R v Edwards[2013] QCA 216

COURT OF APPEAL

GOTTERSON JA

MORRISON JA

BODDICE J

CA No 54 of 2013

DC No 27 of 2012

THE QUEEN

v

EDWARDS, Sereena Joy               Applicant

BRISBANE 

THURSDAY, 8 AUGUST 2013

JUDGMENT

BODDICE J:  On 27 February 2013, the applicant was convicted, after a trial, of one count of attempted robbery while pretending to be armed with a dangerous weapon, namely a pistol.

On 28 February 2013, the applicant was sentenced to 18 months imprisonment, suspended after nine months, for an operational period of three years.

The applicant seeks leave to appeal that sentence of imprisonment, on the ground the sentence imposed was manifestly excessive.  The basis for that assertion is that there was a manifest disparity between the sentence imposed upon the applicant, and the sentence imposed upon one of the applicant’s co-offenders, whose criminality was found to be significantly greater than the applicant’s, and deserving of a longer sentence.

The contention of a marked disparity is not directed at the head sentence.  The marked disparity arises in respect of the time ordered to be served by the applicant.  The sentencing judge ordered the co-offender be released on parole after serving 225 days, being the time already served in pre-sentence custody.  The consequence of that order was that the co-offender served approximately seven and one-third months in custody.  The applicant was required to serve nine months in custody.

The applicant was conjointly charged with Justin Brunker, Brett Boggs and Dwayne Goodhew.  The circumstances of the offence were that at approximately midnight on 27 April 2011 in suburban Townsville in the State of Queensland, the applicant and her co-offenders travelled to a service station.  The plan to rob that service station was foiled because the service station was closed at that time.

The applicant’s involvement in the offence was limited to providing her vehicle, and travelling in the vehicle with her co-offenders.  The vehicle was driven by Goodhew.  Boggs and Brunker approached the service station.  Brunker, who was carrying a replica pistol, unsuccessfully attempted to enter the service station.

The applicant was sentenced on the basis she had knowingly permitted her car to be used in the offence.  The sentencing judge accepted the applicant did not join in, or actively encourage the offence, and concluded that if her presence amounted to encouragement, it was not more than minimal.

Like the applicant, Boggs and Goodhew were convicted after a trial.  Boggs received two years six months imprisonment, suspended after 15 months, for an operational period of three years.  Goodhew received two years imprisonment.  He was also sentenced to a cumulative period of six months imprisonment for unrelated serious drug offences.  It was ordered that he be released on parole after serving 225 days, the amount of time spent in pre-sentence custody.

Brunker pleaded guilty to the offence.  He was sentenced to two years, six months imprisonment.  Brunker was also sentenced to a concurrent sentence of 12 months imprisonment for an offence of assault occasioning bodily harm.  His sentence was suspended after 10 months, for an operational period of three years.  A period of 182 days pre-sentence custody was declared as time served.

On sentence, it was accepted the applicant’s conduct was the least significant role of the three, and that the criminality of Brunker, Boggs and Goodhew was greater than that of the applicant.  It was also accepted that Goodhew’s criminality was not as greater as that of Brunker and Boggs.

Apart from the roles each played in the offence, there were further distinguishing features between the applicant and those of her co-offenders.  The applicant was 31 years of age at the time of the offence and 33 years of age at the time of the sentence.  She had a minor and irrelevant prior history.  It was accepted she had problems with alcohol and prescription medication.  At the time of the offence the applicant did not have the care of any of her four children.  She was living in her car.  Prior to sentence she regained care of one of her children.

In contrast, each of her co-offenders had significant criminal histories.  Brunker’s criminal history included property offences, assault occasioning bodily harm in company and armed and burglary.  He had breached previous court orders and had served sentences of actual imprisonment.  Boggs’ criminal history included offences of violence, property offences, breaches of community based orders and breaches of suspended imprisonment resulting in actual imprisonment.  Goodhew also had a prior criminal history, including property and drug offences.  He was on bail at the time of the drug offence.

Parity in sentence is a relevant consideration: Lowe v The Queen (1984) 154 CLR 606.  However, as any sentence must allow for differences in an offender’s circumstances and involvement in the offence, the interference of this court is not warranted unless the disparity is such that the sentence cannot be allowed to stand without it appearing that justice has not been done.  In that event, this Court’s powers are wide enough to allow the Court, in its discretion, to reduce a sentence in order to avoid a marked disparity.

The respondent concedes that when consideration is had to the time ordered to be served in actual custody in respect of the applicant, and that ordered in respect of the co-offender Goodhew, the question of disparity arises.

The issue for consideration is whether the disparity between the sentences imposed upon the applicant and her co-offender Goodhew gives rise to a justifiable sense of grievance, or the appearance that justice has not been done.

When regard is had to the findings of the sentencing judge as to the applicant’s lesser involvement in the offence, and to her lesser prior history and other personal circumstances, there is marked disparity in the sentence.  A person with a lesser involvement has been ordered to serve a longer period in actual custody.

The marked disparity between the sentences of actual imprisonment required to be served by the applicant, and by Goodhew, is such that should the applicant’s sentence be allowed to stand, it would give rise to a justifiable sense of grievance, and the appearance that justice has not been done.

The applicant has now served 160 days in custody.  Having regard to her accepted limited involvement, and her personal circumstances, it is appropriate she be released after serving six months in custody.

I would grant leave to appeal, allow the appeal and order the applicant’s sentence of imprisonment be suspended from 28 August 2013, for an operational period of three years.

MORRISON JA:  I agree.

GOTTERSON JA:  I agree and have nothing to add.

BODDICE J:  The orders of the court are:

1.Grant leave to appeal.

2.Allow the appeal.

3.The applicant’s sentence of imprisonment be suspended from the 28th of August 2013 for an operational period of three years.