R v Bird

[2001] QCA 362

[2001] QCA 362

COURT OF APPEAL

THOMAS JA
WILLIAMS JA
WHITE J

CA No 157 of 2001

THE QUEEN

v.

TRISTAN JAMES BIRD  (Applicant)

BRISBANE

..DATE 03/09/2001

JUDGMENT

WILLIAMS JA:  This is an application for leave to appeal against a sentence of three years' imprisonment ordered to be suspended after 12 months with an operational period of three years imposed in the District Court on 15 June 2001 upon the applicant pleading guilty to one count of armed robbery whilst in company.  The offence was committed on 21 November 2000.

Four offenders were involved in the robbery in question.  There was the present applicant who was aged 23 at the time of the commission of the offence; Peter John Dick who was aged 17 at the time; Adam Lee Thomas who was aged 17 at the time; and Kelvin John Dick who was aged 41 at the time.  Each was approximately 12 months older at the time sentence was imposed.  Apparently the four people were known to each other and it is clear that there was some degree of planning that went into the commission of the offence. 

The victim of the robbery was a storekeeper who operated a convenience store at Bray Park.  At about 1.45 a.m. on 21 November 2000, three people entered the premises.  Each wore a balaclava and each was armed with a knife.  The offender, Thomas, who had a kitchen knife with a four inch blade, remained near the entrance.  Peter Dick, who had an eight inch bladed knife, stood beside the complainant storekeeper and demanded money. 

The present applicant was armed with a pocket knife and he was standing behind the offender, Peter Dick.  Some $250 was obtained from the storekeeper and the three offenders then ran to an awaiting vehicle.

Kelvin John Dick was the driver of that getaway vehicle.  He remained apparently on guard outside the store during the incident.  All made admissions to the police.  It is clear that the pleas of guilty were timely.

The principal submission advanced today by counsel for the applicant is that there is a disparity in the sentences imposed.  It was not submitted that the sentence in fact imposed was outside what could be regarded as the appropriate range for offences of this type.

But relying on decisions such as Lowe (1984) 154 Commonwealth Law Reports 606, it was submitted that the applicant had a justifiable sense of grievance about the sentence imposed on him when it was compared with that imposed on his co-offenders.  Because of that it is necessary to look at the circumstances of each of the four offenders and the sentences imposed on each.

As I have already said, the present applicant was aged 23 at the time and was aged 24 at sentence.  He had one previous conviction in 1994 for receiving.   He had been given a community based order which involved performing some community service.  Apparently there was some breach of that order.

Subsequent to the commission of the offence in question, the applicant committed the offence of assault occasioning bodily harm and was sentenced for that.  He was placed on probation for a period of 18 months and ordered to perform 60 hours of community service.  That order was imposed in the Caboolture Magistrates Court on 14 February 2001.

Before the sentencing Judge with respect to the present charge there was a report from a community correctional officer dealing with the applicant's response to that community based order.  That report indicated that he had failed to report on several occasions and had last reported on 9 May 2001.  The report was dated 13 June 2001.

He had been referred to a substance abuse education program and failed to attend.  He had been referred to a domestic violence perpetrator's program and failed to attend.  The report indicated that he would face breach proceedings for failing to report as indicated.

In the light of that the learned sentencing Judge said of the present applicant in his sentencing remarks:

"An unhappy feature in your case is that there is an adverse report from your probation officer.  And I am inclined to the view that you are not a suitable person for a community based order."

In the circumstances that observation appears to be supported by the material before the Court.

As already noted Peter John Dick was aged 17 at the time of commission of the offence and aged 18 at sentence.  He had one prior entry in his criminal history, that of shoplifting on 19 October 2000.  He was fined $100, but no conviction was recorded.

Thomas was also 17 at the time of commission of the offence and 18 at sentence.  His criminal history showed an offence of attempted breaking and entering, dealt with on 7 September 2000.  He was fined, but no conviction recorded.  Then on 19 April 2001 he was convicted of assault occasioning bodily harm and fined $500.

Each of Peter John Dick and Thomas were sentenced for the present offence to six months' imprisonment and three years probation with a conviction recorded.  The sentencing Judge also dealt with Kelvin John Dick who, as I said, was the driver of the getaway car.

He was aged 41 at the time, 42 at sentence.  He had no criminal history.  He was sentenced to 18 months imprisonment to be suspended after serving six months with an operational period of two years.  A conviction was recorded.

In his sentencing remarks, the learned sentencing Judge distinguished the role played by Kelvin John Dick and he took into account that he did not enter the premises, but was only the driver of the getaway car.  But his Honour did not, in those remarks, in any way differentiate between the roles played by any of the other three offenders.

From the factual outline that I have given of the commission of the offence it can be said that there is little, if anything, to distinguish the conduct of each of the three.  It was Peter Dick who actually made the demands for money. And of the three weapons, the present applicant seems to have had the least dangerous.

The only significant differentiation between the three who entered the store is that Peter Dick and Thomas were aged 17, whereas the present applicant was about six years older and therefore could be regarded as an adult.

But it is difficult to see that being an adult he was in any better position than Kelvin John Dick to give advice to the younger people counselling against the commission of an offence such as this.

One would have thought that the older man, Kelvin Dick, the father of Peter John Dick, would have been the one, if anyone, to counsel against the commission of this particular offence.

In my view the sentence imposed was within the range that could be imposed for an offence of this type.  But given the sentences imposed on the other offenders, I am of the view that the applicant does have a justifiable sense of grievance with the sentence imposed on him.

In my view the principles of parity in sentencing call for this Court to intervene and ensure that there is an appropriate parity between the sentences which were imposed.  Because of his age I am of the view that the present applicant should spend somewhat more time in custody than the two younger offenders, Peter Dick and Thomas, and also that he should spend some little more time in custody than Kelvin John Dick who, though older, was neither armed, nor did he enter the store.

In my view appropriate parity will be attained if the sentence imposed was set aside and in lieu thereof a sentence of two years' imprisonment suspended after nine months with an operational period of three years was imposed.

I should say that I do agree, as I have already indicated, with the views expressed by the sentencing Judge that, given the applicant's past history with respect to community-based orders, he does not qualify for further consideration of such an order.

The orders I would therefore propose are grant leave to appeal, allow the appeal, set aside the sentence and substitute a sentence of imprisonment for two years suspended after nine months with an operational period of three years.

WHITE J:  I agree with Justice Williams' proposed orders for the reasons that he has enunciated.

THOMAS JA:  I agree.  The order of the Court will be the
orders stated by Justice Williams.

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