SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I agree with Chesterman JA.

[2]  CHESTERMAN JA:  On 19 March 2010 the applicant pleaded guilty to one charge of robbery and one of fraud.  The convictions meant that he was in breach of a six month Intensive Correction Order imposed by the Magistrates Court at Ipswich on 20 October 2009 for offences of committing a public nuisance, and breaking and entering. 

[3] He was sentenced to three years and six months’ imprisonment for the robbery and 12 months’ imprisonment for the fraud.  As well he was ordered to serve the balance of five months and one weeks’ imprisonment for breach of the Intensive Correction Order.  All terms of imprisonment were to be served concurrently.  122days spent in pre-sentence custody were declared to be time already served.  Aparole eligibility date was fixed for 19 February 2011.

[4] The applicant seeks leave to appeal against the sentence imposed on the count of robbery on the ground that it is manifestly excessive.

[5] The circumstances of the offences are conveniently summarised in the applicant’s written outline:

“Count 1: On 10 November 2009 the applicant and the complainant, who were not previously known to each other, were travelling on a train from Ipswich to Brisbane at approximately 5 pm.

The applicant was talking on a mobile telephone to his girlfriend and appeared to be angry and upset. When the applicant ended his call, the complainant initiated a conversation with the applicant, and told him he knew people at the Salvation Army who would be able to help him. The applicant asked the complainant if he could borrow his mobile phone, and the complainant agreed. The applicant used the mobile phone to call his girlfriend, and was still using the phone when the train arrived in Bundamba. Both the applicant and the complainant left the train at Bundamba.

The complainant followed the applicant into the subway and asked for the return of his phone. The applicant saw headphones handing (sic) out of the complainant’s bag and asked ‘Well what’s that?’ The complainant replied that it was an iPod and showed it to the applicant. The applicant grabbed the iPod from the complainant’s hand. The complainant asked for the return of his phone and iPod. The applicant replied ‘What, do you want to fight me?  You fucking cunt.’ The complainant again asked for the return of these items, and the applicant said ‘Don’t call the police. I can find you. I can kill you’.  The complainant went to the railway station and police were called. They were unable to locate the applicant.

Count 2: On 11 November 2009 the applicant approached the complainant Jackson at the Prince Alfred Hotel and sold him the mobile phone for $55.00. Jackson later discovered that the phone had been locked, and made a complaint to the police.

The complainant in Count 1 had heard the applicant refer to himself as ‘Clayton’ on the telephone, and the applicant had identified himself as ‘Blakey’ to the complainant in Count 2. He had also given the complainant in count 2 a piece of paper with his phone number written on it.

He was also identified from Queensland Rail surveillance footage and CCTV from the hotel.

When he was arrested, the applicant told the police that he knew what he had done was wrong, that he would apologise and pay for the phone. He said he had had a tough life and was trying to change his ways. He asked if the matter could be dropped as he didn’t want to go back to prison.”

[6] The applicant was 33 at the time of the offences and 34 when sentenced.  He has an appalling criminal history.  It contains four convictions for assaulting police or other serious assaults; ten for assault occasioning bodily harm; two convictions for common assault and one for causing grievous bodily harm; and as well five convictions for obstructing police and three of threatening conduct.  He has been in prison on several occasions.  The longest term imposed was two years to be suspended after serving 15 months for dangerous driving whilst intoxicated.  The sentence was to be served cumulatively on a sentence of 18 months for assault occasioning bodily harm which had been wholly suspended.  The dangerous driving constituted a breach of the suspended sentence which was entirely reactivated. 

[7] A report commissioned by the court from Corrective Services into the applicant’s compliance with the Intensive Correction Order noted that the applicant had “initially responded satisfactorily to supervision in the first two weeks” of the sentence, and “indicated a willingness to engage in intervention (to) … address his alcoholism which he believed was a major factor in his significant and recurring contact with the criminal justice system.”  The applicant did not, however, keep an appointment made for him with the Alcohol Tobacco and Other Drugs Services.  Instead he attended his grandmother’s funeral.  The missed appointment is, in that circumstance, understandable but the applicant did not schedule any other appointments.  He did attend a community service project on one occasion but further attendance was prevented by his arrest on the present charges.  The applicant’s supervisor concluded that:

“… given that he has committed further offences of a serious nature after having only been on the order for a short period of time indicates that (the applicant) is either unwilling or unable to comply with … the conditions of a community based order at this time.”

[8] When passing sentence the primary judge noted the applicant’s “appalling criminal history”, and that the applicant had been in prison previously on several occasions.  His Honour went on:

“… you were affected by alcohol on the day.  You were also affected by sadness as a result of a death in the family.  I was told that you have anger management issues and that you have already completed an anger management course during one of your periods in custody.  I was also told that you had a violent and perhaps dysfunctional upbringing.

I’ve taken into account your plea of guilty and your personal circumstances … .  Your behaviour on the day concerned was thuggish.  …

The community needs to be protected from people like you and a message needs to be sent to the community that this type of activity will not be tolerated.  I think an appropriate message needs to be delivered to you, to act as a deterrent, hopefully preventing you from acting in this way again.

I accept that this is a low level robbery and that the fraud was a low level fraud.  …  You were 33 and you are now 34, and you have an extensive and serious criminal history … .

At the time that you committed these offences, you were subject to an intensive correction order which was ordered only a matter of three weeks beforehand.  That highlights your complete contempt for the Court system and for the orders handed down by the Courts in your case.”

[9] The applicant suffered from hearing disabilities as a child which led to his being ostracised and rejected at school.  It also made him slow to obey his father’s instructions which led to severe physical punishment from his father who was aviolent man.  Despite his difficult start to life he had a history of working hard when not in jail.

[10]  The applicant argues that the sentence of three and a half years for robbery is excessive having regard to the circumstances of the offence.  His counsel concedes that it was a serious offence which the primary judge rightly regarded as requiring deterrence, both general and special, and that the applicant’s criminal history meant that a substantial period of imprisonment was appropriate and, indeed inevitable.  Nevertheless the applicant submits that having regard to the factors that:

(i) No actual violence was used to effect the robbery;

(ii) The offence was not premeditated but was spontaneous, no doubt as a result of the applicant’s intoxication;

(iii)The offence was committed in broad daylight without attempt at concealment;

(iv)He was distracted from the need to comply with the terms of the Intensive Correction Order by reason of his bereavement;

(v) He had made attempts to control his anger (though without particular success)

the sentence was excessive.

[11]  Counsel for the respondent accepts that the sentence was severe (“a strong one”) but submits it was not manifestly excessive.  He points out that the applicant had threatened to kill his victim if he called the police and was a man of large build.  His co-operation with authorities was limited to the plea of guilty.

[12]  Both applicant and respondent referred to authorities in this Court which they submit support their submissions.  The applicant submitted:

“15. Comparable Decisions

• R v Francis [1996] QCA 217

The 21 year old applicant, who had prior convictions for stealing, pleaded guilty to one count of robbery and one of attempted robber(y) committed on consecutive days. In both cases he drove his car past female complainants who were walking along the street and his accomplice snatched their handbags from the passenger seat. On the second occasion their (sic) was a struggle and the complainant held on to her handbag. The licence plate of the car had been removed to avoid detection. An effective sentence of two and a half years with a recommendation for parole after 12 months was not disturbed on appeal as it was within the applicable ranger of 18 months to 3 years.

• R v Campbell [1997] QCA 314

The applicant was sentenced to a head sentence of four years for robbery with violence in company, and was also sentenced to lesser terms for unlawful use of a motor vehicle and one of housebreaking. The offences were committed on three separate occasions over a three month period. The applicant had a criminal history including convictions for assault occasioning bodily harm and stealing but had not previously served a term of imprisonment. The offence was described as a bare faced street robbery committed against a young man by a group of 10 persons, and at the upper end of the applicable range of 18 months to 3 years. The sentence in relation to the robbery was reduced on appeal to one of three years imprisonment with a recommendation for parole after 12 months.

• R v Mana Rogers [1998] QCA 382

The 32 year old applicant was sentenced to three years imprisonment on a plea of guilty to robbery. The offence involved the robbery of a newsagency. The applicant appeared at the store with his shirt pulled up over his face and a cap on his head. He jumped the counter and removed $1,200 from the cash drawer. A scuffle with the owner ensued as he attempted to leave the store. At the time of the incident the applicant had no prior criminal convictions although he had convictions at the time of sentence. It was described as an impulsive act which occurred whilst the applicant was under the influence of alcohol. There were no physical injuries to the complainants. The appeal against sentence was allowed and a sentence of 12 months imprisonment suspended after 3 months for a period of 2 years was imposed.”

[13]  The respondent relied upon different authorities: R v Mallon [1997] QCA 58, R v Moodie [1999] QCA 125 and R v Hill [2005] QCA 18.

[14]  I would regard neither Moodie nor Hill as relevant.  Moodie was a heavily drugged man who incompetently attempted to rob a pharmacy.  He entered it and pointed a knife at the 72 year old male pharmacist who grabbed the knife by the blade breaking it in the process.  Moodie pushed him backwards causing him to fall against some shelves injuring his right shoulder.  Moodie dropped the knife and fled threatening to kill a shop assistant as he left.  He pleaded guilty after committal.  The sentence was five years.  It is quite a different and a more serious case.

[15]  Hill was a 26 year old man with a significant criminal history for dishonesty.  He had two previous convictions for assault occasioning bodily harm.  He was sentenced to three years imprisonment to be suspended after 12 months for an attempted armed robbery which constituted a breach of an Intensive Correction Order imposed for one of the earlier assaults.  Hill entered a convenience store wearing dark clothing, including a balaclava, and armed with a knife.  The female shop owner left the counter and screamed for help.  Her husband came from a back room and stood between his wife and the applicant.  The applicant said nothing to them but began to push buttons on the cash register in an attempt to open it.  He was unsuccessful and threw it to the floor.  The shop owners advanced on the applicant who dropped the knife and was immediately apprehended by a passing police officer who had heard the commotion.  Again this case is different and less serious.  Hill made no threats to the shopkeepers and did not menace them with the knife.

[16]  The most relevant case is that of Mallon.  Because of a dispute he was left stranded without money in central Cairns and without any means of transport to his residence.  He was “in a disturbed frame of mind” when he observed a woman drawing money from an automatic bank teller and he followed her.  When she stopped shortly to look into a shop window he endeavoured to snatch her handbag into which she had placed the money she had withdrawn.  She offered “firm resistance” and there was a tug-of-war between her and Mallon who “made four determined attempts to gain possession of the bag”.  Frustrated by his failure he struck her with his clenched fist to the side of the head and then ran away but was almost immediately caught by members of the public who had witnessed his attack.  He was sentenced to four years’ imprisonment.

[17]  Of the six authorities to which we were referred, Mallon is the closest in character.  It was, however, a significantly more serious case.  It involved a more persistent attempt at robbery and one involving actual violence to the woman victim.  It had adegree of premeditation and deliberation which the applicant’s offending lacked.  The difference in sentence between that imposed in Mallon and that imposed on the applicant does not, I think, reflect the difference in the seriousness of the offending. 

[18]  Though close to the point where this Court would not interfere, the sentence imposed appears a little too severe, even when ameliorated by the relatively early parole eligibility date.  There is scant likelihood that the applicant would have been released about that date, given his history of offending. 

[19]  I would therefore grant the applicant leave to appeal, allow the appeal and set aside the sentence imposed on count 1 and sentence the applicant instead to a term of three years’ imprisonment.  That parole eligibility date of 19 February 2011 should become instead a parole release date. 

[20]  CULLINANE J:  I agree with the reasons of Chesterman JA and the orders he proposes.