H v The Queen

[2002] ACTCA 7

H v THE QUEEN [2002] ACTCA 7 (8 November 2002)

CATCHWORDS

CRIMINAL LAW – sentencing – application for an extension of time within which to file and serve a notice of appeal – applicant pleaded guilty to one count of armed robbery and one count of assault occasioning actual bodily harm – armed robbery of worst type – painstakingly planned, committed in company, one offender in disguise, weapon used to inflict actual violence and getaway plan – real prospects of rehabilitation – co-operation with police – sentence not manifestly excessive

Supreme Court Act 1933 (ACT), s 37O(5)

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 13 of 2002
No. SCC 181 of 2001

Judges:  Higgins, Spender and Cooper JJ
Court of Appeal of the Australian Capital Territory
Date:              8 November 2002

IN THE SUPREME COURT OF THE  )   No. ACTCA 13 of 2002
  )  No. SCC 181 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: H

Applicant

AND: THE QUEEN

Respondent

ORDER

Judges:  Higgins, Spender and Cooper JJ
Date:  8 November 2002
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file and serve a notice of appeal be refused.

IN THE SUPREME COURT OF THE  )   No. ACTCA 13 of 2002
  )  No. SCC 181 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:H

Applicant

AND:THE QUEEN

Respondent

Judges:  Higgins, Spender and Cooper JJ
Date:  8 November 2002
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS J:

1. This is an application for an extension of time within which to appeal against a sentence imposed by his Honour the Chief Justice on 26 March 2002. 

1. The proposed appellant had pleaded guilty to one count of armed robbery and one count of assault occasioning actual bodily harm.  It is unnecessary to go in detail through the facts of the matter but suffice to say that the crime itself was an assault and robbery upon an unaccompanied security guard taking cash from a club to be banked.  There was a little over $20,000 being so conveyed when he was set upon by two men, one of whom was the accused, the other of whom was his co-accused, the co-accused being armed with a metal pipe.  But this applicant was well aware of that fact, and indeed it was planned that the pipe would be used to whatever extent was necessary in order to obtain the takings which were being conveyed by the guard.

1. His Honour rightly concluded, and it is worth repeating, that this was an armed robbery of the worst type, painstakingly planned, committed in company, one offender effectively in disguise and a weapon used to inflict actual violence.  It needs to be added there was also a plan for a getaway, which of itself was a detailed plan.  They were to go on a motorcycle down a drain where, no doubt, they hoped that vehicles such as police vehicles would be unable to stop them.  Unfortunately for them they had been under surveillance and police were waiting.

1. It is true that this offender was a young man, nineteen at the time of the crime.  It is true that he pleaded guilty, although as Mr Brady rightly conceded, he was of course caught red-handed and could hardly have done otherwise one would think. 

1. His Honour concluded that the prospects for rehabilitation of the applicant and his co-offender were real, and indeed substantial, but made the obvious point that the comparative youth of the offenders and their good prospects for rehabilitation were overwhelmed by the fact that this was a very serious offence which could not be punished otherwise than by an immediate custodial sentence.  Each had promised co-operation, having co-operated with police already, and promised co-operation in the future.  His Honour, as he was obliged to do, gave a discount for that promised co-operation. 

1. It seems to me that the sentence which was ultimately imposed, even allowing for that reduction and looking then at what would have been the case had there been no reduction, was not so large as to be manifestly excessive.  It would have amounted to a six year sentence for the armed robbery and a one year sentence cumulative upon that for the assault.

1. The reduction by two years of the head sentence and of one year of the non-parole period, it seems to me, could even be described as generous, but whether or not that be so it seems to me that the ultimate result, five years with two and a half years to serve before eligibility for parole cannot be described as manifestly excessive.

1. I therefore refuse the application for leave to appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment herein of the Honourable Justice Higgins.

Associate:

Date:  2003

IN THE SUPREME COURT OF THE    )            No. ACTCA 13 of 2002
  )  No. SCC 181 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: H

Applicant

AND: THE QUEEN

Respondent

Judges:  Higgins, Spender and Cooper JJ
Date:  8 November 2002
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J:

1. I agree that the application for an extension of time within which to appeal should be refused for the reasons given by the presiding judge. Had an extension of time been granted, I would seriously have considered increasing the sentence imposed on the applicant, pursuant to s 37O(5) of the Supreme Court Act 1933 (ACT).

1. The fact of the matter is that even for a nineteen year old with good prospects of rehabilitation and promised co-operation who pleads guilty at the first opportunity, this was an armed robbery, the factual scenario of which is depressingly common, where a vulnerable person, in this case a security guard, was set upon after a plan was put into place, with actual violence being used in company, and a significant amount of money stolen.  It was a very serious armed robbery and a head sentence of five years to serve two and a half is, in my view, very, very close to being so inadequate as to require the Court to interfere.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Date:  2003

IN THE SUPREME COURT OF THE    )            No. ACTCA 13 of 2002

)  No. SCC 181 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:H

Applicant

AND:THE QUEEN

Respondent

Judges:  Higgins, Spender and Cooper JJ
Date:  8 November 2002
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

COOPER J:

1. I agree.  Notwithstanding the personal circumstances of the applicant, the circumstances of the crime were such that the sentence which was imposed was not, in my view, manifestly excessive.  Accordingly, I would refuse the application for an extension of time within which to appeal.

I certify that the preceding numbered paragraph is a true copy of the Ex Tempore Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Date:   2003

IN THE SUPREME COURT OF THE    )            No. ACTCA 13 of 2002
  )  No. SCC 181 of 2001
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:H

Applicant

AND:THE QUEEN

Respondent

Judges:  Higgins, Spender and Cooper JJ
Date:  8 November 2002
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS J:

1. It is the order of the court that the application for an extension of time within which to appeal be refused.

   I certify that the preceding numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Higgins.

   Associate:
   Date:                    2003

Counsel for the Applicant:   Mr G Brady    
Solicitor for the Applicant:  pappas, j - attorney
Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  4, 8 November 2002
Date of judgment:  8 November 2002