Grimshaw v The Queen

[2001] WASCA 427

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   GRIMSHAW -v- THE QUEEN [2001] WASCA 427

CORAM:   WALLWORK J

PARKER J
OLSSON AUJ

HEARD:   20 NOVEMBER 2001

DELIVERED          :   20 DECEMBER 2001

FILE NO/S:   CCA 76 of 2001

BETWEEN:   DANIEL JAMES GRIMSHAW

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Application for leave to appeal against sentence - Appellant convicted of one count of robbery with violence, whilst in company and one count of assault with intent to steal using actual violence, whilst in company - Common purpose involving group of men going to Burswood Park to accost, bash and rob persons thought to be gay - Serious assaults by some members of group on two men, occasioning them significant physical injury - Appellant encouraged and supported enterprise by his presence, but did not participate in attack - Very young man with good prior record and under influence of older, dominant offenders - Concurrent sentences of 3 years' imprisonment with parole - Whether sentences manifestly excessive and should have been suspended

Legislation:

Nil

Result:

Leave granted
Appeal allowed
Sentences confirmed, but suspended

Category:    B

Representation:

Counsel:

Applicant:     Mr S J Jones

Respondent:     Mr S E Stone

Solicitors:

Applicant:     Stephen Smith

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Dinsdale v The Queen (2000) 202 CLR 321

Etrelezis v The Queen [2001] WASCA 327

Lowndes v The Queen (1999) 195 CLR 665

Postiglione v The Queen (1997) 189 CLR 295

R v Liddington (1997) 18 WAR 394

Veneziani v The Queen [2001] WASCA 246

1. WALLWORK J:  I agree with the reasons for judgment of Olsson AUJ.

2. PARKER J:  I have had the advantage of reading in draft the reasons now to be published by Olsson AUJ.

3. Those reasons well reflect the considerations which persuaded me to concur the orders made in this matter and I would not wish to add any further observations.

4. OLSSON AUJ:  At the conclusion of the hearing of the application for leave to appeal in this matter, as in the related case of Jarrah Miller, the Court also announced that it was unanimously of the opinion that leave should be granted and the appeal allowed for the purpose of suspending the terms of imprisonment imposed on the appellant for a period of 2 years.  An order to that effect was made forthwith.  The Court intimated that it would publish reasons for its decision at a later stage.

5. In my reasons for decision published in relation to Miller, I traversed the narrative facts and sentencing outcomes in relation to all participants in the relevant common purpose in some detail.  There is no need to reiterate the same background in the present reasons.

6. Suffice to rehearse that the present applicant for leave to appeal, to whom I will refer as "the appellant" also abandoned his challenge to the convictions against him.  He only prosecuted his application for leave to appeal against the sentences imposed on him.

7. Like his co‑offenders, the appellant was convicted of one count of robbery with violence and one count of assault with intent to steal, using actual violence in order to obtain the thing which the co‑offenders intended to steal.

8. Whilst the jury found that he had committed the offences in company, it found him not guilty of having been armed with a weapon.  This was a point of distinction from the situation in relation to the co‑offender Miller.

9. Having canvassed the factual circumstances pertinent to the appellant, the learned trial Judge found himself unable, in a practical sense, to distinguish between him and Miller as to culpability, notwithstanding that the appellant had not been armed.  Like Miller, the appellant was sentenced to 3 years' imprisonment in respect of each

offence, the two sentences to be served concurrently, with eligibility for parole.  The learned trial Judge felt unable to suspend those sentences.

1. After reciting the relevant narrative facts, essentially in terms of the resume which I attempted in my reasons related to Miller, the learned trial Judge focused on aspects personal to the appellant.  What follows is a summation of those matters.

2. At the time of the offences, the appellant had just turned 19 years of age.  He was some five months older than Miller.  The two young men appear to have been close friends for some years.  The appellant came from a stable and supportive family environment and had no relevant antecedent record.

3. The appellant left school at the age of 16 and entered into an apprenticeship as a painter and decorator.  At the time of trial he was in the third year of that apprenticeship and had received the "most improved" award in his second year.  He was highly regarded by his employers and said to be diligent, conscientious, extremely hardworking and competent.  He also produced excellent general character references and character evidence to the learned trial Judge.

4. It is apparent that, like Miller, the appellant had no initial intention of going to Burswood Park and also succumbed to peer group pressure.  His evidence was to the effect that he felt overborne by the other (and more particularly the older) members of the group at Norton's home.

5. In the course of the appeal, Mr Jones, counsel for the applicant, sought to draw comparisons between the appellant and Miller, and contended that these warranted the making of a clear differentiation between them for sentencing purposes.  I do not consider that such a distinction can, realistically, be drawn.

6. Whilst it is true that, in a technical sense, Miller, as a member of the common purpose group, was armed with the wooden baton, it is equally true that he did not ever attempt to use it.  On the other hand, although the appellant did not physically possess any weapon, it must be noted that, at the point at which the victim Bury had been assaulted and was running away from his assailants, he encountered the appellant who, he said, lunged at him, causing that victim to apprehend possible further violence.

7. The appellant's version was that the encounter was accidental, in that Bury ran past him at the relevant location and he merely said "boo" to him.

8. The learned trial Judge clearly took the view that there was at least a lunging movement, although he seems to have accepted that there was no intention of further assaulting Bury.

9. At trial the appellant gave evidence to the effect that, during the attacks on the two victims, he called out to the group to leave them alone, because he had become alarmed at what was happening.  He was ignored.  That evidence was not contradicted.

10. All in all, in large measure, the same considerations were applicable to the appellant as to Miller, given that the mitigating factors pertaining to the former may have been marginally stronger.  There can be little doubt that, as with Miller, the appellant's conduct in supporting the common purpose, by his presence and conduct, was quite out of character and the obvious consequence of immaturity and some possible degree of intoxication – by reason of which he was unable to resist peer group pressure.

11. It must be borne in mind that, at trial, the appellant had the strength of character to enter the witness box and give free and frank evidence as to the parts played by him and Miller in the relevant events.  In the course of so doing, he gave evidence implicating the principal offenders in a manner which must have had a significant effect on securing convictions against them.  It is said that he was later assaulted for doing so.  He should be given credit for entering the witness box.

12. It follows that the appellant had an equal, if not slightly stronger, claim to a merciful sentencing approach as did Miller.

13. He also was a very young, immature lad, who had been caught up in a situation from which he obviously felt unable to extricate himself; and who was most unlikely to re‑offend if given a second chance.

14. It seems to me to be beyond question that, having regard to the inherent seriousness of the offences, the sentence of imprisonment imposed were well merited.  The factor of general deterrence, in particular, mandated such an outcome.

15. However, I am of opinion, for reasons similar to those expressed in the case of Miller, that a requirement for immediate service of those sentences was simply too severe and likely to be unacceptably counter‑productive to his rehabilitation.  Indeed, it was likely to ruin his life and employment prospects in a manner totally disproportionate to his level of criminality.

16. As it is, he has actually spent virtually seven months in custody since he was sentenced.  One can only hope that the appropriate authorities will be able to see their way clear to permitting him to resume and complete his apprenticeship.

17. I therefore had no hesitation in concluding that leave should be granted as sought and the appeal against sentence allowed for the purpose of ordering that the sentences be suspended for two years.