R v Hammond

[1996] QCA 508

IN THE COURT OF APPEAL	[1996] QCA 508
SUPREME COURT OF QUEENSLAND

C.A. No. 445 of 1996

Brisbane

[R. v. Hammond]

THE QUEEN

v.

MATTHEW KENNETH HAMMOND

Applicant

Thomas J Dowsett J White J

Judgment delivered 10/12/96
Judgment of the Court

LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE IMPOSED BELOW FOR EACH ARMED ROBBERY SET ASIDE. IN LIEU, SENTENCE OF FIVE YEARS' IMPRISONMENT IMPOSED WITH A RECOMMENDATION FOR RELEASE ON PAROLE AFTER SERVING TWO YEARS. OTHER SENTENCES NOT DISTURBED.

CATCHWORDS:	APPEAL AGAINST SENTENCE - armed robbery, attempted armed robbery and unlawful use of a motor vehicle with circumstances of aggravation - need for deterrence - relevance of heroin addiction - factors in mitigation - comparative sentences - whether sentence manifestly excessive.
Counsel:	Mr T Martin SC for the applicant Mr D Bullock for the respondent
Solicitors:	Boe and Callaghan for the applicant Director of Public Prosecutions for the respondent

Hearing Date: 15 November 1996

JUDGMENT OF THE COURT

Judgment delivered 10/12/96

The applicant for leave to appeal against sentence pleaded guilty to an ex officio indictment presented to the District Court on 4 September 1996. Sentence was imposed on 17 September 1996.

The applicant pleaded guilty to three charges of armed robbery, one charge of attempted armed robbery, and two charges of unlawful use of a motor vehicle with circumstances of aggravation.

A term of imprisonment of 7 years was imposed in respect of each offence of armed robbery, 3 years' imprisonment in respect of the attempted armed robbery and 2 years' imprisonment for each offence of unlawful use of a motor vehicle all to be served concurrently. The learned sentencing judge recommended that the applicant be considered for parole after serving 2 years and 9 months of his sentence. Thirty-four days had been spent in pre-sentence custody which was declared to be time already served under the sentences.

The applicant was 25 years of age at the time of committing the offences and had a very minor previous charge of unlawful possession of marijuana and a pipe in April 1994 for which he was fined and no conviction recorded.

•Circumstances of the offences	............2
•Personal circumstances	............ ........... 3
•Submissions for applicant	............ ........... 5
•Relevance of heroin addiction	............6
•Comparison with other cases	............ ........... +9
•Review	............ ............ ............ ........... 27
•Conclusion	............ ............ ............ ........... 28

Circumstances of the offences

On Sunday 25 February 1996 the applicant took a Holden Commodore sedan from outside the owner's address in Sunnybank Hills. The applicant drove it to a service station at Sunnybank and entered the service station about 1 o'clock in the afternoon. He had a stocking over his head and was armed with a steering wheel lock. He approached the console operator and demanded cash. He smashed the steering wheel lock onto the counter and the operator handed over $211.20. The applicant ran from the service station and escaped in the car.

About 25 minutes later he went to another service station in Sunnybank with a stocking over his head and armed with a steering wheel lock. He approached the console operator and demanded cash. He smashed the steering wheel lock onto the counter and the operator handed him $295 in cash. He escaped from the service station in the car which he later abandoned and which the police recovered that day. Damage totalling $1,841.18 had been done to the car.

Two days later on Tuesday 27 February the applicant took another motor vehicle from the Sunnybank Hills area. He drove to a service station at Calamvale and at about 10.15am entered wearing a striped balaclava and carrying a 1 inch pipe. He demanded money from the console operator smashing the pipe down on the counter causing some damage. The operator handed him $965.70 and he escaped in the car.

About 15 minutes later he arrived at another service station in Calamvale. The console operator saw him carrying an object which she thought was a gun but which was the pipe. She grabbed a customer and ran outside. She heard the applicant smash the pipe down and demand that the till be opened but it appears that he was speaking to himself. No property was taken. This constituted the attempted armed robbery.

As a result of information received the police spoke to the applicant on 29 February. Initially he refused to be interviewed but the next day he made full admissions and told the police that the reason he committed the offences was to get money to purchase drugs. At the earliest possible stage the applicant indicated that he would plead guilty. On 4 September when he came before the court for sentence his solicitor informed the court that he had a cheque for $1,472, the amount of the stolen money, from the applicant in his trust account for compensation. He indicated that the applicant would pay the other amounts representing the damage to the motor vehicles but did not know what those amounts were until hearing the prosecution recite them.

Personal circumstances

The learned sentencing judge had the benefit of a psychological assessment report from Dr Bevan Wiltshire which set out the applicant's personal history. Dr Wiltshire reported that the applicant's early years were not happy, with a father who was largely absent from home and a manipulative mother. His relationship with his parents was not good and his only real friend was his younger brother. This was because the family moved around a great deal due to his father's employment by the Navy. The applicant obtained a reasonably good tertiary entrance score on finishing high school and obtained a job with Telecom selling telecommunications equipment. He held that job until the end of 1995 earning a substantial salary composed of base salary and commission. The applicant had been in a de facto relationship for some years which was brought to an end by the young woman who subsequently married someone whom the applicant regarded as his best friend. This was personally devastating for him. Further he found the increasing pressure of commission sales very stressful. He made two suicide attempts which resulted in regulated admissions to a psychiatric hospital.

He had started using marijuana when he left school and continued using it casually until about 1993 when he started using speed, LSD and barbiturates. He told Dr Wiltshire that he had been able to finance his drug use from his earnings and that it had not interfered with his work. When his girlfriend left him in August 1994 he started using heroin and was able to pay for it from his earnings until he left his job at the end of 1995. He then financed his need for heroin by going on the dole and gradually selling all his possessions including his home unit, his car, appliances and clothes. When he had exhausted his own resources and capacity to borrow from friends he carried out the robberies the subject of this application.

The terms of the applicant's bail for these offences were stringent requiring him to engage in drug rehabilitation. He was unable immediately to attend Biala and commenced a detoxification program under the care of his own physician. He then attended Logan House for rehabilitation and had apparently proceeded satisfactorily to Level 2. His brother died, it seems from a drug overdose, earlier this year causing the applicant psychological problems. He became deeply depressed which interfered with his progress in the program. In August this year he surrendered himself into custody because of difficulties with his bail conditions. He has endeavoured to remain drug free since his arrest on these charges.

Dr Wiltshire concluded that the applicant's overall personality picture was typical of a person with alcohol and psycho-active substance dependence. This resulted in self-destructive tendencies through alcohol, drugs and active suicide attempts. The applicant has acknowledged his problems and wishes to overcome them. He would like to undertake further studies in marine biology. He has computer skills and apparently has indicated that he will be involved in teaching such courses in the prison.

Submissions for applicant

Below, the solicitor for the applicant submitted that the appropriate range was 4-6 years with an early recommendation whilst the prosecution submitted that the appropriate range was 6- 8 years. The learned sentencing judge emphasised the need for deterrence for crimes of this kind because shops and service stations were easy targets. His Honour regarded the robberies as well planned in that the cars were selected, used and discarded and that the applicant had acquired a balaclava. He agreed with counsel that the hold-ups were not professionally carried out but thought this would be of little comfort to the victims of the crimes. He mentioned a growing community concern about the prevalence of such offences and that courts both at first instance and on appeal had demonstrated a hardening towards such criminals. He accepted that the applicant had intimated his remorse in his interview with the police and that his plea of guilty was appropriately early. He described the reason for the criminal conduct on the part of the applicant as "a classic case of self-inflicted wounds".

Mr T Martin SC for the applicant has submitted that the learned sentencing judge fell into error in failing to take into account the circumstances which led to the commission of the offences in that they were the culmination of his progressive decline into depression and heroin addiction and that insufficient account was taken of the fragility of the applicant's personality and the extent of his drug addiction which together drove him to these offences. He contended that his Honour was in error in rejecting as irrelevant the evidence that the applicant had lost all of his assets and money to heroin addiction before turning to crime as a means of providing for his addiction.

Mr Martin relied upon the applicant's excellent work history, his minor previous offences, that the criminal activity extended over only two or three days, that the offences were committed in the middle of the day, that he was armed with a piece of metal not a knife, gun or a replica gun, that no person was physically assaulted or injured, and that the planning was not careful as described by his Honour but planned in a very limited way. He submitted that insufficient regard was given to the applicant's cooperation with the police and the saving to the community of the matter proceeding by way of ex officio indictment, and his expression and demonstration of genuine remorse by repayment of the money taken in the robberies together with an undertaking to pay for the damage to the vehicles. He submitted that the appropriate range was 4-6 years with an early recommendation.

Relevance of heroin addiction

Mr Bullock for the Crown submitted that it was incorrect to draw attention to the applicant's previous good character as by his admission of heroin addiction since about August 1994 he had been constantly breaking the law. He also maintained that because of the applicant's previous level of addiction to the drug his prospects of rehabilitation were not as positive as was submitted by Mr Martin. He referred to R v. Rosenberger (1994) 76 A Crim R 1 as authority for the proposition that a sentence ought not to be reduced because of the applicant's addiction to heroin. That was a case where the sentencing judge had taken into account in mitigation the respondent's heavy drinking prior to raping an elderly woman. This Court observed that the proper policy was to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence particularly in cases involving personal violence and more particularly as an excuse for rape. The Court cannot be taken to have intended to extend its observations, as Mr Bullock submitted it had, to exclude all circumstances of drug addiction as a mitigating factor in robberies carried out to support such a habit. It cited with approval a passage from R v. Redenbach (1991) 52 A Crim R 95 where the Victorian Court of Criminal Appeal said

"Where ... the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered ..."

Mr Martin submitted that because of the applicant's personality defects he was driven to take refuge in drugs from the depression which beset him as a consequence of personal crises, not dissimilar to the notion of painful disease referred to in Redenbach. But here there is nothing to suggest that the applicant was under the influence of heroin when he committed the offences although it might fairly be inferred that his craving for the drug led to the commission of the offences. It is no doubt a truism that all persons who resort to addictive drugs have personality defects of some kind, but Mr Martin wished to emphasise that the applicant's ingestion of heroin was not for recreational purposes. Accepting Dr Wiltshire's assessment of the applicant's personality type, his deficits on that analysis are not such as to reduce his culpability and the deliberation which attended his criminal conduct so as to call for a more lenient sentence, Channon (1978) 33 FLR per Brennan J (as his Honour then was) pp. 436-7; Butler CA No 196 of 1996. However, the fact that the applicant disposed of all of his own possessions and borrowed where he could before turning to crime must be counted as something in his favour.

The true relevance of drug addiction is a factor contributing to the commission of crime and its effect in the sentencing process has never been adequately explained. In our view it is a factor that may help an offender to the extent of showing that his or her descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice. It may be inferred in many cases (and the present case is very much in point) that the offender would almost certainly never have become a thief but for loss of control of an ordered life through drug addiction. The proposition that the results of drug addiction are self-inflicted is half true and therefore dangerous. The offender must of course be held responsible for his or her own actions. The drug addiction is not an excuse; but it is a factor that may tell the court that the real weakness of character is that of a drug addict rather than that of a robber. That may be by no means inconsequential. It is however a two-edged factor; it may also tell the court that rehabilitation is going to be difficult.

Just how these factors are to be applied to particular cases had not been spelled out, and it may be undesirable to attempt to do so. In our view the fact that drug addiction has led to criminal activity can properly lead to a wider understanding of the offender's character and motivation for the crime. Depending on the circumstances of the particular case this may sometimes show the offender to be less deserving of condemnation than the primary facts, without more, might suggest.

The present case is such a case because the applicant, despite a difficult upbringing, was on a successful career path when a personally devastating event precipitated a genuine breakdown resulting in admissions to a psychiatric hospital. His descent into drug addiction is not excusable, but it is more readily explained in this case than usual. Further, his sad descent, including the gradual sale of all his possessions including his home unit, car and even clothes, before exhausting his capacity to borrow from friends prior to his commission of the offences says something in favour of the applicant's character. Other circumstances including the responsible attitude of the applicant and his actions to overcome the drug habit also suggest that he is a good candidate for rehabilitation.

Comparison with other cases

The Crown tendered a schedule of cases relating to armed robberies from service stations and relied upon Porter CA No 47 of 1995 and Smith CA No 280 of 1994 as comparable sentences. Mr Martin referred to Sneider CA No 298 of 1992 and Cabello CA No 229 of 1991. The Court heard two other applications for leave to appeal against sentences imposed in armed robbery cases (Quinn CA No 422 of 1996 and Tupe CA No 421 of 1996) following this application. Additional cases were referred to and further schedules tendered. It seems appropriate to look at all of the cases referred to to see if any useful sentencing pattern can be discerned.

In Bainbridge, Cullen and Ludwicki (1994) 74 A Crim R 265 this Court annexed a document which collected sentences imposed between 1988 and 1993 upon 17 year olds for armed robbery or armed robbery in company derived from the Director of Public Prosecutions' sources. That survey demonstrated that young offenders with no relevant previous convictions, even before the enactment of the Penalties & Sentences Act 1992, were rarely given a custodial term. When they were it was for a brief period. The court noted at p. 268

"It is important that crime be suppressed by appropriate sentences; but a measure of uniformity and consistency in sentence is also necessary, less the public lose confidence in the justness of the courts' sentences."

Perhaps that goes almost without saying but on the other hand this Court has regularly observed that "sentencing is a matter in which generalisations are seldom possible or useful", Dunn CA No 29 of 1994 (an armed robbery case). Thomas J in Dempsey CA No 261 of 1995 considered that

"The cases concerning armed robbery seem to depend very much upon the circumstance 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."

In looking for a measure of consistency if not uniformity in a review of the armed robbery cases schedules can be of assistance in giving an overview of the range of sentences imposed against certain basic factors such as age of the offender, previous relevant convictions, whether a weapon was used and so on. But to appreciate if any particular case is of assistance it is necessary to have regard to the full judgment. Sometimes factors which the compiler of the schedule may not have considered particularly relevant may have been omitted from the schedule but which, when appreciated, cause the sentence to be understood differently. In an attempt to ascertain if some general propositions may be derived from past sentences for armed robbery the following is a consideration of those cases to which the Court was referred either particularly or by reference in the schedules.

As mentioned the Crown has relied upon the case of Porter CA No 47 of 1995. That seems to be a much more serious case than the present although only one offence was involved. The applicant was 22 years old and had a prior history of criminal offences including a number for dishonesty. He was charged with armed robbery with personal violence which was described by Davies JA as "of a quite serious kind". It involved the use of a gun although not loaded. The 17 year old student victim did not know this and suffered severe emotional consequences. The other offence for which Porter was sentenced was of obtaining credit by false pretences which was committed whilst he was on bail for the armed robbery. The sentences imposed were 6 years for the armed robbery and 12 months for the dishonesty offences to be served concurrently. They were described as "rather on the low side", but were explained as giving effect to the plea of guilty rather than by a recommendation for early parole or cumulative sentences.

The other case specifically relied upon by the Crown was that of Smith CA No 280 of 1994. Smith appealed against conviction and applied for leave to appeal against sentence. He was convicted of three offences of armed robbery committed in Cairns on 20 November 1993. A total amount of $4,230.59 was stolen from a convenience store and two service stations. There was a dispute about the identity of the person who entered each of the premises but for the purposes of sentence it was accepted that the appellant, having been convicted by the jury, was that person. In each case he was armed with a knife and threatened the person in charge. There was an accomplice who drove a "get away" car. Smith was sentenced to 8 years' imprisonment. He had an extensive criminal history including breaking and entering, stealing, housebreaking and false pretences, unlawful wounding, assault occasioning bodily harm and escape from lawful custody for which he had served periods in prison. Deterrence was said to be an important aspect of the sentence. The court below had noted that the appellant had an unfortunate childhood and an addiction to various substances over the years. There is no indication of Smith's age but he would not seem to have been a young man. The recovery of a large part of the proceeds of the robberies was regarded as a mitigating circumstance. The Court refused leave to appeal against sentence adding that because of the large number of robberies committed on the one day and his criminal history a sentence of 8 years' imprisonment was within the proper range.

The cases of Hanrahan, Schneider and Taylor CA Nos 309, 298 and 299 of 1992, Attorney's appeals, particularly that of Schneider, was relied upon by Mr Martin. The circumstances contain a number of different features from the present. The charges concerned armed robbery in company and the use of a rifle. All three respondents were dependent on drugs at the time, had run out of money and drugs and had made a decision to rob a shop and a pharmacy. Taylor was 27 and actually involved in the robberies. She had a previous conviction for a similar armed robbery. She had a long criminal history involving assault, prostitution and dishonesty offences. No violence was done to any of the persons in the shops. Her sentence of 6 years with a recommendation for parole after 2 years and 9 months was altered to one of 6 years' imprisonment cumulative as to 4 years on the balance of the sentence which she was required to serve and for that fact alone is of less assistance than had it not been a cumulative sentence.

Schneider had actually held the rifle in the robberies. He was 30 years of age and had a substantial previous criminal history although had had some years free from any other offences than those involving the use of drugs. He was sentenced to 4 years' imprisonment with a recommendation after 1 year. His sentence was not interfered with but was regarded as being at the very low end of the permissible range.

Mr Martin referred to the case of Cabello CA No 229 of 1991 a case included in the schedule of armed robbery/service station sentences handed up by the Crown. The applicant was sentenced to 7 years' imprisonment in respect of one count of armed robbery in company and one count of unlawful wounding. The applicant and his co-offenders entered a service station at Wacol at about 6.30 in the evening wearing balaclavas. A co-offender grabbed the wife of the owner and put a knife to her throat with such pressure as to cause bleeding in her neck. A struggle ensued between the owner and the co-offender whose balaclava was pulled off. As they decamped from the service station with the owner in pursuit the owner was struck two blows with a machete wielded by the applicant. He sustained severe injuries which resulted in wounds across his head from the left eyebrow to the upper point of the right ear and from the mouth to the chin. He had 80 sutures inserted. McPherson JA observed that the 7 years' sentence was considerably lighter than he might have received since he had a previous conviction for robbery for which he had been sentenced to 7 years' imprisonment. The co-accused was sentenced to 6 years' imprisonment. He had two previous convictions for robbery for which he had received terms of imprisonment. This sentence was thought to be on the light side but was explicable because he pleaded guilty and gave evidence in the trial of the applicant.

Turning to the cases on the schedule, some can immediately be discounted such as Thompson CA No 336 of 1994 which involved in excess of 2,000 burglary and house breaking offences which were taken into account when imposing the sentence upon the applicant for armed robbery of a service station. His 20 year sentence was reduced to 12 with a recommendation for parole after 4 years.

Facts personal to the applicant in Dunn CA No 29 of 1994 make this decision of limited use. The applicant pleaded guilty to armed robbery with violence and a further charge of wilful damage to a computer screen. He was sentenced to 9 years for the robbery with a recommendation for parole after 4 years. The second offence was committed in the course of the robbery when he discharged a loaded shotgun through a closed internal door at the premises where the offences were committed and for this he was sentenced to imprisonment for 12 months. At about 12.30am the applicant with a stocking over his head walked into a service station and menaced one of the attendants with a 12 gauge shotgun. He was given $429 from the cash register and insisted on being given money from the safe. He pointed the gun barrel at the attendant's face. He became distracted by a second attendant whom he also menaced with the gun. The first attendant had succeeded in locking himself in an office and was attempting to telephone the police when the applicant fired a shot through the door. This damaged the computer and narrowly missed the first attendant and was discharged within inches of the face of the second attendant. The applicant then demanded and received car keys from two customers who were lying on the floor of the service station. The Court affirmed the need for deterrence in circumstances such as these where attendants at late night service stations were particularly vulnerable to attack. The applicant was 25 years of age and had a previous record of drug and driving offences, wilful damage to property and robbery of a handbag from a woman in a public toilet area for which he received imprisonment for 2 years. He had successfully undergone a period of probation. He told the police that he was induced to carry out the robbery by the mother of his girlfriend which the court accepted. He was found to have a very low level of mental functioning probably due to head injuries sustained in a car accident at the age of 9. He had a disturbed attendance at school and showed odd personality traits from the time of his injury. He had been abusing alcohol regularly from an early age and was a regular user of other drugs. Although he was not deprived of mental capacity within the meaning of s.27 of Criminal Code it was accepted that his decision making ability was impaired such as to operate as a mitigating factor on sentence. The Court reduced his sentence to 7 years with a recommendation after 3 years. The Court referred to Cohen CA 395 of 1993 where a sentence imposed upon a 36 year old man for armed robbery in company was reduced from 9 to 7 years. The applicant in that case wearing a balaclava and gloves entered a bank on a busy Friday afternoon brandishing a sawn-off shotgun. Customers were ordered to lie on the floor and some $26,517 was stolen. Extensive planning preceded the offence. The shotgun was neither loaded nor discharged. The applicant had an extensive criminal record involving offences for dishonesty and was on probation.

Jewell CA No 75 of 1994 was a 20 year old young man who was convicted after a trial of armed robbery in company, discharging a firearm with intent to alarm and unlawful use of a motor vehicle associated with the robbery. At about 1.40am the applicant, armed with a sawn- off shotgun and his companion with a piece of timber both wearing balaclavas robbed a suburban service station. During the robbery the applicant discharged the shotgun into the ceiling of the premises. The offenders made their escape by commandeering a Mazda motor vehicle belonging to a customer after smashing both the driver's and the passenger's side windows. The applicant had been convicted of offences involving dishonesty on seven previous occasions and had been sentenced to terms of imprisonment of up to 12 months. The Court noted a total lack of remorse on the part of the applicant. He had indicated to the Court that if his appeal were not allowed his conduct could be expected to worsen in the future. The Court observed that without his previous criminal history, the seriousness of the offence and his apparent total lack of remorse bearing in mind his youth and the absence of a previous conviction for armed robbery, the sentence of 9 years' imprisonment would have been too high. Although considered at the high end of the permissible range the application was refused.

The case of Jenkyns CA No 58 of 1986 is an older decision. It has special features which would suggest caution in using it as a comparable sentence. The applicant committed three armed robberies in Queensland between 13 September and 19 December 1979 in Brisbane. Shortly after those offences he committed a number of similar offences in New South Wales in a period which extended to January 1980. He was dealt with in New South Wales first and sentenced to a total period of imprisonment in respect of the New South Wales offences of 14 years. He was 18 at the time of the offences. After he was released on parole he pleaded guilty to the Queensland offences and was sentenced to 8 years' imprisonment for each armed robbery in company and 4 years in respect of an attempted armed robbery with a recommendation for parole after 18 months. The weapon used in the Queensland robberies was a double-barrelled shotgun and in the case of one the owner of a service station was hit over the eye with the gun. The evidence suggested that there the applicant had been a successfully rehabilitated in New South Wales. The Court adverted to the totality principle and endeavoured to mould a head sentence which reflected the seriousness of the offences had the applicant been dealt with in Queensland in 1980 for the whole of the criminal conduct. Connolly J thought that the sentence would not have exceeded 12 years bearing in mind the applicant's age and lack of previous convictions. His rehabilitation was a strong factor in mitigation. The Court allowed the appeal to the extent of recommending parole at the expiration of 9 months from the commencement of the sentence rather than 18 months (the schedule is incorrect on this point).

The applicants Bryant CA No 243 and Hargreaves CA No 248 of 1984, another older decision, were sentenced to imprisonment with hard labour for 6 years for armed robbery in company. The applicants held up a service station at about 1.00am. The applicant Bryant was armed with a replica firearm. They were wearing long coats, balaclavas and helmets. Hargreaves presented a note to the attendant and whilst doing so Bryant kept the weapon pointed at him whilst he opened the cash register and took out some money. The applicants then left the premises. The offence had been premeditated. They had decided that armed robbery was the only way to get them out of financial trouble. Bryant was 20 years of age and had two previous convictions and was on probation at the time of the commission of the offence. Hargreaves was 19, had one previous conviction and was also on probation. The applications were dismissed. The court observed that the deterrent aspect and the security of the community were important aspects of the sentencing process for such offences.

Lowe CA No 289 of 1983 was heard together with that of Smith CA No 300 of 1983. Smith was the subject of an Attorney's appeal which is of no relevance here. The applicant pleaded guilty to stealing with actual violence some $404 from a service station armed with an offensive weapon. He was 18 years of age and sentenced to a term of imprisonment with hard labour for 6 years with a recommendation for release on parole after 2 years. Lowe and Smith planned to rob the service station. Lowe entered the service station carrying a spray gun in such a fashion as to lead the attendant to believe that it was a weapon. Smith remained hidden outside as a look-out. Lowe had no previous convictions. Because of this and his age the learned sentencing judge had said that the sentence imposed was less than would otherwise have been the case. The Chief Justice observed that

"This Court has said in very many cases that in circumstances of armed robbery it is necessary that the applicant be punished severely in the interests of the community, and this Court has also repeatedly said that its powers in cases of this sort should be used with increased punitive effect for deterrent purposes."

In view of the non-custodial sentence imposed upon Smith and to accord parity the Court recommended that Lowe be considered for release on parole after serving 12 months of his sentence.

In Barry CA No 17 of 1993 terms of imprisonment were imposed upon the applicant for a great many offences the most serious of which were three armed robberies for which he received 7 years. His application for leave to appeal against sentence was heard together with those of his co-offenders Rofe CA No 26 of 1993 and Lawrence CA No 13 of 1992. Lawrence attracted a sentence of 6 years whilst Rofe was recommended to be kept in custody by the Director of Family Services for 2 years. The disparity in sentences was explicable by reference to their ages and their previous personal histories. Barry was 23 when sentenced. The three armed robberies in which he was involved were particularly serious. The young men broke into the home of a couple who were threatened with a knife and robbed. Another robbery occurred when they broke into bakery premises at night and whilst there a baker arrived for work. He was aged 58 years. He opened a door and was hit on the side of the head, dragged inside, kicked, punched and a screwdriver pressed to his neck. He was threatened with death and two of the young men held him down. His ankles were bound with masking tape and they desisted from binding his mouth only when he persuaded them not to do so because he could not breathe. He lost consciousness and when found was treated for wounds to his head, headache, tenderness of the jaw, swollen left eye and a bloody nose. He suffered some permanent disability as a consequence of the incident. The third armed robbery occurred at Nudgee College. The applicants broke into the school and attacked a security guard. They hit him about the head and continued to kick and strike him whilst he was on the ground. They made threatening remarks to him. He was blindfolded and robbed.

Barry had an extensive history of burglaries, thefts and a robbery. He asked to have a series of other offences taken into account pursuant to s.189 of the Penalties and Sentences Act including 40 offences of dishonesty and 35 of stealing. Lawrence had convictions for stealing and possession of a concealable firearm as well as breaking, entering and stealing and had other offences dealt with in the Children's Court. He was on parole at the time of the armed robbery offences. He too sought to have a large number of other offences taken into account on sentence. He was then aged almost 19 years. He had not previously had imposed a term of imprisonment to be served. He was sentenced to 6 years' imprisonment in respect of the armed robbery. Rofe was under 16 when the offences were committed and had no previous convictions. He had the support of his family and good references. Both Barry and Lawrence sought an early recommendation for parole. The Court noted that the plea of guilty had been recognised by reducing the head sentence by one year. McPherson JA thought it could have been reduced a little further to reflect the plea of guilty as there was a considerable saving to the Crown in not being required to try the numerous cases, but observed that the head sentence could have been higher so that a reduction to the level to which it ultimately came could not be faulted. In the case of Lawrence, the learned sentencing judge had also reduced his sentence by a year to 6 years on account of his plea of guilty. He was observed to be younger, with a background of hardship and suffered from drug addiction but had relatively few previous convictions. It was noted that for robbery offences of this kind and number it was virtually inevitable that the offender would receive a sentence of imprisonment of some duration. Lawrence was a full participant in all the offences, was on probation at the time and although the term of imprisonment was said to be on the high side the Court did not interfere. There is little assistance to be derived from Rofe's sentence.

Teufel CA No 306 of 1993 was a 19 year old young man convicted on six counts, one of robbery, two of robbery with personal violence, one of unlawful use of a motor vehicle, one of unlawful use of a motor vehicle with a circumstance of aggravation and one of stealing. He was sentenced to 5 years' imprisonment in respect of one robbery with personal violence and to 4 years' in respect of another. In respect of the robbery offence he was sentenced to 3 years. It is unnecessary to mention the sentences for the other offences. He was recommended for parole after serving 18 months. He had a substantial criminal record of 21 previous offences including 16 for breaking and entering with intent and 3 for attempted breaking and entering with intent. He was ordered to serve a period of 3 years' probation in respect of those offences and was still on probation when he committed the offences the subject of his application. The first robbery consisted of grabbing a bag containing some $2,000 in cash, cheques and other properties from a woman as she was about to enter a bank. Her glasses were knocked off as he pulled her around by the arm holding onto the bag resulting in soreness to her arm. The applicant drove the get away car for another person who used personal violence upon a woman by holding her around the neck and exerting force against her mouth in order to take a bank bag containing about $600 in respect of the second offence of robbery. The third count of robbery consisted of opening a cash register and when confronted by the owner of the premises pushing her in the shoulder causing her to fall onto the pavement injuring her hand, shoulder and ankle. He took $180 from the cash register but was apprehended in the course of the offence. He made early pleas of guilty, had the offer of future employment with his father upon his release from custody and had made some efforts at rehabilitation whilst on remand. The Court agreed that the offences should be looked at as one series of offences occurring over a short period of time. The offences were committed while the applicant was unemployed and addicted to amphetamines. Davies JA observed that the offences were committed in an area where people ought to be entitled to walk with safety and one was committed inside commercial premises. His Honour concluded that the sentence was towards the high end of the range but not outside the range for a series of robberies several with personal violence.

Assenberg and Maynard CA Nos 93, 94 of 1995 were Attorney's appeals. The respondents were convicted of armed robbery in company with personal violence and deprivation of liberty. Assenberg was 17 and sentenced to an effective 4 years with a recommendation after 15 months. Maynard was 38 and sentenced to an effective 4 years with a recommendation after 18 months. The respondents planned to rob a convenience store and prepared themselves by obtaining masks, gloves and in the case of Assenberg cutting down a cricket stump and Maynard obtaining a small cricket bat. The convenience store was closed on the night in question and they resolved to rob the adjoining shop. They waited until the owners commenced to clean up preparatory to closing and attracted their attention to the back of the shop thereby inducing them to open the back door. The 67 year old male owner was grabbed by the respondents and forced back into the shop. Assenberg put the cricket stump to the man's throat and Maynard, who had grabbed the wife, threatened to kill her if the owners did not hand over their money. Money was taken from the till, from the owner's wallet, and five packets of cigarettes were taken. The applicants were apprehended a short time afterwards with the money. They made full admissions and pleaded guilty on ex officio indictments. They maintained joint responsibility for the decision to carry out the robbery. A month previously the respondents had committed other stealing and unlawful use of a motor vehicle offences. They were sentenced for those offences prior to the robbery and were ordered to perform community service and placed on probation. Shortly afterwards they committed several offences of breaking and entering and stealing and wilful damage for which they were released on bail. Accordingly both respondents were on probation and bail when they committed these offences. They also had a number of previous convictions but no terms of imprisonment had been imposed. They had been sentenced to terms of imprisonment in respect of the second series of offences for which they were on bail when they committed the subject offences. The Court considered the schedule of sentences annexed to Bainbridge and commented that the reason for the apparent leniency extended to such youthful offenders was obvious: the probability of their rehabilitation was generally much higher than that of more mature offenders. The Court doubted Assenberg's prospects of rehabilitation but did not interfere with the sentence imposed. In the case of Maynard bearing in mind the nature of the offence, particularly the threatened violence, and the consequent effect on the complainants the Court thought that an appropriate element of deterrence was necessary, set aside the sentence imposed below and imposed a sentence of 6 years' imprisonment with a recommendation for parole after serving 2 years.

Fleming CA No 4 of 1996 concerned one count of armed robbery in company, three of deprivation of liberty and one of unlawful use of a motor vehicle with a circumstance of aggravation. The applicant was 25 years of age and was sentenced to 7 years' imprisonment with a recommendation for parole after serving 28 months for the armed robbery. He had a substantial criminal history involving a number of offences of dishonesty and had been sentenced to terms of imprisonment. The robbery was planned and the applicant was its instigator. He enlisted two other younger men aged 19 and 18 as accomplices. He provided a stolen car, a sawn-off shotgun and a radio scanner with which he was able to track police movements. At about 1.00am on the night in question the applicant and one of the other co- offenders entered a pizza shop at Mount Gravatt. The applicant carried the shotgun and his co- offender a knife. The other offender waited in the car. The three occupants of the shop were menaced by the applicant and eventually shut in the cold room. The applicant's gun was unloaded but the victims did not know that. The applicant and his co-offender were disguised by balaclavas. The applicant was apprehended when the police executed a search warrant and he made admissions. The sole ground of appeal was the disparity in sentence between the applicant and his co-accused which the Court held was justified. Davies JA commented that the sentence of 7 years was high for a first offence of armed robbery but not outside the appropriate range given the seriousness of the offence and the planning involved. The recommendation for parole was described as a generous one.

In Amery CA No 299 of 1990 the applicant, aged 29 years pleaded guilty to the offence of stealing with actual violence whilst armed with an offensive weapon in company and driving a motor vehicle dangerously. He was sentenced to 6 years' imprisonment cumulative upon a term already being served for armed robbery. At about 2.00am the applicant and his co-offender wearing balaclavas entered a shop whilst the owner and an employee were wrapping newspapers. The applicant carried a piece of wood and told the proprietor to open the safe which he did. The co-accused removed money and took some casket tickets as well as money from the till. The applicant tied the owner's and female employee's hands with masking tape. The co- accused ripped the telephone line from the wall. The victims managed to free themselves and call the police and a chase involving speeds of 140 kph took place. The applicant surrendered himself to the police when the vehicle became bogged. Most of the $3,100 stolen from the newsagency was recovered and the applicant admitted involvement in the offences. He cooperated fully with the police and made an early plea of guilty. He had a serious criminal history involving several offences of stealing with actual violence whilst armed with a dangerous weapon and had received terms of imprisonment. A lesser sentence was imposed than might have been the case because it was to be cumulative on an existing term.

The matter of McKeown CA No 49 of 1993 concerned a young man of 19 with an extensive previous criminal history including assaults and stealing who was charged with ten offences of breaking and entering and stealing, one of breaking and entering with intent and armed robbery in company. He was sentenced to 6 years' imprisonment with no recommendation for parole. The stealing offences involved some $20,000 by way of stolen property and damage to premises. The applicant and his co-offenders robbed a video store at Graceville. They used disguises and threatened with a gun. No one was injured. They took about $1,000. The Court took into account the applicant's potential and rehabilitation and recommended parole after 2 years.

Kassulke CA No 325 of 1994 had features of serious personality dysfunction which made his personal circumstances appear singular. It was not considered relevant to sentence. He was sentenced to 10 years' imprisonment for six armed robberies, four of which were committed in company and one involved the discharge of a firearm which wounded the victim in his own home. Pincus JA would have allowed the appeal and reduced the head sentence from 10 to 8 years with a recommendation for parole after 3 years while McPherson JA and Lee J allowed the appeal to the extent only of reducing from 3½ to 3 years the period after which the applicant should be considered eligible for parole. The applicant was 17 and had a pathological interest in firearms. In all of the robberies loaded guns were used. The applicant and two of his friends disguised by a balaclava and masks and carrying rifles threatened a man in his home whom the applicant had seen previously about buying a pistol. The applicant fired a shot at the man when he moved and he suffered a slight injury. The man was tied up and the three offenders stole the pistol and other weapons and equipment. Another robbery related to a pizza hut. The applicant wore a balaclava and carried a loaded pistol. He threatened an employee with the gun and took $1,000. Another robbery was very similar and a fourth involved a video store when the applicant was not disguised but was armed with a loaded pistol. The fifth robbery involved a faked robbery at a service station where the applicant was employed. Another concerned an armed robbery at a Chinese restaurant where the applicant and his co-offender were disguised and armed with pistols. There were a number of patrons in the restaurant at the time and the proprietor had complained of health problems since the robbery. The Court had reference to the schedule attached to Bainbridge but did not interfere with the sentence.

Donohoe CA No 270 of 1992 concerned a 20 year old offender with a tendency to violent outbursts of rage. He pleaded guilty to a number of offences which occurred on two occasions, the first involved him running amock in a cafe to which he caused $2,400 damage and terrorised the customers and staff present. Whilst on bail for that offence he and a co-offender robbed a convenience store in the early hours of the morning. The incident was recorded on a store security camera. The co-offender distracted the shopkeeper, a 61 year old man, while the applicant hit him from behind knocking him down. The applicant, a powerfully built young man, ferociously pounded the head of the storekeeper about 20 times onto the ground. The injuries to the shopkeeper were serious both physically and psychologically. Most of the $310 taken from the store was recovered. The applicant was sentenced to 3 years for assault occasioning bodily harm and 8 years for robbery in company. No recommendation for parole was made. The co-offender who did not commit any of the violent actions and who had to be pressured into taking part in the escapade was sentenced to 5 years with a recommendation after serving 18 months. The court accepted that the applicant's conduct called for a far more substantial penalty than that of the co-offender. The Chief Justice described the episodes as chilling in the extent of the violence involved. The applicant had a previous relatively minor criminal history involving some unlawful damage to property and obscene language. He was on bail when he committed the armed robbery. The Court dismissed the application.

Another case was that of Voysey CA No 145 of 1992 (age not stated) who was convicted of one charge of armed robbery, two charges of unlawful use of a motor vehicle with a circumstance of aggravation and one charge of stealing. The applicant and his co-offender stole a car, went to a service station at Eagleby where the co-offender remained in the car. The applicant demanded money from the attendant producing a knife. The attendant handed over the till from the cash register and the applicant left in the motor vehicle. They were later apprehended and handed over to the police. Of the $1,389.70 stolen $1,091.62 was recovered. The applicant was sentenced to 5½ years' imprisonment with a recommendation for parole after 2 years with respect to the armed robbery and his co-offender to 3½years with a recommendation after 12 months. The application concerned the disparity in sentences which was not disturbed because there were clear distinguishing circumstances including that the applicant was on probation and had a number of previous convictions including stealing, breaking and entering and unlawful use of motor vehicle and was the planner of the offences.

In Dempsey CA No 261 of 1995 a 27 year old offender was sentenced to 6 years' imprisonment with a recommendation for parole after 2½ years for armed robbery and 3 years for breaking, entering and stealing committed a month previously. The applicant went to a service station at 2.00am armed with a kitchen knife. The attendant was 57 year old man who declined to give the applicant money. The applicant threatened to cut him up and eventually a sum of $235 was passed over the counter. He was apprehended soon after and made full admissions. Both offences were committed when the applicant was severely affected by alcohol although Davies JA stated that he did not accept that the influence of alcohol was relevant in any way as a discounting factor. The applicant had a minor criminal history which included two offences for dishonesty which resulted in fines. The court was referred to the case of Ilic CA delivered 16 March 1993 where a sentence of 7 years for armed robbery with parole after 2½ years was not disturbed. The circumstances, it was said, were more serious than in Dempsey. The weapons included a pistol, a sawn-off shotgun and a baton and involved actual violence. One staff member was struck on the forehead with a baton and rendered unconscious and there were threats to kill another. The applicant pleaded not guilty and presented a story which was regarded as plainly false and displayed no remorse. In Dempsey based upon the lack of serious criminal history, his age, his reasonable chance of rehabilitation, that he acted alone and without any serious planning or professional criminal intent and that it was not a particularly violent example of the crime, Davies JA and Thomas J allowed the appeal and substituted a sentence of 4 years with no recommendation for parole. Fryberg J would have dismissed the application.

Review

From a review of these sentences it can be seen that deterrence is a significant factor in sentencing for armed robbery. Service stations and small shops, particularly those which provide services at night to the public, are recognised as vulnerable to attack and the potential harm to the victims, psychologically in most cases, and physically in many, is said to justify a firm line in sentencing, e.g., Smith; Dunn; Bryant and Hargreaves; Lowe and Smith. The particular way in which the offence was committed obviously is the dominant factor in the level of sentence, involving such factors as degree of violence, harm done, property taken, professionalism, planning and degree of involvement in the action. Thereafter the mix of factors common to most if not all discretionary sentencing prevails.

Factors which will incline a court to a higher sentence will include extensive previous convictions particularly for offences of dishonesty and other robberies. Where personal violence to the victim occurs the sentence is often at what is described as the higher end of the range. The youth of the offender may be a factor which diminishes in its mitigatory effect as the number of previous offences increases. This is understandable as the reason for dealing more leniently with young offenders is the expectation that such persons have a greater chance of rehabilitation, Kassulke. Offences committed in company generally attract a higher maximum penalty legislatively as a circumstance of aggravation. In the armed robbery cases, with some exceptions, commission of the offence in company does not of itself seem to attract a higher sentence, although offences committed in company frequently result in a higher degree of personal violence to the victim in which case that factor aggravates the sentence. Multiple offences of armed robbery close in time may sometimes be seen as an aggravating factor, (Smith), while in others, the court may regard the multiple offences as a single spate of criminal activity, or a single manifestation of aberrant behaviour, (Teufel). Committing offences whilst on probation and/or bail tends to increase the sentence.

Recovery or payment of compensation for the proceeds of the robbery are regarded as mitigating factors in sentencing for armed robbery, Smith.

Addiction to drugs at the time of the offence is not an excuse, but may tell the court that the primary weakness of character is that of an addict rather than that of a robber. Such a factor tends to be mentioned along with an unfortunate family life as an explanation of the offender's descent into bad habits. When the original problem was not something for which the offender was responsible, it is natural to feel some sympathy for the offender though this must not obscure the offender's direct responsibility for the ultimate criminal act he or she chose to do.

Rehabilitation from addiction prior to sentence or responsible attempts in this direction will usually have a mitigatory effect on sentence.

Conclusion

When regard is had to the sentences imposed for multiple armed robberies in Smith (8 years), Barry (7 years) and Teufel (5 years) together with their particular aggravating circumstances - in the case of Smith his extensive previous criminal history and no mitigating factor of a plea of guilty; in the case of Barry the extensive previous convictions and the very bad violence to the victims; and in the case of Teufel his substantial previous convictions and some violence - the present sentence seems to be on the high side. The offences - two over two days in close proximity - should be seen simply as a short period of criminal conduct during which the offences were committed. When we consider the early plea, the restitution, the lack of personal violence to the victims, the past good work history, the prospects of rehabilitation, the absence of previous relevant convictions and the relative youth of the applicant we consider the sentences imposed as manifestly excessive. That is not to diminish in any way the learned sentencing judge's observations concerning the need for deterrence in sentencing for such offences and the recognition of the community's concern that such offences be properly punished. Offences where actual violence occurs to the victims are particularly serious, and where it is absent that ought to be reflected in the sentence.

Leave should be granted, and the appeal allowed. In lieu of the sentences imposed below for the armed robberies there will be a sentence of 5 years with a recommendation for release on parole after serving 2 years. The other sentences will not be disturbed.