R v Hans

[1996] QCA 174

COURT OF APPEAL

[1996] QCA 174

PINCUS JA
DAVIES JA
McPHERSON JA

CA No 95 of 1996

THE QUEEN

v.

MARK LESTER HANS

BRISBANE

..DATE 17/05/96

ORDER

McPHERSON JA:  I will ask Mr Justice Pincus to give the first judgment in this matter. 

PINCUS JA:  This is an application for leave to appeal against sentence.  The applicant, 38 years of age and with no prior convictions, was sentenced to two years' imprisonment for a robbery.  The Judge ordered that he be considered for parole after having served six months.

The complainant is an elderly lady who was walking along in the course of doing some shopping when the applicant came up behind her, grabbed her by the shoulders, pushed her sideways and snatched her handbag.  The complainant held onto the handbag and was thereby dragged along.  When the strap of the handbag broke the applicant was able to relieve the complainant of it.  She ran after him calling out to him to give the bag back.  Perhaps in response to this, he ran onto the roadway and was struck by a vehicle, but, it appears, was not significantly injured.  People in the vicinity detained the applicant and restrained him.  While this was occurring, having initially struggled to avoid detention, the applicant apologised to the complainant, when she came along, saying he did not mean to hurt her.  The bag and its contents were of course recovered.

The complainant says that the incident aggravated a previously existing sore back and that she has been frightened by what happened.  When questioned by the police, the applicant told them that he took the bag because he needed money for his family.  On behalf of the applicant, the Judge was told below that the applicant had been trained as a photographer.  It was said that he had married in 1991 and had two-stepchildren as a result of that marriage.  Matters associated with the conduct of his wife's former husband caused some stress in the family.  Also, at the time the offence was committed, he had recent difficulties with his wife and that there had been a separation.  He had also lost his job.  The Judge was told that the family were destitute and he felt his situation was hopeless.  The Judge was also told that the applicant was extremely remorseful. 

The applicant has appeared before us today and has given us information which is roughly consistent with what was explained below.  So far as it matters, the applicant does not appear to be what one would ordinarily regard as a person of criminal tendencies.

Obviously, the case is at the lower end of the scale of robberies and there are mitigating circumstances, to which I have referred, consisting of the applicant's various personal difficulties, his prompt apology and subsequent remorse, his complete co-operation including a plea of guilty, and the fact that he had no previous convictions whatever. 

The applicant has obtained for us some recent decisions in the District Court of a comparable kind, that is, dealing with offenders who have snatched a bag or done something quite similar.  Some of them had previous convictions and some not.  But it seems clear enough from that collection that offenders who have no previous convictions and who have mitigating circumstances, as the applicant has, do not necessarily expect to have a custodial sentence for a first offence consisting in bag snatching. 

The view which I take of the matter is that the sentence imposed below, which was two years' imprisonment with a recommendation for parole after six months, was excessive, having regard to the particular circumstances of this case, which is down at the lower end of the scale of seriousness  of robberies.  I agree with the Judge's view that, even with respect to a person of unblemished character like the applicant, there is a need to deter, but it seems to me that the applicant, who was sentenced on 29 February 1996 and appears before us today, on 17 May 1996, has served sufficient time in prison.

Without necessarily reaching a conclusion as to the precise way in which I would have handled the matter if it had come before me in the first place, I would make the following orders: 

I would grant the application, allow the appeal, reduce the head sentence imposed from two years to one year;

I would make an order suspending the sentence instanter, that is today, with the intention that the applicant will be immediately released;

I would prescribe a period of one year as being the operative period, for the purposes of the suspended sentence which I have mentioned.

DAVIES JA:  I agree.

McPHERSON JA:  I agree also with the order that Mr Justice Pincus has proposed.  The orders will be as they were stated by Mr Justice Pincus in his reasons.

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