R v Corcoran

[1998] QCA 82

COURT OF APPEAL

[1998] QCA 082

PINCUS JA
McPHERSON JA
FRYBERG J

CA No 443 of 1997

THE QUEEN

v.

DANIEL JOHN CORCORAN  Applicant

BRISBANE

..DATE 25/02/98

JUDGMENT

McPHERSON JA:  The applicant pleaded guilty in the District Court at Maryborough to an indictment charging him with attempted robbery with a circumstance of aggravation that he was armed with a dangerous weapon, namely a knife, and that he wounded a Mrs Simpson with it.  He was sentenced to imprisonment for six years. 

Mrs Simpson, who was 52 years old at the time, and her husband conducted a corner store in the rear of which they had their residence. 

At about 6.15 p.m. on 14 August 1997 they were watching the news in the lounge when they heard a buzzer indicating that someone had entered the shop.

Mrs Simpson went out to the shop area and was confronted by the applicant.  He was wearing a black jumper and black pants and a mask or hood of some kind over his head or face, as well as socks, which had the toes cut out, over his hands.

He approached the shop counter and said, "Give me your fucking money."  When Mrs Simpson said nothing he repeated the demand, but she said she was not going to give him the money.  The applicant then moved towards the till.  Mrs Simpson pushed his hands away, at which the applicant lifted his hand as if to strike her.  She raised her arms to protect herself and sustained a cut on her hand which bled profusely.  It was then, she said, that she realised that the applicant had a knife in his hand.

Mrs Simpson called out to her husband, who came in from the lounge carrying a baseball bat.  The applicant made another movement toward Mrs Simpson, but Mr Simpson kept him at bay with the baseball bat while she ran out to summon the police.

Seeing that the applicant had a knife, Mr Simpson had, at some stage of the encounter with him, hit the applicant with the bat breaking four of the applicant's fingers.  There was a scuffle, or struggle in which Mr Simpson lost his glasses and in consequence sustained a cut to his nose.  The precise sequence of events is perhaps not entirely clear from what was said at the sentencing hearing, but the account to which I have referred sufficiently discloses what happened.

Mr Simpson then stood between the applicant and the door, wielding the bat, until the police arrived.  The applicant claimed he could easily have by-passed him and escaped, but it is not easy to see the relevance of that consideration even if it was true.

The applicant told the police when they arrived that he wanted the money because he was "greedy".  He denied cutting Mrs Simpson, but he agreed that the knife was his.  He declined to be further interviewed but at an early stage indicated an intention of pleading guilty.

At the sentence hearing, his counsel offered various explanations for the applicant's possession of the knife and also, to some extent, for the way he was dressed on the night in question.  None of them, is, as far as I can see, at all persuasive.  It seems that he was under the influence of alcohol at the time of this incident.

The learned sentencing Judge regarded the offence as serious, which it plainly was.  While accepting that there was no deliberate intention to stab Mrs Simpson, His Honour said that anyone would have realised there was a substantial risk of serious injury in the way that he acted.  That impression formed by His Honour of what happened on the occasion is, if anything, to my mind, unduly favourable to the applicant.

The sole basis for the application for leave to appeal is that the sentence is manifestly excessive.  Counsel for the applicant has submitted that an appropriate sentence is five years with a recommendation for parole after 18 months.  It is not altogether apparent that the difference between the six year sentence imposed and the five year sentence proposed would be such as to demonstrate that the former was manifestly excessive.

His Honour did, however, say that he originally had an eight year sentence in mind, but he reduced it to six to allow for the early plea of guilty.

By reference to some past decisions, to which we were referred by Mr Farmer, a starting-point sentence of eight years might be considered severe.

But His Honour took into account that the circumstances of aggravation constituted here by the wounding now carry the offence into a higher category, in which the maximum sentence is life imprisonment.  That, he noticed, has been the case since 1 July 1997, when that particular circumstance of aggravation was added by amending the legislation fixing that maximum for it.

Section 412 of the Code, which is the relevant provision as regards sentencing for an offence of this kind, now provides in subs.(1) a maximum penalty for attempted robbery of imprisonment for seven years; in subs.(2) a maximum of 14 years for attempted armed robbery or robbery in company; and in subs.(3) a maximum of life imprisonment for attempted armed robbery committed with a dangerous or offensive weapon accompanied by wounding by means of that weapon. I am stating the substantial effect of the provisions rather than attempting to set them out exactly.

The present case falls into the latter category, that is to say, it is within subs.(3).  The plain purpose of the legislative amendment, it may be inferred, is to discourage the possession and use of any dangerous weapon, such as a knife, in the course of robberies even if they did not succeed or result in actual stealing.

Previously the maximum penalty of life imprisonment for attempted robbery was reserved for persons who wounded someone by discharging a loaded firearm.  Otherwise a case like this would formerly have fallen within the intermediate category in subs.(2) and so have attracted a maximum penalty of imprisonment for 14 years.

This deliberate change in the law means, as His Honour rightly, in my opinion, perceived, that the value of sentencing precedents for offences involving circumstances of aggravation of the kind now covered by s.412(3) has been diminished.  A sentence of imprisonment for eight years for a first offence of this kind, as was contemplated in the course of his reasons by the sentencing Judge, may no doubt be considered severe; but it is not open to the Court simply to ignore the recent and deliberate alteration carried out by the legislature to the applicable sentencing standard.

The effect of the sentence, fixed as it was at six years, does not seem to be necessarily disproportionate to the particular offence on this occasion, nor to the use of the weapon and the injury it inflicted. 

His Honour's reduction of the sentence he originally had in mind from eight years to six years was, in the circumstances, certainly not ungenerous when regard is had to the fact that the plea of guilty that attracted it was probably explained by the fact that the applicant was apprehended on the spot immediately after committing the offence.

This leaves for consideration the alternative complaint that a recommendation for parole after 18 months should have been made in this case. Without such a recommendation the applicant will presumably not be considered for parole until three years have passed.

The applicant is 25 years of age.  He has a criminal history which begins in 1989.  Much of it is of a relatively minor nature or, at the hearing on sentence, was explained as being so.  He has, however, a recorded conviction for false pretences in 1990, a break and enter in 1991, stealing in the same year, receiving, unlawful use of a motor vehicle, and also an assault occasioning bodily harm.

He was convicted of wilful damage in 1997, and his record also shows some relatively minor drug offences and public order offences during the same period.

He has been dealt with in the past by being fined; by being placed on a bond; and also by being ordered to perform community service.  He was placed on probation on three separate occasions in 1991 and breached the second probation order soon after it was imposed.  That does not make him a particularly attractive or deserving candidate for a parole recommendation; but, in any event, it is difficult to my mind to see any particular reason why someone who acted in this way should attract sympathy.  When she was injured, Mrs Simpson was not acting aggressively towards the applicant, but passively doing no more than trying to defend herself from a blow which the applicant was apparently about to strike at her, and which, when he did strike it, she discovered for the first time involved a knife which he was holding in his hand.

The experience cannot have been at all a pleasant one for her, even though there is in this instance no victim impact  statement recording what I would assume to be the inevitable consequence of such an attack on the victim in this case.

When all these matters are considered I do not regard the sentence as manifestly excessive, or as being such as to call for the intervention of this Court.  I would dismiss the application for leave to appeal.

PINCUS JA:  I agree with the order imposed by Mr Justice McPherson and with the reasons His Honour has given.  I add only that I found the submissions of Mr Farmer accurate and helpful.

FRYBERG J:  I agree.

PINCUS JA:  The order will be as Mr Justice McPherson has mentioned.

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