R v M

[1998] QCA 467

[1998] QCA 467

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MUIR J

CA No 423 of 1997

THE QUEEN

v.

M  Applicant

BRISBANE

DATE 17/04/98

JUDGMENT

MUIR J: The applicant who seeks leave to appeal against sentence was convicted on 7 November 1997 on his own plea of guilty of armed robbery with personal violence. He was also dealt with for breach of an immediate release order made on 12 June 1997 by the Chief Judge of the District Court pursuant to s 176 of the Juvenile Justice Act.  That order was made consequent upon the Chief Judge sentencing the applicant to detention for two years in respect of a 27-count indictment which included five counts of breaking and entering a dwelling house with intent, counts of breaking into a place and committing wilful damage, one count of breaking and entering and a count or counts of stealing, counts of unlawful use of a motor vehicle and one count of entering a dwelling house with intent.

The applicant was ordered by the learned sentencing Judge to serve the two years detention which had been suspended.  He was sentenced to two and a half years imprisonment for the armed robbery.  Both sentences were ordered to be served concurrently.

The circumstances relating to the offence of armed robbery were as follows.  The applicant entered a service station at Acacia Ridge in the early hours of the morning of 18 July 1997, armed with a piece of timber.  He demanded money from the console operator.  He appeared to be under the influence of alcohol.  He struck the console operator over the back of the head with the piece of timber.  The complainant responded to the attack and the complainant and the applicant then wrestled.  The applicant asked for money again.  By this stage he appears to have settled down somewhat and he told the complainant to call the police.

The applicant then struck the till with his hand.  Another scuffle ensued and the complainant again was struck by the applicant with the piece of timber.  The complainant opened the till and the applicant took the sum of $195.  On leaving, he invited the applicant to as he put it, "Ring the coppers.  I don't care.  I'm not from this area."  The next day he handed himself in to the Acacia Ridge Police Station and admitted to committing the robbery.

The applicant has an extremely extensive criminal history commencing with a conviction on 15 January 1996 for stealing.  He had four further convictions in 1996, including convictions for wilful and unlawful damage to property in the night-time and unlawfully taking away shop goods.  On 12 June 1997 he was convicted in the Brisbane District Court on two charges of entering a dwelling house in the night-time with intent, of assault occasioning bodily harm whilst in company and of wilful and unlawful damage to property.  In respect of each offence the applicant was placed on probation for two years and ordered to serve 120 hours community service.  I should add that was in total.  No conviction was recorded.

There was also the 27 offences which I mentioned earlier and a further series of convictions in the Inala Children's Court on 23 June 1997 for breaking, entering and stealing and wilful and unlawful damage to property.

Some of the offences to which reference has been made involved what is now commonly called home invasion.  The applicant and another youth entered the complainant's house and commenced to assault him.  The excuse for the attack was that the complainant was said to have stolen the other attacker's girlfriend.  A third youth who had been invited into the house joined in the attack on the complainant.  After the assault, one of the youths spread barbecue sauce on the floor.  They then left but returned, resumed the assault and caused further damage to the house.

In my view, the sentences imposed on the applicant can hardly be said to be manifestly excessive.  The applicant committed the serious offence of armed robbery on 18 July 1997, a little more than one month after the making of the immediate release order.  One term of that order, of course, was that the applicant abstain from violations of the law.  Section 187 of the Juvenile Justices Act 1992 gives the Court the discretion, in the event of breach of an immediate release order, to reduce the period of detention in respect of which the order was made.

The material before the learned sentencing Judge, to put it at its highest to the applicant, showed that he had proved unco-operative with the authorities and of course there was a very limited time between the making of that order and the committing of the offences now before this Court.

His past extensive criminal history, including as it does crimes of violence, is also a matter required to be considered by the learned sentencing Judge.  The fact that the applicant not only pleaded guilty but surrendered himself to authorities and co-operated with them counts very strongly in his favour.  However, it is nevertheless a significant feature of the matters under consideration that having been given the benefit of an immediate release order and having been placed on probation in respect of numerous other offences including one involving invasion of a home and threats of violence to the occupants, the applicant again committed a serious crime of violence.

The learned sentencing Judge in imposing the sentences that he did, and in particular the two and a half year sentence, and by making it concurrent with the two year term, in my view made ample allowance for the mitigating circumstances such as the plea of guilty and the applicant surrendering himself to the police as well as the applicant's youth.  I would therefore refuse the application.

DAVIES JA:  I agree.

McPHERSON JA:  I also agree.

DAVIES JA:  The application is refused.