R v Boggs[2014] QCA 31

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The applicant was charged, together with Justin Brunker, Sereena Edwards and Dwayne Goodhew, with attempted robbery on 27 April 2011 at Townsville.  On 30 November 2012, Brunker, who had pleaded guilty on 14 June 2012, was sentenced to 30 months imprisonment with presentence custody declared as time served under the sentence; his sentence was suspended after 10 months with an operational period of three years.  He was also sentenced to a concurrent term of imprisonment for an assault occasioning bodily harm.  The applicant, Edwards and Goodhew pleaded not guilty but were convicted after a three day trial on 27 February 2013.  Goodhew then pleaded guilty to a number of drug related offences including summary offences.  Edwards was sentenced to 18 months imprisonment suspended after nine months with an operational period of three years.  On 8 August 2013 she successfully appealed and her sentence was suspended from 28 August 2013, that is, after six months.[1]  Goodhew was sentenced to two years imprisonment for the attempted robbery and to six months cumulative imprisonment for the indictable drug related offences.  He was convicted but not further punished for the summary offences.  Time served in presentence custody was declared to be time served under the sentence and his parole release date was fixed at 28 February 2013.  The applicant was sentenced to 30 months imprisonment suspended after 15 months with an operational period of three years.

The applicant's contentions

[2] The applicant, who is self-represented in this application, applies for leave to appeal against his sentence on the following grounds:

"a.There was a manifest disparity between the sentence imposed upon the applicant's co-offenders with respect to the count of Attempted Armed Robbery and the sentence of 30 months imprisonment with a requirement that 15 months of that term of imprisonment be served imposed upon the applicant.

b.That in all of the circumstances the sentence imposed was manifestly excessive."

[3] In his written outline of argument, he states:

"1.The criminality was equal to that of Brunker (AR194 line 55)

2.All co-offenders, Brunker, Goodhew, Edwards have had time reduced and all out of custardy [sic].

3.I have currently served longer than that of Brunker who had also pleaded guilty to a separate offence of assault occasioning bodily harm for which he was sentenced to a concurrent 12 months imprisonment.  His sentence was suspended after 10 months or at the 'one third mark'.

4.Mother's health failing with whom I resided with before sentencing, she currently is living on her own.  Attached letter from Doctors."

[4] In his oral submissions, he stated that he thought his sentence was a bit heavy.  He was remorseful and regretted the impact of his offending on the victim and on his own family.  He had tried hard to rehabilitate in prison and wanted to return to his family and make a contribution to the community.

[5] The facts of the offending are as follows.  At about midnight on 27 April 2011 in suburban Townsville, Edwards allowed the others to use her car in which she was a passenger to rob a service station.  The service station door was closed and locked.  The complainant, the only staff member present, saw at least one offender attempt to enter the service station.  The offenders were unaware of his presence.  Goodhew drove the car and parked it behind the service station.  The applicant approached the service station with his face covered.  He positioned himself so that he could not be seen from inside the service station but could assist in the offence if required.  Brunker approached the service station with a replica pistol but left after he was unable to open the door.  Police intercepted the offenders shortly afterwards and found incriminating items in the car.  Edwards initially denied involvement but later told police that the applicant and Brunker had got out of the car and then returned in a hurry.  She denied knowledge of the offence.

The sentencing proceeding

[6] The prosecutor's submissions included the following.  The applicant was 31 at the time of the offence and 33 at sentence.  His tendered criminal history, commencing in 1996, extended over more than three pages.  It included numerous assault, dishonesty and drug offences, breaches of community based orders, including probation, and breaches of short periods of wholly suspended imprisonment.  In December 2005 and again in March 2006, he breached a domestic violence order relating to his de facto partner.  Goodhew was 28 at the time of the offence and 30 at sentence.  He had a criminal history which included drug offences and a breach of domestic violence order.  Edwards was 31 at the time of the offence and 33 at sentence.  She had a relatively minor criminal history.  Brunker was 28 at the time of the offence and 30 at sentence.  He had a lengthy criminal history including previous incidents of assault occasioning bodily harm, stealing, fraud and burglary.

[7] The prosecutor submitted that the cases of R v Hill;[2] R v Moodie[3] and R v Hanvey[4] supported a sentence of between 18 months and two years for all three offenders, with parole release set at the half way mark.  They were convicted after a trial, and did not have the mitigating factor of a plea of guilty.  The offence was premeditated and somewhat sophisticated.  The applicant was masked and positioned himself as a lookout; a replica pistol was used; and there was a getaway car.  It was mostly due to good fortune that the robbery did not take place.  Although the gun was a replica and not inherently dangerous, it was capable of causing great fear to potential victims.  Other than Brunker, the offenders showed no remorse.  Brunker's head sentence of 30 months reflected that he was also sentenced for a separate assault occasioning bodily harm.

[8] The prosecutor submitted that an appropriate sentence in Goodhew's case, taking into account his additional drug offending, was to either impose a global sentence of two and a half years imprisonment or to impose separate head sentences to the same effect, with one cumulative on the other.

[9] A victim impact statement was tendered to the effect that the complainant had suffered significant mental anguish and financial strain as a result of this offence.

[10] Counsel for the applicant accepted the prosecution's submission as to the head sentence of 18 months to two years.  The applicant was in a de facto relationship with three children aged from 10 to six.  He was also caring for his 64 year old mother who had recently lost her husband, the applicant's father.  He had a solid work history including four years with the Townsville City Council but was currently unemployed after the closure of the concrete business where he was last employed.  He was drug dependent and at the time of sentence was on a methadone program.  He was currently also taking prescribed antidepressants.  His criminal history was limited and did not include any prior convictions of a like nature.  His culpability as a party was less than that of Brunker.  He had struggled for many years with substance abuse and was intoxicated on the evening of the offence.  A period of 18 months imprisonment suspended after nine months was appropriate.

[11] Edwards' counsel emphasised her unfortunate background.  She married at 18 and had her first child within a year.  She had four children, aged between 14 and six years.  Her marriage ended after 13 years.  This was, in part, because of her alcohol abuse triggered by her dysfunctional upbringing and her abuse of prescription drugs, particularly antidepressant medication.  Her former husband was caring for the four children and she was living in her car at the time of the offence.  Since her arrest and release on bail, her 14 year old daughter had returned to her care.  Her daughter was then pregnant with her first child.  Imprisonment would cause her daughter particular distress at this time in her life.  Edwards had worked as a volunteer with troubled young people and felt she had a calling in this area.  She hoped ultimately to re-establish her relationship with her children.  Her position was distinguishable from that of Brunker, who was also sentenced for a serious assault occasioning bodily harm which involved the breaking of the victim's jaw.  Her role was considerably less than the other offenders.  She should be sentenced to about 12 months imprisonment with early suspension.

[12] Goodhew's counsel emphasised that Goodhew had spent eight months in presentence custody and had been on bail since 8 December 2011 with a reporting condition.  During this time he had made significant efforts at rehabilitation and a favourable reference from the Salvation Army was tendered.  He had completed six and a half months of the 10 month Salvation Army rehabilitation program.  He had regained employment as a plasterer.  Goodhew had pleaded guilty and cooperated with the administration of justice on the drug offending.  In light of his rehabilitation, it would be harsh to return him to custody.  He had a functional upbringing and commenced and completed a plastering apprenticeship and later a course in business management after leaving school in grade 10.  Following the breakdown of a relationship, he developed an amphetamine habit.  He lost contact with his child and this caused him significant distress.

[13] At the time of his offending he was profoundly addicted to cannabis and amphetamines.  His involvement in the amphetamine production was for his own very significant use and was not commercial.  The attempted robbery offence was a breach of his bail on the drug offences.  His presentence custody was the catalyst he needed to rehabilitate.  Goodhew's counsel submitted that a global head sentence to reflect all his offending of between 21 to 24 months was appropriate, taking into account totality issues.

[14] In light of his culpability in the attempted robbery offence, principles of totality and his rehabilitation since his release, a sentence of no more than 10 months in actual custody was appropriate.  To return him to custody, however, would be harsh.  In the unusual circumstances of this case, he should be sentenced to a period of imprisonment which does not require him to serve any further time in actual custody so as to maintain his job and continue his rehabilitation.

Judge's sentencing remarks

[15] Before imposing the sentences set out in [1] of these reasons, the judge made the following observations.  The offence was serious as it occurred late at night and involved some planning.  A vulnerable target was selected whom the offenders expected would be alone.  The victim impact statement demonstrated its dreadful effect.  A term of imprisonment was required to deter the offenders and others and to send a message to the community.  The applicant, Edwards and Goodhew had shown no remorse.  The applicant arrived first at the scene, looked inside, moved back to a position where it was unlikely he would be observed by anyone inside the service station shop and waited for Brunker.  The applicant had covered his face ready to lend actual assistance in any confrontation.  He remained in position until Brunker appeared with the replica pistol and only departed when it was apparent the door would not open.  His criminality was equal to that of Brunker and justified similar treatment.  The applicant had battled, however, with addiction, and his record was not as serious as that of Brunker.  Further, Brunker was also dealt with for another serious offence.  His Honour (who had also sentenced Brunker) added:

"But it must be understood that neither the additional offence nor the more serious record played a part in setting the head sentence for Brunker.  The sentence set for him was set on the basis of the offending and those other factors that are mentioned relevant to the way in which the sentence might have been ameliorated."

[16] His Honour further noted that whilst imprisonment would cause detriment to the applicant's mother and his family, he was a mature man with a bad record.  He played a central role in this offence which was comparable to that of Brunker.

[17] Edwards had played a lesser role and did not join in or actively encourage the others.  Her role was the least significant.  She was, however, a mature person albeit one whose life was not going well and with a limited criminal history.  Although a lesser period of imprisonment was appropriate, she must serve some time in actual custody.

[18] Goodhew as the driver played an important role in the crime.  Whilst his culpability was not as great as those of Brunker and the applicant, it was significantly greater than that of Edwards.  He must also be sentenced for the additional drug offending to which he pleaded guilty and cooperated with the authorities.  His production was for personal use and over a relatively short period.  Importantly, he was on the way to rehabilitating having acknowledged his problems with drugs and found gainful employment.

Conclusion

[19] The trial judge was entitled to conclude that the applicant played as significant a role in the commission of the offence as his co-offender, Brunker.  In Hanvey this Court noted[5] that had his co-offender pleaded guilty but not cooperated in the investigation of the attempted robbery to the extent he did under s 13A Penalties and Sentences Act 1992 (Qld), he would have been sentenced to two and a half years imprisonment.  Hanvey therefore supports the applicant's head sentence, as does Moodie and Hill.  The applicant had no real mitigating features other than his unfortunate background and the fact that his mother and family would be disadvantaged by his imprisonment.  Those factors, in the absence of a guilty plea or cooperation, did not warrant suspension or parole eligibility any earlier than the half way point.  This is a serious example of the offence of attempted armed robbery.  The applicant has not demonstrated that the sentence was manifestly excessive.

[20] There were sound grounds for imposing a heavier sentence on the applicant than on Edwards and Goodhew.  Edwards played a much less significant role in the robbery, and had a lesser criminal history.  Although Goodhew, in addition to the attempted robbery, pleaded guilty to some drug offending, his role in the attempted robbery was less than that of the applicant.  Most significantly there was compelling evidence of Goodhew's genuine rehabilitation which would be jeopardised by a return to prison.  Although Brunker also pleaded guilty and was sentenced to a lesser concurrent term for another serious offence of violence, he pleaded guilty at a very early stage and cooperated fully with the administration of justice.  For that reason, the judge both moderated Brunker's head sentence and suspended it earlier than he otherwise would have done.

[21] As Gibbs CJ, Mason, Wilson and Dawson JJ explained in Lowe v The Queen,[6] mere disparity between sentences imposed on co-offenders does not require appellate intervention.  Courts will intervene only where the disparity engenders a justifiable sense of grievance on the part of the applicant on whom the heavier sentence is imposed, or where the disparity gives the appearance that justice has not been done.  Whilst there is disparity amongst the sentences imposed on the applicant and his co‑offenders, there are sound reasons for those differing sentences.  The applicant does not have a justifiable sense of grievance.

[22] The applicant's statements to this Court of remorse and insight and his desire to return to his family to live a decent life are encouraging.  I wish him well.  But he has not made out any grounds warranting the granting of leave to appeal.  It follows that his application for leave to appeal against sentence must be refused.

[23] GOTTERSON JA:  I agree with the order proposed by McMurdo P and with the reasons given by her Honour.

[24] MULLINS J:  I agree with the President.