R v Gallop

[1995] QCA 610

[1995] QCA 610

COURT OF APPEAL

DAVIES JA PINCUS JA THOMAS J

CA No 406 of 1995
THE QUEEN
v.

CHAI FRANCIS GALLOP

BRISBANE
..DATE 08/12/95
081295 D.1 T4/LAM M/T COA95/382
PINCUS JA: The applicant, aged 17 years, was convicted on pleas
of guilty in the District Court of three offences; armed
robbery in company, stealing and unlawful use of a motor
vehicle. The primary Judge sentenced the applicant to three
years imprisonment in respect of the major offence and to six
months concurrent in respect of each of the lesser offences.
The Judge directed that the applicant be considered eligible for
parole after 12 months.

It is said by Mr Hamlyn-Harris on behalf of the applicant that the sentence is manifestly excessive and that a non-custodial sentence should have been ordered or alternatively that he should have been let out of prison at the time he came before the Judge, having served 171 days in pre-sentence custody.

It is not necessary to explain the circumstances of the minor offences in detail, except to say that the theft was of a quantity of syringes and other material, the property of a medical centre to which the applicant had gone for treatment and the latter involved breaking into a car with the intention of stealing it. The robbery was quite a bad one. The applicant and another person robbed a convenience store one evening, the applicant being armed with a pistol and his confederate with a knife. The pistol is described as a replica but that description is inaccurate because it was a real pistol made inoperative by blocking the chamber with a ball bearing. The two offenders jumped the counter of the shop and the applicant assaulted a woman, one of the proprietors, by grabbing her on the back of the neck and forcing her to the ground. The applicant told the woman to open the till. At that stage her 081295 D.1 T4/LAM M/T COA95/382

husband, the other owner of the shop, came in from the rear of the shop and the pistol was pointed at him. The husband told his wife to cooperate, she opened the till and the two offenders took $170 and left.

The applicant was co-operative with the police to a degree in that he admitted the robbery but he would not identify his co- offender. In submissions below, counsel for the applicant pointed out that this was not surprising in that there was a code that no member of the group of young criminals of whom the applicant formed a part would tell on another member. It is, of course, quite open to people to adopt such codes and to conform to them, but that has a cost. The conforming offender may lose the substantial consideration which he might otherwise have gained in the sentencing process if he were to identify his co- offender.

Counsel for the applicant below described the situation in this
way -
"At the time of the commission of these offences the prisoner

was living on the streets. He was associating with a group of young criminals, really, and the only way he was supporting himself was by this sort of activity and that's consistent with a criminal history."

The offences in question, that is those the subject of the present application, were committed in April 1995 and the criminal history to which counsel referred consisted substantially in a series of offences committed in August and September 1994.

081295 D.1 T4/LAM M/T COA95/382
In respect of those offences, which were numerous, the applicant
was brought before the Children's Court on
22 February and sentenced to probation. He did not take that at
all seriously, it appears, because after six weeks he committed
the offences which are in question here. It is unnecessary to
set out the details of the previous offences fully and perhaps
enough to quote from a description of them given below. There
were six wilful damage charges, one further charge of wilful
damage in the night time, "one charge of burglary, five of
housebreaking, 13 of stealing, one of breaking, entering and
stealing, ... one of attempted stealing, two of unlawful use of
a motor vehicle and two of possession of a dangerous drug".

This criminal history is, regrettably, rather more substantial than that in the authorities to which Mr Hamlyn-Harris referred us.

The applicant is said to have had a poor upbringing. He left home at 12 and basically fended for himself. It was suggested that things might have improved in that he has been doing courses in prison and Mr Hamlyn-Harris refers to the results of those. We have also had the advantage of a letter from his mother setting out her views of the situation.

The position of a person such as the applicant who, on the admitted facts below, has been set in a persistent course of criminality going back for some time seems to me to be quite different from cases such as Read (Court of Appeal, CA No 550 of 1994, 15 March 1995 unreported) to which Mr Hamlyn-Harris referred. My own view of the matter is that the Judge was 081295 D.1 T4/LAM M/T COA95/382

justified in taking the view that a more substantial period of imprisonment than that which the applicant had already undergone, namely about six months, was justified.

I do not think the application really has any substance. It is perfectly clear that the serious offence of armed robbery committed so shortly after the applicant had been placed on probation for the numerous other offences I have mentioned called for a jail sentence. The one which was imposed was not excessive and should not be altered. The application must be refused.

DAVIES JA: I agree.

THOMAS J: I agree.

PINCUS JA: That will be the order of the Court.

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