R v Assenberg & Maynard

[1994] QCA 156

IN THE COURT OF APPEAL [1994] QCA 156

SUPREME COURT OF QUEENSLAND
Brisbane
[R. v. Assenberg]

[R.v. Maynard]

T H E Q U E E N
v.

C.A. No. 93 of 1994

ROBIN ALEXANDER ASSENBERG

(Respondent)

C.A. No. 94 of 1994

MURRAY CHARLES MAYNARD

(Respondent)

THE ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)
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PINCUS J.A. DAVIES J.A.

DERRINGTON J.

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J udgment delivered 18/05/1994

REASONS FOR JUDGMENT - THE COURT
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APPEAL NO. 93 OF 1994 DISMISSED.
APPEAL NO. 94 OF 1994 ALLOWED. SET ASIDE SENTENCE OF FOUR
YEARS' IMPRISONMENT FOR OFFENCE OF ARMED ROBBERY IN COMPANY WITH
PERSONAL VIOLENCE AND IN LIEU THEREOF IMPOSE A SENTENCE OF SIX
YEARS' IMPRISONMENT WITH A RECOMMENDATION THAT RESPONDENT BE
ELIGIBLE FOR PAROLE AFTER SERVING TWO YEARS OF TERM. SENTENCE
FOR DEPRIVATION OF LIBERTY IMPOSED BELOW TO REMAIN. DECLARE
THAT PERIOD OF 48 DAYS SPENT IN PRE-SENTENCE CUSTODY TO BE
IMPRISONMENT ALREADY SERVED UNDER SENTENCE IMPOSED.
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CATCHWORDS:CRIMINAL LAW - SENTENCE - Attorney-General's appeal - respondents jointly committed offences of armed robbery in company with personal violence and deprivation of liberty - both on probation and bail for previous offences at relevant time - respondent in first appeal 17 years old at relevant time - extreme youth of offender - respondent is second appeal 38 years old - plea of guilty to ex-officio indictments - prospects of rehabilitation - whether remorse - serious nature of conduct - deterrence

Counsel:P. Rutledge for the Appellant
G. Long for the Respondent Assenberg

J. Farmer for the Respondent Maynard

Solicitors:Director of Prosecutions for the Appellant

Legal Aid Office for the Respondents

Date(s) of Hearing: 10 May 1994

R EASONS FOR JUDGMENT - THE COURT

Judgement delivered 18/05/1994

These are appeals against sentence by the Attorney-General which, by consent, were heard together. The respondents were each convicted on 8 February 1994 of armed robbery in company with personal violence and of deprivation of liberty, the offences having occurred on 29 December 1993. The circumstances relevant to the commission of these offences were as follows.

About two days prior to 29 December the respondents planned to rob a convenience store. They prepared themselves by obtaining masks and gloves and each armed himself with a weapon, Assenberg a cut-down cricket stump, and Maynard a small cricket bat. When they arrived at the convenience store on the night in question they found it closed and they then resolved to rob the adjoining store. It was a take-away food store run by a 67 year old Chinese man and his wife. The respondents sat across the road watching the shop for about two hours. At about 9.45 p.m. the complainants commenced to lock and clean up the store. Shortly after they commenced to do so, they heard a noise outside the back door, a noise which had in fact been made by the respondents to attract their attention and induce them to open the door. The male owner went to the back door and opened it and, as he stepped outside, he was grabbed by the respondents and forced back inside the shop. Assenberg put the cricket stump to the man's throat and Maynard, who had grabbed his wife, threatened to kill her if they did not hand over their money. Holding her by the hair, he pulled her to the front of the shop.

After requiring the male complainant to open the till, Maynard took the money out of it. Assenberg then asked the male complainant for his wallet and he was handed $200. He then demanded cigarettes and was given five packets. Both then ran out of the shop.

Both respondents were apprehended a short time afterwards. They still had in their possession the money which they had taken. Both, when interviewed, made full admissions and pleaded to ex officio indictments. Maynard told the police that it was no one person's idea to rob the store; that they had both decided to do it.

We need hardly say that the incident was extremely frightening for the complainants. The female complainant in particular was terrified and although neither was injured each was understandably apprehensive of physical injury or even death.

Within a little over a month prior to the commission of these offences, both respondents had committed other offences together. On 24 November 1993 they together committed offences of unlawful use of a motor vehicle and stealing. On 1 December 1993 Assenberg was sentenced for those offences and one other stealing offence on 22 November 1993 by being admitted to probation for 18 months and being required to perform 100 hours of community service, and Maynard was sentenced for those offences by being admitted to probation for nine months and being required to perform 100 hours of community service. Then on the night of 1 December 1993 they together committed an offence of breaking and entering, two offences of stealing and one of wilful damage. On 14 February 1994, two days before the imposition of the sentences the subject of these appeals, Assenberg was sentenced for those offences and for the breach of the probation order which they involved to 15 months' imprisonment and Maynard was sentenced for the same offences to 21 months' imprisonment. It follows from what we have said that both respondents were on probation in respect of the offences committed on 24 November 1993 and on bail in respect of the offences committed on 1 December 1993 when they committed the offences the subject of these appeals.

No explanation was given to this Court for why the offences committed on 1 December 1993 and the offences the subject of these appeals were not dealt with by the same court at the same time. Plainly they should have been. Instead, on 16 February 1994 Assenberg was sentenced in respect of the subject offences to an effective term of four years' imprisonment with a recommendation that he be eligible for parole after 15 months, and Maynard was sentenced to an effective term of four years' imprisonment with a recommendation that he be eligible for parole after serving 18 months. Neither sentence was made cumulative upon the sentences imposed on 14 February. The Attorney submitted that each of them should have been and that, in the case of Maynard, the cumulative sentence should have been five years' imprisonment.

Although each of the respondents had a number of previous convictions other than those which we have mentioned, neither had been sentenced to a term of imprisonment before the sentences imposed on 14 February. In addition to those offences, Assenberg had been convicted twice for stealing in 1993 and had also been convicted as a child in 1992 of unlawful use of a motor vehicle and stealing. Maynard's convictions were only in respect of street offences and minor drug offences.

The important difference between the respondents is their ages.
At the date of the commission of these offences, Assenberg was
only just 17. Maynard was 38. In R. v. Bainbridge & ors.
(Court of Appeal Nos. 284 to 286 of 1993, judgment delivered 25
October 1993) this Court annexed to its judgment a schedule of
sentences imposed between 1988 and 1992 upon 17 year olds for
armed robbery or armed robbery in company. That showed that of
28 convicted less than one-half were sentenced to terms of
imprisonment. Of those not sent to prison, several had prior
convictions including, in a few cases, for offences involving
dishonesty. The reason for this apparent leniency extended to
such youthful offenders is obvious; the probability of their

rehabilitation is generally much higher than that of more mature

offenders.

In the present case there is some cause to doubt Assenberg's prospects of rehabilitation. Notwithstanding his apology to the complainants at the police station, his previous history, particularly the commission of the offence on 1 December 1993 immediately after he had been admitted to probation and the commission of the offences the subject of this appeal, show a lack of appreciation of the offer of rehabilitation which the probation order gave him. Moreover, according to a pre-sentence report which was prepared for his court appearance on 14 February 1994, Assenberg's attitude was that criminal behaviour was a normal part of life and he appeared to view his offending behaviour in respect of those offences as not being criminal. There is some ground for thinking therefore that the learned sentencing judge's assessment of Assenberg's prospects of rehabilitation may be unduly optimistic.

Nevertheless despite the seriousness of the offences the subject of this appeal, and the poor criminal history of the respondent Assenberg prior to the commission of these offences, we are unable to conclude that his Honour's sentencing discretion miscarried, particularly when one has regard to the extreme youth of the respondent and the authorities to which we have been referred.

We would therefore dismiss the Attorney's appeal against
Assenberg's sentence.

The considerations which cause us not to interfere with Assenberg's sentence do not intrude into our consideration of that imposed on Maynard. The nature of the offence, particularly with the threatened violence involved and the consequent effect that must have had on the complainants, require, in our view, a sentence which reflects an appropriate element of deterrence.

Notwithstanding the apology tendered to the complainants at the police station and the early pleas of guilty, there is reason for scepticism about the degree of remorse shown by Maynard. The writer of the pre-sentence report prepared for the offences for which Maynard was convicted on 14 February 1994 indicated that Maynard did not appear to accept responsibility for his actions and that his attitude appeared to be one of calculated remorse. The apprehension of the offenders shortly after the commission of the offences meant that they had little prospect of doing other than pleading guilty.

Although the respondent Maynard's good education and capacity for work indicates some prospect of rehabilitation, we think that the learned sentencing judge, in imposing the sentence which he did, must have made too great an allowance for the remorse which he thought was shown by Maynard. We therefore think that the effective sentence imposed on this respondent was too low and that an appropriate sentence would have been six years' imprisonment. It will be necessary, however, to make a recommendation for eligibility for early parole because of the respondent's prompt plea of guilty and the consequent cost which that has saved.

We do not think it appropriate to increase that effective sentence by making the sentences for these offences cumulative upon those for which the respondent was convicted on 14 February 1994. Indeed, as we have said, the respondent should have been sentenced at the same time for the offences committed on 1 December 1993 and on 29 December 1993. Had that been done, concurrent sentences would probably have been imposed.

We therefore propose to set aside the sentence of four years' imprisonment for the offence of armed robbery in company with personal violence and in lieu thereof impose a sentence of six years' imprisonment with a recommendation that the respondent be eligible for parole after serving two years of that term. We will not interfere with the sentence imposed for deprivation of liberty. We will declare the period of 48 days spent in pre- sentence custody to be imprisonment already served under the sentence which we will impose.