R v Johnston

[1998] QCA 469

COURT OF APPEAL

[1998] QCA 469

de JERSEY CJ
McPHERSON JA
CHESTERMAN J

CA No 301 of 1998

THE QUEEN

v.

RORY DEAN JOHNSTON  Applicant

BRISBANE

..DATE 03/12/98

JUDGMENT

McPHERSON JA:  The applicant was convicted in the District Court on pleas of guilty to charges of unlawful use of a motor vehicle with a circumstance of aggravation, namely that it was used for the purpose of facilitating the commission of an indictable offence and of armed robbery in company.

He was sentenced to three years imprisonment for the unlawful use of a motor vehicle and six years imprisonment for the robbery offence.  He was recommended to be considered for release on parole on 12 March 2001.  These sentences were to be served cumulatively upon the sentences he is currently serving, that is a sentence of 12 months imprisonment imposed on 7 October 1997 in the Magistrates Court and a sentence of four years imprisonment imposed on 12 September 1997 in the District Court.  The current sentences extend the head sentence by six years and the non-parole period by two years.

The applicant was 17 years old at the time of the current offences and 18 at the time of sentencing.  The circumstances of the offences were that they occurred when the applicant and two co-offenders stole a locked car from outside a block of home units.  This was the vehicle later used in the robbery of a restaurant.  The applicant and a co-accused entered the restaurant where the applicant threatened the staff with a loaded firearm while his co-accused removed the tray from the till together with its contents of some $270.  The rifle was discharged in the course of the robbery, but not in the direction of the staff.  The applicant then escaped with his companions in the stolen vehicle which was being driven by the second co-accused.
The plea of guilty to these offences came only about a week after the trial had been listed for hearing.  The applicant now seeks leave to appeal against his sentence on the ground that, essentially, it is manifestly excessive as ignoring the totality principle.  His counsel has itemised a number of personal mitigating circumstances, which it was submitted should have been taken into account in imposing the sentence.  His youth is one of those put forward in a prominent way.  The applicant, it may be added, was raised by his mother and to some extent his grandmother, and had had no contact with his father after his parents separated while he was still at primary school.  He has been in and out of youth detention centres since he committed his first offence at the age of 14.  He has been using illegal drugs since he was 13 years old, progressing from marijuana to amphetamines and then on to heroin, which by age 17 he was often injecting as frequently as twice a day. 

The applicant draws attention to the fact that the robbery was committed to get money for heroin and points out that this was his first offence involving violence and that no-one was actually injured in the robbery. 

He submits that the current sentences should have been imposed concurrently with the sentences he was already serving.  To do otherwise, it is said, would offend the totality principle.  The offences for which all the sentences were imposed occurred over an eight month period and culminated in the armed robbery.  If the sentences were to be served cumulatively, the applicant submits that the head sentence for the offence of armed robbery should be reduced to take into account the totality requirement.  He submits that a total sentence of eight years dating from 12 September 1997 would be more appropriate together with a non-parole period of up to perhaps two and a half years. 

It is no exaggeration to describe the applicant's criminal history as most extensive for his age.  He has numerous prior convictions for unlawful use of motor vehicles, breaking and entering and stealing, and so on.  It may be helpful, however, to set out precisely the circumstances or dates of the offences with respect to which the present submission of the totality principle is made.

In the first place, on 12 September 1997 the applicant was dealt with in the District Court for offences of dishonesty.  He was sentenced to four years imprisonment on that occasion with a parole recommendation after serving 18 months. 

That would have produced a parole eligibility date of
12 March 1999.  The offences in question in that instance were committed between 1 January 1997 and, so far as I can see, 22 May 1997; but it might have been a little later that the last offence was committed. 

They consisted of some 17 break and entering offences, 14 related offences of stealing, one of wilful damage and five of unlawful use of a motor vehicle.  Then on 7 October 1997, the applicant came before the Magistrates Court on a further series of three break and enter offences and 10 wilful damage

offences committed between 2 July 1997 and 27 July 1997.  He was sentenced on that occasion to an effective term of imprisonment of 12 months to be served concurrently with the four year sentence previously imposed on 12 September.  The consequence was that his effective head sentence remained at four years and the parole period at 18 months with the previous parole eligibility date remaining at 12 March 1999.

It was in these circumstances that the applicant came before the District Court on the subject charges now under appeal before us.  He was sentenced on 14 August 1998 to three years imprisonment for the unlawful use offence, together with its circumstance of aggravation, and as I have said to six years imprisonment for the armed robbery.  Those offences were committed on 29 July 1997, which was before the appearance in the District Court on 12 September 1997, or in the Magistrates Court on 7 October 1997; but it is the fact that the subject offences were committed two days after the last of the offences that were dealt with by the courts on those two occasions. 

The learned District Court judge ordered that the sentences of three and six years be served concurrently, but he also ordered that they be cumulative on the four year sentence to which I've already referred. Because of the requirements of s.157 of the Penalties and Sentences Act1992 the District Court judge also ordered that the parole eligibility date be extended by two years to 12 March 2001. 

The upshot, therefore, was a total head sentence of 10 years (though one that dated from September 1997 and not from the date on which it was imposed in this instance) for all three sets of offences, with the recommendation already mentioned of eligibility for parole three and a half years after the first set of sentences imposed on 12 September 1997.

Some of the factors to be taken into account in mitigation have already been mentioned, including his youth at the time of the offence, the difficulties associated with his childhood upbringing and the fact, for what it may be worth, that the offences were committed in order to obtain funds to enable him to satisfy his heroin addiction.  It should not be left out of account that he pleaded guilty to the subject offences but the plea came fairly late.

Against him are the facts that he is said to have been on parole and on bail at the time the subject offences were committed and that they involved use of a loaded firearm which was discharged in a restaurant in which people were present.  One of them has, according to his victim impact statement, suffered quite severely as a result.  He was the manager of the restaurant, which is something he said he had until then loved doing.  Now he never wants to see a restaurant again.  He says his career has been ruined and his entire life affected.  He now finds it difficult to communicate with his family and is reluctant to go out of his house.  His statement is dated 14 October 1998, so he was speaking or writing at roughly the time of sentencing, which was a year or more after the offence.

When these matters are considered it does not seem to me that a sentence of imprisonment for six years was beyond range, nor indeed do I regard the sentence of three years for the offence of unlawful use coupled with the circumstance of aggravation I have mentioned as being beyond the range.  Indeed, counsel for the defence in the court below seems to have been prepared to accept that imprisonment for five or six years was not an inappropriate sentence when viewed in isolation. 

When all the applicant's various offences are brought into account together, it does not seem to me to be possible to say that a total head sentence of 10 years dating from 12 September 1997 is severe.  Bearing in mind the totality principle, I might myself have been prepared to impose a somewhat lower sentence for the armed robbery but merely as a head sentence. 

I cannot see any justification in the circumstances for altering the sentence itself or for reducing or accelerating the date at which the applicant will become eligible for parole.

In all the circumstances, I would therefore refuse the application, as well as the application to amend the application for leave by including in it an appeal against the sentence of three years imposed in respect of the offence of unlawful use of a motor vehicle.

THE CHIEF JUSTICE:  I agree. 

CHESTERMAN J:  I agree.

THE CHIEF JUSTICE:  The orders are as indicated by Mr Justice McPherson.

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