R v Gerrard[2014] QCA 29

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant pleaded guilty on 18 June 2013 to an armed robbery of a convenience store at Bundaberg on 13 April 2013, together with some related summary drug offences.  He was arrested on these charges on 13 April 2013.

2. About nine months earlier in July 2012, he was convicted of a series of offences including dangerous operation of a vehicle, burglary, and unlawful use of a motor vehicle. He was sentenced to an effective term of two years imprisonment, with 60 days presentence custody declared as time served under the sentence.  His parole release date was set at 12 January 2013.  His parole was subsequently suspended on 21 March 2013, shortly before the commission of the armed robbery with which this application is concerned.  After his arrest on the armed robbery in April 2013, he began to serve the approximately 14 month period remaining on his July 2012 sentence.

3. In June 2013, he was sentenced to five years imprisonment for the armed robbery, cumulative upon the sentence imposed in July 2012. His parole eligibility date was fixed at 18 June 2015, two years and two months after his arrest on the armed robbery. He was convicted but not further punished on the summary offences. He has applied for leave to appeal against his sentence, contending that it is manifestly excessive and such to engender a legitimate sense of grievance when compared to the sentence imposed on his co-offender, Rikki Goggi.

4. On 24 July 2013, Goggi was sentenced by a different judge to three years imprisonment cumulative on the four months imprisonment remaining of his effective two year sentence originally imposed on 13 March 2012. His parole eligibility date for the armed robbery was set on 22 August 2014, that is, about one year and four months after his arrest on 13 April 2013 for the armed robbery.

5. Unlike my colleagues, for the following reasons I would grant the application for leave and allow the appeal by reducing the applicant's sentence to four years cumulative imprisonment.

6. Fraser JA has set out the circumstances of the armed robbery. It is a serious example of a convenience store robbery whilst armed with a knife, particularly because it has had a most detrimental impact on the complainant's health, an all too common outcome of such offences of violence. At least it did not have the aggravating circumstances of being committed in company or with personal or actual physical violence. The applicant played a more significant and aggressive role in the offending than Goggi and had an even worse criminal history than Goggi. Both pleaded guilty at an early stage but Goggi's cooperation with the administration of justice was especially commendable. In light of those matters, I agree with Fraser JA that there were sound reasons for distinguishing between the sentences imposed on the applicant and Goggi.  The consequences of the fact that Goggi had served more of his earlier sentence than the applicant had served of his before the breach of parole by committing the armed robbery is not a matter engendering a legitimate sense of grievance on the part of the applicant.

7. I am persuaded, however, that when the totality principle discussed in Mill v The Queen^[1] is considered, the applicant's cumulative five year sentence with parole eligibility on 18 June 2015 is manifestly excessive.  Given the applicant's reasonably mature age at 28, his most concerning criminal history and the fact that he committed the armed robbery whilst on parole, but for its cumulative nature, a sentence of five years imprisonment with parole eligibility set at about one-third, to recognise the applicant's cooperation with the administration of justice in his plea of guilty, would have been appropriate.  See, for example, R v Moss.^[2]  The totality principle, however, requires that there be some further moderation to take into account that the applicant was serving almost 12 months of another sentence before he could commence serving the sentence for the armed robbery.  The sentence of five years cumulative imprisonment with parole eligibility two years and two months after his arrest for the armed robbery is not supported by comparable cases and was manifestly excessive.  A four year sentence should be substituted with parole eligibility after serving about one-third of the total sentence he was liable to serve following his arrest for the armed robbery.

8. I would grant the application for leave to appeal, allow the appeal against sentence, and vary the sentence imposed at first instance by substituting a cumulative sentence of four years imprisonment with parole eligibility set on 10 January 2015.

9. FRASER JA:  On 18 June 2013 the applicant was convicted on his plea of guilty of armed robbery.  He also pleaded guilty to summary charges, committed on the same day as the armed robbery, 13 April 2013, of possession of a drug pipe and failing to properly dispose of a syringe.  He was sentenced to five years imprisonment for the armed robbery, that term of imprisonment to start from the end of an imprisonment he was then serving, with parole eligibility fixed on 18 June 2015.  The applicant was convicted and not further punished for the summary offences.

10. The applicant seeks leave to appeal against the sentence imposed for armed robbery on the grounds that it is manifestly excessive and was such as to engender a legitimate sense of grievance when compared to the sentence imposed upon a co-offender, Mr Goggi.

Circumstances of the offence

11. On the evening of 13 April 2013 the applicant, Goggi, Goggi’s partner, and her three year old child, were driving around Bundaberg in Goggi’s car. At about 8.25 pm the applicant asked Goggi to drive him to a fast food store.  Goggi did so, parking the car on a street near the rear entrance to a shopping complex.  The applicant took from the car a black “hoodie” and a knife owned by Goggi.  Goggi kept that knife in the car for an innocuous purpose, ensuring that a defective car window remained closed.  When Goggi saw the applicant take the knife, he appreciated that the applicant intended to use it in an armed robbery.  The applicant argued that it could be inferred that Goggi had earlier appreciated that the applicant intended to commit a robbery but the evidence in the record does not support that inference and it was not drawn by the sentencing judge or by the judge who sentenced Goggi.

12. The complainant, a 32 year old console operator for a convenience store, saw the applicant, wearing the black hoodie, walk past the store a number of times. There were two customers in the store. The applicant rushed into the store, approached the service counter where the complainant was standing, leant over the counter, pushed the knife towards the complainant, and demanded money. As the complainant looked at the knife, the applicant shoved it towards the complainant, saying “I want your fucking money”. The complainant feared for his life and struggled to open the till. Whilst the applicant pointed the knife at the complainant the applicant told the complainant to hurry up. When the complainant grabbed a plastic container containing the $200 business float from under the counter and handed it to the applicant, the applicant demanded more money.  The complainant opened a cupboard under the counter and grabbed $170 in loose notes and handed them to the applicant.  The applicant ran out of the store with that money back to the car where Goggi and his partner were waiting.  Goggi then drove away.

13. Members of the public in the area saw the applicant running from the store and entering the car. They recorded the car’s details and reported to the police. When police attended the convenience store and spoke to the complainant he gave a description of the applicant.  He began to suffer chest pains and was taken by ambulance to hospital, where he stayed overnight.  After police apprehended Goggi, who was still driving the car, and his partner, they found the hoodie worn by the applicant and the applicant’s wallet under a front passenger seat.  Goggi participated in a police interview and made admissions.

14. Police found the applicant in a residential unit later in the same night. There were needles and syringes next to the applicant and he was bleeding from an injection point in his left arm. The knife used in the robbery was on a table next to the applicant. He was arrested for the robbery and cautioned. The applicant denied knowledge of the armed robbery and claimed he had been at the residence watching television. He admitted that the needles were his and that he had used them to inject opiates. He also admitted that a water pipe on the dining table was his and he had used it earlier. Police found $70 on the applicant.

15. The complainant provided a victim impact statement. He was emotionally affected by the robbery. He had not been able to continue to work at night and he had not been able to sleep much at night. He took medication to attempt to help him sleep. He had flashbacks of the robbery which made him depressed. He used to look forward to going to work but now hated doing so.  He had been seeing a psychologist once a week to deal with the issues he was now facing.

16. The prosecutor informed the sentencing judge that when Goggi was initially interviewed by police he did not tell the truth but he did so in a second interview. Goggi then told police that the applicant had directed him to drive, had taken the hoodie and pulled it over his face and had taken the knife, at which point Goggi appreciated that the applicant was going to rob someone. When the applicant returned to the car with the container of money, Goggi continued to drive the applicant, hoping, as occurred, to get drugs with the stolen money.

The applicant’s personal circumstances

17. The applicant was 28 years old when he committed the offence. He had a criminal history commencing in early 2005 when he was 20 years old. He had committed a number of drug offences.  He had some offences of violence: assaults occasioning bodily harm committed in early 2005 for which no conviction was recorded, assaults occasioning bodily harm committed between September 2006 and February 2007 for which the applicant was sentenced to 12 months imprisonment to be served by way of an intensive correction order, and an offence of assaulting a police officer committed on 26 November 2007 which was one of a series of offences on that day which attracted four months imprisonment with parole eligibility after two months.

18. On 14 May 2008 the applicant was convicted of breaching the intensive correction order. He was re-sentenced to six months imprisonment wholly suspended for 12 months.  The applicant subsequently breached the suspended imprisonment and on 25 August 2008 six months imprisonment was activated with provision for release on parole after one month.  The applicant committed various other offences, apparently related to drug use.  He was sentenced to various short periods of imprisonment during 2009 and 2010.  He was given a sentence of two months imprisonment, wholly suspended, in March 2011 for a drug offence he committed in January that year.  On 11 July 2012 the applicant was convicted of a series of offences committed on 12 May 2012, including dangerous operation of a vehicle, burglary, unlawful use of a vehicle, and assault or obstruct a police officer.  The applicant remained in custody after he was arrested for those offences on 12 May 2012.  He was sentenced on 11 July 2012 to an effective term of two years imprisonment with parole release on 12 January 2013, with the result that he served eight months imprisonment before being released on parole.  The applicant committed the subject armed robbery offence on 13 April 2013 whilst on that parole.  That parole was suspended on 21 March 2013 and the applicant was returned to custody when arrested for the subject offence on 14 April 2013.

19. Defence counsel informed the sentencing judge that the applicant had completed the period of the 12 months suspension of the two months imprisonment imposed in March 2011 without breach. The applicant was drug-free during that time and had stable accommodation with his long term partner. They had two children, a one year old son and a nine year old daughter, and the applicant was then working full time with his father in a shop. When the applicant’s relationship ended he reverted to the use of amphetamines and opiates, after which he committed the offences the subject of the 2012 sentence. When the applicant was released on parole under that sentence he was drug-free and obtained work as concreter for a period but subsequently returned to drug use before committing the subject offence. The applicant’s employer was willing to re-employ the applicant as a concreter after the applicant had served his sentence. The applicant’s instructions were that he was committed to maintaining a drug-free lifestyle.

Sentencing remarks

20. The sentencing judge accepted that, although the applicant did not immediately co-operate with police, he soon after co-operated and he entered a very early plea of guilty. The sentencing judge also accepted that the applicant committed this offence because of his addiction to drugs, with which he had been struggling. In response to a submission by defence counsel that the applicant was in the store for only 20 seconds and was under the influence of drugs and alcohol at the time, the sentencing judge observed that serious wrongdoing could be done in that period and that, according to the complainant’s victim impact statement, the complainant suffered and was likely to continue to suffer in future from the robbery.  The sentencing judge referred to general deterrence, personal deterrence and the need for protection of the community, noting that the applicant’s offending was very serious and that he had a bad criminal history stemming from his drug addiction.

Consideration

21. The sentencing decisions to which the sentencing judge was referred make it difficult to contend that the sentence was manifestly excessive. In R v Moss [1999] QCA 426 an offender who committed a similar offence, also apparently precipitated by the use of alcohol and drugs, was sentenced on appeal to five years imprisonment, with the order for parole after two years being left intact.  He too entered an early plea of guilty and he too had a relevant criminal record.  On the other hand, that offender was much younger than the applicant, being only 18 years of age when he committed the offence and 19 when sentenced.  Further, the offence was objectively less serious.  It was unplanned and the offender did not wear any disguise.  Moss was referred to in R v Main & Fauid [2012] QCA 80 in which the court refused an applicant leave to appeal against a sentence of 5 and a half years imprisonment with parole eligibility at the halfway mark. (That sentence was imposed after a trial.)  Fauid was 36 years old when he committed the offence.  He had a lengthy criminal history consisting mainly of property, drug and public disorder offences, with limited history for offences of violence and no convictions for robbery.  He was serving nine months and seven days imprisonment for previous offences when he was sentenced.  Fauid’s co-offender committed an offence which was similar to that committed by the applicant.  Fauid’s role being to conduct a reconnaissance beforehand and to act as a lookout as the robbery took place.  Mullins J found that Fauid had a “close and significant involvement in the carrying out of the robbery” and that his criminality was not much less than that of the principal offender.  The sentence of imprisonment of 5 and a half years was held to be not outside the sentencing range.

22. The sentencing range for the applicant, who had failed to take advantage of rehabilitative sentences or to be deterred by previous imprisonment and whose offending was objectively worse than in the cited cases, extended to at least six years imprisonment. Defence counsel acknowledged that in his submissions to the sentencing judge. It was necessary, however, for the sentencing judge to consider whether, in accordance with the “totality principle”, the sentence should be moderated to take into account the totality of the imprisonment resulting from the accumulation of the sentence upon the 2012 sentence. (The sentencing judge was obliged to make the sentence cumulative upon the 2012 sentence: Penalties and Sentences Act 1992, s 156A(2).)  As a result of pre-sentence custody which was declared to be time served under the 2012 sentence, the applicant’s imprisonment under that sentence effectively commenced on 12 May 2012.  When the applicant was sentenced for the subject offence on 18 June 2013 he had served about 12 and a half months under the 2012 sentence (eight months in custody before parole, two months and nine days on parole, and two months and four days in custody after his arrest for the subject offence in April 2013) with about 11 and a half months left to serve.  Thus, in aggregate, from the time of sentence on the present matter he faced five years and 11 and a half months until his fulltime release date on 4 June 2019, with parole eligibility after two years.  His total minimum time in custody under both sentences is two years and ten months and his total maximum time in custody under both sentences is six years and ten months.

23. The parole eligibility date under the subject sentence of 18 June 2015 is one year and two weeks after the fulltime release date under the 2012 sentence, which may be contrasted with the common allowance of about one-third of the term (one year and eight months for a five year term) in a sentence unaffected by totality considerations.  The sentence was therefore moderated substantially both in the term of imprisonment and in the parole eligibility date to take into account the consideration that it was imposed cumulatively upon the 2012 sentence.  Although the applicant’s written submissions contended that the sentence was manifestly excessive, those submissions did not develop that argument by reference to any comparable sentencing decision and no such argument was advanced in oral submissions.  The sentence was not manifestly excessive.

24. In response to the applicant’s reliance upon the principles relating to the parity of sentences imposed on co-offenders, the respondent supplied the court with Goggi’s criminal history and the remarks by the judge who sentenced Goggi. Goggi was sentenced on 24 July 2013 to three years imprisonment to be served cumulatively upon the balance of a sentence of two years imprisonment (with 109 days of pre‑sentence custody declared as time already served under that sentence) imposed on 13 March 2012 with parole eligibility on 22 August 2014.  When Goggi was sentenced for the subject offence on 24 July 2013 he had served 20 months under his 2012 sentence, (eight months in custody before release on parole, nine months on parole, and three months in custody after his arrest on 14 April 2013 – which presumably led to revocation of his parole - until the date of sentence), with four months of the imprisonment remaining to be served.  Therefore, Goggi was required to serve a further three years and four months from the date of the sentence, with parole eligibility after 13 months from that date.  In aggregate, Goggi is required to serve a minimum time in custody under both sentences of two years (about 15 months under the 2012 sentence and about nine months under the subject sentence) and a total maximum time in custody of four years and three months (about 15 months under the earlier sentence and three years under the subject sentence).

25. The applicant’s argument invoked the principle expressed by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610-611, 613-614:

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.  It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”

26. An applicant’s sentence will not be reviewed merely because the Court considers that there is a disparity between it and a co-offender’s sentence.  In Postiglione v The Queen (1997) 189 CLR 295 Dawson and Gaudron JJ observed that the parity principle does not concern merely the imposition of different sentences for the same offence: it concerns the due proportion between those sentences, which must be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.  In the same case Kirby J insisted that perfect consistency between the sentences of co-offenders is not necessary and that a sentence is to be reviewed only where the disparity is such as to engender, in the words of Gibbs CJ in Lowe at 610, a “justifiable sense of grievance” on the part of the prisoner or “give the appearance that justice has not been done.”  In Postiglione, Gummow J said at 323, that the principle for which Lowe is authority is that the Court of Criminal Appeal intervenes “where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done”.  Put another way, the question is whether an objective comparison of the sentences manifests what Mason J called in Lowe at 611, a “badge of unfairness”.

27. The applicant focussed upon the comparison between the sentences of the applicant and Goggi in these respects: whereas the applicant is required to serve a total minimum time in custody under both sentences of two years and ten months, Goggi is required to serve a total minimum time of two years, and whereas the applicant may be required to serve a total maximum time in custody under both sentences of six years and ten months Goggi’s potential maximum time in custody under both sentences is four years and three months. The substantial reasons for these differences are the difference between their sentences for the subject offence and the fact that Goggi had served a longer period of his first sentence on parole (nine months as compared to the applicant’s three months) before both were arrested on 14 April 2013.

28. As to the first reason, the differences in the sentences for the subject offence, the applicant accepted that, the applicant being the principal offender, Goggi’s offence might be regarded as less serious, but the applicant cited R v Main & Fauid for his contention that Goggi’s criminality was not much less than that of the applicant.  He argued that Goggi had a “close and significant involvement” in the robbery.  In fact, Goggi’s culpability was substantially less than that of the applicant.  It was the applicant who conceived and carried out the offence.  It was he who entered the store and menaced the vulnerable attendant with a knife, causing him to fear for his life and to suffer seriously adverse consequences as a result.  Had the applicant not done so the offence might not have been committed.  The applicant and Goggi were of similar ages but, as the applicant conceded in an argument, he had a worse criminal history than Goggi.  Furthermore, whilst both the applicant and Goggi pleaded guilty, Goggi gave an early statement to police in which he inculpated himself in the offence.  If Goggi had not done so a case might perhaps still have been made against him, but the judge who sentenced Goggi was plainly right to find that he “showed a greater level of cooperation than your co-accused ...”, in addition to entering a timely plea of guilty as his co-accused did.  Absent this co-operation by Goggi, it would have been difficult, perhaps impossible, to prove against him that he knew before the robbery that the applicant intended to commit it.

29. Thus the judge who sentenced Goggi found additional significance in the applicant’s co-operation with the police that it, together with a letter in which Goggi expressed empathy for the complainant and his sorrow and determination to become a better person, revealed that Goggi was remorseful.  There is scope for application of the principles to which Hayne J referred in AB v The Queen (1999) 198 CLR 111 at 155:

“An offender who confesses to crime is generally to be treated more leniently than the offender who does not.  And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known … [a]nd the offender who confesses to what was an unknown crime may properly be said to merit special leniency.  That confession may well be seen as not motivated by fear of discovery or acceptance of the likelihood of proof of guilt; such a confession will often be seen as exhibiting remorse and contrition.”

30. There is a substantial discrepancy between the sentences, but the discrepancy is explicable by reference to the combination of factors to which I have referred: Goggi’s culpability was markedly less than that of the applicant, Goggi was deserving of significantly more leniency because he admitted to a degree of culpability in the offence which the police otherwise could not establish; unlike the applicant, Goggi was found to be remorseful; Goggi presented with better prospects of rehabilitation; and the applicant had a worse criminal history than Goggi.

31. To the extent that differences in the time served under their 2012 sentences contributed to the differences in the custodial periods under their aggregate imprisonment, it must also be borne in mind that the applicant committed the subject offence as soon as three months after he was released on parole.

32. When all of the circumstances are taken into account any remaining discrepancy between the aggregate sentences is not “manifest” (Lowe per Mason J) or “manifestly excessive” (Postiglione per Gummow J) such as to justify the Court’s interference.

Proposed order

33. I would refuse the application for leave to appeal.

34. MULLINS J:  I agree with Fraser JA.