R v Johnston; ex parte

[1998] QCA 144

COURT OF APPEAL

[1998] QCA 144

DAVIES JA
McPHERSON JA

MUIR J

CA No 6 of 1998
THE QUEEN
v.

TONY LAURENCE JOHNSTON	Respondent
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE
..DATE 17/04/98
170498 T7/RZB25 M/T COA79/98
DAVIES JA: This is an Attorney's appeal against a
sentence for armed robbery imposed in the District Court
at Southport on 10 December last year. The sentence was
one of two years imprisonment cumulative upon five years
already being served for doing grievous bodily harm with
intent to do grievous bodily harm.

The respondent, who was born on 11 November 1974 was 22 years of age at the date of commission of the armed robbery which was on 4 June 1997. He was 23 by the time he was sentenced on 10 December 1997. Although still young he had two serious prior criminal convictions. He was convicted in New South Wales of armed robbery on 17 March 1994. That was an armed robbery on the Summerland Credit Union at Kingscliff, New South Wales. Two men entered the institution wearing balaclavas. One of them, the respondent, pointed a pistol at two tellers, jumped over the counter and took some cash. Some threats were made and the offenders then escaped in a getaway car. The respondent later made admissions. He was sentenced to two years imprisonment with a minimum of 12 months. This appears to have been the respondent's first offence. It was committed when he was 18 years of age.

Then on 21 August last year he was sentenced to five years imprisonment on two counts of grievous bodily harm with intent to do grievous bodily harm. These offences were committed on 16 March 1996 and consequently the respondent was on bail in respect of those offences when 170498 T7/RZB25 M/T COA79/98

he committed the offences the subject of the present sentences. Unfortunately, we know no more about those grievous bodily harm offences than that which I have just stated. This poses considerable difficulty for this Court as it must have for the learned sentencing Judge in determining the overall criminality of those offences and the subject offences for the purpose of determining what was an overall sentence. I shall return to that difficulty a little later.

It is perhaps surprising, given the seriousness of those earlier offences, that he appears to have committed only two other prior offences, those of a very minor nature being of possession of utensils or pipes for which he was convicted but not punished and one of breach of bail.

The armed robbery the subject of the present appeal was on the Bank of Queensland at Palm Beach. The respondent's cousin entered the bank brandishing a pistol and stole $4,100. The respondent was the driver of the getaway car. The respondent was later identified.

The robbery had plainly involved planning and it may be reasonably inferred from some matters to which I will refer in a moment that the respondent was involved in that planning. The respondent had in his possession, as the police discovered, a radio scanner programmed to the police radio channels.

170498 T7/RZB25 M/T COA79/98
When first asked about the radio scanner he told the
police it was not working. That was a lie. It was
working. And, as I have mentioned, it was programmed to
the police radio channels. Indeed the only channels of
the scanner which were working were so programmed. It
may be reasonably inferred from this that the respondent
was involved in the planning of the robbery and in that

respect it involved some sophistication.

The respondent initially denied his involvement in the
offence and pleaded guilty only on the morning of his
trial. He refused to give evidence against his co-
offender. Despite his two previous serious offences,
the respondent's relative youth must still hold out
some, although one must think not great, promise of
rehabilitation. He should also be entitled to some
discount for his plea of guilty. However the lateness
of that plea and his refusal to give evidence against
his
co-offender substantially reduces that mitigatory

factor. Plainly he showed no remorse for his conduct.

As if often the case in armed robberies this one has had
a substantial psychological effect on at least one of
the victims, as the victim impact statement of that
victim shows. Moreover, as the learned sentencing Judge
pointed out, offences of this kind are prevalent on the
Gold Coast if not in other places as well. To that
should be added the fact that the offence was committed
170498 T7/RZB25 M/T COA79/98
whilst the respondent was on bail in respect of the two
counts of grievous bodily harm.

The learned sentencing Judge in imposing a sentence of two years cumulatively on the sentence of grievous bodily harm with intent said that he thought it was equivalent to a six year concurrent term for this offence. In fact it appears to be equivalent to a concurrent term of six years and nine months, or perhaps looking at it more appropriately as a total sentence of seven years for the totality of this offence and the grievous bodily harm offences imposed on 21 August 1997.

There are difficulties of course in imposing cumulative sentences, particularly upon young offenders because of the danger of the totality having such a crushing effect as to defeat or substantially diminish the offender's prospect of rehabilitation. In this case, as I have said, although the previous offences were serious, the respondent is still a young man and there may be still some reasonable prospect of his rehabilitation.

The overall sentence looked at as one of nine years
imprisonment for the totality of these offences imposed
on 21 August 1997 in my view is low indeed. Even
without knowledge of the nature of the offences of
grievous bodily harm with intent it does seem to me to
be that it must have been a very low sentence. However,
as I have already mentioned, his Honour and this Court
170498 T7/RZB25 M/T COA79/98
is substantially hampered by not knowing the facts with
respect to the offences of grievous bodily harm.

In those circumstances and having regard to the onus which the Attorney carries in appeals of this kind, although as I have said the sentence appears to me to be a very low one, I cannot be satisfied that it is one which is manifestly inadequate and consequently I would dismiss the appeal.

McPHERSON JA: While agreeing as I do with what has been said by Mr Justice Davies, my attitude to this matter can be stated summarily by saying that the sentencing process seems to me to have miscarried in some respect but that the material before us is not such as to enable this Court to correct the error on appeal.

I agree with the reasons of Mr Justice Davies for dismissing this appeal by the Attorney.

MUIR J: I agree with the reasons of Mr Justice Davies
and

Mr Justice McPherson and with the order proposed.

DAVIES JA: The order is as I have indicated.

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