R v Lund - [2000] QCA 85

[2000] QCA 85

COURT OF APPEAL

PINCUS JA
DAVIES JA
McPHERSON JA

CA No 386 of 1999

THE QUEEN

MARK ANDREW LUND Applicant

BRISBANE

DATE 17/03/2000

JUDGMENT

McPHERSON JA: The applicant was convicted on his plea of guilty in the District Court at Bowen of one count of armed robbery for which he was sentenced to six years imprisonment. In addition, a declaration was made that a serious violent offence had been committed. There was also a declaration in respect of time that the offender had spent in custody before sentencing, but that is of no moment in this application.

The circumstances of the offence are that on 4 May 1999 the applicant, together with a man called Jessop, carried out an armed robbery at a fish shop known as Something Fishy. Through having come to know a young woman employee of the shop, the applicant had become familiar with the staffing and procedures at the fish shop that was later the target of this robbery. It is not unimportant to notice that the information that he had was obtained in March 1999, which was about two months before the offence was committed.

Jessop, the co-offender, said that he met the applicant in Victoria, and that in April they travelled together to Airlie Beach. Once they were there, the applicant told Jessop of the fish shop describing it as an easy place to rob. On the day of the robbery Jessop took a bag with dark clothing in it, and both he and the applicant walked from the place where they were staying, which was Club Crocodile, to Airlie Beach.

Jessop said he would do the robbery and the applicant instructed him to put on the dark clothes, and gave him a cooler bag in which to store the money and a pair of scissors with which to menace the victims. The applicant also instructed Jessop to tell the people in the shop that he "meant business" and that he wanted their money. He directed Jessop to the back door, and, while the applicant acted as a lookout, Jessop entered the shop.

Jessop demanded and received $1,166 from the two young women working in the shop that night. He then left through the rear door. The applicant met him, and they decamped disposing of the clothing in some mangroves nearby. Jessop handed the money to the applicant and they returned to their room at Club Crocodile. Jessop a little while later went out to find a friend of his and, when he returned, the applicant had gone taking all the money with him.

Jessop initially denied his involvement in the robbery but, when confronted with evidence of his identity, he admitted that he had taken part in it. The applicant himself denied he had been involved, claiming that all he had done was to rob the robber. However, in the course of time he must have changed his mind because in the end he pleaded guilty on the morning…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lund

Details

AGLC: R v Lund [2000] QCA 85
Case: [2000] QCA 85
Decision Date: 17/03/2000

CaseChat Overview and Summary

In the case of R v Lund, the applicant, Mark Andrew Lund, was convicted of armed robbery in the District Court at Bowen and sentenced to six years imprisonment. The court was required to decide whether the sentence included a proper declaration that the offence constituted a serious violent offence under the Penalties and Sentences Act 1992. The applicant argued that the declaration was not warranted by the nature of the offence or his criminal history. The court examined the circumstances of the offence, the applicant's criminal history, and the impact on the victims to determine whether the declaration was justified.

The Court of Appeal found that the offence, while serious, did not possess any special features that set it apart from other robberies of a similar nature. The court noted that the applicant had a substantial criminal history, including multiple convictions for robbery, but there had been a significant gap in time between his previous offences and the current one. The court also considered the impact on the victims, which, while significant, did not warrant a declaration under the Act. The Court concluded that the declaration was not justified by the nature of the offence or the applicant's criminal history and allowed the appeal to the extent of deleting the declaration.

The court ordered that the declaration that the offence constituted a serious violent offence be deleted, and the sentence otherwise confirmed. The judges found that the gap in time between the applicant's previous serious offences and the current offence, along with the nature of the current offence, did not warrant the declaration under the Penalties and Sentences Act.

Orders