R v Pearson[2016] QCA 212

SUPREME COURT OF QUEENSLAND 

1. FRASER JA:  I agree with the reasons for judgment of Gotterson JA and the order proposed by his Honour.
2. GOTTERSON JA:  On 31 March 2016, in the District Court at Brisbane, the applicant, Lanjil Enoka Pearson, pleaded guilty to each count on a two-count indictment and to the charges on numerous bench charge sheets which alleged some 17 summary offences.^[1]  The counts alleged, respectively, robbery while armed on 10 March 2015 and robbery while armed in company on 12 March 2015.  The offences charged were one of entering a dwelling and committing an indictable offence; two of entering a premises and committing an indictable offence; one of entering a premises and committing an indictable offence by break; four of stealing; two of attempted fraud to dishonestly gain a benefit or advantage; three of unlawfully possessing suspected stolen property and four of breaching bail conditions.
3. The applicant was sentenced to five years imprisonment in total with parole eligibility fixed at 3 March 2017, that is, after serving two years of his sentence.  In respect of each of the two armed robberies, a sentences of five years imprisonment was imposed.  In respect of the dwelling entry committed on 8 August 2012, a sentence of six months imprisonment was imposed.  For the premises entry and premises entry by break offences committed on 11 February 2015, a sentence of nine months imprisonment was imposed; whereas for the premises entry offence committed on 10 March 2015, a sentence of three months imprisonment was imposed.  A sentence of two months imprisonment was imposed for each of the stealing and attempted fraud offences.  A sentence of one month imprisonment was imposed for the unlawful possession of suspected stolen property offence, and each of the breaches of bail conditions.  The separate sentences for each of the offences are to be served concurrently.
4. On 14 April 2014, the applicant filed an application for leave to appeal against the sentences imposed for the two armed robbery offences.^[2]

Circumstances of the applicant’s offending

5. The first armed robbery offence occurred on 10 March 2015.  The applicant entered a liquor store highly intoxicated at approximately 4.20 pm.  He was wearing a black hooded jacket, long black trousers and a bandana which covered his face.  The applicant jumped over the front counter and approached the employee at the store with a large knife, demanding he open the cash register.  The employee complied with the applicant’s request.  The applicant proceeded to take money from the cash register, along with a bottle of rum from the display shelf.  As he did so, the applicant said words to the effect of “sorry about that”.^[3]  An audit conducted on the register revealed $525.00 had been stolen by the applicant.  A Victim Impact Statement disclosed that the employee was continuing to experience anxiety problems.^[4]
6. The second armed robbery was committed with co-offender, Gavin Costelloe, at a petrol station two days later.  The applicant and Costelloe entered from the back of the petrol station at approximately 10.44 pm, wielding a knife and a pole respectively.  The applicant was wearing clothing similar to what he wore for the first armed robbery.  He approached the counter and placed his knife near the attendant’s neck, demanding money.  Store camera footage depicted the applicant taking money from the cash register, along with cigarette packets.  One of the offenders also took the attendant’s mobile phone.  It was estimated that 10 to 15 packets of cigarettes and $200 cash was taken.  Police discovered the applicant’s bandana 150 metres away from the petrol station.  That led to his arrest.

The applicant’s personal circumstances and history of offending

7. The applicant was 20 years old and unemployed at the time of sentencing.  The majority of the offending, including the armed robbery offences, occurred when the applicant was 18 to 19 years old.  The burglary offence occurred when the applicant was 16 years old.
8. The applicant moved to Australia from Auckland, New Zealand with his mother and his stepfather when he was 12 years old.  He was “kicked out” of home on his 13th birthday and commenced living as a vagrant.^[5]  The applicant became drug and alcohol dependant.  What followed included a substantial period of serious juvenile offending, including a burglary offence at 13 years of age, armed robbery with actual violence in company at 14 years of age, and armed robbery in company at 15 years of age.  The first of these juvenile armed robberies involved the applicant robbing a taxi driver at knifepoint.^[6]  The applicant accumulated some 80 months probation and 21 months detention as a juvenile offender.
9. As an adult, the applicant was convicted of public nuisance and obstructing a police officer in performance of duties and sentenced to 15 months probation.  The offending before the learned sentencing judge largely involved breaches of that suspended sentence.^[7]  As a result of the applicant’s continued drug use and unstable housing situation, the assigned case manager concluded that the applicant was not suitable for further community based orders.^[8]

Sentencing remarks

10. In his sentencing remarks, the learned sentencing judge referred to the applicant’s offending, history of offending, and personal aspects, including a letter written by the applicant, and certificates establishing the completion of courses in prison.  Notwithstanding his Honour’s appreciation of the applicant’s young age at the time of his offending, he considered the applicant’s prospects of rehabilitation to be “significantly limited”,^[9] as a result of his criminal history.  He regarded the two armed robberies as extremely concerning for the harmed employees and to the community, warranting a sentence that had regard to the sentencing considerations of community protection and personal deterrence.^[10]
11. In addition, his Honour was aware of the likelihood of the applicant’s deportation.  As to that he said:

“Ultimately, I think it’s imperative that any order I make be one that imposes a parole eligibility date and not a release on a suspended sentence.  I think whatever happens, it’s likely that you may be deported to New Zealand, but whatever happens you need the supervision that parole will give you.

…

It gives me no great pleasure at all sentencing a 19 year old man to five years’ imprisonment, particularly in circumstances where, as Mr Harrison says, you may well have to serve all of that before you’re going to be released.  It’s likely you’ll go back to New Zealand.  Ultimately it doesn’t matter whether you’re in New Zealand or Australia…”^[11]

The ground of appeal

12. There is one stated ground of appeal.  It is that the applicant’s sentence of five years with parole eligibility after two years for each armed robbery was manifestly excessive.

Applicant’s submissions

13. In a one-page hand-written outline, the applicant, who appeared for himself at the hearing of the appeal, submitted that his sentences for the armed robberies should be varied to four years imprisonment, suspended after 18 months.  The basis for this was that, upon release, the applicant would likely be deported to New Zealand.  This factor, the applicant contended, warranted recognition in his sentence because it would be “big punishment in itself”.  The applicant also referred to his two year old son, his difficult past, his remorse and his rehabilitative prospects.
14. Out of fairness to the applicant, I would regard his application as based on both manifest excessiveness and a failure to have regard to the likelihood of deportation as a relevant factor.

Respondent’s submissions

15. The respondent submitted that the sentencing discretion did not miscarry and that the sentence imposed was not manifestly excessive.  In support of this submission, the respondent referred to the decisions of this Court in R v Moss,^[12] R v Gordon,^[13] and R v Bourke.^[14]  Further, the respondent relied upon the absence of evidence at sentence establishing that deportation would create hardship for the applicant.  No adjournment of the sentence hearing was sought to attain such evidence.

Observations with respect to the comparable cases

16. In Moss, the offender, who was 18 years old at the time of the offending and 19 years old at sentence, was convicted of armed robbery on his own plea of guilty and sentenced to six years imprisonment with a recommendation for parole after two years.  In circumstances not dissimilar to the first of the armed robbery offences committed by the applicant, the offender entered a video store and approached the front counter where the employee was waiting to serve.  The offender produced a large knife and demanded money.  The amount taken was about $450.  His application for leave to appeal against his sentence was granted, with the Court varying his head sentence to five years imprisonment.  The parole recommendation period was not disturbed.  The offender had a history of juvenile offending and was on probation at the time of the armed robbery.  However, he had a poor background and upbringing.  He neither used a disguise nor appeared to have planned the robbery.  In granting the application, McPherson JA observed:

“The problem is, however, that the offence here is a serious one.  It carries a maximum of life imprisonment and comparable sentences to which we have been referred, or to which we have access, suggest a range for a first offence of this kind that is ordinarily between about three and five years.”^[15]

17. In Bourke, the offender pleaded guilty to armed robbery in company, while armed with an offensive weapon.  This Court refused the offender’s application for leave to appeal against a sentence of four years and six months imprisonment with parole eligibility after serving one-third of the head sentence.  The offender and a co-offender entered a pharmacy at about midday, wearing various items of clothing over their faces and both wielding knives.  They directed a pharmacist to open a drug safe.  Two other employees managed to call police.  Over $2,000 worth of drugs were taken from the drug safe.  The offender was 39 years old at the time he committed the offence and had an extensive criminal history which began when he was 18 years old.  The Court acknowledged^[16] that a sentence of five years imprisonment was within the appropriate range for similar offending, having regard to the decision of this Court in R v Apps.^[17]
18. In Gordon, the applicant was 17 years old at the time of offending and at sentence.  He pleaded guilty to one count of robbery in company with personal violence, two counts of armed robbery and further summary offences.  The first of the two armed robbery offences occurred at a supermarket, where the offender, while masked by a scarf, approached two employees.  He carried a taser and mace and demanded that the employees fill his bags with money and cigarettes.  The second armed robbery offence occurred at a fast food restaurant.  The offender entered in a similar fashion, again with a taser and mace, and demanded the employees fill plastic bags with the money from the cash registers and drop box.  The total property taken from both armed robberies was $5,469.90.  The offender was on bail in respect of the robbery in company with personal violence at the time the two armed robbery offences were committed.  He had no prior criminal history, as an adult or juvenile, and had promising signs of rehabilitation.  The Court granted the offender’s application for leave to appeal against his sentence, setting aside a sentence of five years imprisonment with parole eligibility after serving 16 months on each armed robbery count and substituted concurrent terms of four years imprisonment with parole eligibility after serving 10 months imprisonment.
19. In his sentencing remarks here, his Honour said of Gordon that:

“…[it] involved a 17 year old man with no prior convictions and who was said to have promising prospects of rehabilitation.  He was dealt with for two armed robberies.  He was initially given a sentence of five years.  That was reduced on appeal to four.  In my view, his age, the fact that he had no prior convictions and his prospects of rehabilitation cause me to think that such a sentence of four years is less than I would impose in the circumstances of your case.”^[18]

Conclusion on manifest excessiveness ground

20. I would agree that the factors identified by his Honour accounted for the moderated sentence imposed in Gordon.  Two of them, an absence of a criminal history and promising prospects of rehabilitation, are, regrettably, not present here.  Further, I accept the respondent’s submission that the level of criminality in the applicant’s offending is significantly greater than that of the offender in Moss, for whom the offending was the first of that kind.  It will be observed that the applicant’s sentence is equal to that of the offender in Moss both as to the term and parole eligibility.
21. The armed robberies here were very serious and committed while on bail and subject to both probation and a suspended sentence.^[19]  Taking guidance from the recent decision of the High Court in R v Pham,^[20] I am unpersuaded that the applicant’s sentence is unreasonably or plainly unjust, nor am I inclined to conclude that there must have been some misapplication of principle on the part of the learned sentencing judge in arriving at it.  In my view, the comparable sentences relied on by the respondent at the sentence hearing and in its outline preclude any argument that the sentence is manifestly excessive.

Deportation as a relevant factor

22. The only matter suggested by the applicant as not having been taken into account at sentence is his liability to be deported once paroled.  It may be accepted that this can be a relevant sentencing factor, as was acknowledged in the decision of this Court in R v UE.^[21]  However, in that case, Philippides JA (with whom Morrison JA and North J agreed) expressed the following important qualification:

“… [w]hile the prospect of deportation may be a relevant mitigatory factor, the sentencing court cannot be asked to speculate about that prospect or as to the impact of deportation on the offender.  Proof that deportation will in fact be a hardship for the particular offender will be required.”^[22]

23. Here, as noted, no proof of hardship was offered and no adjournment to adduce such proof was requested.  To the contrary, the applicant’s counsel at sentence submitted that “obviously returning to a life of freedom in New Zealand [is] far more appealing.”^[23]  The learned sentencing judge appropriately dealt with the issue of the impact of deportation in these circumstances.  No error in the exercise of the sentencing discretion has been made out for failure to take it appropriately into account.
24. Allied to the issue of deportation is an assertion made by the applicant’s counsel at sentence to the effect that his client had “no prospect of obtaining parole” in view of the likelihood that he would be deported once paroled.^[24]  The learned sentencing judge referred to the assertion in his sentencing remarks but did not expressly say that he was acting upon it.  He did, however, proceed on the basis that deportation was likely.^[25]
25. No evidence was placed before his Honour to support the assertion.  Absent such evidence, there was no basis for him to have had regard to the substance of it.  I would, nevertheless, take the opportunity to record that in affirming the sentence with its provision for parole, I expect that any application for parole that the applicant might in due course make would not be prejudiced by the prospect that deportation might follow a grant of it.

Disposition

26. As neither the stated ground of appeal nor the additional ground adverted to in the applicant’s written submission has any prospect of success, leave to appeal against sentence must be refused.

Order

27. I would propose the following order:
    1. Application for leave to appeal against sentence refused.
28. PHILIP McMURDO JA:  I agree with Gotterson JA.