R v B

[1999] QCA 191

99.191

COURT OF APPEAL

THOMAS JA
DERRINGTON J
CHESTERMAN J

CA No 66 of 1999

THE QUEEN

v

B

BRISBANE

..DATE 26/05/99

JUDGMENT

DERRINGTON J: The applicant was 16 years of age at the time of the offences that are the subject of this appeal and was 17 years of age at the time of the sentences.  He was therefore sentenced as a child.  He had had no prior criminal history prior to his commission of the offences that are the subject of this application; but at the time of the more serious offences involved in this matter, he had already committed the earlier ones and was in breach of the bail that he had been given in respect of those, so that he was still at large notwithstanding his breach of his bail.

The respective charges are as follows.  On 22 June 1998 he entered premises with intent to commit an indictable offence.  In that respect he was an accomplice driving the getaway vehicle and was sentenced to 18 months’ detention.  He was convicted also in respect of the vehicle of which he was in possession.  The charge was unlawful use of a motor vehicle with circumstances of aggravation, and for that he was sentenced to two years’ detention.

It was those matters upon which he was arrested and granted bail.  Subsequent to that, on 31 July, he and the other offenders took a motor vehicle from Ipswich and that vehicle was used in the other offences that followed; and it was subsequently abandoned.  The applicant was the person who took the vehicle and who did most of the driving in the Hervey Bay area, and he made preparations to burn the vehicle but did not actually do so.

Counts 3 and 4 are counts of stealing petrol, for which he was sentenced to six months’ detention on each, the amount of petrol being of $53 in value.  The next count was that of dangerous driving.  He was involved in drag racing on The Esplanade at Hervey Bay with risk to other motorists.

The remaining offences occurred in the course of a robbery of a convenience store.  They consisted of the following counts: armed robbery in company with personal violence, armed robbery in company, grievous bodily harm with intent to prevent lawful detention and wounding with intent to prevent lawful detention.  For each of those he was sentenced to four years’ detention.  All of those sentences were cumulative.

His Honour the learned sentencing Judge further ordered that he be released after serving 50 per cent of the period of detention imposed, and he recorded convictions on each count.  In the course of sentencing, His Honour expressed some distress that he could not order that the applicant be released earlier than that but he was constrained by the terms of the Act to limit such recommendation to the portion of the sentence.  His Honour’s views about the inadequacy of that reduction were based upon the prior good character of the applicant and his youth, and more particularly his prospects of rehabilitation which, of course, is of considerable significance.

The major point of complaint on this application is the sentence of four years’ detention in respect of the four last mentioned counts and it is the circumstances of those to which attention should be directed.  They were all related to one event.  At about 8 p.m. on the relevant date the applicant and his accomplices, M and D and a girl named L, decided to rob a convenience store.  In every respect, the applicant was not a principal offender but he knew that a weapon was to be used and he placed an important role in what followed.  After the girl entered the premises to see that it was safe for them to proceed with the offence, M and D entered the shop.  M carried a large knife and both wore balaclavas.

The applicant remained in the vehicle as the getaway driver, though it should be understood that he was a party to the entire project.  The staff in the store consisted of four females including a girl of 16.  One woman was held by the throat and the knife pointed to her throat as M and D made threats in the course of seeking money.  The till of the store had previously been removed and put in a coldroom and when the drawer with the money was not immediately available, their demands for money were repeated.  One woman’s purse was stolen and that accounts for one of the charges, and the knife was pressed at the throat of another woman.  All the women were herded into the coldroom and the money drawer and money were taken from there.  At about this time the owner of the shop, Mr Osborne, and another gentleman, Mr Muller, had arrived and they confronted the two men in the shop.  At this stage the women either fled the premises or locked themselves in the coldroom.

Having seen the arrival of the two men, the applicant drove the getaway vehicle closer to the shop to assist in case of trouble.  Inside the shop Mr Osborne was stabbed twice in the left arm, which was his dominant arm, in the course of trying to apprehend and detain the two robbers.  Mr Muller was repeatedly bashed on his back with the money tray, which caused him injury, and was also stabbed in the back close to his spine.

Mr Muller held on to D and M escaped.  He went to the getaway vehicle and told the applicant that he had stabbed a man inside and that D was being held.  The applicant took up a wheel lock or tyre lever and he and M, who still had the knife, re-entered the store and, with threats of use of the weapons, forced the release of D.  All three then fled and took the money with them.

Mr Osborne was seriously wounded and lost a considerable amount of blood, and was afraid that he was going to die.  Absent the assistance that he fortunately received, he would probably have bled to death.  But those gentlemen were required to spend some time in hospital due to their physical injuries.  In Mr Osborne’s case, that injury to his arm has persisted somewhat. 

More importantly, both of those gentleman and the women who were the victims of this violence have suffered very severe traumatic damage to their way of life and happiness, and that has been enduring.  The victim impact statements reflect this and are quite telling.

D was sentenced on four counts of armed robbery in company, one count of unlawful use of a more vehicle with circumstances of aggravation, one count of grievous bodily harm with intent, and one count of wounding with intent.  He was regarded as other than the principal offender.  It seems as though M was universally regarded as having that role.

It will be noticed that of the above offences with which D was charged, there were two counts of armed robbery that were not in the list of the applicant’s offences.  They involved two other robberies of premises, one being a pizza shop and the other a service station; in each case a knife was used to threaten the victims.

D was 17 years old at the time of these offences and was sentenced as an adult.  He had no previous conviction.  He was sentenced to eight years imprisonment with a recommendation that he be considered for parole after three years.

The girl, L, was also 17 years at the time of the offence and had no previous convictions.  She was charged with one count of unlawful use of a motor vehicle simpliciter, two counts of armed robbery, one count of grievous bodily harm simpliciter, and one count of wounding simpliciter.  She was sentenced to three years imprisonment in respect of the two armed robberies, with all sentences suspended after four months.

M, who was also 17 at the time of the offences and the principal offender, was apparently caught, but this Court has no details of any sentence imposed upon him.  It would appear that he had not been sentenced at the time of the sentences imposed upon this applicant.

In the applicant’s favour, there are a number of important factors.  The first is that he pleaded guilty to all the offences and was generally cooperative with the police.  It is said that he has shown pronounced remorse.  Whether this is a sympathetic judgment is difficult to know, but it is certainly true that he appears to have behaved himself in the 200 days that he spent in custody while awaiting sentence.

There are the factors of his youth and his good record prior to the commencement of this series of offences.  He had no criminal history at all and he came from a respectable family with whom he was generally on good terms.  However, he had had a falling-out with them not long prior to this occasion and was temporarily without their support.  He is an intelligent person and that, and other factors, suggest that there are reasonably good prospects of rehabilitation.  This is very important in the present case.

As against that, there are some very serious features of the offences.  The most serious is the serious violence of the offences relating to the robbery, and the infliction of bodily harm and grievous bodily harm.  The robbery was carried out with a weapon.  The applicant knew that it was to be used in the offence, and worse than that, when M returned to the car and enlisted his aid to secure the release of D, the applicant returned into the shop with M so armed, and was himself armed with a dangerous weapon.

Fortunately for himself, as well as the victims, it did not come to his having to use that, otherwise his prospects of securing any indulgence from the Court would have been totally lost.  This fact of involving himself personally in the use of weapons in a way that was clearly dangerous to other people seriously reduces the mitigating effect of the prior limitation of his involvement as merely the getaway driver.

Another serious feature is that these latter offences were committed whilst he was on bail of which he was in breach and was at large; and, further, that these latter offences were the culmination of a period of serious misconduct of a criminal nature.

The comparable cases are of some use but are difficult to apply precisely to the present situation.  The closest is
The Queen v S CA 106 of 1994, the case of a 16-year-old offender who was sentenced at 17.  It involved an armed robbery in company and grievous bodily harm.  It was a robbery of a Chinese restaurant.   The customers and staff were held up at gunpoint and the manager was shot twice by S’s co-offender.  Both were armed with guns but S did not shoot the manager.  Instead he fired two shots, one into the ceiling and the other into the air.

He had had some previous criminal history involving an assault occasioning bodily harm and breaking and entering offences, although he was not sentenced to those at the time of this offence.

The sentence imposed upon him was five years’ detention with a direction that he be released after serving 50 per cent of that time.  That sentence was not altered or disturbed on appeal.

The only other matter to which perhaps reference should be made is The Queen v A, CA 294 of 1998.  That was the case of a 13-year-old boy who was involved in some serious offences but he was in the company of a man of about 20 and was obviously strongly led by him.  That case is of little assistance here because of A’s much younger age and the fact that he was obviously seriously influenced by older men.

It will be noted that in the present case, although the applicant was the youngest of the group, he was not much younger than the others.

However, A’s case is useful for the remarks of McPherson JA which are certainly relevant to this case:

“Sentencing juveniles is always difficult because of the pressing need to arrive at the right balance between the interest of members of the community in being protected from harm perpetrated by juveniles. The Juvenile Justice Act 1992 evinces a tendency to favour the interests of the former at the expense of the latter, but there are limits, even if ill-defined, to this statutory preference.

Here the offences were numerous and some of them (the three robberies) were, involving as they did perceptible risks to the life or health of the victims, on any view extremely serious.  Even a juvenile offender cannot readily expect to escape a period of detention for committing offences attended by circumstances like those disclosed here.

There are nevertheless some more or less compelling features of mitigation in the case of this applicant.  He was very young at the time and, having run away from home, he fell in with the bad company of older boys or young men on whom he depended for subsistence and who led him into crime.  His offences, although numerous, were committed during a comparatively short period of two months, before which he had no criminal history.  He has since returned home and has sound prospects of being able to continue his work as an apprentice.

In these circumstances, and considering that the prospects of rehabilitation appear favourable, the applicant should reasonably have been given a chance to prove and improve himself.  If in consequence some disparity ensures compared to others among those sentenced in this group, it ought not in the circumstances of this case to militate against the need to arrive at an appropriate sentence in the case of the applicant himself.  Which is what leads me to the same conclusion as that stated by the President”.

This is a most difficult case.  The countervailing factors are as referred to above; first, the gravity of the offence in which the applicant so seriously involved himself.  The second is the combination of his youth and his fairly strong prospects of rehabilitation.  The result must very much depend upon the degree of emphasis that is respectively placed upon these two major factors.

Although I myself would come to the conclusion unassisted that the sentence imposed was not manifestly excessive, I am persuaded by the views of my brothers that the factor of rehabilitation should be accorded greater significance and that the sentence should be reduced to three years.  The direction that the applicant be released after serving half of that period will stand.

THOMAS JA: The relevant facts have been stated by Mr Justice Derrington.  The prospects of rehabilitation of this young offender appear to be good.  I regard this as a particularly important factor in the present case.

This is a finely balanced appeal.  However, having particular regard to the applicant’s age - 16 at the time - and his lack of previous convictions, I have concluded that the sentence of four years’ detention was excessive.  The armed robbery and the ensuing grievous bodily harm were very serious and nasty offences and the applicant was heavily involved in them.  These circumstances make detention an appropriate order despite the fact that this was part of what can be fairly be described as first criminal activity.

The applicant has a supportive family which he had unfortunately left prior to these offences.  He joined a group of young men in Ipswich and fell into bad habits.  There has been a reconciliation with the family and this considerably enhances his prospects of rehabilitation.  It is obviously desirable that when he has paid what is an appropriate debt to society for his misconduct that he get back to his family as soon as possible.

A number of cases were referred to.  In particular, The Queen v A, CA 294/98, 6 November 1998, suggests to me that four years’ detention was too high.  There are at least some similar features between that case and the present.  McPherson JA, who formed part of the majority in that case with Mr Justice Shepherdson dissenting, made the following observation:

“there are nevertheless some more or less compelling features of mitigation in the case of this applicant.  He was very young at the time and, having run away from home, he fell in with the bad company of older boys or young men on whom he depended for subsistence and who led him into crime.  His offences, although numerous, were committed during a comparatively short period of two months, before which he had no criminal history.  He has since returned home and has sound prospects of being able to continue his work as an apprentice”.

It was rightly pointed out that A was younger than the present offender he then being aged 13 and that he was undoubtedly influenced by bad company.  The circumstances of the present case do not suggest that the other young men, although somewhat older than the applicant, had criminal records.  It would simply seem to be that they were a bad combination and he was in what might fairly be called the wrong company.  Even so, that is a circumstance that is relevant in assessing his overall conduct and the attitude of Courts to first offenders.

The result on appeal in The Queen v A was that an immediate release order was made.  That of course is not appropriate here as the circumstances are considerably more serious.  However, counsel for the applicant did not seek such an order.  He made a far more modest submission, namely to the effect that the period of detention should be reduced to a period of three years.  He made the additional point that such a period would to some extent kept the symmetry or proportion with the sentence imposed upon D who was sentenced as an adult and who was given recommendation for parole after three years.

For the above reasons I conclude that the sentence was manifestly excessive and should not have exceeded three years’ detention.  I would set aside the sentences of four years’ detention on counts 6,7,8 and 9 and replace them with sentences of three years’ detention.  All other parts of the orders made below should remain unaffected including the order for release after serving 50 per cent.

CHESTERMAN J: I have found this application difficult to decide.  The serious feature of it is the determination evinced by the applicant to complete the criminal enterprise in which he was engaged with the others and to complete it by using at least the threat of violence against innocent bystanders who were doing no more than, in the one case, protecting his property, and in the other attempting to safeguard members of his family.

I am though, in the end, persuaded by what Mr Justice McPherson said in The Queen v A.  In sentencing juveniles the interests of rehabilitation are to be emphasised over the need to punish offenders.  The circumstances which His Honour thought compelled mitigation in that case are present in this and I think the result should be as indicated by Mr Justice Thomas.  I agree with His Honour’s reasons and with the result.

THOMAS JA: The order then will be that which I have stated.

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