R v Montone[2009] QCA 234

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant seeks leave to appeal against a sentence of three years imprisonment, with a parole release date fixed at 14 April 2010 (after 12 months in actual custody), imposed on him for three offences of armed robbery in company with personal violence.  He appears for himself.  He says frankly in his written submissions that he cannot point to any particular error in the learned Judge's exercise of sentencing discretion or say that the head sentence is not correct.  However, he contends that he should receive an earlier parole release date. 

All of the offences were committed in the early hours of the morning on 6 April 2008.  According to an agreed schedule of facts, the applicant, who was then aged 25 years, was in company with two other men of similar age, Darryl Headley and James Preston.  They set upon two young men walking along a main road at Mooloolaba.  Both were forced to their knees, Headley holding a knife to the throat of one, and the applicant similarly pointing a knife at the chest of the other, then holding it against the side of the man's neck.  Preston, who was also armed with a knife, joined with them in demanding the victims' possessions.  According to the schedule of facts, after forcing the man he was holding at knife point to turn out his pockets, yielding nothing but a mobile phone and a packet of gum, the applicant spat in his victim's face and kicked the mobile phone out of the man's hand.  The applicant and his friends walked away and got into a vehicle.

Shortly after, the three offenders pulled up beside another male pedestrian and asked for money.  The applicant and Preston got out of the vehicle and forced the man to his knees, one of them holding a knife in his face.  Headley then appeared; one of the three punched their victim in the face with a closed fist.  They demanded his wallet.  Before he could produce it, police officers arrived and intervened.  Headley was seen to throw something away.  Two pocket-knives were found at the scene.

The three were interviewed.  The applicant claimed that the first two young men had called him names and wanted to fight.  The third of the victims was simply having a friendly conversation with Preston.  He had not seen any knives. 

One of the young men robbed that night provided a victim impact statement tendered at sentence, expressing his continuing anger and sense of humiliation. 

The applicant's previous criminal history consisted of one offence of breaking and entering, one of stealing and one of attempting to gain a benefit.  All those charges, relating to the theft of a triathlon bicycle worth $6,000 (and, presumably, an attempt to convert it in some way), were committed in March 2002 with Darryl Headley, his co-accused on the robbery charges.  Both were placed on 12 months probation.

The applicant had been in employment since leaving school, working for the last five years with his father, who ran a commercial cleaning company.  Both his parents expressed their continuing support for him.  His partner, with whom he had a young daughter, also wrote a letter confirming that he was remorseful and that the behaviour was out of character.  The applicant had written a letter to his victims expressing his regret, which his counsel tendered at sentence for provision to them. 

Also tendered at the sentence was a letter from the applicant in which, among other things, he sought to minimise his role in the robberies asserting, in effect, that he had not done much more than be present and remonstrate with his friends.  His counsel, when asked about those portions of the letter in conflict with the agreed schedule of facts, assured the learned sentencing Judge that he did not wish his Honour to have regard to those passages.

Counsel for the Crown relied at sentence, as counsel did here, on a comparable authority, R v Wockner & Hodges [2007] QCA 392.  It involved two applicants, one of whom pleaded guilty to four, the other to three, counts of armed robbery in company with personal violence, as well as some other charges including burglary.  Each was sentenced to four years imprisonment on the robbery counts with a recommendation for parole eligibility, in Hodges' case after 16 months, and in Wockner's case, after 15 months, while concurrent terms were imposed on the other charges.  They had robbed young people attending schoolies’ week, approaching them with a knife and demanding their wallets.  The offences were committed in the afternoon on public streets.  One of their victims was a 14 year old schoolboy.  Hodges had a minor criminal history and was employed as an apprentice plumber while Wockner has a more serious criminal history for offences of dishonesty and drug offences and had actually served a period in custody shortly before committing the offences.  Their applications for leave to appeal were dismissed, the Court observing that a head sentence of four years imprisonment was towards the top of the range, but was not, given the parole recommendations by the sentencing Judge, manifestly excessive.

The learned sentencing Judge in this case accepted that Wockner provided some sentencing guidance, although some aspects of the facts there were less serious, others more serious.  His Honour noted that all three offenders here had been intoxicated.  He pointed out that that was not a factor in mitigation; if anything it had made them, armed as they were with knives, even more dangerous.  The conduct was predatory and brazen, involving elements of humiliation of the victims.  Deterrence of similar conduct involving knives was particularly important.  His Honour accepted that the pleas of guilty were early and that the three were genuinely remorseful.  Counsel for the Crown had submitted that a proper range for the head sentence lay between three and four years.  Counsel for the defence had accepted that a head sentence of three years was appropriate.  The learned Judge adopted the lower sentence and set a parole release date after a third had been served.

The applicant, in arguing that the time required to be served in actual custody was excessive, provided written submissions which suggested a denial that he was armed with a knife or used it to threaten, that he spat on one of his victims or that he punched or assaulted anyone.  These were matters which were not disputed at the sentence, with the qualification that it was not clear who punched the third victim.  The applicant's counsel specifically accepted the content of the agreed schedule of facts as correct, and disavowed those parts of the applicant's letter which appeared to contradict it.  Any attempt now by the applicant to rely on the assertions in that letter cannot be countenanced.

Essentially, however, the applicant's submissions here seem to turn around the difficulties he is facing in gaol and the hardship his family experiences because of his imprisonment.  It is difficult not to be moved by what he says, but it provides no legal basis on which to grant his application for leave to appeal. 

The sentence imposed at first instance was, as the applicant accepted, within an appropriate range.  The setting of a parole release date after one-third appropriately reflected the matters in mitigation: the applicant's relative youth and community ties, his good employment history and his expressed remorse.  The sentence was not manifestly excessive.  The application for leave to appeal should be dismissed.

MULLINS J:  I agree.

PHILIPPIDES J:  I also agree.

HOLMES JA:  The application for leave to appeal is dismissed.