R v. Edwards - [2013] QCA 216

[2013] QCA 216

COURT OF APPEAL

GOTTERSON JA
MORRISON JA
BODDICE J

CA No 54 of 2013
DC No 27 of 2012

THE QUEEN

EDWARDS, Sereena Joy Applicant

BRISBANE

THURSDAY, 8 AUGUST 2013

JUDGMENT

BODDICE J: On 27 February 2013, the applicant was convicted, after a trial, of one count of attempted robbery while pretending to be armed with a dangerous weapon, namely a pistol.

On 28 February 2013, the applicant was sentenced to 18 months imprisonment, suspended after nine months, for an operational period of three years.

The applicant seeks leave to appeal that sentence of imprisonment, on the ground the sentence imposed was manifestly excessive. The basis for that assertion is that there was a manifest disparity between the sentence imposed upon the applicant, and the sentence imposed upon one of the applicant’s co-offenders, whose criminality was found to be significantly greater than the applicant’s, and deserving of a longer sentence.

The contention of a marked disparity is not directed at the head sentence. The marked disparity arises in respect of the time ordered to be served by the applicant. The sentencing judge ordered the co-offender be released on parole after serving 225 days, being the time already served in pre-sentence custody. The consequence of that order was that the co-offender served approximately seven and one-third months in custody. The applicant was required to serve nine months in custody.

The applicant was conjointly charged with Justin Brunker, Brett Boggs and Dwayne Goodhew. The circumstances of the offence were that at approximately midnight on 27 April 2011 in suburban Townsville in the State of Queensland, the applicant and her co-offenders travelled to a service station. The plan to rob that service station was foiled because the service station was closed at that time.

The applicant’s involvement in the offence was limited to providing her vehicle, and travelling in the vehicle with her co-offenders. The vehicle was driven by Goodhew. Boggs and Brunker approached the service station. Brunker, who was carrying a replica pistol, unsuccessfully attempted to enter the service station.

The applicant was sentenced on the basis she had knowingly permitted her car to be used in the offence. The sentencing judge accepted the applicant did not join in, or actively encourage the offence, and concluded that if her presence amounted to encouragement, it was not more than minimal.

Like the applicant, Boggs and Goodhew were convicted after a trial. Boggs received two years six months imprisonment, suspended after 15 months, for an operational period of three years. Goodhew received two years imprisonment. He was also sentenced to a cumulative period of six months imprisonment for unrelated serious drug offences. It was ordered that he be released on parole after serving 225 days, the amount of time spent in pre-sentence custody.

Brunker pleaded guilty to the offence. He was sentenced to two years, six months imprisonment. Brunker was also sentenced to a concurrent sentence of 12 months imprisonment for an offence of assault occasioning bodily harm. His sentence…

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. Edwards

Details

AGLC: R v Edwards [2013] QCA 216
Case: [2013] QCA 216
Decision Date: 8 AUGUST 2013

CaseChat Overview and Summary

In this case, the applicant, Sereena Joy Edwards, was convicted of one count of attempted robbery while pretending to be armed with a dangerous weapon. The conviction stemmed from an incident on 27 April 2011, where the applicant and her co-offenders attempted to rob a service station in Townsville, Queensland. The service station was closed at the time of the attempted robbery. The applicant's role in the offence was limited to providing her vehicle and travelling in it with the other offenders. The applicant was sentenced to 18 months imprisonment, suspended after nine months, for an operational period of three years. The applicant sought leave to appeal the sentence on the ground that it was manifestly excessive, particularly in comparison to the sentences of her co-offenders. The applicant's appeal was based on the argument that there was a marked disparity between her sentence and that of one of her co-offenders, who was found to have a significantly greater criminal role and who served a shorter period in actual custody.

The legal issue before the court was whether the marked disparity between the applicant's sentence and that of her co-offender Goodhew gave rise to a justifiable sense of grievance or the appearance that justice had not been done. The court acknowledged that while parity in sentencing is a relevant consideration, a sentence must allow for differences in an offender's circumstances and involvement in the offence. However, if the disparity is such that the sentence cannot be allowed to stand without appearing unjust, the court has the power to reduce the sentence to avoid a marked disparity. The court found that the disparity between the applicant's sentence and that of Goodhew was such that it would give rise to a justifiable sense of grievance and the appearance that justice had not been done. The court concluded that, considering the applicant's limited involvement in the offence and her personal circumstances, it was appropriate that she be released after serving six months in custody.

The court granted leave to appeal, allowed the appeal, and ordered the applicant's sentence of imprisonment be suspended from 28 August 2013 for an operational period of three years. This decision underscores the importance of considering both the role of the offender in the offence and their personal circumstances when determining an appropriate sentence. The court found that the marked disparity between the sentences of the applicant and her co-offender Goodhew was unjust and required correction. The final orders of the court reflect a balanced approach, taking into account the differing roles and personal circumstances of the offenders while ensuring that the sentences reflect the gravity of their respective criminal activities.

Orders