R v Dempsey

[1995] QCA 466

[1995] QCA 466

COURT OF APPEAL
DAVIES JA
THOMAS J

FRYBERG J

CA No 261 of 1995
THE QUEEN
v.

SEAN PATRICK DEMPSEY Applicant

BRISBANE
..DATE 22/08/95
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THOMAS J: The applicant seeks leave to appeal against
sentences imposed in respect of two offences. The first
offence was of breaking, entering and stealing committed in
October 1994, and the sentence in respect thereof was three
years imprisonment. The other offence was armed robbery
committed on 15 November 1994, and the sentence on that matter
was six years imprisonment with a recommendation for parole
after two and a half years.

The circumstances are as follows. The breaking, entering and stealing involved the smashing of a sliding door in a shop. The applicant used a Besser block and stole 52 items of female clothing, handbags and belts, with a total value of $3,500. The repair bill was $642. The applicant was badly affected by alcohol at the time. He said he did not know why he took female clothing and he seems to have dumped most of it. The armed robbery was again committed alone and under the influence of liquor.

At 2 a.m. he went to a service station armed with a kitchen
knife. The attendant was a 57 year old man who declined to
give the applicant money when he demanded it. The applicant
used threatening words, threatening to cut him up, and
eventually a sum of $235 was passed over the counter. The
applicant did not wield the knife in a dangerous fashion
although at one stage he is described as having waved the
knife when the discussion was going on.
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He was apprehended soon afterwards and cooperated with police
making full admissions with respect to both matters. The
applicant pleaded guilty and was entitled to the usual benefit
of so doing. The learned sentencing Judge rightly observed
that offences of these kinds are extremely prevalent and that
the deterrent aspect was relevant. His Honour declared that
222 days spent in custody between his arrest and trial was to
be regarded as imprisonment already served.

The offences were committed four weeks apart, the common link being that they were committed whilst the applicant was severely affected by alcohol. After he was taken into custody he enrolled in a number of courses including Alcoholics Anonymous. Various certificates were presented to the sentencing Judge indicating some degree of rehabilitative attitude o the part of the applicant prior to his sentencing.

The present offender at the relevant time was 27 years old. He had a minor criminal history which included one offence related to alcoholism, and two offences of dishonesty, but they do not appear to have been serious matters. They resulted in fines.

The question then is whether the operative sentence of six
years with a recommendation for consideration of parole after
two and a half years was excessive. We have been referred to
a number of past decisions which are said to be in one way or
another comparable.
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From the Crown's point of view perhaps the strongest is Ilic,
Court of Appeal 16 March 1993, where a sentence of seven years
with parole after two and a half years was upheld. The
circumstances of that case were, however, more serious than
those of the present. The weapons in that case included a
pistol, a sawn-off shotgun and a baton, and they involved
actual violence. One staff member was struck on the forehead
with a baton and rendered momentarily unconscious and there
were threats to kill another person present. That applicant
also pleaded not guilty and presented a story which plainly
was false. He was a person of whom it could fairly be said
that he displayed a lack of remorse. I therefore would not
regard Ilic as indicating an appropriate level of sentence for
the present offender.

The cases concerning armed robbery seem to depend very much upon the circumstances of the offence including the degree of violence, the harm done, the property taken, the professionalism (or lack of it) that can be inferred and many other factors.

We were referred to Brennan CA 210 of 1990, 17 September 1990,
where the sentence imposed on an Attorney-General's appeal was
three years imprisonment. Brennan had already served four
months in custody before sentence and had some previous
convictions. He was not the prime organiser and his criminal
involvement may be regarded as something less than that of the
present applicant. The applicant's counsel relied upon
Frerichs, Court of Appeal 13 May 1992, where a sentence of
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three years imprisonment was not disturbed. That may be
regarded as a light sentence having regard to the
circumstances. It was committed in company with one Holmes
who was regarded as the instigator. Holmes had already been
sentenced to four years imprisonment with a recommendation for
parole after one year. Although the sentence may to some
extent be indicative, it does not necessarily impose a level
of appropriate sentence for like conduct. The matter was
complicated by the fact that Frerichs pleaded not guilty and
Holmes' light sentence may be thought to have been influenced
by the fact that he had agreed to give evidence against
Frerichs and ultimately did so.
The other matters referred to were Schodel, CA 75 of 1991,
26 August 1991, and Attorney-General v. Newton Appeal 263 of
1991, 2 April 1992. In Schodel the offender was 19 years old,
he had no previous convictions and was remorseful. A sentence
of three years was reduced to two years in the interests of
parity. In other respects the circumstances are not greatly
different in seriousness from the present matter. In Newton
the sentence that was imposed was 18 months with a
recommendation for parole after six months. The offender was
21 years old and the sentence seems to have been influenced by
a desire to achieve parity with other offenders who were

somewhat more youthful.

In the course of his reason for judgment, Mr Justice McPherson
observed with respect to a submission that a range for
offences of that seriousness might be considered as commencing
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at about four years even in the case of a first offender. His
Honour, however, drew attention to the need for adversion to
the particular circumstances of the offence.

The result of this review of the cases suggests to me that an appropriate range for circumstances of the present severity might be around the four to five year mark, especially if the breaking and entering offence is brought into account. The relevant factors include apparent spur of the moment decisions influenced by alcoholic intake, the fact that the present applicant was at the time 27 years old with only a minor criminal history, the existence of a reasonable chance of rehabilitation, the circumstance that he acted alone without any apparently serious planning or professional criminal intent, and of course the fact that it was not a particularly violent example of the crime.

Taking into account those factors, it seems to me that the
present sentence is manifestly excessive and that when one
brings into account the early plea and cooperation of the
applicant, the appropriate sentence is four years
imprisonment. I would not suggest that there be any special
recommendation for parole as the cooperation has been taken
into account in fixing the four years. I would therefore
grant leave to appeal, set aside the sentence with respect to
the armed robbery and substitute a sentence of four years
imprisonment.
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DAVIES JA: I agree with the orders proposed by Mr Justice
Thomas and with the reasons he has given, except that I would
not accept that the influence of alcohol is relevant in any
way as a discounting factor.
FRYBERG J: The sentence imposed by the learned District Court
Judge was higher than I would have imposed. In my view, a
sentence of perhaps five years might have been appropriate but
it does not seem to me that the sentence as it stands is
manifestly excessive. The relevant facts have been referred
to for the most part in what has already been said by

Mr Justice Thomas.

It does not seem to me that one can ignore the waving of a
knife in the vicinity of a shop-keeper as something which is
not dangerous. That, in my view, is an aggravating
circumstance in this case. The applicant moreover does not,
in my view, appear to have demonstrated any remorse. It is
true that he pleaded guilty and that fact is to be taken into
account. But apart from that there is no sign of remorse.
The applicant told a false story to the police when he was
apprehended and did not cooperate with them, at least for some
considerable time. The offences were certainly affected by
alcohol and since his arrest the applicant has undertaken an
Alcoholics Anonymous course. but it is not difficult to
undertake such a course and it is not to be assumed that all
who undertake it either benefit from it or indeed undertake it
for just one motive.
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The cases to which reference has been made, in my view,
demonstrate a fairly wide range of available sentence. The
prospect of rehabilitation is certainly an important factor.
The sentencing Judge in the present case has taken that into
account by making a recommendation regarding eligibility for
parole at an earlier time than would ordinarily apply.
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When that is taken into account the cases do not seem to me to
indicate that the sentence imposed is outside the available
range. For these reasons I would refuse the application.
DAVIES JA: The orders are as I have indicated.

MR HAMLYN-HARRIS: Your Honour, there's a technical matter. The parole recommendation that His Honour the sentencing Judge made appears to apply to both sentences and I wondered whether the Court would specifically set aside the previous parole recommendation.

DAVIES JA: If that's necessary. I wouldn't have thought it was.
MR HAMLYN-HARRIS: I just thought the prison authorities might take it that the recommendation still applied to the three year sentence which is not interfered with.

DAVIES JA: All right. Specifically set aside.

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