SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicants, Evelyn Christine Gwilliams and Trevor Charles Fish, pleaded guilty in the Ipswich District Court on 16 April 2010 to an assortment of charges.  They were charged jointly on a 17 count indictment. 

[2] Gwilliams pleaded guilty to unlawful use of a motor vehicle on 16 August 2003 (count 1); three counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence in October 2008 (counts 2, 4 and 10); five counts of stealing on assorted dates between April 2008 and August 2009 (counts 3, 5, 6, 7 and 9); three counts of entering premises with intent to commit an indictable offence in September 2009 (counts 11, 14 and 16); one count of armed robbery in September 2009 (count 12); one count of arson in September 2009 (count 13); and two counts of armed robbery in company in September 2009 (counts 15 and 17).  When the allocutus was administered, Gwilliams stated, "I'm sorry, your Honour, for what I've done to people that I've hurt.  Wish I never did it."

[3] Fish pleaded guilty to one count of break, enter and steal in July 2008 (count 8); one count of stealing in August 2008 (count 9); one count of unlawful use of a motor vehicle with a circumstance of aggravation in September 2009 (count 10); three counts of entering premises with intent to commit an indictable offence in September 2009 (counts 11, 14 and 16); one count of armed robbery in September 2009 (count 12); and two counts of armed robbery in company in September 2009 (counts 15 and 17).  Fish also pleaded guilty to an ex officio indictment charging him with three additional offences committed in September 2009: one count of entering premises and stealing (count 1) and two counts of entering premises with intent (counts 2 and 3).

[4] They were each sentenced to eight years imprisonment for the offences of armed robbery (count 12) and armed robbery in company (counts 15 and 17), and to lesser concurrent terms of imprisonment for the remaining offences with the exception of count 1 on which Gwilliams was convicted but not further punished.  For both Gwilliams and Fish, counts 15 and 17 were declared to be serious violent offences.  In Fish's case only, count 12 was also declared to be a serious violent offence.  This means that they must both serve 80 per cent of the eight year sentence (six years four months and three weeks) before becoming eligible for parole.  In Gwilliams' case only, 187 days of pre-sentence custody was declared as time served under the sentence.

[5] They each apply for leave to appeal against their sentences, contending that they are manifestly excessive; that the judge failed to sufficiently take into account the mitigating features; and that the application for leave to appeal should be granted, the appeal allowed, the sentence set aside and, instead, an effective sentence substituted of either six years imprisonment with a declaration that counts 15 and 17 are serious violent offences, or of eight years imprisonment with no serious violent offence declaration.

[6] These are my reasons for granting the applications for leave to appeal and allowing the appeals to the limited extent of removing the declarations that count 12 (Fish only) and count 15 and count 17 (Gwilliams and Fish) are serious violent offences.

Antecedents

[7] Gwilliams was 28 at sentence; 27 when she committed all offences except count 1 which she committed when she was 21.  Her criminal history commenced in the Ipswich Children's Court when she was convicted and sentenced to five months detention with an immediate release order for an assortment of offences including assault occasioning bodily harm whilst in company.  This is her only entry for a significant offence of violence.  From 2003 she was sentenced to community based orders for an assortment of property offences in the Magistrates and District Courts.  She was also convicted and fined for drug offences in 2005.  Later in 2005, she breached an intensive correction order and was re-sentenced to eight months imprisonment.  Later still in 2005, she was sentenced for a large number of property offences to three years imprisonment suspended after five months with an operational period of three years.  These offences were in breach of the suspended sentence imposed early in 2005.  In 2007, she was sentenced to 12 months imprisonment for further property offences.  Later that year, she was sentenced for burglary to three months imprisonment.  In 2008, she was convicted and fined for stealing; contravening a police direction or requirement; and obstructing a police officer.  In 2009, she was convicted and fined for unauthorised dealing with shop goods.  Later that year, she was fined without conviction for assault or obstructing a police officer.  She therefore had a concerning criminal history but she had no significant prior offences of violence as an adult.

[8] Fish was 36 at sentence and 34 and 35 when he offended.  He, too, had a lengthy criminal history.  His Queensland offending was as follows.  In 1996, he breached a fine option order for a drink driving offence.  In 2002, he was fined without conviction for entering or being in premises with intent to commit an indictable offence and was convicted and fined for offences of stealing as a servant and fraud.  He was convicted and fined for minor property offences in both 2003 and 2004.  His offending escalated in 2004 when he was sentenced for assault and a large number of property offences to four years imprisonment.  In 2005, he was convicted but not further punished in respect of an additional property offence committed in the same period as his 2004 convictions.  In 2008, he was convicted and fined for a minor property offence.  In 2009, in the Ipswich Drug Court he was placed on an intensive drug rehabilitation order and sentenced to three years wholly suspended imprisonment under the Drug Court Act 2000 (Qld) for various property offences.  He was also ordered to pay restitution of $8,491.86.  He committed the offences the subject of the present application during the period of the drug rehabilitation order.  On 20 October 2009, after his arrest on the present charged, the drug rehabilitation order was vacated and instead he was sentenced to two years imprisonment with a parole release date of 20 March 2010.  In November 2009, he was convicted and sentenced to one month's concurrent imprisonment for possessing dangerous drugs and his parole release date was again set at 20 March 2010.  Fish also had various minor convictions between 1989 and 1994 in the Darwin Juvenile and Magistrates Courts for which he received community based orders.  His lengthy criminal history did not include any offences of significant violence.

The circumstances of the offending

[9] On 16 August 2003, the complainant's 1983 Toyota Camry was taken without permission from a supermarket at Shailer Park.  Police located it later that evening and returned it to the complainant.  Police found a cigarette butt in the ashtray.  The butt contained DNA which matched Gwilliams' DNA.  When she was arrested on 17 August 2009 in relation to count 7, she was charged with this offence (count 1).

[10]  On 15 October 2008, the complainant's car was taken from Lindum railway station carpark and located three days later near Kholo.  Police identified two fingerprints which matched Gwilliams.  She was intercepted by police on 18 November 2008 and initially declined to take part in a police interview.  On 24 November 2008, however, she participated in a record of interview with police.  She admitted that she was a passenger in the car and knew that it was stolen because the ignition had been "plugged".  She said she "was just too off [her] face" and she "just didn't care".  She knew that others in the car intended to use the car to obtain cold and flu tablets from chemists, inferentially to use unlawfully.  She told the police the identity of the other persons involved (count 2).

[11]  On 18 October 2008, Gwilliams pulled up at a petrol station and obtained $60.11 worth of petrol before driving away without paying (count 3).  Gwilliams later admitted to being present in a stolen Hyundai Excel car as a passenger, knowing that it was stolen.  The car was used to obtain stolen petrol (count 4).  She also admitted to driving another car and using it to steal petrol at a service station on 19 October 2008 (count 5). 

[12]  On 23 April 2009, she and an unidentified co-offender entered a Bunnings store at Booval.  They were recorded on CCTV footage removing a socket set from the shelves and placing it underneath Gwilliams' jumper.  The store manager followed Gwilliams and saw her get into a car.  A number of men in the car made threatening gestures towards the manager before they and Gwilliams drove off.  Police were notified.  A staff member identified Gwilliams from a photo board.  When Gwilliams was apprehended on 17 August 2009, she was charged with this offence.  She declined to participate in a record of interview and the co-offender has not been identified (count 6). 

[13]  On 1 July 2009, Gwilliams and another co-offender, Jackson, entered a liquor store at Raceview.  They were filmed by security cameras entering a cold room where Gwilliams ripped open a carton of premixed cans.  When they left, they each had a hand in a pocket of their pants.  They entered a car in the car park behind the store and drove away.  The shop attendant checked the cold room and ascertained that a can of premixed bourbon and a can of premixed whisky had been taken.  When Gwilliams was arrested on count 8, she told police she kept a lookout whilst Jackson stole the drinks (count 7).

[14]  On 25 July 2008, CCTV footage recorded Fish entering and leaving a chemist shop at about 2 am.  He had entered through a glass window at the front of the shop.  He stole prescription medication and money.  DNA located at the chemist shop matched Fish's DNA.  He declined to be interviewed (count 8). 

[15]  On 17 August 2009, Gwilliams left a Big W store with items of clothing hidden in her clothes.  A police officer asked her to give them the Big W clothing.  She attempted to leave.  The police officer took hold of her arm and placed her under arrest.  She tried to punch and kick the police officer who tackled her to the ground and, with the assistance of a member of the public and another police officer, handcuffed her.  She was taken to the Booval police station and questioned.  She initially gave a false name but after she was identified through police checks, she cooperated and gave them two more shirts hidden in her clothing.  She told police she had stolen the clothes because of her drug habit (count 9).

[16]  It seems that Gwilliams committed the remaining counts whilst on bail.  On 16 September 2009, the complainant's 1992 Holden car was stolen from the Mt Ommaney shopping centre.  On 17 September, Gwilliams and Fish drove the car to Amberley and parked it in a park near a post office which they decided to rob (count 10).  Fish covered his face with a scarf and entered the post office with a replica black handgun (count 11).  He placed a plastic bag on the counter and ordered the female complainant to fill it with money, whilst he pointed the gun at her chest.  The male complainant entered the post office from the rear.  Fish then pointed the gun at him.  The female complainant emptied the money from one till into the plastic bag.  Fish then jumped onto the counter and, whilst pointing the gun at the male complainant, demanded more money from the female complainant.  Gwilliams came to the door of the post office and called out, "Hurry up – that's enough."  The female complainant put some more money from the second till into the plastic bag.  Fish went to the first till and removed still more money.  He jumped off the counter and ran from the store with Gwilliams.  They got into the stolen car and drove off.  Gwilliams threw the clothing away.  The male complainant was able give police only a partial car registration number of the getaway vehicle as the number plate had been bent in half (count 12). 

[17]  On 25 September 2009, police found Gwilliams and Fish at a Hungry Jacks store at Logan.  They arrested them and took them to Ipswich police station where they each participated in records of interview.  They found the replica black handgun used in count 11 in the car in which Gwilliams and Fish were travelling when arrested.  Fish told police that he and Gwilliams decided to rob the post office at Amberley.  They parked nearby for about four to five hours before parking directly in front of the post office and committing the offence.  Fish had bought the replica gun two or three weeks earlier.  He thought that the female complainant was "pretty scared".  He "was pretty out of it" when he committed the offence to get money for Gwilliams' heroin addiction.  They immediately spent the stolen money on drugs.  Gwilliams told police that she had driven the stolen car to the post office knowing that Fish intended to rob it.  She did not go into the shop and only opened the door to tell Fish to hurry up.  She told police that after the robbery she drove the car to an area in Riverview where she burnt it (count 13). 

[18]  At about 12.30 am on 19 September 2009, Gwilliams and Fish were seen by a male staff member entering the Domino's pizza store at Brassall through an open rear door (count 14).  Fish pulled out a black replica handgun and ordered the male staff member to lie on the floor.  Gwilliams stayed with the employee.  Both Gwilliams and Fish were wearing dark clothing and had bandanas across their faces.  Fish turned and pointed the gun at the female complainant and demanded that she take him to the store's safe.  Fish took about $500 from the safe and till and a soft drink from the fridge.  He then walked to the rear of the store where Gwilliams was waiting with the male staff member.  Gwilliams and Fish left through the back door.  They told police that they had been taking drugs before the offence.  Fish said Gwilliams suggested this robbery to get more drugs.  The gun was a child's toy, not the replica used in count 12.  They were dropped at the store by Gwilliams' brother-in-law who also picked them up afterwards.  They used the money to buy "ice".  Gwilliams told police that she was "a little bit drunk" when she committed this offence.  Both she and Fish had been drinking at her sister's place (count 15).

[19]  On 20 September 2009 at about 9.30 pm, Fish smashed a locked glass door near the reception area of the Ipswich Golf Club and he and Gwilliams entered the club (count 16).  Fish was wearing a hat, had a bandana tied across his face and was carrying a replica black handgun.  Gwilliams was wearing dark clothing and a cap and was holding a sword or long knife.  A female complainant and another male staff member were in the gaming room.  Fish pointed the handgun at the male and told him to lie on the floor on his stomach.  Gwilliams approached the female with the long knife.  The female complainant explained that she could not lie down as she was eight months pregnant.  Fish ordered her to take him to the safe.  Fish told Gwilliams to stay with the male, adding, "If he moves … .".  Gwilliams attempted to take money in notes from the poker machine "hoppers" but was only able to remove coins.  Fish followed the female complainant into the office.  He told her to sit down and that he was not going to hurt her.  She did not know whether or not the gun was real.  Fish removed about $30,000 from the safe.  He asked the female complainant about how to open the "hoppers" on the poker machines to remove the money in notes.  She advised that this could only be done with a key.  Gwilliams asked for the key but Fish decided not to worry about it.  As they left, Fish told both complainants not to call the police.  The complainants phoned police as soon as they felt it was safe to do so.  Fish later told police that they did not pre-plan this robbery.  They decided to commit it only when they pulled into the car park, realised the club was closed and saw that there were only a couple of people inside.  Fish said he was "pretty out of it" at the time of the robbery.  He used the money to buy drugs.  Gwilliams also admitted her involvement, although she minimised her role and denied covering her face.  She told police she had taken drugs shortly before the robbery and was "on the nod" when she committed it (count 17).

[20]  The offences charged against Fish in the ex officio indictment all occurred in September 2009.  Fish entered a store at Wacol in the early hours of the morning through a closed but unlocked door.  He unsuccessfully tried to jemmy open a locked internal door.  He then kicked the door open, activating the alarm system.  He stood on a chair and ripped the alarm system from the roof.  He stole $150 from a drawer in a desk (count 1).  Fish scaled the fence of another Wacol store.  He used a jemmy bar to smash a hole in the front door, opened it and entered the shop, activating the alarm.  Police found blood stains on cabinets.  The DNA analysis matched Fish (count 2).  Fish climbed over a gate in the early hours of the morning and then used a jemmy bar to smash a hole in the glass front door above the lock of O'Brien Glass Industries Limited's Darra store.  He opened the door and entered the store, activating the alarm.  He unsuccessfully attempted to move a safe in the manager's office (count 3).  On 28 January 2010, Fish participated in a police record of interview.  He stated that he wanted to clear up all outstanding matters and admitted all three offences.  He committed these three offences to buy drugs and was "off his head" on heroin and speed when he committed them.

[21]  Gwilliams and Fish have both been in custody since their arrest on 25 September 2009 (203 days pre-sentence).  Fish has been serving the sentence imposed in the Drug Court on 20 October since that time.  Gwilliams, however, was able to have 187 days pre-sentence custody declared as time served under the sentence. 

The sentencing proceedings

[22]  The female complainant in count 17, who was heavily pregnant at the time of the offence, provided a victim impact statement.  She referred to the gravely detrimental impact the offence has had on her life. 

[23]  CCTV footage of counts 11, 12, 16 and 17 was tendered[1] and played in the sentencing court.  Counsel in the present applications, including counsel for the respondent, have not viewed this footage but unequivocally requested this Court not to view it.  Accordingly, the Court has complied with that request.

[24]  The prosecutor at sentence emphasised the following matters.  Both Gwilliams and Fish had appalling criminal histories which seemed drug-related.  There was a degree of professionalism in the robberies.  They tried to conceal their identities.  A replica gun was used in three robberies and a sword was introduced in the final offence.  The victims believed the gun was real.  Threats and demands were made during the commission of the offences.  A stolen vehicle was used in the commission of the first robbery.  The offences involved a degree of planning.  In excess of $30,000 was taken during the final robbery offence and almost $6,000 worth of damage was done to the premises.  The victim impact statement of the pregnant complainant in count 17 showed the deleterious effect the offending has had on her life.  The offenders chose vulnerable targets.  They became increasingly desperate and violent in their offending and seemed to be posing an increasing community risk.  General deterrence was an important factor.  Both Gwilliams and Fish had previous opportunities to rehabilitate.  In their favour, they were both cooperative with the authorities, although they each appeared to minimise their roles, especially Ms Gwilliams.  The prosecutor ultimately submitted that an effective global sentence of 10 years imprisonment for the robbery offences was appropriate, with an automatic declaration that the offences were serious violent offences.

[25]  Gwilliams and Fish were represented by the same counsel at sentence.  His submissions included the following.  They were both equally involved.  Although there were some differences in their criminal histories and the roles they played in the offences, the differences balanced out so that they were both liable to similar sentences.  Gwilliams was not disguised merely because she wore a hat; there was nothing sinister in wearing a hat for sun protection or fashion.  The appropriate sentencing range was between six and eight years, not 10 years imprisonment, although an eight year sentence was probably appropriate here.  A serious violent offence declaration should be imposed only if a sentence of about six years was imposed. 

[26]  Gwilliams was part of a close, large Maori family.  When her father was imprisoned, she was 12 years old and she had to take on extra obligations in caring for her younger siblings.  She followed her older sister into trouble with the law.  She and Fish have three children aged 10 and under.  One child was residing with Fish's mother in Darwin.  The other two children were residing with Gwilliams' father locally.  He had recently been diagnosed with emphysema and heart problems.  Gwilliams' older sister was suffering from cancer.  Gwilliams and Fish remain deeply committed to each other and to their children.  Whilst in custody Gwilliams commenced a hospitality certificate.  Once sentenced, she will be eligible for and intended to commence the "Getting Smart Drug Rehabilitation Program".  She was also working towards obtaining a forklift driver's certificate and was employed in the detention centre workshop. 

[27]  Defence counsel reiterated Gwilliams' contrition for the trouble she had caused her victims which she expressed when arraigned.  She became involved in this offending because of her drug addiction.  Her goals were to get off drugs, to get her children back, to work in paid employment with children, and to complete the courses she had commenced and to get on with her life. 

[28]  Defence counsel tendered[2] a psychological report from Mr Peter Perros concerning Fish.  The report recounted the following information.  Fish grew up in a home where violence was often triggered by his father's amphetamine addiction.  He left school half way through grade 10 and had worked in unskilled heavy manual work.  He began to drink alcohol heavily at 14.  He began to smoke cannabis at about 17.  He began to use speed when he was 26 or 27 and was introduced to it through Gwilliams' family.  He was ordered by the Drug Court to attend rehabilitation at Moonyah but he relapsed after three and a half months because of mental health issues.  As a result, he was admitted to Ipswich Mental Health Unit by his mother.  He was sent home two days later with antidepressant medication.  The intelligence tests administered showed that Fish had a mild learning disability with low average verbal reasoning and struggled with complex issues.  His learning capacity was limited to around five facts presented in dot point form.  He was susceptible to "information overload".  These findings impacted on his capacity to benefit from therapy programs.  He needed professional (case managed) support in the community because of these disabilities.  He has used drugs to help cope with psychological issues arising from his traumatic experiences which leave him overwhelmed by day to day stressors.  He copes by withdrawal and self-destructive substance abuse.  He is unstable emotionally and a risk of relapse is high, at least without intense support in the community.

[29]  In sentencing, the judge made the following observations.  He referred to the offenders' pleas of guilty, their respective charges, their antecedents, and set out the facts of the offending, emphasising the robbery offences.  He noted the victim impact statement of the complainant in count 17.  Gwilliams' was drug addicted.  Both offenders cooperated with the authorities.  His Honour concluded that an effective global head sentence of eight years imprisonment was appropriate and that, consistent with the statement of principle in R v Orchard,[3] there was a need to protect the community and because of the threatening way in which weapons were involved in the commission of the robbery offences, those offences should be declared to be serious violent offences.  As Gwilliams played a less significant role in the robbery of the post office (count 12) the judge declined to make such a declaration in respect of her conviction for count 12, but did so in respect of Fish.

Gwilliams' contentions in this application

[30]  Counsel for Gwilliams emphasised the following matters in written submissions.  The committal hearing on her charges proceeded by witness statements only (without cross-examination) and the matter was listed as a sentence on the first presentation of the indictment.  She cooperated with police by taking part in an interview and made admissions as to her involvement in the most serious of the offences.  She demonstrated a high level of remorse through her cooperation with the administration of justice and in her apology offered spontaneously to the court after the allocutus was administered.  The sentencing judge did not state that he had taken the plea of guilty into account in imposing sentence.  He was required to do this under s 13(3) Penalties and Sentences Act 1992 (Qld).  This amounts to a miscarriage of the sentencing process and requires the exercise of the sentencing discretion afresh: R v Woods.[4]  Further, the judge gave insufficient weight to Gwilliams' cooperation and failed to consider that she took a lesser role in the robbery offences than her co-offender, Fish.  She had minimal involvement in the first robbery (count 12).  Fish, not Gwilliams, was armed with the replica firearm in the subsequent robberies (counts 15 and 17).  Fish forced the complainants in those counts to go to the safe and demanded money from them.  Gwilliams had no prior history for offences of robbery.  An overall global sentence of between six to eight years imprisonment to reflect all her offending was appropriate and, because of the mitigating features, a sentence towards the lower end of that range should have been imposed.  No serious violent offence declaration should have been made.  Instead, an order should have been made that she was eligible to apply for parole after serving two years imprisonment.

[31]  In oral submissions, Gwilliams' counsel placed particular emphasis on the fact that Fish played a more active role in the commission of the robberies.  He submitted that the cases of R v Richardson,[5] R v Burrows,[6] and R v Lund[7] demonstrated that the appropriate sentence in Gwilliams' case was a global sentence of slightly less than eight years imprisonment and without a declaration that any offences were serious violent offences.

Fish's contentions in this application

[32]  Counsel for Fish emphasised the following matters in his written submissions.  The judge erred in not stating that he took into account Fish's guilty plea in determining the sentence imposed.  The judge also erred in declaring that counts 12, 15 and 17 were serious violent offences.  These offences were not especially serious examples of the offences of robbery and armed robbery in company: R v McDougall and Collas.[8]  The sentencing process was an integrated one and the exercise of the discretion conferred by s 161B(3) Penalties and Sentences Act 1992 (Qld) should have been exercised as part of the sentencing discretion.  A review of the comparable cases demonstrates that a sentence in the range of five to seven years imprisonment should have been imposed.  This Court should substitute a global sentence of six years imprisonment to reflect the seriousness of all Fish's offending, with a recommendation for parole eligibility after two years to take into account his early plea of guilty, including a plea of guilty to some charges on an ex officio indictment; his personal antecedents; his cooperation with the administration of justice; and his lack of previous violent history. 

[33]  In oral submissions, Fish's counsel emphasised the following matters.  Fish had been in custody since he and Gwilliams were arrested by police on 25 September 2009.  As he was then serving a term of imprisonment, none of the 203 days of pre-sentence custody could be declared as time served under the sentence.  This matter should nevertheless have been taken into account in determining the sentence for the offences the subject of the present application.  Fish had no significant history of violent offending and this was relevant when determining whether to declare the offences serious violent offences.  All of these offences were part of the same spate of offending and also incorporated the period in which he breached his intensive drug rehabilitation order.  This Court's decisions in Burrows, Lund, and R v Apps[9] demonstrate that the global sentence imposed in Fish's case was manifestly excessive.

Conclusion

[34]  Gwilliams and Fish have involved themselves in a spate of persistent offending of escalating seriousness over about 14 months.  Their offending was fuelled by, and committed to, feed their increasingly desperate drug addiction.  Neither was a youthful first offender.  Both had been given the opportunity of community based rehabilitative orders in the past but with a resounding lack of success.  Without detracting from the seriousness of their infinitely varied offending, unquestionably the most serious and concerning offences were the robbery counts, counts 12, 15 and 17. 

[35]  It is true that the primary judge in sentencing both Gwilliams and Fish did not in terms state that he had taken their pleas of guilty into account.  But the judge commenced his sentencing remarks to both Gwilliams and Fish by first stating that they had pleaded guilty to a number of very serious criminal offences, which his Honour then listed.  Later, in setting out the prosecutor's submissions, his Honour noted "that these were early pleas of guilty".  I am unpersuaded that the judge, in sentencing either Gwilliams or Fish, failed to reduce the penalty he would otherwise have imposed but for their pleas of guilty, as he was required to do under s 13(4) Penalties and Sentences Act 1992 (Qld).[10]

[36]  Counsel for Gwilliams and Fish have referred to previous decisions of this Court, which they contend are comparable to the present case.  The argue that these cases demonstrate that the sentences imposed on Gwilliams and Fish are manifestly excessive and give insufficient weight to mitigating features, especially the pleas of guilty and cooperation.  None of those cases is closely comparable to the complex range of offending and the unusual marriage of exacerbating and mitigating features that pertain in the present case.  Those cases tend to demonstrate, however, that a global sentence of eight years imprisonment to reflect the large number and great variety of Gwilliams and Fish's offending, even taking into account all the mitigating features, was within range. 

[37]  The real question in this case is whether the declarations that counts 15 and 17 in Gwilliams' case, and counts 12, 15 and 17 in Fish's case, were serious violent offences, pushed the global eight year sentence imposed on each of them outside the range or was otherwise an inappropriate exercise of discretion.

[38]  Section 161B(3) Penalties and Sentences Act gives a sentencing court a discretion when sentencing offenders like Gwilliams and Fish for specified offences, including offences of robbery like those in counts 12, 15 and 17, to "declare the offender to be convicted of a serious violent offence as part of the sentence".  In R v McDougall and Collas,[11] this Court affirmed the following principles which are directly apposite to this case.  The discretion must be exercised judicially and with regard to the consequences of making a declaration.[12]  Such declarations will usually "be reserved for the more serious offences that, by their nature, warrant them".[13]  If the circumstances of an offence the subject of a declaration are not out of "the norm" for offences of that type, it may be difficult to show such declarations are warranted.  Where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive and in which the sentencing discretion has miscarried in declaring the offences serious violent offences.[14]

[39]  In R v Orchard, Jerrard JA, citing with approval like statements of this Court in R v Keating,[15] noted:

"that a serious violent offence declaration can be appropriate when a need is perceived to protect the community, and where the circumstances of the commission of the offence and particularly the violence accompanying its commission may make such a declaration appropriate.  Likewise an offender's criminal history may tend to show the offence for which the sentence is being imposed in a serious light, so that a need is perceived to protect the community."[16]

[40]  The primary judge in the present case cited that passage from Orchard and stated that he had come to the conclusion:

"that in the present case a need to protect the community is perceived and is real, and that the circumstances of the commission of the robbery offences, and particularly the use of the weapons, and the threatening way in which they were used, make the declaration of a serious violent offence declaration appropriate."

[41]  Almost all robbery offences are serious and the present counts 12, 15 and 17 are no exception.  Count 17 was especially so; and there have been serious and long-lasting psychological repercussions for the victim who was in the last stages of her pregnancy when she was robbed.  But, it cannot be said that the circumstances of any of counts 12, 15 or 17 were, in the terms used in McDougall and Collas, "out of the norm for that type".  Although victims were threatened with a replica firearm, and on one occasion a knife or sword, no-one was physically injured: cf Orchard.[17]  As McPherson JA recognised in Orchard, something more than that is ordinarily required to merit the exercise of the discretion under s 161B(3) to declare such offences serious violent offences, at least, where the sentence imposed was towards the top end of the appropriate sentencing range.[18]  Unfortunately, the features of count 12, 15 and 17 were disturbingly typical of the many robbery offences which come before Queensland courts.  Further, both Gwilliams and Fish's criminal histories had no previous like entries, so that their previous offending did not reveal an obvious or perceived need to protect the community.  Nothing in their previous offending or in their present offences put the present offences "out of the norm" for robbery offences: cf Orchard.[19]

[42]  In summary, the judge's stated reasons for exercising his discretion to declare counts 12 (Fish only) and counts 15 and 17 (Gwilliams and Fish) to be serious violent offences does not support a lawful exercise of that discretion; see McDougall and Collas; R v Keating and Orchard. It had the effect of making the sentences imposed manifestly excessive.

[43]  Gwilliams additionally contends that the sentence imposed on her was manifestly excessive and gave rise to a justifiable sense of grievance when compared to Fish's sentence because she was less involved than Fish in the robbery offences.  Although there is modest support for Gwilliams' contention, generally speaking the offenders were equally involved.  Each had matters that made their offending more serious than the other's as well as matters that made their offending less serious than the other's.  For example, Gwilliams was somewhat less involved than Fish in the robberies but he committed them to purchase drugs for her and she alone committed the serious offence of arson of a motor vehicle (count 13).  In my opinion, any slighty lesser overall culpability on the part of Gwilliams was given adequate recognition by the fact that 187 of the 203 days of pre-sentence custody in her case was able to be declared to be part of her sentence.  This was not possible in Fish's case as he was serving a sentence.

[44]  In my view, the sentences imposed on both Gwilliams and Fish were manifestly excessive, but only insofar as they declared count 12 (Fish only) and count 15 and count 17 (Gwilliams and Fish) to be serious violent offences.  I would in each case grant the application for leave to appeal and allow the appeal, but only to the extent of removing the declaration that count 12 (Fish only), count 15 and count 17 (Gwilliams and Fish) were serious violent offences.

[45]  CULLINANE J: I have read the draft reasons of the President in this matter.  I agree with the reasons and the orders proposed.

[46]  JONES J: I have read the reasons of the President in draft, I agree with those reasons and the orders proposed.