R v Brennan - [2001] QCA 253

[2001] QCA 253

COURT OF APPEAL

DAVIES JA
THOMAS JA
WILLIAMS JA

CA No 367 of 2000

THE QUEEN

JAMES WILLIAM BRENNAN Appellant

BRISBANE

..DATE 27/06/2001

JUDGMENT

DAVIES JA: The applicant was convicted after a trial in the District Court on 21 November last year of armed robbery. He was sentenced to 12 years' imprisonment with a declaration pursuant to Part 9A of the Penalties and Sentences Act 1992 that the offence was a serious violent offence.

The offence occurred on 23 January 2000. On that day, the applicant entered a TAB agency at Highgate Hill, wearing sunglasses and a cap and armed with a black metal gun, looking like a semi-automatic, approximately 10 inches long.

It does not appear from the material before this Court or at the trial whether or not this gun was real or, if real, whether it was loaded. He pointed the gun at the face of the complainant attendant, saying: "If you don't give me the money, I'll shoot you."

Nevertheless, the complainant managed to step out of sight of the applicant, whereupon the applicant said:

"I'm going to get the fucking money. I'm going to shoot somebody. I'll kill them if I don't get the fucking money."

The complainant then, inexplicably it seems to me, stepped out from behind the petition behind which he had been sheltering, and the applicant once again pointed the gun at him. The complainant was able once again to retreat behind this partition. The applicant then came over the counter and started grabbing money from the draw.

The complainant, who said he was fearful for his life, and there is no reason to disbelieve that, nevertheless grabbed a stool and hit the applicant with it a couple of times. The applicant then left with whatever money he could get, which was about $560, and got into the passenger side of a utility which was parked outside and it drove away.

As Mr Reed for the applicant today pointed out to us, the utility as it turned out had been hired and was consequently fairly easy to trace. That probably demonstrates no more than that it was neither a particularly competent nor well-planned robbery.

The applicant is 36 years of age, having been born on 11 July 1964. He has a substantial criminal history dating from 1981, but perhaps surprisingly, he does not appear to have committed any offences at all since 1992. His most serious previous offences, which were both of stealing with actual violence whilst in company, were committed in 1985 and 1987; that is, two of them, one in each of those years.

Prior to the commission of those offences, he had not committed any offence which warranted a sentence of more than a fine or community service, the community service being imposed for a drink driving offence. And since the commission of those more serious offences in 1987, his only other offence appears to have been one of receiving, which was also committed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brennan

Details

AGLC: R v Brennan [2001] QCA 505
Case: [2001] QCA 253
Decision Date: 27/06/2001

CaseChat Overview and Summary

The Court of Appeal in the case of R v Brennan heard an appeal against the conviction and sentence of James William Brennan, who was found guilty of armed robbery by the District Court. The appellant entered a TAB agency armed with a gun and threatened the complainant attendant, demanding money. Although the complainant was able to hide and avoid direct confrontation, the appellant managed to steal approximately $560 before fleeing the scene. The appellant was sentenced to 12 years' imprisonment with a declaration that the offence was a serious violent offence. The Court of Appeal was tasked with determining whether the sentence imposed was excessive and whether the declaration was appropriate.

The primary issue before the Court of Appeal was whether the sentence of 12 years' imprisonment was manifestly excessive, and if so, what the appropriate sentence should be. The Court also needed to determine if the declaration that the offence was a serious violent offence was appropriate. The Court considered the seriousness of the offence, the appellant's criminal history, and compared the case to similar cases to determine the appropriate sentence range.

The Court of Appeal found that the sentence of 12 years' imprisonment was manifestly excessive, considering the appellant's criminal history and the circumstances of the offence. The Court held that a sentence of eight years' imprisonment would be more appropriate, taking into account the seriousness of the offence and the appellant's previous criminal history. The Court also found that the declaration that the offence was a serious violent offence was appropriate, given the use of a gun, the threat to shoot and kill, and the appellant's previous criminal history of violence.

The Court of Appeal allowed the appeal, set aside the sentence imposed by the District Court, and imposed a sentence of eight years' imprisonment with a declaration that the offence was a serious violent offence. The Court also noted that the appellant had already served 299 days of the original sentence. All three judges agreed with the proposed orders.

Orders