SUPREME COURT OF QUEENSLAND

1. KEANE JA:  I have had the advantage of reading a draft of the reasons for judgment prepared by Muir JA.  I agree with his Honour's reasons and the orders proposed by his Honour.

2. MUIR JA:  Introduction

The applicant pleaded guilty in the District Court to 10 offences on four indictments and to two summary offences and was sentenced as follows:

3. The sentences imposed for all offences other than those on the ex officio indictment were ordered to be served concurrently. The sentences for the offences on the ex officio indictment were ordered to be served concurrently with each other but cumulatively on the 307 day terms. There was a recommendation that the applicant be eligible for release on parole on 9 October 2009, a date 12 months after the date of sentencing. The 307 day terms of imprisonment coincided with the time spent by the applicant in pre-sentence custody.

The offending conduct

4. The count on indictment 1 concerned the taking of blinds from a vacant dwelling.

5. The counts on indictment 2 were committed in September 2006. The applicant stole a Ford utility. Ten days after taking it, he failed to negotiate a turn into a road. The vehicle hit the gutter, crossed the road and ran into a barrier where it was hit by another car which was unable to avoid it. The applicant then left the scene and shortly afterwards the utility was seen to be on fire and the applicant was observed "spraying something towards the front of the vehicle."

6. The counts on indictment 3 occurred in October 2006. The applicant obtained approximately $9 worth of goods at a delicatessen and left without paying. He threatened to stab staff who followed him and ran off. A little later that day a manager of another store in Ipswich and a colleague, having been alerted to the presence of the applicant, chased him. The colleague tackled the applicant to the ground. In the ensuing struggle the applicant took a syringe with an exposed needle out of a bag and slashed out with it. It scratched the complainant's skin, which bled. The applicant called out, "Get back, I have AIDS" and fled.

7. Counts 1 and 2 on the ex officio indictment were committed when the applicant stood at the checkout counter of a K-Mart store holding a syringe and said to the checkout operator, "I've got a syringe in my hand. I want you to open the drawer and give me the money. Do not call security or I will stick you with it. Give me the cash now." The operator stood back from the cash register and declined to pass him any money. He then walked off.

8. Counts 3, 4 and 5 on the ex officio indictment were committed when on 23 January 2008 the applicant attempted, unsuccessfully, to open a till in a Target store.  He then moved behind a person at a checkout counter.  When the till draw was opened by the checkout operator, the applicant grabbed $300 from it and ran from the store. 

The applicant's antecedents

9. The applicant was born in September 1981 and was aged between 25 and 27 years at the time of most of the offences.

10. The applicant had an extensive criminal history which commenced with a conviction on 17 November 1998 for obstructing a police officer. In December of 1998 he was sentenced to 12 months probation for unlawful use of a motor vehicle. In 1999 he was convicted of various offences including unlawful use of a motor vehicle, wilful damage, possession of property suspected of being stolen and obstructing a police officer.

11. In 2000 the applicant was convicted of possessing dangerous drugs. His convictions in 2001 included possession of property suspected of being stolen or unlawfully obtained, receiving, serious assault and four counts of obstructing a police officer.

12. He was convicted in 2002 and 2003 on five occasions of numerous offences including stealing, assaults occasioning bodily harm, receiving, unauthorised dealing with shop goods, fraud and obstructing a police officer.

13. In September 2004 the applicant was convicted on a number of counts of stealing and of assault and serious assault. There were further convictions for fraud, assault, wilful damage and receiving in 2005. In 2006 the applicant was convicted on three occasions in the Magistrates Court of various property offences.

14. The offences on the ex officio indictment were all committed when the applicant was on bail.

15. A report from the Clinical Director, Prison Mental Health Service to the Director of Mental Health, Queensland Health dated 6 July 2007 summarised the applicant's psychiatric history as follows:

"He has a history over the past five years of problematic substance misuse predominantly involving marijuana, amphetamines and alcohol.  He has recurrently experienced psychotic symptoms both in the context of substance misuse and at times during periods of substance abstinence.  He has been in and out of custody and there have been complications with his community management including periods of aggression, psychosis, mood instability and social and employment difficulties.  Many of his problems can be attributed directly to his substance misuse.  It appears he has also developed a chronic psychotic condition which has probably been exacerbated by substance misuse, but remits and stabilises in the context of substance abstinence and with treatment with antipsychotic medication."

The author of the report made a provisional diagnosis of schizophrenia (paranoid type), anti-social personality traits and amphetamine, cannabis, benzodiazepine and alcohol abuse (remission in controlled environment). 

The grounds of appeal

16. The grounds of appeal stated in the notice of appeal are that the sentence was manifestly excessive. On the hearing of the application the applicant's counsel relied on the additional grounds which are now addressed also.

Failure to comply with s 13(3) of the Penalties and Sentences Act 1992

17. It was submitted that the sentencing judge failed to state that he had taken the applicant's early plea into account. It is apparent from the judge's sentencing remarks that he was conscious of the guilty plea and of the need to take it into account. Immediately before imposing the sentences, in respect of the counts on indictments 1, 2 and 3, his Honour said:

"Taking all the matters which have been put before me into account, in so far as the three indictments which are indictment B693, A0531 and A0570.

…

On one view of it were I to impose a head sentence of three years imprisonment then taking into account your plea of guilty and the other matters in your favour, we'd be getting fairly close to the point where the term you've served would be sufficient.  In my view three years would be a very low head sentence.

However, under the circumstances in the case and taking into account the totality principle, I'm going to sentence you to 307 days imprisonment in relation to each of those three indictments."

18. Later, when imposing sentences for the offences on the ex officio indictment, his Honour again repeated "under all the circumstances." Those "circumstances", it is reasonable to conclude, included the early plea of guilty. It is also apparent from the fact that the parole period commenced after one-third of the five year term had been served that the applicant's guilty pleas were taken into account.

19. This ground has not been made out.

The primary judge erroneously considered that the applicant had committed two attempted armed robberies

20. In his sentencing remarks the sentencing judge wrongly stated that the applicant "again" showed the syringe to an employee of Target. The prosecutor corrected the mistake. Later in his sentencing remarks, the sentencing judge again referred to "the two offences of attempted armed robbery" and was corrected by defence counsel. The sentencing judge apologised and accepted the correction. The two errors may well have revealed some carelessness in the sentencing judge's recitation of the facts but do not, of themselves, support the conclusion that the applicant was sentenced on an erroneous factual basis. The sentences imposed and the related sentencing remarks show that the sentencing judge turned his mind to the relative gravity of the offences on the ex officio indictment.

The taking into account of irrelevant matters and the sentencing judge's failure to appreciate the true level of seriousness of the offending conduct

21. Exception was taken to the sentencing remarks that shop assistants serve a "vital community role", are "generally poorly paid" and that "generally speaking they are persons who need the jobs they work in. Generally they don't work out of choice. Often their employment is thankless." The remarks concluded with the observation that "it is unacceptable that persons such as checkout operators in busy stores such as Coles, would be threatened with instruments like syringes."

22. It was submitted that the remarks preceding the concluding observation were not supported by evidence and that it was implicit that the applicant's conduct in threatening the shop assistant with a syringe was regarded by the sentencing judge as aggravated by the matters singled out by him for comment.
23. It may be conceded that the sentencing judge's sociological exposition lacked evidentiary support and that it may well have failed to command the support of experts in the relevant field. But the remarks complained of were made only for the purpose of justifying an observation requiring no justification. No complaint was made about the observation's validity and none could have been made except that it should not have been qualified by the words "in busy stores such as Coles."
24. There is no merit in this ground.

The sentencing judge erred in relying on more serious cases in evaluating submissions on penalty

25. It was submitted that the following remarks demonstrate the sentencing judge's erroneous view of the gravity of the subject offences:

"The offences of robbery which involve syringes came before the Court of Appeal in 2002 in two cases, the case of Shannon Richard Keating and Michael Stanley Rose.  Both of those offences are much more serious than the offending which you have engaged in.  In both of those matters the appellant was armed with a syringe which had red fluid in it.  Each involved multiple offending.

But in relation to both, the penalties that were imposed were 10 years for multiple armed robberies, so I can't accept that two and a half years is an appropriate penalty under all the circumstances."

26. The applicant's counsel submitted that the most serious offence on the indictments was attempted armed robbery and that R v Keating^[1] thus provided little useful guidance.  He submitted also that the offending in that case was far more serious.  The 23 year old drug addicted applicant pleaded guilty to two attempted armed robberies, seven armed robberies and common assault and fraud committed over nine days.  The total proceeds of the robberies was about $3,000.  His crimes were described as "particularly repugnant."  In all cases he was armed with a blood filled syringe.  He was sentenced to eight years imprisonment with a serious violent offence declaration.  On appeal his sentence was reduced to seven and a half years imprisonment.  The declaration was maintained.  His criminal history was described as "fairly lengthy."

27. In R v Rose,^[2] the 41 year old offender pleaded guilty to offences including eight armed robberies, one armed robbery with personal violence, one attempted armed robbery and one robbery.  He stole a total amount of $26,000 and caused more than $6,000 worth of damage to property.  He was sentenced to 10 years imprisonment for the armed robbery with personal violence of a bank.  The reasons of the Court of Appeal do not reveal the nature of the personal violence.  In all but two of the offences he used a syringe which he told his victims was full of AIDS-infected blood.  All offences were committed whilst he was on parole and he had an extensive criminal history which included convictions for theft and burglary. 

28. The sentences in Keating and Rose therefore provided little, if any, assistance in determining the appropriate level of sentence for the applicant's attempted armed robbery offence.  Yet, the sentencing judge derived guidance from them and mistook the level of the sentences imposed in Keating.  Whist recognising that one should not readily conclude that a sentencing judge's reference to "comparable" sentences which are far from comparable is productive of appellable error, I consider that the use made of the sentences by the sentencing judge does show that the exercise of the sentencing discretion miscarried.

29. Counsel for the applicant referred to R v McNeill & Wells^[3] in which sentences of imprisonment of three years and six months were substituted for sentences of five years.  The applicants, aged 33 and 30 respectively, attempted to rob a man using an automatic teller machine.  The victim was struck on the head but fought off his attackers even though one was armed with a knife. 

30. Another case relied on was R v Hill^[4] in which a sentence of three years suspended after twelve months (cumulative on a sentence of nine months imprisonment for assault occasioning bodily harm) was imposed for attempted armed robbery.  The applicant, armed with a knife and disguised with a balaclava, entered a convenience store in the evening.  The complainant female behind the counter screamed.  Her husband came to her assistance, armed himself with a bar stool and stood between the applicant and his wife.  The applicant attempted to open the till and dropped his knife.  At this juncture a police officer arrived and arrested him.  The applicant had previous convictions for stealing and other property offences and also for offences of occasioning bodily harm whilst armed.  The attempted armed robbery was committed within nine months of the sentences imposed for the bodily harm offences.

31. Counsel for the respondent referred to R v Mather^[5].  In that case, the 35 year old applicant, with a good work record and a minor criminal history, was sentenced to four years imprisonment for armed robbery on a plea of guilty.  He entered a service station wearing a balaclava holding a piece of plastic in a plastic bag and demanded that a female attendant give him money from the till.  He was given $135 and left.  The money was repaid and there was an offer of compensation for the benefit of the victim.  There were no oral threats made by the applicant, who was in a depressed state following the death of his brother.  The sentence, although said on appeal to be at the higher end of the permissible range, was not disturbed.

32. It was also submitted on the applicant's behalf that the sentence of five years failed to have sufficient regard to the applicant's rehabilitation. This submission appeared to have been based on: the medical evidence that the applicant was "compliant" with the psychiatric treatment he was receiving; his co-operation and compliance with his Limited Community Treatment conditions and the steps taken by him to be admitted to a clinic for treatment of his drug dependency.

33. It is unclear from the evidence whether the applicant's psychiatric condition resulted from his substance abuse. The thrust of the report of the Clinical Director of the Prison Mental Health Service is that the applicant's offending conduct is more likely to be the direct or indirect result of substance abuse than of any underlying psychiatric condition. In those circumstances the applicant's psychiatric condition is not a significant mitigating factor even if it should be taken into account in mitigation. In any event, the protection of the community from crimes of violence is a countervailing consideration.^[6]

34. The applicant has in his favour his early pleas of guilty. The evidence suggests that despite previous failed attempts at rehabilitation the applicant has a genuine desire to rid himself of his drug dependency and that he has the support of his family in this regard. These are relevant considerations.

35. Matters which aggravate the offending conduct are what the sentencing judge described as the applicant's "escalating and bad criminal history" and the fact that the offences on the ex officio indictments were committed when the applicant was on bail.

36. The attempted armed robbery, the attempted robbery and the robbery the subject of the ex officio indictment were inept in their execution. The use of the syringe in the attempted armed robbery was calculated to instil fear and no doubt did so, but the applicant, on that occasion, did not conduct himself in such a way as to warrant the conclusion that he intended to inflict physical harm. The same observation, however, cannot be made of the assault with the syringe, the subject of count 2 on indictment 3.

37. Plainly, the applicant's conduct calls for sentences which provide appropriate levels of personal and general deterrence. But, in my view, the head sentence of five years is excessive. The learned Crown prosecutor submitted at first instance that a head sentence of the order of three years would be appropriate for the attempted armed robbery. I consider that a head sentence of four years imprisonment would more appropriately reflect the overall criminality of the applicant's offending conduct. However, I would not vary the existing parole eligibility date. It makes adequate, if not generous, allowance for the applicant's early pleas, co-operation with the authorities and the other matters I have mentioned. The other sentences imposed were not challenged and they should not be disturbed.

38. Consequently, I would allow the application for leave to appeal and allow the appeal but only to the extent of substituting a term of imprisonment of four years for the term of five years imposed by the learned sentencing judge.

39. FRASER JA: I agree with the orders proposed by Muir JA and his Honour’s reasons for those orders.