R v Gray[2012] QCA 144

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Fraser JA and the orders he proposes.

[2] FRASER JA: On 31 January 2012, the applicant was convicted on his plea of guilty of robbery in company with personal violence.  He was sentenced on 1 February 2012 to three years imprisonment, with a parole release date fixed at 30 January 2013 (after serving 12 months).  One day spent in pre-sentence custody was deemed time already served under the sentence.  The applicant’s co-offender, Jubber, was sentenced to three years imprisonment for the same offence, he was sentenced to a concurrent term of imprisonment of six months for unlawful possession of the dangerous drug cannabis, and the three years imprisonment was suspended after six months for an operational period of three years. 

[3] The applicant has applied for leave to appeal against his sentence.  The grounds of his proposed appeal are:

1. That the sentence imposed was manifestly excessive, having regard to all the circumstances of the case;

2. That the extent of the applicant’s criminal history did not justify the difference in the sentence imposed upon the applicant, and the sentence imposed upon his co-offender, Fredrick Norman Jubber;

3. That the circumstances of the offence involved a greater degree of culpability on the part of the co-accused Jubber, than on the part of the applicant.

Circumstances of the offence

[4] On the evening of 28 April 2011, the complainant was sitting by himself at a table in a hotel when the applicant and Jubber, who were unknown to the complainant, engaged him in conversation.  Subsequently the three of them played pool together.  The complainant bought the applicant and Jubber some drinks because they had told the complainant that they were out of work.  The complainant left the hotel by himself at about midnight.  He had walked within a few hundred metres of his house when he heard footsteps behind him.  He was pushed to the ground and punched a few times in the face.  He felt someone going through his pockets and his wallet being taken.  The wallet contained about $300 which the complainant had withdrawn for rent money whilst he was at the hotel.  The complainant lost consciousness for a few seconds and awoke to a neighbour assisting him.  He was later taken to hospital by ambulance.  He suffered a cut to his left eye, general bruising and swelling of his face, and grazed knees and elbows. 

[5] Police found Jubber hiding in a yard later the same morning.  He made some admissions.  He was arrested and transported to the police station, where he participated in a police interview.  He told police that it was the applicant who had suggested robbing the complainant, that he, Jubber, had jumped on the complainant and put his arm around his throat, and that the applicant had taken the complainant’s wallet and phone.  (The phone was not in fact taken).  After police telephoned the applicant, the applicant voluntarily attended at the police station and participated in an interview.  The applicant told police that he had met Jubber three days earlier through friends.  The applicant had seen the complainant’s wallet during the night at the hotel.  He denied following the complainant home and told police that it was Jubber who had suggested the robbery.  The applicant said that he had replied to Jubber that his hand was injured so that he could not do anything, and that Jubber said that he would grab the complainant and that the applicant just needed to grab his wallet.  The applicant did so.  He said that after Jubber had assaulted the complainant and said that somebody had yelled out, he ran away, dropping the wallet as he fled.

The applicant’s and Jubber’s personal circumstances

[6] The applicant was 18 years old when he committed the offence and 19 years old when he was sentenced.  He had a criminal history.  On 4 April 2007, he was sentenced in the Childrens Court to two offences of rape committed on different dates in December 2005 and to an offence of deprivation of liberty and attempted rape in February 2006.  In the 2005 offences, the applicant anally raped a male friend of his on two occasions.  In the 2006 offences, the applicant detained a 10 year old girl in a public toilet, and he attempted to penetrate her mouth with his penis and pull her pants off.  He struck the child a number of times.  Her screams were heard by a witness who called out, and she escaped.  Convictions were recorded, the applicant was sentenced to three years probation with a special condition requiring him to attend a treatment program, and he was sentenced to 20 months detention to be released after serving 50 per cent of the detention order.  When the applicant was on bail for the present offence, he committed an offence on 30 June 2011 of unauthorised dealing with shop goods.  On 1 July 2011, he was convicted of that offence and of a breach of a bail condition.  Convictions were recorded and he was fined.

[7] Jubber was 21 years old when he committed the offence with the applicant and the additional offence of unlawful possession of the dangerous drug cannabis.  In November 2009, he was convicted of drug offences.  No convictions were recorded and he was fined.  He was fined for dangerous operation of a vehicle in December 2009.  At the sentence proceeding, Jubber had the benefit of a favourable reference given by a co-worker at a building products company where Jubber was employed. 

Consideration

[8] The applicant argued that it was not his idea to commit the offence and that he did not do any violence himself.  However, as the applicant’s counsel admitted on his behalf at the sentence hearing, this was a joint criminal enterprise.  The applicant’s counsel asked the sentencing judge to sentence the applicant on the footing that the participation of the applicant and Jubber was “equal”.  The applicant’s counsel submitted that it was not necessary for the sentencing judge to resolve the dispute about who first suggested the offence because “[t]hey both formed the plan, whether it be one or be the other who hatched it, they carried it out together to its end” and “[t]hey are a party to each of what each other did.”  The applicant was appropriately sentenced on that basis.

[9] The applicant stated in his outline of submissions that he appreciates that what he did was very stupid, and that at the time he did it he was drunk and not thinking straight.  The sentencing judge did not sentence him on a different basis.  The applicant’s counsel informed the sentencing judge that the applicant had been drinking on that day, and indicated that the applicant was drinking too much whenever he could get alcohol and that the applicant’s drinking perhaps explained his behaviour.  As the applicant’s counsel also submitted, the applicant’s drinking did not excuse his behaviour.  The sentencing judge took those submissions into account, observing that the applicant’s and Jubber’s conduct might have been fuelled by alcohol consumption.

[10] The applicant argued that he should have been given some benefit for his compliance with the conditions of his bail whilst he was awaiting sentence.  No mitigation of the sentence could be expected on that basis because the delay was not excessive, it was not suggested that it had caused the applicant any unfairness, and there was no evidence that he had rehabilitated himself to any significant extent whilst awaiting sentence: see R v L; ex parte A-G (Qld) [1996] 2 Qd R 63 at 66-67; R v Phillips & Woolgrove [2008] QCA 284 at [56], [87].

[11] As to the first ground of the proposed appeal, the submission by the applicant’s counsel at the sentence hearing in the District Court that a head sentence of three years imprisonment was within range makes it difficult for the applicant to succeed in any contention that the length of that term rendered the sentence manifestly excessive: R v Frame [2009] QCA 9 at [6].  The applicant did not advance any argument which supported that contention.

[12] Because this offence involved the use of violence, the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable did not apply to the sentencing of the applicant: Penalties and Sentences Act 1992, s 9(3).  The sentencing judge was right to take into account his Honour’s conclusions that the offence was a calculated one, that the applicant and his co-offender took advantage of the complainant’s generosity, and that the applicant in company with his co-offender, motivated by money, intentionally used personal violence upon the unsuspecting complainant.  Those matters made this a serious offence.  The sentencing judge also appropriately took into account in mitigation that the applicant voluntarily attended at the police station and was only 18 years old when he committed the offence.  However, although the applicant’s three previous offences of violence were of a different nature and had been committed some four years earlier when he was a child, that criminal history was nevertheless relevant.  The applicant was not entitled to that degree of leniency afforded to first offenders who present with very promising prospects of rehabilitation.

[13] The sentencing judge was referred to R v Blake [2010] QCA 272 as a comparable decision supporting the head sentence of three years imprisonment.  In that case the Court set aside a sentence for robbery of three and a half years imprisonment with parole eligibility after 15 months and imposed a sentence of three years imprisonment with the same parole release date.  That offender borrowed the complainant’s mobile phone, refused to return it, grabbed the complainant’s iPod from his hand, and threatened to kill the complainant if he called police.  Chesterman JA observed, at [18], that although the original sentence was “…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”.  Blake was much older (he was 33 years old when he was sentenced), he committed the offence whilst subject to an intensive correction order imposed only three weeks earlier, and he had what was described as an “appalling criminal history”.  He had been imprisoned on several occasions and he had numerous convictions for offences of violence.  However, the maximum penalty for the robbery offence in that case was 14 years imprisonment.  In this case, in which the applicant was also charged with the aggravating circumstances that he committed the offence in company and used personal violence against the complainant, the maximum penalty was life imprisonment. 

[14] In R v Evans; R v Pearce [2011] 2 Qd R 571, Evans (who was 19 years old at the time of the offence and had no prior convictions, but a subsequent conviction for stealing) and Pearce (who was 23 years old at the time of the offence and had prior convictions for two minor street offences) were sentenced to two years imprisonment with a parole release date fixed after eight months.  They pleaded guilty to robbery in company with actual violence.  They, and a third man, forced the complainant to the ground, kicked and punched him, and stole his shoes and his jeans, which contained money and a mobile phone.  The motivation for the offence was to obtain clothing for Evans so that he would be allowed entry into nightclubs.  The complainant suffered significant adverse impacts as a result of the offence.  Evans and Pearce co-operated with the police, both had been extremely intoxicated when they committed the offence, both were in employment, and both expressed remorse and sorrow and apologised to the complainant.  Their personal circumstances were more compelling than those of the applicant.  It was held, by majority, that the sentence was not manifestly excessive.

[15] In R v Mallon [1997] QCA 58, a 22 year old offender made four determined attempts to take a woman’s handbag from her and then punched her in the head.  The offender had many prior convictions for offences of dishonesty.  A sentence of four years imprisonment for the attempted robbery with violence was held not to be manifestly excessive.  However, that term was imposed concurrently with an activated 18 months suspended imprisonment for prior offences of dishonesty, so that the effective additional penalty for the robbery was two and a half years imprisonment.

[16] The respondent also referred to R v Bush [1996] QCA 172, in which the Court varied a sentence of four years imprisonment with a recommendation for parole after serving 12 months by reducing the head sentence to three years imprisonment.  The sentence was varied only to ensure that it was in parity with the sentence imposed on a co-offender.  That was a more serious offence.  The intoxicated 19 year old offender, who had a previous conviction of a minor nature, participated in a sustained and premeditated attack on a taxi driver in company with the older co-offender, who had an extensive criminal history.  The complainant suffered “quite considerable injuries”.

[17] Those decisions indicate that a shorter term of imprisonment might have been imposed upon the applicant, but they do not suggest that his sentence was outside the permissible range for his offence.  Particularly having regard to the circumstances summarised in [12] of these reasons, the applicant’s sentence is not manifestly excessive, although it is certainly severe.

[18] The second and third grounds of the proposed appeal invoke the “parity principle”.  In Green v The Queen; Quinn v The Queen [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ observed that: “[a]s with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.”  For the reasons already given, the contention in the third ground of the proposed appeal that the circumstances of the offence involved a greater degree of culpability on the part of the co-accused than on the part of the applicant should not be accepted.  As to the second ground of appeal, although both offenders had a criminal record, and although the applicant had committed his prior offences a considerable time earlier when he was a child, it was open to the sentencing judge to attribute greater significance to the applicant’s history of violent offences than to Jubber’s history of drug offences.  In the context of the present offence, the applicant’s prior criminal history operated, to some extent, to reduce the significance of the fact that Jubber was older than the applicant.  Having regard to the differences between the personal circumstances of the applicant and Jubber, the disparity between their sentences was justified and could not give rise to an objectively justifiable sense of grievance by the applicant.  The parity principle was therefore not infringed: Lowe v The Queen (1984) 154 CLR 606, 609-610 and Postiglione v The Queen (1997) 189 CLR 295 at 323, 338.

[19] The respondent’s counsel properly drew an error in the records of the District Court to the Court’s attention.  The (amended) verdict and judgment record corresponds with the transcript in recording that the applicant was arraigned upon the offence of robbery in company using personal violence, but the order sheet incorrectly records that he was arraigned upon the offence of one count of possessing a dangerous drug.  That error should be corrected. 

Disposition and orders

[20] The application for leave to appeal should be refused. 

[21] The Deputy Registrar of the District Court should be directed to correct the Court Order sheet in District Court file number 127 of 2011 (The Queen v Benjamin Ian Gray and Frederick Norman Jubber) by amending the entry “GRAY 1 count x possessing a dangerous drug” so that it reads “GRAY 1 count x robbery in company with personal violence.”

[22] PHILIPPIDES J:   I have had the advantage of reading the reasons for judgment of Fraser JA.  I agree with the reasons of his Honour and with the proposed orders.