R v Johnson

[1998] QCA 377

COURT OF APPEAL

[1998] QCA 377

THOMAS JA
SHEPHERDSON J

JONES J

CA No 197 of 1998
THE QUEEN
v.

STEPHEN DENNIS JOHNSON Appellant

BRISBANE
..DATE 07/10/98
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THOMAS JA: This is an application for leave to appeal against
sentences imposed for armed robbery in company, unlawful use
of a motor vehicle, and unlawful use of a motor vehicle with a
circumstance of aggravation.

The effective sentence was one of six years' imprisonment imposed with respect to the armed robbery. The applicant was 32 years old at the time of the offence. He has a criminal history and appears to have been a regular offender in New South Wales, committing offences of dishonesty, drug-related offences, driving offences (some of them alcohol-related), street offences, and some offences of violence although not of a particularly serious level. He had not been sentenced to a great deal of imprisonment at least until 1996 when a number of custodial sentences were imposed upon him.

The grounds of appeal are that the sentence was manifestly excessive in that there was no recommendation for parole. It is also suggested that the learned sentencing Judge erred in inferring that the applicant was more involved in the planning of the offence than was opened. There is a further ground in the outline of the applicant to the effect that the applicant has a legitimate complaint as to parity of sentences, considering the sentences imposed upon co-offenders Hudson and Morris, and in oral argument, Mr Rafter also submitted that the sentence is not consistent with that imposed upon the

co-offender, Cork.

The circumstances are these. The armed robbery was committed on an ANZ Bank in Rockhampton. The applicant was the driver 071098 T4/SE15 M/T COA254/98

of a stolen vehicle which was driven to the ANZ Bank. The applicant's activities were as driver, he being assigned to that role or opting to take it because he was suffering from a broken leg at the time.

The offenders Hudson and Cork entered the bank dressed in track suits and their faces covered with stockings. One brandished a replica pistol and the other a hatchet. The staff were handed shopping bags and told to fill them with money. The offenders yelled at the staff and customers and threatened them with the weapons. The sum of $7,020 was taken.

The offenders then left the bank and entered the vehicle which was driven away by the applicant. An off-duty police officer pursued the offenders and observed them enter a second vehicle and they then drove off in that. That second vehicle was driven by the co-offender, Pauline Morris. The officer continued to follow the offenders and eventually stopped a marked police which took chase. The stolen vehicle then travelled at fairly high speeds and a number of vehicles were forced to take evasive action before the vehicle was stopped and the occupants detained.

The issues are in the end related to the question of parity. Mr Rafter concedes that the sentence was, on its face, within the appropriate range. His submission is that it is disparate with sentences imposed on the others involved. In order to consider that issue, some subsidiary questions need to be considered.

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The first of these is the question whether he was involved in
the planning. Now, before the sentencing Judge, counsel then
appearing for the applicant submitted that it was common
ground on all versions given by the prisoners that the three,
other than Hudson, only became aware of the ANZ robbery on the
day before. That is really a concession. Hudson accepted
principal responsibility as the driving force in this
enterprise but the evidence shows that there was a discussion
between the three men on the day before.

Obviously a deal of planning was involved, which may be inferred from the system that was involved which required two getaway vehicles. Not surprisingly, particularity of the discussions is lacking, however the evidence, as a whole, permits the inference drawn by the learned sentencing Judge, that this applicant was fully involved in the planning of the offence.

It follows that the applicant cannot be described, for example, as an offender who was induced to participate in an escapade already planned by others. This then enables some comparison to be made with the situation of the other offenders. Hudson was sentenced to eight and a half years' imprisonment. He, however, as well as being the principal driving force, was also sentenced for an earlier robbery of the Capricornia Credit Union, at which $6,080 was stolen. I do not see any disparity in the sentences imposed in relation to these two offenders.

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The co-offender, Pauline Morris, was 32 years of age. She
drove the second getaway vehicle and in that respect, her
criminality may be said to be somewhat similar to that of the
applicant. She, however, had no previous convictions. Courts
have always given considerable weight to such a factor. In
the event the learned sentencing Judge sentenced her to two
and a half years' imprisonment with a recommendation for
parole after ten months. If anything, she was perhaps more
heavily involved in preparatory steps in that she purchased
stockings and was involved in the stealing of one of the
vehicles and she was also convicted of the offence of
dangerous operation of a motor vehicle. However, when one
looks at the two cases, it is not surprising that she received
the sentence that she did. The absence of previous
convictions, I think, is an adequate reason for the imposition
of this reduced penalty. It would also seem from material
placed before the learned sentencing Judge that there were
some compassionate factors that the learned sentencing Judge
was entitled to take into account in her case. I therefore
see no disparity between these two sentences.

Finally, there is the sentence of six years' imprisonment imposed upon Cork. He was given the benefit of a recommendation for consideration of parole after two years. He had played a more central role in the robbery and was the person who entered the bank armed with a tomahawk. However, his criminal history does not appear to be particularly serious and this factor would have entitled the learned sentencing Judge to make the recommendation for parole and to take a slightly more lenient attitude towards such an offender 071098 T4/SE15 M/T COA254/98

than against someone with the criminal history of the applicant. Once again, I do not see any genuine disparity or cause for grievance on the part of the applicant in relation to that sentence.

I would also note that reduction of the applicant's sentence would alter the relativity overall with the other offenders and perhaps cause fresh grievances of the kind that have been aired in the present application.

For those reasons I would refuse the application.

SHEPHERDSON J: I agree with the order proposed by the learned presiding Judge and the reasons which he gives.

JONES J: I also agree with those reasons and the order proposed.

THOMAS JA: The order of the Court is application refused.

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