R v Kitching

[2003] QCA 539

SUPREME COURT OF QUEENSLAND

CITATION:	R v Kitching [2003] QCA 539
PARTIES:	R v KITCHING, Jason Peter (applicant)
FILE NO:	CA No 310 of 2003 DC No 1820 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	3 December 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	3 December 2003
JUDGES:	McMurdo P, Davies JA and Chesterman J Separate reasons for judgment of each member of the court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON - PROPERTY OFFENCE – whether sentence was manifestly excessive – whether mitigating factors were given adequate weight - where punishment imposed upon applicant was less than that imposed upon co-accused
R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999 R v Mather [1999] QCA 226; CA No 76 of 1999, 17 June 1999 R v Vanderwerff [1999] QCA 169; CA No 479 of 1998, 14 May 1999
COUNSEL:	A J Kimmins for the applicant D Meredith for the respondent
SOLICITORS:	Bell Miller for the applicant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: Justice Chesterman will deliver his reasons first.

CHESTERMAN J: On 22nd of August last, the applicant pleaded guilty to an ex officio indictment which charged him with armed robbery. He was sentenced to three and a-half years' imprisonment, to be suspended after serving nine months. He complains that the sentence is manifestly excessive.

The offence was committed on 12 August 2002. The applicant had been jointly accused with one Matthew Steven Martin, who also pleaded guilty to armed robbery, and was sentenced to four years' imprisonment, to be suspended after serving 12 months.

The robbery occurred at the Salisbury Hotel, where Martin worked as a barman. He and the applicant had discussed robbing the hotel on two or three occasions before actually putting the idea into action. Martin was a gambler, and had acquired a substantial debt. That was his motive for planning the robbery. He was slightly younger than the applicant, but more intelligent and energetic.

At about midnight, two of the hotel's employees, a young woman and a slightly older man, were alone in the office counting the day's takings. The doors had been locked, but Martin used his knowledge of the premises to enter through an air- conditioning unit. He was dressed in several layers of clothing to disguise his body shape. He wore a balaclava, and was armed with a kitchen knife having a blade about 15 centimetres long.

He demanded the money from the employees. He altered his voice to avoid recognition. The female employee was terrified. She dropped the till she was carrying. Martin demanded that the…