particular sentence, but whether in the circumstances it is beyond the range permitted by the sentencing discretion available to the Judge.

I add that this Court was not told in the submissions made to it by any party of any particular difficulty for the applicant or her unborn child expected to be caused because the date of her release from custody is so close to the anticipated date of birth of the child.

JONES J:  Yes, I agree with the reasons enunciated by Justice Keane and the order he proposes.

JERRARD JA:  The order of the Court is that the application for leave to appeal against sentence is dismissed.