SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

[2]  FRASER JA: On 23 April 2008 the applicant was convicted on his plea of guilty on one count of entering a dwelling with intent to commit an indictable offence with the circumstances of aggravation that he threatened to use actual violence, pretended to be armed with a dangerous weapon, and damaged property (count 1), one count of unlawful deprivation of liberty (count 2), and one count of robbery, with the circumstance of aggravation that he pretended to be armed with a dangerous weapon (count 3). 

[3]  On each of counts 1 and 2 the applicant was sentenced to two years imprisonment.  On count 3 the applicant was sentenced to three years imprisonment.  All terms of imprisonment are to be served concurrently.  Pre-sentence custody of 12 days was declared to be time served in respect of those sentences and a further 162 days of pre-sentence custody was taken into account.  It was ordered that the applicant be released on parole on 23 April 2009.

[4]  The applicant seeks leave to appeal against sentence on the ground that it is manifestly excessive in all the circumstances. 

Circumstances of the offences

[5]  At about 8.00 pm on 12 October 2006 the applicant entered a store in Innisfail.  He was wearing black gloves, black pants, a hooded black jumper and a mask.  He was carrying a replica pistol.  A tenant of a residential unit at the rear of the store, Mr Ryan (who was aged 53), came to the doorway of his unit and asked the applicant what he was doing.  The applicant moved towards Mr Ryan, forcing him backwards into his unit whilst pointing the replica pistol at him and told him to get onto his bed.  Whilst pointing the replica pistol at Mr Ryan, the applicant demanded money.  The applicant, having found out from Mr Ryan where his telephone was, pulled it out of the wall and threw it outside the unit so that Mr Ryan would not call the police.  The applicant warned Mr Ryan what would happen if he attempted to stop the applicant from robbing the store. 

[6]  The applicant returned to the back of the store where he was seen by Mrs Norman (who was then aged 61), who was employed in the store as a shop assistant and was working alone at the time.  He pointed the replica pistol towards her chest and demanded that she put money from the cash register into a bag that the applicant was holding.  Whilst she was complying with that demand, the applicant took packets of cigarettes from a shelf and put them into his pockets.  The total amount stolen by the applicant in the robbery was $1266.80. 

[7]  The applicant then asked Mrs Norman in an aggressive tone where the phone was, continuing to wave the replica pistol towards her chest.  When she pointed towards the store room at the back of the store the applicant demanded that she go first.  The applicant continued to wave the replica pistol at Mrs Norman whilst he repeatedly shouted his demand that she disconnect the phone.  Eventually the applicant ripped the cord from that telephone.  After checking the store to see that no-one else was there the applicant ran out of the front door with the stolen money and cigarettes.

[8]  He then went to the back of a nearby school where he had stored a change of clothing.  After changing, he discarded the replica pistol and the clothing he had worn during the robbery.  He inadvertently left behind his wallet, containing identification, with the discarded clothing.  Three days later he flew to his home in New Zealand, using a ticket he had bought with the proceeds of his robbery.

[9]  On 1 November 2007, some 12 months after the offences, the applicant was located by police in New Zealand.  He made full and very detailed admissions in his formal interview with police and in circumstances in which he may have been unaware of the strength of the prosecution brief.  His admissions revealed that he had "cased" the store after someone had told him that it would be an easy target.  He decided it was a good target for his intended robbery because there were no security cameras, it was a small store and it was not very well protected.  The applicant also told police that in an attempt to avoid his identification he had dusted the gun for fingerprints before he abandoned it, he had worn gloves during the robbery, and he had planned his change of clothes.

[10]  The applicant had bought the replica pistol a week before the robbery.  He claimed that he did not then have any intention of using it in the robbery.  The sentencing judge observed that he was "completely cynical" about that claim, but considered that it did not matter much because, as the applicant admitted to police, in the two days during which the applicant was planning the robbery he did intend to use the replica pistol and he did in fact use it. 

[11]  The applicant told police that his motive for committing these offences was his wish to return to New Zealand, for which he needed money to buy an airline ticket.

[12]  The applicant told police that he didn’t think he was prepared to hurt anyone at all “apart from emotionally."  Consistently with that admission, he also admitted that he intended to frighten Mrs Norman so that she would give him the money.  The victim impact statements by Mr Ryan and Mrs Norman demonstrate that they have indeed suffered significant emotional consequences of the kind to be expected to flow from the applicant's offending, including an undermining of their sense of security.  At the time of sentence, Mrs Norman felt unable to work at night, she feared the unexpected, was prone to mood swings and had trouble sleeping.  Mr Ryan feared the unexpected and had trouble sleeping.

The applicant's personal circumstances

[13]  The applicant was 19 years of age when he committed the offences and 20 years of age when he was sentenced.  He had no previous criminal convictions.  He did not commit any further offences in the 12 months that elapsed after the commission of these offences until his apprehension in New Zealand.  He was otherwise a person of good character.  He had very favourable references, in which, however, mention was made of his immaturity at the time when he committed these offences: the sentencing judge was satisfied that the applicant was immature for his age.  The applicant fully co-operated with police when they located him in New Zealand, demonstrated some remorse at that time and made a very detailed confession in which he did not seek to minimise his culpability (at least otherwise than in relation to the initial purpose for which he bought the replica pistol).  He did not oppose his extradition to Australia.  There was a full hand-up committal and the applicant indicated his intention to plead guilty to the offence at an early time.

[14]  The applicant had been on extended travels with his parents from their home in New Zealand.  He was desperate to return to his home in New Zealand to be with his mother, who had then temporarily separated from his father.  His father had continued on his travels alone, leaving the applicant to earn sufficient money from employment to pay for his own fare to New Zealand.  Instead of persevering in his unsuccessful attempts to earn the fare, the applicant determined upon his robbery.

[15]  The sentencing judge considered that the applicant's motivation of obtaining enough money to buy an air ticket to return to his home in New Zealand, whilst not excusing the offences, at least provided an explanation in keeping with the applicant's immaturity at the time.  The sentencing judge also accepted that at the time of sentence the applicant was more fully appreciative of the severe harm that his offences had caused to Mr Ryan and Mrs Norman and that he was genuinely remorseful for that harm. 

Sentencing remarks

[16]  The sentencing judge referred to the circumstances of the offences and the applicant's personal circumstances which I have summarised.  His Honour then compared the circumstances of the applicant's offending to that of the offender in R v Lawley [2007] QCA 243, in which a sentence of three years imprisonment with a parole release date after serving nine months of the sentence was held to be not manifestly excessive.  That was also a case of a 19 year old offender.  He had learning difficulties, suffered from a psychological disorder, was under treatment by a psychiatrist at the time of his offending, and was under extreme stress.  Lawley entered a convenience store wearing a jumper with a hood pulled over his head in a way that concealed his face.  He pointed a 30 cm long knife at the worker behind the counter and demanded money from the till.  When money was given to him he left the store.  The following day he told a friend about it, who informed police.  The offender himself then contacted police to make a full confession.  He also refunded proceeds of the robbery. 

[17]  Having summarised those facts and expressed the views that the offending in Lawley was less serious and that Lawley had demonstrated a higher degree of co-operation with the authorities and remorse, his Honour observed:

“But for one matter which I will discuss shortly, my view is that the sentence should be three years’ imprisonment, to be followed by an order for release on parole after serving half the sentence which is the usual period, and because with a three-year sentence I am required by law to fix a date upon which the defendant is to be released on parole.”

[18]  The remaining matter to which his Honour referred concerned the effect of the applicant’s pre-sentence custody on the appropriate sentence.  Because most of the period of some six months in which the applicant was in custody related to charges of possession of a dangerous drug and possession of utensils (concerning alleged conduct at about the same time as the subject offending and for which the applicant was unlikely to be sentenced to imprisonment) the applicant was entitled to have only 12 days of that period declared as time served in respect of the sentences for these offences.  For that reason the sentencing judge gave the applicant credit for the additional 162 days by ordering that the applicant be released on parole six months earlier than his Honour otherwise would have ordered.

[19]  Taking into account the pre-sentence custody, the overall effect of the sentence is that the applicant is to serve a total of nearly 18 months in custody of the sentence of three years imprisonment before being released on parole for a further period of nearly 18 months.

Discussion

[20]  The applicant's counsel referred to cases in which non-custodial sentences have been imposed for young offenders who have pleaded guilty to offences: R v Taylor & Napatali; ex parte Attorney-General of Qld (1999) 106 A Crim R 570; [1999] QCA 323, R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219, and cases referred to therein.  He also submitted that R v Horne [2005] QCA 218, R v Getawan [2005] QCA 350, and R v Perkins & Gooley [2005] QCA 377 supported his contention that a sentence of three years imprisonment for this offending was towards to the top of the applicable range.

[21]  The mere fact that some other, less severe sentence might have been within the sentencing discretion does not indicate error.  Nor is error demonstrated by an attempt to compare the aggravating and mitigating circumstances of this case with the cited cases with a view to establishing that there is one "correct" and less severe sentence: cf R v Dwyer [2008] QCA 117 at [37] - [38].  As the applicant’s counsel properly conceded, a head sentence of three years imprisonment for this offending was within the sentencing discretion.  So much is demonstrated by reference to this Court's quite recent analysis of the authorities in R v Lawley [2007] QCA 243. 

[22]  Similarly, no error in the imposition of a period of incarceration is demonstrated by reference to decisions such as the dismissal of the Attorney-General’s appeal in Dullroy, in which White J (at [55]) described the sentence as “lenient” and McMurdo P observed (at [65]) that the dismissal of that appeal on the ground that the sentence was not shown to be manifestly inadequate “by no means indicates that non-custodial sentences for offences in similar circumstances should be expected”.

[23]  It was submitted for the applicant that the sentencing judge erred by failing to take into account the need to moderate the head sentence to achieve the intended penalty of three years imprisonment.  Counsel for the applicant argued that the head sentence should have been reduced by some six months, to two and a half years, to give the applicant credit for that period of pre-sentence custody for which no declaration could be made.  The applicant’s point is that had a declaration been made it would have resulted in the six month period being taken to have been imprisonment already served under the Penalties and Sentences Act 1992 (Qld), s 159A; and in that event the applicant would be on parole for some six months less than otherwise would be the case.

[24]  However, it was within the sentencing judge's discretion to take account of so much of the pre-sentence custody as could not be declared under the Act by making an appropriate adjustment only to the parole release date: R v Skedgwell [1999] 2 Qd R 97 at 99.  A fair reading of the sentencing remarks as a whole demonstrates that the sentencing judge made it plain that this was the intended result.  That approach does make the sentence somewhat more severe than would have been the case had credit been given also in determining the head sentence, but that is not demonstrative of error.

[25]  The applicant’s counsel pointed out that the sentencing judge did not refer to the applicant’s unblemished record for the lengthy period after he committed the offences until his arrest in New Zealand.  That the applicant returned to his former law abiding ways is in his favour and it is true that the sentencing judge did not refer to this point in his Honour’s sentencing remarks.  The significance of this factor as evidence of the applicant’s rehabilitation is diminished, however, by the fact that the applicant was a fugitive from justice during that period.  The sentencing judge was aware of this history.  It was, I think, encompassed in his Honour’s remark that the commission of this offence was a departure from the norm.

[26]  Of more significance is the question whether, in the determination of the parole release date, the sentencing judge gave sufficient weight to the quite unusually favourable mitigating factors found in the applicant’s favour – particularly his youthfulness, that he had never been convicted of any offence and was otherwise of good character, his full co-operation with police once he was found, his detailed admissions, his timely plea of guilty, his belated appreciation of the severe harm his offending had caused, and his remorse.  The applicant presented as one who had far more hopeful prospects of a full rehabilitation than many of the offenders who come before the courts for offences of this character.

[27]  The submission for the applicant that these significant matters in mitigation of penalty were not adequately reflected in the parole release date finds support, in my respectful opinion, in his Honour’s statement in the passage quoted earlier that “an order for release on parole after serving half the sentence … is the usual period”.

[28]  Because the sentence was for a term of less than three years and the offences were not sexual offences or serious violent offences in terms of s 161A of the Penalties and Sentences Act 1992 (Qld), the effect of ss 160B(3) and 160G(1) of that Act was that the date upon which the applicant was to be released on parole was any date fixed by the sentencing judge which fell within any day of the applicant's sentence.  In relation to sentences imposing more than three years imprisonment, s 184 of the Corrective Services Act 2006 (Qld) fixes the parole eligibility date as the date when a prisoner has served half the period of imprisonment specified in the sentence.  Of course that provision does not apply here, but where it does apply it does not support the proposition that parole eligibility should usually be fixed by the court at the same date: rather, "good reason" must be demonstrated before fixing a parole eligibility date at a point later than the mid-point of the term: R v Assurson [2007] QCA 273, R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365.

[29]  No authority cited to the sentencing judge or to this Court supports the proposition that it is usual to order release on parole at the mid-point of an appropriate sentence of imprisonment imposed upon a youthful first offender who has co-operated with the authorities, entered an early plea of guilty, is remorseful, and who appears to have genuine prospects of rehabilitation.  Such an approach might more accurately be thought to be unusual, in my respectful opinion.  Whilst I do not find that there is any sentencing practice that confined his Honour’s discretion in this respect, in circumstances of this kind an order in one form or another under which the offender is released after serving no more than about one third of the term has been said to be a common sentencing practice for many offences: see, for example, R v Hoad [2005] QCA 92, R v Norton [2007] QCA 320, and R v Kitson [2008] QCA 86.

[30]  Of course each sentence depends on the sentencing court’s appreciation of the particular circumstances and the appropriate resolution of the often difficult balancing exercise: I cite this authority only because, in circumstances broadly similar to those here, it tends to rebut the proposition that it is usual to order release on parole at the mid-point of the term.

[31]  It is well-established that if an offender is youthful and has no prior convictions those matters must be afforded significance in the exercise of the sentencing discretion.  In that respect, in R v Dullroy & Yates; ex parte A-G (Qld) at [52], White J referred to R v Taylor & Napatali; ex parte Attorney-General of Qld and said:

"In that case as here, the critical factor influencing the sentencing discretion was that the respondents were youthful first offenders for whom the sentencing judge considered there was some real prospect of rehabilitation if they were not sent to jail. McPherson JA observed at 583 that that has long been regarded as a significant factor in sentencing. His Honour quoted with approval from the reasons for judgment of Wanstall CJ (with whom Matthews and Kelly JJ agreed) in R v Price [1978] Qd R 68 at 70-71 who in turn quoted from the reasons for judgment of Burbury CJ in Lahey v Sanderson [1959] Tas SR 17:

“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.”

The Chief Justice said that was a correct principle to be applied."

[32]  As a result of the 1997 amendments to the Penalties and Sentences Act 1992 (Qld), the applicant’s youth may no longer be regarded as necessarily the dominant consideration, but many authorities confirm that the fact that the applicant is a youthful first offender remains a factor of very considerable importance: see, for example, the discussion in R v Dullroy & Yates; ex parte A-G (Qld) at [16], [33], and [59].

[33]  It should not be thought that taking account of these personal circumstances of the applicant in this way involves neglect of the important consideration of protecting the community.  As Byrne J (with whom Davies JA and, generally, Pincus JA agreed) said of the 1997 amendments in R v Lovell [1999] 2 Qd R 79 at 83; [1998] QCA 36, in a passage referred to with approval in Dullroy & Yates by White J at [33] and by McMurdo P at [59]:

“The 1997 amendments reflect a legislative conviction that less hesitation by the courts in requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the court is required by s 9(4) to pay primary regard are ‘the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed’ (g), and ‘the antecedents, age and character of the offender’ (h).”

[34]  That the sentencing judge placed insufficient weight on the fact that the applicant was a youthful first offender is, perhaps, also suggested by his Honour’s analysis of Lawley.  Whilst it was plainly open to the sentencing judge to distinguish Lawley for the reasons his Honour gave, in light of the authorities I have mentioned it is also of considerable importance that Lawley was not a first offender and that he committed his robbery whilst he was on probation for previous offences of wilful damage.  Further, the evidence of a psychiatrist and of psychologists showed that the success of his ongoing process of rehabilitation was far from assured.  That stands in marked contrast to this case, in which the applicant had no prior convictions, his offending was found to be a "spontaneous departure from the norm", and there was cause for optimism about his prospects of rehabilitation.

[35]  For the reasons I have given the applicant’s submission that the sentencing judge’s sentencing discretion miscarried must be accepted, in my respectful opinion.

The sentence to be imposed

[36]  It therefore becomes necessary for this court to exercise the sentencing discretion afresh.  In doing so it is necessary to bear in mind the unfortunate prevalence of offences of this kind and the vulnerability of shopkeepers and others who are preyed upon by such offenders.  That such offences, accompanied by the circumstances of aggravation earlier identified, are very seriously regarded by the community is reflected in the maximum penalty of life imprisonment.  A condign sentence is also called for to reflect the high degree of premeditation and planning by the applicant, his use of an apparently realistic replica weapon, his threats of violence, and the terrifying ordeal he callously imposed upon Mr Ryan and Mrs Norman.  The predictable and long-lasting consequences they have suffered must not be forgotten.  On the other hand, the law also requires the Court to give appropriate weight to the applicant’s youthfulness and previous unblemished record, his prospects of rehabilitation, and the other mitigating factors mentioned earlier. 

[37]  It is no easy task in this case to strike a balance between the considerations of deterrence, protection of the community, denunciation of crime and vindication of victims’ rights, and those of rehabilitation and compassion, but my view is that the appropriate sentence in all of the circumstances is three years imprisonment with an order that the applicant be released on parole on 29 July 2008.  Under that sentence the applicant will not be released from custody until after he has served an overall period (including by way of pre-sentence custody) of some nine months.

Disposition

[38]  I would grant the application, allow the appeal, set aside the order that the applicant be released on parole on the 23rd of April 2009, and instead of that order I would order that the applicant be released on parole on 29 July 2008.  In all other respects I would confirm the sentence imposed in the District Court.

[39]  LYONS J: I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree with the reasons and the orders proposed by his Honour.