SUPREME COURT OF QUEENSLAND

[1]  MACKENZIE AJA:  The applicant pleaded guilty to an offence of armed robbery committed on 21 April 2007.  He was sentenced to five years imprisonment with a parole eligibility date fixed at 20 April 2009.  It was effectively a parole eligibility recommendation after serving two years, since he had spent 332 days in custody from arrest, which he was entitled to have taken into account as time already served.  He was also convicted on his pleas of guilty of a variety of summary offences, all but one of which were committed between 12 March 2007 and 27 July 2007.  No complaint is made about the sentences for them. 

[2] The facts of the matter are that the applicant entered a pharmacy at about 5.25 pm on a Saturday evening.  He was wearing a blue canvas bag, with eye holes cut out, over his head.  The complainant was working in the pharmacy with two other staff members.  When he saw the applicant walk in, he left the dispensary and walked towards him.  He pressed the panic button on the way.  The applicant lifted his jumper and the complainant observed something brown underneath it.  He thought that the applicant had a weapon by the way he held the object. 

[3] The applicant who was behaving in an agitated and nervous manner asked the complainant where the dangerous drug safe was.  He said he did not want to hurt him but wanted him to fill a white plastic bag that he produced.  When the applicant followed the complainant to the back of the pharmacy, he said that he wanted MS Contin:

“Just the highest stuff.” 

The applicant then took a quantity of the drug from the safe, concentrating on the highest dosages.  He said that he was sorry for what he was doing and that he was doing it because the doctors got him addicted to it and would not give him scripts for it.  When the applicant was located in his vehicle shortly afterwards, police found a paring knife about 14 centimetres in length with a brown wooden handle, a large quantity of drugs, and the bag that had been used as a mask.

[4] There is no doubt that the applicant was addicted to MS Contin or OxyContin at the time.  He had suffered crushed vertebrae in a car accident in 2001 from which he was said to suffer chronic pain.  He aggravated the injury in a fall in 2003.  The drug had been prescribed for him, although by 2005 the quantity he was using was an obvious matter of concern, according to medical records.  The question of misusing or abusing his medication was raised in them.  With the passing of time, he had travelled from the central coast of New South Wales via the Albury/Wodonga area to Adelaide.  By late 2006 he was in Brisbane.  There was a significant concern that he was a therapeutic addict and on 26 March 2007 he was refused further treatment at a practice he was attending because he had tried to obtain further opioids from other doctors at the practice and after hours. 

[5] There is a note dated 25 March 2007 from a doctor who declined to prescribe OxyContin with the result that the patient was “not very happy”.  The next day he saw his regular doctor at the same practice whose note confirms that no more OxyContin would be provided from the practice.  It was also recorded that the applicant had repeatedly abused staff at the practice.  (The applicant’s perspective seems to be, since he says so in his written submissions, that he was cut off wrongly from all medication after complaining and requesting his proper dosage).

[6] There was a report from a doctor at whose practice on the central coast of New South Wales the applicant was a patient from September 2003 until September 2005.  The doctor reports chronic disabling non-malignant back pain and refers to the fracture of vertebrae.  He also refers to other conditions, including previous intravenous drug use, post traumatic stress disorder, and organic brain damage due to multiple assaults.  He also said that the applicant had been on OxyContin tablets ever since he had known him and the substance had proven to be a benefit in the applicant’s management.  He said that the applicant suffered from severe withdrawal symptoms if the medication was discontinued suddenly.

[7] The applicant has a very extensive criminal history in four states.  The vast majority of his offending was in New South Wales, beginning in 1988 when he was 19 and continuing until 2003.  There were a large number of offences of dishonesty for several of which he served terms of imprisonment.  There were several offences of possessing a knife, some drug offences prior to 2003 and an offence in 2003 of possession of a prescription by false representation.  He committed offences of dishonesty in Victoria in 2005 and of carrying an offensive weapon in South Australia also in 2005.  He committed minor drug offences between his arrival in Queensland in late 2006 and the commission of the offences for which he was dealt with in the District Court. 

[8] For the sake of completeness, the summary offences to which he pleaded guilty at the same time as he pleaded guilty to the armed robbery comprised two of imposition in the form of obtaining drugs from pharmacies, one by using a prescription altered to authorise sixty tablets instead of the six prescribed and the other by using a false name, which led to an associated charge of possession of an unlawfully obtained prescription drug, and offences of possession of cannabis and failing to take appropriate precautions with a syringe.  All of these offences were committed between 12 March 2007 and 12 April 2007.  Then on 27 July 2007, while in prison on remand, he was found in possession of a prohibited thing, unapproved medication.  There was also a charge relating to an offence in 2006 of opening a bank account in a false name.

[9] The Crown submitted that the criminal history demonstrated a persistent course of offending and tended to indicate that he had very limited prospects of rehabilitation.  Because of those factors, it was submitted that a range of four to five years would be appropriate taking into account his criminality and antecedents.  R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320 was relied on as authority for the period of five years imprisonment. 

[10] The applicant’s counsel below submitted that the robbery was a very unusual one.  There was no express threat with the knife.  No physical harm was done to anyone.  He described the circumstances of the commission of the offence as “slightly hesitant”.  It was also an important feature that the applicant had a long and deep addiction to the prescription drug.  It was conceded that his becoming so addicted and remaining addicted was largely his own fault, but it was an explanation for the commission of the offence that, after a long period of addiction, he was taken off the drug and committed the offence in an attempt to obtain a further supply of it.  It was not a case where a person made a decision to use an illegal substance, had become addicted, and then resorted to a criminal act to get the money to buy the substance. 

[11] Counsel for the applicant below referred to R v Hammond [1997] 2 Qd R 195 at 211 for the following passage:

“Addiction to drugs at the time of the offence is not an excuse, but may tell the court that the primary weakness of character is that of an addict rather than that of a robber. Such a factor tends to be mentioned along with an unfortunate family life as an explanation of the offender's descent into bad habits. When the original problem was not something for which the offender was responsible, it is natural to feel some sympathy for the offender though this must not obscure the offender's direct responsibility for the ultimate criminal act he or she chose to do.”

[12] Earlier in the same section of the same judgment, at 211, it is observed that deterrence has a significant effect in sentencing for armed robbery.  Service stations and small shops (to which may be added pharmacies), particularly those which provide services at night to the public, are recognised as vulnerable to attack and the potential harm to the victims, psychologically in most cases and physically in many, is said to justify a firm line in sentencing.  The particular way in which the offence is committed is a predominant factor in the level of sentence.  The same passage also refers to extensive previous convictions, particularly for offences of dishonesty and other robberies, as a factor which will incline a court to a higher sentence.

[13] The appellant submitted that a sentence of three years with a parole eligibility date as soon as possible would be appropriate.  He said in his written material that certain facts were not properly put forward and fully considered.  In his submissions to this court he said that the impression seemed to have been gained that he had an abnormal addiction and was a “drug fiend”, not someone who had become addicted to prescribed amounts of medication, which was then reduced and finally cut off.

[14] He also submitted that the sentencing judge had overstated the seriousness of the offence by saying that he had terrorised the pharmacist by demanding he open the safe at knifepoint, and by saying it was a deliberate and premeditated action to rob the pharmacy because he had used a bag with eyeholes cut in it to hide his identity and taken a knife there.  With regard to the latter, he said in his oral submissions that the disguise was improvised only minutes before the robbery took place and that the decision to commit the robbery was made only seconds before that.  That does not really falsify the point being made by the sentencing judge that what was done involved selection of the target, preparing a disguise with a view to avoiding detection and going there armed with a knife.  It was not a case where an impulsive decision was made on the spur of the moment.  While the robbery was not literally carried out at knifepoint, the applicant did induce the pharmacist, by his actions, to believe that he was armed, and it turned out that the weapon that he, in fact, had was a knife.  The complaint is therefore semantic and could have had no effect on the sentence imposed.

[15] He also believed that if all of the cases to which he referred in his written material were available to be considered at the original sentencing, a different outcome would have been highly likely.  He submitted that a suspended sentence was equally if not more a deterrent than a recommendation for parole. 

[16] The schedules of cases handed up by the appellant have summaries of a large number of cases.  Some involve lower sentences and some higher ones than his sentence.  They reflect the wide variety of circumstances in which offences of robbery can occur.  They are of varying relevance.  Some involve youthful offenders.  Some involve parity and totality issues.  In some cases, there was evidence of substantial attempts to rehabilitate.  In a number of them, applications for leave to appeal were dismissed because the sentences were not manifestly excessive.  Such cases usually do not purport to set a benchmark for other cases.  It is therefore somewhat illusory to try to set a range for offences of robbery, even with some features in common, although analysis of the cases may show that a particular sentence is outside the norm for similar cases. 

[17] The cases specifically relied on by the respondent were R v Mather [1999] QCA 226; R v Moss [1999] QCA 426; and Maxfield.  In Mather, the applicant had held up a service station attendant by pretending to be armed with a weapon.  He used no violence.  He had much more favourable antecedents than the present applicant.  The sentence of four years was fixed by using five years as a starting point and reducing it to four years without a recommendation for early release, the reduction being made to allow for mitigating factors.  The sentence was held not to be manifestly excessive but near the top of the range for the particular circumstances in which the offence was committed. 

[18] In Moss a sentence of six years with a non-parole period of two years was imposed for robbery of a video store employee with a knife.  The applicant in that matter was only 18 years of age but had a considerable prior criminal history mostly as a juvenile.  The case was unusual because the sentencing judge had requested and relied on informal statistics about the prevalence of the offence and had used them to enlarge the head sentence asked for by the prosecution to reflect the need for deterrence.  In reducing the sentence to five years with a recommendation after two years, McPherson JA observed that the range for a first offence of that kind was ordinarily between about three and five years.  It was held that the sentence had to be reduced because the statistics relied on by the sentencing judge did not clearly justify an increase in the range and the appellant’s youth was in his favour. 

[19]  Mather was said to be distinguishable because of his good antecedents which suggested that his offending was well outside the normal range of his behaviour and his previous character.  In passing, it is not clear that the methodology of fixing the head sentence in Mather was fully appreciated, since it was said that the sentence appealed against exceeded the four years imposed in Mather “by a substantial margin”.

[20] In Maxfield a sentence of five years with a recommendation after two years was imposed.  It involved robbery of a pharmacy in which the applicant demanded $160, the price of dangerous drugs he wanted to buy from a dealer.  He had no previous robbery convictions but some involving violence.  There was evidence of attempted rehabilitation since he was apprehended.  The major issue was whether it was a manifestly excessive sentence because of a perceived risk that the applicant would not receive early parole because of prior offences of escaping from lawful custody on his criminal history.  The majority judges held that the sentence was not manifestly excessive. 

[21] Other offences which tend to support the level of the sentence in this case are R v Moodie [1999] QCA 125, an offence of attempted robbery, largely because of the ineptitude of its performance.  The applicant went to a pharmacy where he was a customer and attempted to rob it.  He was disarmed of the knife he was carrying by the 72 year old pharmacist.  He had an extensive criminal history and a sentence of five years was not disturbed although a serious violent offender declaration was removed.  R v Main [1999] QCA 327 is a worse case, and six years imprisonment was held not to be manifestly excessive. 

[22] The sentence of five years for the present offence sits comfortably within this cluster of cases.  The only remaining issue is whether there are mitigating circumstances that render the sentencing outcome manifestly excessive.  The case put forward by the applicant was that the offence was committed to acquire medication and not for financial gain.  He said that the medication which had been prescribed for him, but terminated for the reasons already explained, was addictive and led him to commit the offence after he had exhausted all legal avenues to obtain it.  He complained that his lawful supply had been wrongly terminated by the doctor concerned, which may be doubted in all of the circumstances of the case. 

[23] In my opinion, no circumstances have been demonstrated that show that the sentence was manifestly excessive.  There was nothing in the material before the sentencing judge suggesting that, if he subjectively believed he was unfairly being deprived of the drug, any effort was made to obtain an alternative lawful supply or other assistance.  Indeed, the commission of the offences of imposition in the period before commission of the robbery shows he was actually trying to do so by unlawful means.

[24] The robbery was an offence committed in premises with minimal protection for the staff against the kind of behaviour that happened, and therefore vulnerable to acts of the kind that occurred.  The pharmacist was entrusted with keeping a supply of the drug on the premises to dispense to people for whom it had been prescribed.  The applicant, having been refused a further supply of the drug, led the pharmacist to believe that he had a weapon, and compelled him to open the secure area so that the drugs might be stolen.  It is the kind of conduct that calls for general and personal deterrence as a major component.  In my view the sentence imposed was not manifestly excessive in all of the circumstances.

[25] I would refuse the application for leave to appeal against sentence. 

[26] CULLINANE J:  I have read the draft reasons of Mackenzie AJA in this matter.  I agree with those reasons and the order he proposes.

[27] JONES J:  I agree with the reasons of Mackenzie AJA and the order that the application be dismissed.