R v Haines

[1998] QCA 464

[1998] QCA 464

COURT OF APPEAL
DAVIES JA
McPHERSON JA

MUIR J

CA No 24 of 1998
THE QUEEN
v.

STUART FRANCIS HAINES Applicant

BRISBANE
..DATE 17/04/98
MUIR J: This applicant for leave to appeal against sentence
pleaded guilty in the District Court at Ipswich on 15 January
1998 to one count of armed robbery with violence, one count of
being armed in public without lawful excuse so as to cause
fear, one count of breaking and entering a dwelling house with
intent to commit an indictable offence and one count of
stealing a handbag and contents.
The applicant was sentenced to the following terms of
imprisonment: eight years in relation to count 1, two years
in relation to the second count, two years in relation to the
third count and 12 months in relation to the fourth count.
All of the sentences were ordered to be served concurrently
and a recommendation was made that the applicant be considered
eligible for release on parole after serving three years of
the eight year sentence.

The ground upon which the applicant seeks to appeal is that the sentences were manifestly excessive. He relies in particular on his youth at the time of the events in question.

The first two mentioned offences were committed on

30 September 1995.

The facts relevant to those offences are as follows. The applicant entered a mobile service station at Townsville armed with an SKS assault rifle. He had a blue shirt wrapped around his face and he took $145 from the till. At the time a Mr Lee was a console operator who was on duty in the service station. A co-offender of the applicant was waiting in a getaway car whilst these events were taking place. A McCafferty's coach

2

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pulled up at the service station for a routine stop. Some 15
people were in the process of alighting from the coach when
the applicant brandished the weapon at them telling them to
"get back and shut up."

Before leaving the service station the applicant told Mr Lee to kneel on the floor. He placed the muzzle of the weapon to Mr Lee's forehead. Mr Lee, not surprisingly, believed that he was going to be shot. As a result he suffered significant psychological damage. I should mention before passing from the events at the service station that when the weapon was retrieved it had a loaded magazine and there was a round in the firing chamber.

Counts 3 and 4 are not of primary significance for present purposes. Those offences were committed whilst the applicant was on bail for counts 1 and 2. After having been extradited back to Queensland he broke into a unit and stole the complainant's handbag. The stolen property was recovered.

The applicant was born on 6 December 1975 and was 19 at the
time of the offences - that is the offences committed at the
service station. He had no criminal convictions prior to
30 September 1995, but on 13 March 1995 he had failed to

appear to answer a charge of unlawful assault.

On 10 January 1996 he was convicted of two charges of stealing
and one charge of assault. On 23 February 1996 he was
convicted of a further offence of stealing. Whilst on bail in
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respect of the offences under consideration he left the
jurisdiction and committed offences in New South Wales for
which he received gaol terms.

In sentencing the applicant the learned sentencing Judge appropriately, in my view, took into account the following matters: the applicant used a rifle which appears to have been loaded in the execution of the robbery (as I have mentioned, when the rifle was discovered in the possession of the accused there was a round in the chamber); the service station attendant was threatened by the applicant causing him to fear for his life, and as a result suffered psychological injury; members of the public who alighted from the bus were threatened by the applicant with a loaded weapon; the applicant's conduct posed a real danger, as the learned sentencing Judge put it, to persons present that day at the service station; and the applicant's criminal history.

In the applicant's favour the learned sentencing Judge took
into account his youth and the fact that he pleaded guilty to
an ex officio indictment. His Honour noted that the
applicant's co-offender who drove the getaway vehicle was
sentenced to a term of six years imprisonment. The applicant,
in the course of his oral submissions, said in his favour that
he was intoxicated at the time. That is hardly a matter which
can be relied on as a mitigating circumstance having regard to
the fact that whilst intoxicated he knowingly armed himself
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with a very dangerous weapon and thereby posed a very
considerable threat to the lives of others.

In my view, the learned sentencing Judge in making the parole recommendation which he did made appropriate allowance for the relevant mitigating circumstances. The sentence cannot be said to be manifestly excessive or in my view even faintly excessive, having regard to sentences imposed for like offences. I refer in particular to The Queen v. Ilic, Court of Appeal, 16 March 1993 unreported and The Queen v. Armstrong Court of Appeal 27 August 1991 unreported. I would dismiss the application.

DAVIES JA: I agree.

McPHERSON JA: I agree.

DAVIES JA: The application is refused.

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