R v Charrington

[1997] QCA 215

COURT OF APPEAL

[1997] QCA 215

DEMACK J
MACKENZIE J

HELMAN J

CA No 157 of 1997
THE QUEEN
v.

BRADLEY RAYMOND CHARRINGTON Applicant

BRISBANE
..DATE 20/06/97
200697 D.1 T22/SB21 M/T COA134/97
HELMAN J: This is an application for leave to appeal against
sentences imposed on the applicant in the Brisbane District
Court on 9 April 1997. The applicant was charged with one count
of attempted armed robbery and one count of unlawful use of a
motor vehicle with a circumstance of aggravation. On both
counts he was charged jointly with a woman called Fiona Ferraro.

On the attempted robbery count it was alleged that an offensive weapon, a knife, was involved. The circumstance of aggravation alleged on the other count was that the motor vehicle was used for the purpose of facilitating the commission of an indictable offence.

The applicant pleaded guilty to both counts and was sentenced to imprisonment for two years for the attempted armed robbery and to imprisonment for eighteen months for the unlawful use of the motor vehicle. The sentences were to be served concurrently. The learned sentencing Judge made no recommendation concerning parole but recommended that the applicant receive treatment for his drug addiction while he was in custody.

Ferraro also pleaded guilty to both counts. In her case convictions were not recorded and a probation order for two years and an order requiring her to perform 120 hours of unpaid community service were made. Ferraro, who was pregnant when sentenced, had not been convicted of any offence before being sentenced.

There was a third person, Darren Toms, charged in connexion with the two offences. Toms was the instigator of the offences. He had pleaded guilty and had been sentenced before the applicant 200697 D.1 T23/CAK 26 M/T COA134/97

was dealt with. Toms was sentenced to imprisonment for four years for the attempted armed robbery and to imprisonment for two years for the unlawful use of the motor vehicle. Toms, like the applicant, had been previously convicted of criminal offences. At the time of committing the offences with the applicant and Ferraro, he was on parole for an offence of unlawful killing, for which he had been sentenced to imprisonment for fourteen years on 26 February 1988.

At about 2 p.m. on 30 April 1995, Mr Alan Maguire was working behind the counter in his general store at Nundah, when Toms, carrying a shopping bag, entered. Toms produced a knife and told Mr Maguire to fill up the bag. Mr Maguire told him to go away. Toms then leant across the counter towards Mr Maguire with the knife. Mr Maguire attempted to strike him with a wire basket and came around the counter. Toms ran from the shop and got into a white Telstar motor car, which drove off. The Telstar car had been taken earlier that day from the car park at the Toombul shopping centre. It was later recovered having sustained damage assessed at $980.00 to a door lock, the ignition, and the front wheel.

The robbery was witnessed by two men who saw the Telstar car drive from the store to a nearby street where two men were seen to get out of it and into a Commodore sedan the registered number of which was noted. On 4 May 1995, inquiries by police officers led them to the applicant and his co-offenders.

In an interview with the police officers on that day, the
200697 D.1 T23/CAK 26 M/T COA134/97
applicant said that he, Toms, Ferraro, and a woman called Kristy
Hollidge had met on the day of the offences and discussed
getting some money to purchase heroin. Although the initial
discussion centred around committing some breaking and entering
offences, once Toms found that the applicant knew how to steal
cars, Toms expressed the desire to commit an armed robbery. The
offenders then went to the Toombul shopping centre car park
where Toms pointed out the Telstar they were to steal. The
applicant then forced the door lock and ignition on the car and
it was driven away behind the Commodore. The offenders stopped
at Mr Maguire's shop, and Hollidge went inside ostensibly to
make a small purchase, but really with a view to seeing what
resistance might be expected. She returned and told the others
there was just an old lady in the shop. The Commodore was
parked in a nearby street and the applicant and Toms returned to
Mr Maguire's shop, the applicant driving. The applicant
explained that he did not seriously think that Toms was going to
commit the offence, although he knew that Toms had a knife.
Toms ran into the shop and quickly came out again and the two
drove back to the other car.

The applicant's plea of guilty was made on the morning of his trial.

Before the learned sentencing Judge it was mentioned that
Hollidge had been dealt with for the offence of unlawfully using
the motor vehicle but had not been charged with the attempted
robbery offence.
The applicant, who is now twenty-one years old having been born
200697 D.1 T23/CAK 26 M/T COA134/97
on 27 December 1975, has a lengthy criminal history that begins
in 1991, when, as a juvenile he was convicted of being found in
an enclosed yard without lawful excuse before the Brisbane
Children's Court. Later in that year he was convicted of the
offence of dangerous driving in the Sandgate Children's Court.
In June 1992 he came before the Brisbane District Court and was
convicted of unlawfully using a motor vehicle. Later in 1992 he
came before the Brisbane Children's Court and was convicted of
attempting to break and enter premises with intent. Again in
1992, he came before the Brisbane Magistrates Court on charges
of breaking, entering and stealing and wilfully and unlawfully
damaging property. On each of those charges a probation order
for eighteen months was made and he was ordered to perform
unpaid community service for 160 hours. In 1993 he came before
the Petrie Magistrates Court on a charge of unlawfully using a
motor vehicle with circumstances of aggravation. A probation
order was made and he was ordered to perform 240 hours of unpaid
community service.

He was convicted of further offences in 1994 and in 1995 before he committed the offences for which he was sentenced on 9 April this year. Since committing those offences he has committed further offences.

He complains that the sentences were manifestly excessive. But taking into account the gravity of the offences, the part that he played in committing them, and his prior history, I am not persuaded that the sentences imposed by his Honour were manifestly excessive. In spite of the applicant's youth the 200697 D.1 T24/TW M/T COA134/97

offences called, in the circumstances, for sentences of imprisonment and the terms imposed were no more than was justified by the applicant's conduct. In setting the terms of imprisonment his Honour made proper allowance for the fact that the applicant's responsibility for the escapade which led to the commission of the offences was not as great as Toms's. I should refuse the application.

DEMACK J: Yes, I agree. The applicant has appeared today and told us that being in prison is not doing him any good, but the issue that the Court is concerned with is whether a proper sentence is imposed. What happens in the prisons is the responsibility of the Commission and not of the Court.

MACKENZIE J: I agree.

DEMACK J: So the order of the Court is that the application is refused.

APPLICANT: It's not very fair, is it, when someone gets six months for three of them which is in the - if you read the transcript of the Court it says here, "The applicant when-----

DEMACK J: You told us the sentence was quite fair earlier.
Thank you.

APPLICANT: Yeah. This guy gets six months for three, he's left with three and gets six months.

-----