R v Cohen

[1993] QCA 552

IN THE COURT OF APPEAL [1993] QCA 552

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

[R. v. Davidson]

C.A. No. 395 of 1993

T H E Q U E E N
v.

DEAN MAXWELL COHEN (Applicant)

C.A. No. 404 of 1993

T H E Q U E E N
v.

MARK HAMILTON DAVIDSON (Applicant)

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PINCUS J.A.
MCPHERSON J.A.
DAVIES J.A.

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J udgment delivered 16/12/1993

REASONS FOR JUDGMENT - THE COURT
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APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEALS ALLOWED. IN EACH APPEAL, SET ASIDE THE SENTENCE IMPOSED BELOW ON THE FIRST COUNT AND SUBSTITUTE A SENTENCE OF SEVEN YEARS' IMPRISONMENT ON THAT COUNT. FURTHER, IN APPEAL NO. 404 OF 1993, RECOMMEND THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING TWO AND A HALF YEARS OF THAT SENTENCE. THE OTHER SENTENCES THE SUBJECT OF THE APPLICATIONS ARE CONFIRMED.

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CATCHWORDS: CRIMINAL LAW - SENTENCE - 36 and 35 y-o applicants sentenced to 9 years, Davidson with a recommendation after 3 and a half years, for armed robbery in company - Single offence and no actual danger to innocent persons - Both pleaded guilty - Davidson had much less extensive criminal history - Neither had prior convictions for similar offences - 7 years substituted

Counsel:	M. Byrne Q.C. for the Respondent
Mr M Griffin for the Applicant Cohen
Mr P. Alcorn for the Applicant Davidson
Solicitors:	Director of Prosecutions for the Respondent
Legal Aid Office for the Applicants

Date(s) of Hearing: 8 December 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Mr Justice Pincus
Mr Justice McPherson
Mr Justice Davies

[R. v. Cohen]

[R. v. Davidson]

C.A. No. 395 of 1993

T H E Q U E E N
v.

DEAN MAXWELL COHEN (Applicant)

C.A. No. 404 of 1993

T H E Q U E E N
v.

MARK HAMILTON DAVIDSON (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 16/12/1993

Both applicants were convicted on their own pleas of guilty on 1 October this year of armed robbery in company, attempted unlawful use of a motor vehicle and unlawful use of a motor vehicle with a circumstance of aggravation. On the same day each was sentenced to nine years' imprisonment on the first count, eighteen months' imprisonment on the second, and three years' imprisonment on the third, all to be served concurrently.

The learned sentencing judge made no recommendation with respect to parole for Cohen, but made a recommendation that Davidson be eligible for parole after serving three and a half years' imprisonment.

The armed robbery was of the National Australia Bank at Kippa- ring, near Redcliffe. The target was selected the day before, stolen cars were obtained for use in the getaway, and gloves, balaclavas and an unloaded sawn-off shotgun were used. The applicants entered the bank at a busy time on a Friday afternoon and, after ordering everyone on the floor, Cohen brandishing the sawn-off shotgun, they stole $26,517.00.

Although it was submitted on Davidson's behalf that much of the planning was undertaken by Cohen and that it was Cohen who had the gun during the commission of the offence, his Honour found little to distinguish between the applicants in the commission of the offence. This was why his Honour imposed identical sentences upon each of the applicants. We agree with his Honour that there was little to distinguish between the applicants in their involvement in the offence.

Both applicants had been in custody for some time prior to sentence. However his Honour declared those times to be imprisonment already served under the sentence.

The applicants are of similar ages. Cohen is 36, having been born on 22 November 1957, and Davidson is 35, having been born on 7 April 1958. Both have prior criminal histories. Cohen's is much more extensive and includes a number of offences involving dishonesty although, as pointed out by his counsel, none of them since 1977 was sufficient to justify imprisonment.

He was on probation for an offence of dishonesty at the time of the commission of these offences. Davidson's less extensive history involves mostly drug related offences. He has not been in jail before. Both are heroin addicts and the offences were motivated by that addiction.

Davidson was apprehended shortly after the commission of the offences. He immediately indicated that he would plead guilty and cooperated with the police. Cohen was apprehended in New South Wales some time later. He did not cooperate with the police and indicated that he would plead guilty only days before his trial was due to start. However, it may be that he would have pleaded guilty earlier than that had he been properly advised.

It was the much less extensive criminal history of Davidson, his early plea and cooperation with the police which persuaded the learned sentencing judge that there was some prospect of rehabilitation and consequently to make the recommendation which he did for early parole. In our view his Honour was justified in distinguishing between the applicants in Davidson's favour.

It remains to consider whether, in the circumstances of this case, including pleas of guilty from both applicants, the effective term of nine years' imprisonment, with no recommendation in Cohen's case, was too high. We have been referred to a number of comparable cases. These were cases decided before 1992 in the Court of Criminal Appeal. We have also looked at decisions of this Court and decisions of the District Court. These show, in our view, that, having regard to the absence of prior convictions of either applicant for a similar offence, indeed the absence of conviction of either applicant, for more than 15 years, of an offence warranting imprisonment, and that it was a conviction for one offence only of armed robbery in company in which there was no actual danger to innocent persons, the sentences of nine years were outside the permissible range. We would therefore, in each case, grant the application, allow the appeal and substitute a sentence of seven years imprisonment. In order to make additional allowance to Davidson for the matters referred to above, we would order that he be eligible for parole after serving two and a half years of that sentence.