R v Harper

[2000] QCA 83

[R v Harper]
  [2000] QCA 83
COURT OF APPEAL

PINCUS JA
McPHERSON JA
DAVIES JA

CA No 421 of 1999

THE QUEEN

v.

JOSHUA LEE HARPER  (Applicant)

BRISBANE

..DATE 17/03/2000

JUDGMENT

PINCUS JA:  The applicant, Mr Harper, applies for leave to appeal against sentence.  At the age of 17 he committed a number of offences, including an armed robbery in October 1999.  There were six other offences, in May, July and August, consisting of dishonesty getting small sums of money, stealing, entering and stealing, and two wilful damage offences. 

The armed robbery secured a small sum, $205.  It was executed by the applicant one evening at a service station.  The co-operation of the female console operator, a 21 year old person, was encouraged by threatening her with a knife.

The applicant's previous history consisted of offences of stealing, unlawful use of a motor vehicle, and breaking and entering.  For these offences, on 16 March 1999, some two and a half months before the offences in question here, he was given probation and community service.  He did not carry out the latter satisfactorily.  His probation ceased on
6 August 1999 (before the armed robbery) because of breach and he was fined $750 on resentencing.

During the course of the Judge's sentencing remarks in this case, his Honour said, erroneously, that the applicant was on probation at the time of the offences.  In fact, probation ceased in the circumstances I have mentioned after the first four offences were committed. The Judge also said that in respect of some of the offences and particularly the armed robbery the applicant was on bail and that was correct. 

It does not appear to me in those circumstances that the error made about probation is of any great significance.

In favour of the applicant, a matter emphasised by
Mr Moynihan on his behalf is his youth.  There is also the fact that he co-operated with the authorities.  However, his co-operation had its limits.  He first told the police that on the night in question - that is, the night of the armed robbery - he was at his flat all day and night and never left.  On 4 November he handed himself in on other matters and during an interview made full admissions.

The case is one in which the applicant says he was affected by amphetamines, marijuana, and alcohol at the relevant time.  As I understand the argument advanced for the applicant, the fact that he was, as he asserted, affected by these drugs might have reduced the sentence.  It does not appear to me that this is so.  It is said in Rosenberger [1995] 1 QdR 677 on the basis of authorities mentioned in the reasons that generally an offender should not have a reduction in sentence on the ground of drunkenness at the time of the offence.

The same general rule (of course, not a universal rule) appears to me to apply to ingestion of drugs.  It was not submitted on behalf of the applicant that he was addicted at the time.  It does not appear to me that that is demonstrated and, therefore, it is unnecessary to consider its effect if it had been demonstrated.

In the present case it does not appear to me that the fact that the armed robbery was committed under the influence of alcohol, amphetamine and marijuana (if it was so) should reduce the sentence that would otherwise have been imposed.

Mr Callaghan has referred us to the circumstance that prior to 1 July 1997 it was very common for at least first offenders of about this age not to be incarcerated for an armed robbery, and that appears to me to be correct.  That was applied even to persons who were not first offenders, commonly enough.

However, we now have the cases of Moss CA No 270 of 1999,
8 October 1999, and De Villiers which is CA No 165 of 1999, 7 October 1999, each of which deals with an offender of similar age:  one of 17 and one of 18 years.  In each case, the application for leave to appeal against sentence was allowed and the Court itself fixed the sentence.

In the case of Moss, the sentence was reduced from six years to five years, and in the case of De Villiers it was initially eight years and it came down to six years, with a recommendation for parole after two and a half years.  It is said, accurately, by Mr Callaghan that the less serious of these two cases, which is the case of Moss, is substantially worse than the present case.  It is also very clear that
De Villiers is, again, a significantly worse case than Moss.
The question which has troubled me is whether having regard to the decision of the Court in Moss, and not ignoring that in De Villiers, it can be said that a three year sentence with  no recommendation for parole in the present case is excessive. 

In the principal judgment in Moss, it was said that a range for a first offence of this kind would ordinarily be between about three and five years.  The word "ordinarily" should be emphasised, in that it indicates clearly that there can be of course special cases in which a sentence as high as three years would not be just. 

However, I see nothing in particular to take this case out of that range.  It is true that the previous criminal record was not particularly bad, but there was a previous record, and against the applicant there is the fact that there was a series of these offences, with intervention by the police and a sentencing during the period shortly before the armed robbery was committed.  None of this had the slightest influence upon Harper's conduct; he shows some signs of working towards the status of incorrigibility, although a young man.

I have been unable to persuade myself that the Court would be justified in holding the sentence of three years which was imposed upon Mr Harper to be manifestly excessive and I would therefore refuse the application.

McPHERSON JA:  I agree.

DAVIES JA:  I agree.

PINCUS JA:  The application is refused.

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