SUPREME COURT OF QUEENSLAND

[1]  MCMURDO P:  I agree with Atkinson J.

[2]  KEANE JA:  I have had the advantage of reading in draft the reasons of Atkinson J  I agree with those reasons and the orders proposed by her Honour.

[3]  ATKINSON J: The applicant seeks leave to appeal the sentence imposed on him in the District Court.  On 1 August 2008 he was sentenced on his own plea of guilty on four counts of robbery in company with personal violence.  The sentence imposed on each count was six months imprisonment and three years probation.  The sentences were to be served concurrently.  A declaration was made that the period which he had already spent in prison of 55 days from 3 May 2007 to 26 June 2007 be declared time spent in prison under the sentence.  Convictions were recorded.  He appeared for himself on his appeal and by that time had served the period of imprisonment imposed on him.

[4] The offending could be categorised, as was submitted by the Crown Prosecutor in his helpful submissions, as two episodes of street style robberies separated in time by some 11 days.  Counts 1 to 3 occurred on the evening of 14 April and in the early hours of 15 April 2007 and count 4 occurred on 26 April 2007.

[5] Count 1 occurred at about 11.00pm on 14 April 2007.  As the complainant was walking home from the Ashmore Tavern on the Gold Coast, he was attacked by three youths wearing bandanas across their faces.  They demanded his wallet and when the complainant pushed one of the assailants away he was attacked by all three offenders.  He was pushed to the ground and his wallet and mobile phone were taken.  The items were valued at $277.  The complainant did not suffer any injuries.

[6] Count 2 occurred a little over two hours later.  The complainant and two friends were walking to Surfers Paradise along Main Beach Parade when a motor vehicle pulled over further up the street.  Three men alighted and one requested a cigarette.  When he refused, the complainant was abused by the group.  Four other men then joined the confrontation.  The complainant was grabbed and dropped to the ground where he was punched and kicked several times.  His wallet, cigarettes and keys were taken.  They were valued at $145.  The complainant suffered minor facial injuries and a blood nose.  The applicant nominated two co-offenders to the police when interviewed.  He admitted to throwing one of the complainant’s friends to the ground but said he did not receive any of the property taken.  He did not assault the complainant himself.

[7] The third offence occurred at 3.00am in the same area.  The complainant and his friend were skateboarding along the street when they were approached by two men.  A third male jumped out of the bushes.  They took the complainant’s cigarettes and his expensive mobile phone.  The applicant had the complainant’s mobile phone for about two hours until one of the other offenders took it from him.

[8] The fourth offence occurred on 26 April 2007 at 11.50pm in Bundall.  The complainant was confronted by two disguised men, grabbed and forced into a vacant lot where he was searched.  A third offender then joined in.  His backpack, wallet and mobile phone were stolen.

[9] There were some very serious aspects of this offending.  There were four robberies which were committed in company and on the street menacing strangers.  On a number of occasions the offenders were wearing a disguise.  This type of offending in public is frightening to members of the community who are going about their lawful business at night and sentencing judges quite rightly regard deterrence and the safety of the public as very important aspects of sentencing in cases of this type.

[10]  There were however a number of mitigating factors in this case.

[11]  One of the most significant in this case was the age of the applicant.  He was only 17 at the time and had no criminal history.  He co-operated with the police by giving a full and frank statement to the police in a record of interview.  Through his guilty plea he co-operated in the administration of justice and showed genuine remorse.  He was not the main offender.  Although some personal violence was used in the offences the only violence offered by the applicant was to one of the complainant’s friends in count 2.  No serious injury was suffered by any victim and there was no victim impact statement.  None of the offenders were armed.  The stealing involved objects of relatively little value.  Although there were four offences, the offending happened on two nights only.  Unlike some other cases, the second episode of offending did not occur whilst the applicant was on bail.  He completed a lengthy period on bail without any further offending.  He appears to have undergone genuine and complete rehabilitation since the offending.  The prosecution did not submit that custody was required but rather submitted for the maximum probation and community service order.

The appropriate sentencing guidelines

[12]  In sentencing an offender who has been involved in the use of violence against another person the principal matters to which a sentencing court must have regard are set out in subs 9(4) of the Penalties and Sentences Act 1992 (Qld).  That subsection provides that the court must have regard primarily to the following –

“(a)the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b)the need to protect any members of the community from that risk;

(c)the personal circumstances of any victim of the offence;

(d)the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damages resulting from the offence;

(e)the nature or extent of the violence used, or intended to be used, in the commission of the offence;

(f)any disregard by the offender for the interest of public safety;

(g)the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

(h)the antecedents, age and character of the offender;

(i)any remorse or lack of remorse of the offending;

(j)any medical, psychiatric, prison or other relevant report in relation to the offender;

(k)anything else about the safety of members of the community that the sentencing court considers relevant.”

[13]  The rehabilitation which the applicant had demonstrated by the time he came to be sentenced suggested that the risk of physical harm to members of the community if the applicant were to undertake community service whilst under the supervision of probation rather than being returned to prison was low.  The victims of the offences were not seriously harmed as evidenced by a lack of physical injuries and the absence of victim impact statements.  The violence used, whilst reprehensible, did not involve the use of weapons and the applicant himself was not the primary instigator of the violence.  The applicant had no previous criminal history.

[14]  While the amendments which resulted in s 9(4) meant that the youth of the offender no longer had the same paramountcy as it had before that time, nevertheless the youth of an offender is highly relevant to the sentence which ought be imposed.  As McMurdo P said in R v Taylor & Napatali; ex parte Attorney General of (Qld) [1999] QCA 323 at [2]

“The courts have long recognised the desirability of not sending youthful offenders without prior convictions to prison because of the chances of favourable reformation.”

[15]  In that case the youthful offenders had been sentenced to a 12 month intensive corrections order for an offence of armed robbery in company with violence.  The maximum period of imprisonment for the offence was life imprisonment.  The offence occurred at night against a service station operator.  The offenders were armed with guns and one of them jammed a gun which turned out to be a replica into the back of a customer’s head.  Six hundred dollars was stolen.  The sentence was confirmed on appeal.

[16]  In R v Lovell [1999] 2 Qd R 79 at 83 Byrne J, with whom Davies and Pincus JJA agreed, said of the amendments which introduced subsection 9(4) to the Penalties and Sentences Act:

“The 1997 amendments reflect 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 some more 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 attempt at rehabilitation and the number of any previous offences of any type committed” (g), and “the antecedents, age and character of the offender” (h).

[17]  In R v Dullroy & Yates; ex parte Attorney General (Qld) [2005] QCA 219 White J referred to the case of R v Taylor and Napatali; ex parte A-G (Qld) and said at [52]:

“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.’”

[18]  This view was recently reiterated by the President in R v Mules [2007] QCA 47 where her Honour said at [21]:

“This Court’s decision in R v Horne [2005] QCA 218, … makes clear that youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences like these, should receive more leniency from courts than would otherwise be appropriate.  That is because rehabilitation of young offenders is in the community interest ….”

[19]  In this case, it would have been within the proper exercise of the sentencing discretion to have given a young man with no criminal history who had co-operated with the police and the criminal justice system and had demonstrated his remorse and rehabilitation an entirely community based order.

[20]  In this case there is also the question of parity.  One of the applicant’s co-offenders was Christopher Andrew Plant who pleaded guilty to five counts of robbery in company and one of stealing.  Plant had engaged in a further robbery and stealing that occurred shortly after the events on count 3.  He was sentenced on the basis that he was the driver.  He was only 17 years old.  He was placed on probation for two and a half years with an order of 240 hours of community service.  No convictions were recorded.

[21]  Another co-offender was a juvenile who was sentenced by Judge Newton in the Children’s Court.  He pleaded guilty to a 10 count indictment and received detention of 12 months to serve 50 per cent.  He was 16 years old.

[22]  The prosecutor on the applicant’s sentence submitted that the issue of parity should be taken into account and that a combination of the maximum probation and community service with a conviction being recorded was appropriate.

[23]  By the time the applicant appeared in this court, he had served his term of imprisonment.  He frankly accepted that he deserved punishment but was concerned about the restrictions on his employability of the lengthy probation order imposed upon him, particularly as he wished to travel interstate and overseas.

[24]  While it would have been a proper exercise of the sentencing discretion to have given the applicant an entirely community based order, it cannot be said that it was outside the proper exercise of discretion to require him to spend time in custody.  In this case however it is not necessary that he also serve the maximum period of probation especially as he appears to have already demonstrated his rehabilitation.  To require him to serve both six months imprisonment and three years probation was manifestly excessive.

[25]  I would allow the application and the appeal only to the extent of replacing the three years probation with a period of probation of 18 months.  The conditions of probation do not prevent this applicant from travelling interstate or overseas but do require the permission of an authorised corrective services officer for him to do so.  If the applicant needs to travel for work opportunities then he can seek such permission and if the request is reasonable considering any continuing need for supervision, then his request will receive appropriate consideration.

Orders

1.Application for leave to appeal granted.

2.Appeal allowed to the extent of replacing the period of probation on each count of three years with a period of probation on each count of 18 months.

3.The sentence is otherwise confirmed.