SUPREME COURT OF QUEENSLAND

[1] McMURDO P: The applicant, H, pleaded guilty on 19 June 2009 in the District Court at Brisbane to one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence on 21 June 2008 (count 1); one count of stealing on 22 June 2008 (count 2); one count of attempted armed robbery in company on 22 June 2008 (count 3); and three counts of armed robbery in company with personal violence on 24 June, 7 July and 23 July 2008 (counts 4 to 6 respectively).  On counts 4, 5 and 6 he was sentenced to eight years imprisonment and to lesser concurrent terms of imprisonment on the remaining counts.  The judge ordered that the date he be eligible for parole be fixed at 10 December 2011.  Taking into account 191 days of pre-sentence custody which was declared as time already served under the sentence, H became eligible for parole after serving three years imprisonment.  H has applied for leave to appeal against that sentence, contending that it was manifestly excessive.

The sentencing proceedings

[2] H was 19 years old at the time of the offences and 20 years old when sentenced.  He had some criminal history but he had not been given the benefit of a community based supervision order and nor had he been previously imprisoned.  In August 2008, he was convicted and fined $450 for possessing dangerous drugs.  On 1 December 2007, he was fined $1,000 on each of two counts of assaulting an officer in the execution of his duty and $500 for resisting an officer in the execution of his duty.  On 18 June 2007, he was fined $350 for having custody of an offensive implement in a public place.  In May 2007, he was fined for drink driving and unlicensed driving.  In September 2006, he was placed on a six month bond in a New South Wales Children's Court for destroying or damaging property. 

[3] The details of the present offending were set out in a tendered schedule of facts (ex 3).  On 21 or 22 June 2008, H and his co-offenders (F; H's uncle, M; and J) drove to a car yard at Woodridge.  H and M changed into fluoro work shirts and hats to conceal their identity and walked to the car yard whilst J and F waited in a nearby vehicle.  H feigned interest in purchasing a Mitsubishi Evolution, whilst M found the keys concealed inside it.  H and M drove off in the Mitsubishi and J and F followed in their vehicle.  H and M parked the vehicle in a visitor car park of a block of units and the offenders wiped it over to remove fingerprints (count 1).

[4] Also on or about 22 June 2008, M drove F and H to a car yard at Springwood where F and H stole two registration plates from a Holden Commodore sedan.  M had instructed them to take plates from a car parked at the back of the car yard as it would take longer for the plates to be noticed as missing.  M then drove F and H to the Mitsubishi vehicle where they fitted the plates (count 2).

[5] At 11.20pm on 22 June 2008, the stolen Mitsubishi with the stolen plates attached was driven to the Broncos Leagues Club at Red Hill.  H and another co-offender, C, concealed their faces with clothing and approached the club house.  H was armed with a knife and C with a gun.  H and C confronted a female staff member in the foyer.  She ran off and they followed her into a gaming room.  C pointed the gun at male staff members who told the offenders to "get out of here".  H panicked and, with C following, they ran off with the staff members in pursuit.  M, who was parked outside, drove H and C away to a nearby parked car which was not stolen.  H drove this car back to the unit block, following closely behind the stolen Mitsubishi to conceal its number plate.  On the way, they discarded the clothes used in the offence in a rubbish bin (count 3).

[6] On the evening of 24 June 2008, M, C, F and H drove around looking for a suitable place to rob.  At about 10.25pm they entered the front door of the Moorooka Sports Club.  They had disguised their faces with clothing and were wearing gloves.  C was armed with a hand gun; F was armed with a black handled knife; and H also had a knife.  They directed the patrons to lie on the floor.  C manhandled one patron, forcing him to the floor and placing his foot on his lower back.  He forced inside a staff member who was on the verandah, pushing the gun into the base of his neck and directing him to open the safe.  F and H ensured that patrons remained on the floor.  The offenders left with about $7,500 of which H received about $1,000 (count 4).

[7] On 7 July 2008, C, M, F and H drove around in the stolen Mitsubishi, again looking for a suitable location to commit another armed robbery.  They settled on the Australian National Hotel at Woolloongabba.  M, C and H drove to the hotel in the stolen Mitsubishi.  Once more, C and H covered their faces; C was armed with a gun and H with a knife and a screwdriver.  They entered through a rear door and ordered those present to lie on the floor.  C directed a female staff member to open the safe.  The contents (about $80,000) were put into C's bag.  C and H joined M, who was waiting in the stolen Mitsubishi.  M drove them to where F was waiting in another car.  It is unclear what became of the $80,000 but it was never recovered (count 5).

[8] On 23 July 2008, M, C, H and F turned their criminal talents to the Salisbury Hotel.  M took C and F there at 12.50pm on 23 July 2008 whilst H waited at Yeronga.  C and F covered their faces with shirts as they left the stolen Mitsubishi and entered the hotel beer garden.  C again brandished a gun whilst F was armed with a knife.  A female staff member had dropped to the ground.  C pulled her to her feet, put the gun to her head and forced her into the hotel.  F told all present to lie on the floor and he menaced one man with the knife.  A male staff member was forced to open the safe and to fill C's bag with money.  The two made off with about $6,000 of which H's share was $1,400 (count 6).

[9] On 25 July 2008, police raided the house shared by H, F, C and M.  F and H were present.  Police found a gun and the car key to the stolen Mitsubishi in F's bedroom.  The next day F made admissions and took the police to the Yeronga units where the stolen Mitsubishi was parked.

[10] H was also arrested on 25 July 2008.  He made some admissions about his involvement as a driver in connection with count 6, was charged with that offence, and was released on bail. 

[11] M was interviewed by police on 26 August 2008.  He implicated his co-offenders in the earlier robberies.  F was then re-interviewed and he also implicated his co-offenders, including C and H, in the earlier robberies. 

[12] H was re-interviewed on 5 May 2009 and this time made full admissions implicating himself and others in these offences.

[13] The prosecutor at sentence emphasised the high degree of planning in these offences.  The offenders routinely disguised themselves, used gloves and wiped over the stolen car to remove fingerprints.  The use of a getaway driver and of more than one car, including a stolen car which was kept concealed at a unit block, showed the high level of sophistication in the offending.  H had pleaded guilty at an early stage and assisted in the administration of justice.  But he made full admissions only after his co-accused had provided statements implicating him.  A significant punishment must be imposed because of the need for general and specific deterrence.  In H's case, an appropriate sentence for three armed robberies in company with personal violence was between eight to 10 years imprisonment with a declaration that the offences were serious violent offences.  The high level of sophistication and planning in these offences warranted a head sentence of 10 years but for mitigating factors which reduced the head sentence to eight years with parole eligibility after four years. 

[14] Two victim impact statements were tendered.  They provided graphic reminders of the dreadful emotional and psychological effects of armed robberies which are often suffered by innocent victims.  For these victims, the detrimental effects on them of H's offending seem likely to continue for many years.

[15] H's counsel at sentence made the following submissions.  H had a dysfunctional upbringing.  His parents separated before his birth in New Zealand.  His mother drank heavily and his stepfather was a violent drug addict until he died of a drug overdose.  When H was nine years old, he came to Australia to live with his natural father.  He completed year 10 and obtained some TAFE certificates.  H's natural parents both provided letters to the judge confirming H's dysfunctional upbringing.  H's father emphasised in his letter the role of the 45 year old M (the brother of H's mother) in leading H into this offending.  Since H's incarceration on remand, he had completed the Ending Offending Program and a certificate to that effect was tendered.  Defence counsel emphasised H's youth and that he had the support of his natural father and a brother who had come from New Zealand for the sentence hearing.  He submitted that the appropriate sentence was an effective head sentence of five and a half years imprisonment with parole or suspension after serving one-third.  Defence counsel also handed up written submissions in respect of s 13A Penalties and Sentences Act 1992 (Qld) which appeared to add little to his oral submissions and were consistent with them.

[16] In sentencing H, the primary judge noted the following.  H and F were recruited to join C and M in a spree of professional robberies using a stolen vehicle.  H was involved in all four episodes of offending.  M was H's uncle.  On three occasions in one month, H personally committed robberies whilst armed with a knife and on one occasion with a knife and a screwdriver.  He accompanied C, who was armed with a gun, while M was the getaway driver.  In total, $93,000 was stolen in the course of these robberies.  H had pleaded guilty at an early stage and, after some initial reluctance, assisted the police.  Two weeks before the committal hearing, H gave a full and frank confession and his sentencing proceedings had recently "been fast-tracked".  He was 19 when he committed the offences and had some convictions for minor violence.  In the early years of his life, he lived in a violent dysfunctional household and more recently coped with the difficulties that accompanied living with his natural father's large extended family.  Protection of the community was the most important aspect of sentencing in this case.  A severe sentence must be imposed to send a message to H and others that committing offences like these is not worth the risk.  Had H gone to trial, the judge would have imposed a sentence of nine years imprisonment and declared the robberies serious violent offences.  Instead, the judge imposed a sentence of eight years imprisonment for the offences of armed robbery with lesser concurrent sentences on the remaining counts and fixed a parole eligibility date effectively after three years.

[17] In closed court, the judge indicated that had H not cooperated with the authorities under s 13A, she would have imposed a sentence of nine years imprisonment for the armed robberies with parole eligibility after three years.

The applicant's submissions

[18] H's counsel made the following submissions to this Court.

[19] The primary judge gave insufficient weight to the following combined factors.  H was young.  He had but a minor criminal history.  The offences were part of a single spate of offending.  He cooperated with the police.  His uncle, M, was the clear instigator of the offending.  H received only $2,400 of the large amount of money stolen.  No-one was physically injured.  H knew that the guns C carried were unloaded.[1]

[20] C has not yet been dealt with and H may yet be called to give prosecution evidence against C in accordance with H's s 13A undertaking.  In R v Thompson,[2] this Court gave a 40 per cent reduction of the head sentence and a one-third reduction of the non-parole period for pleas of guilty and cooperation with the authorities (including s 13A cooperation) in respect of a spate of serious offending incorporating armed robberies.  The primary judge hypothetically stated that a nine year sentence, admittedly with serious violent offence declarations, would have been imposed had H gone to trial.  Even accepting the appropriateness of that starting point, the sentence which should have been imposed after taking into account all the mitigating features (including H's cooperation with the authorities, plea of guilty and further s 13A cooperation) was one of between five to six years imprisonment with parole eligibility after 18 months to two years.  The appeal should be allowed and that sentence should now be substituted.  H's counsel sought to support that contention by reference to a large number of cases said to be comparable.

[21] In oral submissions, the applicant's counsel made these further contentions.  H's co-offender, M, received a sentence of nine years imprisonment with parole eligibility after four and a half years.[3]  M was the instigator and ringleader of the gang in which H was involved.  M pleaded guilty to a much larger number of offences and was much older than H.  When M's sentence was compared to that imposed on H, H would be left with a justifiable sense of grievance warranting this Court's intervention. 

Conclusion

[22] It is useful to commence a discussion of the applicant's submissions by considering the circumstances of M's offending and his sentence.  M was sentenced by the judge who sentenced H but over three months earlier.  M pleaded guilty to 10 armed robberies in company and one attempted armed robbery in company, including the attempted armed robbery in company and the four armed robberies in company to which H pleaded guilty.  M also pleaded guilty to a spate of offences commencing in 2000 when he broke and entered a Telstra office and stole 200 mobile phones.  In 2003 and 2004, as part of another criminal group, he stole high performance luxury cars and used them to break, enter and steal from exclusive business premises.  The total loss to businesses from that spate of offending was $100,000. 

[23] In sentencing M,[4] the judge emphasised the professional nature of the gang and of the 10 armed robberies which netted $293,000, not including the value of a luxury car burnt to conceal evidence.  Although the firearms used in the robberies were inoperable, the criminal enterprise was inherently dangerous.  When police spoke to M, he made a series of full and frank confessions implicating himself and others.  M had no relevant prior criminal history but his offending spanned eight years from 2000 to 2008.  He had served five months pre-sentence custody which could not be declared as part of the sentence.  An appropriate sentence for M's earlier offences committed between 2000 and 2004 would have been one of about six years imprisonment.  A cumulative penalty could well have been imposed for M's subsequent armed robbery offences.  The overall sentence imposed on M for all his offending had to be moderated by his pleas of guilty and his extensive and useful cooperation with the administration of justice, especially in respect of those robberies with which he may not have been charged but for his cooperation.  Taking into account the five months pre-sentence custody which could not be declared as part of the sentence, the judge imposed a head sentence of nine years imprisonment with parole eligibility after four and a half years on the armed robbery in company offences, noting that that sentence reflected the totality of all M's criminality.  The sentence imposed on M for a very large number of offences committed in three waves over eight years (including the offences to which H pleaded guilty) was therefore effectively nine and a half years imprisonment with parole eligibility after four and a half years.

[24] The contentions of H's counsel based on Thompson encourage a mathematical analysis of the primary judge's sentencing remarks.  But appellate courts recognise that sentencing is no mathematical exercise.  It involves a balancing of the various competing considerations apposite in each case.^[5] Thompson is not authority for any general principle as to the percentage reduction of a head sentence and/or non-parole period where there are pleas of guilty and cooperation with the authorities.  Like almost all sentence appeals, Thompson turns very much on its own facts. 

[25] Whilst M's cooperation with the authorities was much greater than H's and led to the break up of M's criminal gang and the apprehension of many of its members (including H) the sentence imposed upon M does make H's sentence appear excessive by comparison.  I reach that conclusion for the following reasons.

[26] At 19 years of age when he committed these offences, H was much younger than his uncle, M.  H was also probably under M's influence when he offended.  Although H had some criminal history, including for offences of minor violence, he had not previously been sent to prison and nor had he had the benefit of a probation order.  Overall, H's offending, though unquestionably gravely reprehensible, was not of the magnitude of M's and nor was it committed over such a lengthy period.  H's pleas of guilty and cooperation with the authorities were commendable and warranted a significant discount to his sentence. 

[27] It is true, as the primary judge noted, that much of H's cooperation, including under s 13A, came at a relatively late stage, especially when compared to that of M.  Her Honour was entitled to consider that any additional discount for s 13A considerations should be more modest in H's case than in M's.  This Court has long recognised, however, that the effective operation of the criminal justice system requires sentencing courts to give substantial discounts to offenders who have pleaded guilty and assisted with the administration of justice, particularly where they have implicated others and put themselves at risk of violent retribution whilst incarcerated: R v SBI;[6] R v Thompson;[7] R v D and Attorney-General of Queensland;[8] R v Gladkowski[9] and R v PX.[10]  H is presently in custody serving his sentence.  He may well be required to give evidence in C's case which is presently listed for trial.  He therefore remains at risk of violent retribution whilst in prison because of his s 13A cooperation.  He must be given full consideration for this.  H's sentence did not adequately recognise the mitigating features, in particular H's s 13A cooperation.  When compared to M's effective nine and half year sentence with parole eligibility after four and a half years for all of his offending from 2000 to 2008, the sentence imposed on H of eight years imprisonment with parole eligibility after three years for far fewer offences over a four month period would leave the youthful H with a justifiable sense of grievance.  This Court's interference is warranted: Lowe v The Queen.[11] H's sentence was manifestly excessive.  This Court should grant the application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed on the armed robbery in company offences and re-sentence him. 

[28] Despite the many mitigating features to which I have referred, there is no doubt that H's offending was so reprehensible that a substantial custodial sentence had to be imposed for reasons of personal and general deterrence.  As a result of H's criminal activity, almost $100,000 worth of property remained unrecovered.  It matters little that H may have personally benefited only to a relatively modest degree.  The sentence imposed on H must also reflect the dramatic detrimental impact of the offences on the lives of some of his victims.  The robberies involved guns and knives.  H was actively involved in an attempted armed robbery in company and in two of the armed robberies in company.  He was personally armed with knives and on one occasion a screwdriver as well. 

[29] The Court has been referred to many authorities said to be comparable.  They involve a broad range of substantial terms of imprisonment depending on the particular combination of apposite circumstances.  None are closely comparable to H's case.  After weighing up the competing considerations, I consider that an effective sentence to reflect the totality of H's offending was one of seven years imprisonment with parole eligibility after serving about one-third of that sentence, that is, a parole eligibility date fixed at 10 April 2011.  I note that, but for H's s 13A cooperation, I would have imposed a sentence of between eight and nine years imprisonment with a parole eligibility date set at about one-third of that sentence.

ORDERS:

1.The application for leave to appeal is granted.

2.The appeal is allowed and the sentences imposed on counts 4, 5 and 6 are set aside. 

3.Instead, on each of those counts, a sentence of seven years imprisonment is imposed. 

4.The date that H is eligible for parole is fixed at 10 April 2011. 

5.In all other respects, the sentence imposed at first instance is confirmed.

[30] HOLMES JA: I agree with the reasons of McMurdo P and the orders she proposes.

[31] MUIR JA: I agree with the reasons of McMurdo P and with the orders she proposes.