R v McGoldrick

[1994] QCA 43

IN THE COURT OF APPEAL [1994] QCA 043

SUPREME COURT OF QUEENSLAND

C.A. No. 326 of 1993.

Brisbane

[R v. McGoldrick]

T H E Q U E E N

v.

JASON ANTHONY McGOLDRICK

Applicant

______________________________________________________________

Macrossan C.J.

Pincus J.A. Davies J.A.

_______________________________________________________________
Judgment Delivered 17/03/94

Judgment of the Court

1.Application for leave to appeal against sentence granted and

appeal allowed.

2.In lieu of the sentence of 11 years imprisonment imposed by the primary judge in respect of the conviction of robbery (count 2), the applicant is sentenced to eight years imprisonment, commencing on 3 September 1993.
3.In lieu of the sentence of 11 years imprisonment imposed in respect of the conviction on count 4, which was in law a conviction of stealing only, a sentence of imprisonment of two years is imposed, commencing on 3 September 1993.
4.It is ordered that the applicant be eligible for parole three years after the date of commencement of all sentences imposed in the District Court on 3 September 1993 i.e. that he be eligible for parole on 3 September 1996.
5.In all other respects the orders of the primary judge are

confirmed.

CATCHWORDS:CRIMINAL LAW - practice and procedure - indictment - omission of element of offence of robbery s. 409 Criminal Code - whether convicted of robbery or stealing.

CRIMINAL LAW - sentence - armed robbery of a jewellery store - applicant long criminal history - first offence of robbery - whether sentence of 11 years excessive.
Counsel:R W Morgan for the applicant

J R Hunter for the respondent

Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the respondent

Hearing Date:8 November 1993

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered 17/03/94

The Court has before it an application for leave to appeal against sentence. On 3 September 1993 in the District Court the applicant had recorded against him convictions on five counts, two of which were described by the judge and treated as armed robbery counts. The judge imposed a sentence of imprisonment of 11 years in respect of each of those convictions, recommending that the applicant be eligible for parole after 4 years. Sentences of 4 years and 6 months imprisonment were imposed in respect of each of the other three counts, which were of unlawful use of a vehicle for the purpose of facilitating the commission of an indictable offence.

After the hearing of the application for leave to appeal
against sentence, it was noticed that one of the counts in the
indictment which was treated as charging robbery is defective;
it reads as follows:
"That on the Seventh day of April, 1993 at Paddington in

the state of Queensland, one Jason Anthony McGoldrick stole from an employee of one Australian Postal Corporation a sum of money namely $700.00 the property of the said Australian Postal Corporation

And at the time aforesaid the said Jason Anthony McGoldrick was armed with a dangerous weapon namely a rifle"

The definition of robbery in s. 409 of the Criminal Code is

as follows:
"Any person who steals anything, and, at or immediately

before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or to overcome resistance to its being stolen, is said to be guilty of robbery".

It will be noticed that the count makes no mention of the use or a threat to use actual violence so that an element of the definition has been omitted.

When this was noticed, the parties were invited to make further submissions, in writing. The respondent pointed out that although the applicant was arraigned in terms of the indictment, the prosecutor, when first mentioning the case before the judge below, described the indictment as containing "one count of armed robbery with a dangerous weapon in company and one count of armed robbery with a dangerous weapon"; the second description was intended to be applicable to the count in question. The respondent also pointed out that when the applicant was asked whether he had anything to say why sentence should not be passed upon him, pursuant to s. 648 of the Code, the relevant offence was described as "armed robbery with a dangerous weapon". It was said that therefore the applicant was well aware of the allegations against him in respect of the relevant count. The respondent also contended that the indictment sufficiently alleges armed robbery; the basis of that submission appears to be that a threat of actual violence is implied by the allegation that the applicant was armed with a rifle at the relevant time. That was not the reason for the allegation, which was made as a circumstance of aggravation under s. 411 of the Code.

The count does not follow the form, number 243 in the schedule to the Criminal Practice Rules of 1900, but that would be of no consequence if it sufficiently alleged robbery. The question whether it does so is one which should be answered with the help of the High Court's decision in John L. Proprietary Limited v. Attorney-General (1987) 163 C.L.R. 508. There, a charge was laid by information, under a statute which made it an offence to publish a statement which was intended, or apparently intended, for a certain purpose stated in the statute and "is to his knowledge false or misleading in any material particular". The information set out the content of the statement complained of, alleged the requisite purpose and said that the statement was to the appellant's knowledge false or misleading in a material particular.

What it did not do was to identify the material particular which was false or misleading. Brennan and Toohey JJ held that particulars should have been ordered, but that the information was not incurably bad (531, 543). The majority held the information bad:

"One can point to statements of authority which lend support for the view that [The Justices Act 1902] did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence...the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.

...

As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the 'material particular' in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental." (519-521)

It will be noted that the defect in the John L case was of a different kind from that in the present case; there, the information alleged the existence of the relevant element of the offence, but it did not go further and say what that element consisted in. Here, the defect is more basic: stealing is alleged, but not the necessary element of actual violence or the threat of actual violence, let alone any specification of the character of the violence or threat of violence.

The John L. case was considered by the New South Wales Court of Criminal Appeal in Mai (1991) 26 N.S.W.L.R. 371. The judgment in that case treated as applicable to indictments the principle stated in John L: see 377, 378; we agree with that view. In our opinion the count here in question did not constitute a charge of robbery and the defect in it was not cured by the oral misdescriptions of it during the hearing, nor by the circumstance that there was an allegation that the applicant was armed with a dangerous weapon. As to the last point, we note that there was a similar allegation - of being armed with a dangerous weapon - in another count, properly framed as one of robbery, which was before the Court at the same time. But there, actual violence was alleged in the count; it appears from the record likely that the "actual violence" consisted in overturning a display counter. With respect to the count with which we are concerned, one would simply have to guess whether the element of violence which robbery requires was alleged to be constituted by violence actually used or merely threatened, and that uncertainty would not be resolved by the allegation that the applicant was armed with a dangerous weapon.

We were referred to authority in favour of the proposition that an indictment cannot be amended after verdict and conviction: Lewis (1992) 63 A. Crim R. 18 at p. 27. But it is unnecessary to discuss that because no application for amendment is made by the respondent. We are simply asked, in effect, to read the indictment as sufficiently alleging robbery. We hold that it fails to do so. All that is alleged is stealing, and that was what the applicant was convicted of under the relevant count. The maximum penalty for the offence as charged is 3 years, for none of the circumstances of aggravation mentioned in s. 398 is charged: s. 564; see as to the effect of s. 564 de Simoni (1981) 147 C.L.R. 383. There, Gibbs CJ said, construing the corresponding provision of the Western Australian Criminal Code:

"...a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence". (389)

His Honour's interpretation was agreed in by Mason and Murphy JJ (395). The point in de Simoni's case was that in the course of a robbery de Simoni wounded his victim; the issue was whether the wounding was properly treated as a matter for which de Simoni could be punished and the answer was in the negative. Although de Simoni was charged with having stolen from his victim with actual violence, there was no allegation in the indictment that he wounded his victim and used personal violence to her. They were circumstances of aggravation under s. 582 of the Western Australian Code, corresponding to s. 411 of ours. We refer also to Boney [1986] 1 Qd.R. 190.

It should be added that the written submission of counsel for the applicant included a contention to the effect that the provisions of the Criminal Code have no application to the offence at the Post Office, on the ground that, despite relevant statutory changes, the decision in Kelly v. Shanahan, ex parte Shanahan [1975] Qd.R. 215 applies to the case. The difficulty about that submission is that there is no appeal against the conviction on the relevant count, nor any application to extend the time to appeal. We have been able, and indeed obliged, to determine the legal effect of the conviction on the relevant count - namely, that it is a conviction of stealing; but there being no appeal against the conviction we have no power to set it aside.

We think that the matter to which we have referred obliges the Court to reconsider the applicant's sentence in respect of the robbery of which he was convicted.

The applicant was born on 9 April 1969 and so was 23 years of age when he committed the robbery and the other four offences in question. He had a substantial criminal history beginning at the age of 11, including numerous offences of dishonesty of various kinds: stealing, breaking entering and stealing, illegally using a vehicle, and attempted stealing; there were some drug offences, but no offence of robbery, in the record. As for violence, there was an assault at the age of 15.

It is desirable to analyse the record more closely from the
date (9 April 1987) when the applicant attained the age of 18.
In brief summary, one finds:
1987 Possession of cannabis leaf 7 days
1988 Break enter and steal 5 years
Attempt to dispose of stolen property
Stealing motor vehicle
1989 Malicious damage $1,000 fine
1992 Break enter and steal 6 months

As to the last entry, the punishment imposed is not very clear from the record, but appears to have been 6 months as we have stated.

The robbery in question here, that committed in December 1992, was of a jewellery store at 223 George Street, Brisbane. Two people arrived in Burnett Lane on a motor cycle and then entered the shop with faces concealed by helmets. One waved a small gun and said it was a hold-up; those in the shop were made to lie on the floor. A person other than the one holding the gun jumped the counter, knocking over a display counter and then grabbed jewellery which was apparently placed in a knapsack. The two men left on the motor cycle, which was abandoned at West End. $30,000 worth of jewellery was taken. When questioned, the applicant was initially unco-operative and tried to escape, but subsequently was partially co-operative, admitting his own involvement but not that of any other person.

One sequel to the robbery was that two of the store's staff resigned as a result of it, and at the date of sentencing (8 months after the robbery) one was under psychiatric care and the other under medical, but not psychiatric, care as a result of the robbery.

What was charged as the second robbery was an offence at the Post Office at Paddington. The allegations made orally were sufficient to support a charge of robbery accompanied by a circumstance of aggravation, namely, being armed with a dangerous weapon. But the offence must, for the reason we have mentioned, be treated as simple stealing.

Counsel for the applicant told the judge that the pistol used in the jewellery robbery was a replica and asserted that at the time of the offences the applicant was addicted to heroin, his addiction having begun when he was 16. Counsel said that the educational standard of the applicant was low and that he had been made a ward of the State when he was 8 years of age. It was submitted that he was introduced to institutionalisation as a ward of the State and then graduated to other institutions for those who are delinquent and then criminal.

The principal question in the case now is the proper penalty for the sole robbery conviction. A weapon was used in such a way as to achieve the desired effect of terrifying people in order to induce compliance, but no violence was applied to any person, nor was any explicit verbal threat of violence made.

The count alleged the use of actual violence and that was presumably the knocking over of the display counter. The applicant was presented to the court and apparently sentenced on the basis that he was a man of disadvantaged background and that the robberies were induced, at least in substantial part, by heroin addiction. As we have said, his criminal history included no robberies, but one offence of violence - an assault at age 15.

At the request of the Court, counsel for the respondent produced after the hearing schedules showing recent sentences for armed robbery in the District Court in the range of 8 to 13 years; these are attached to these reasons. In some instances there is more detail as to the circumstances of the offence and the criminal history than in others, but the impression created is that 11 years would be a very heavy sentence for a first robbery conviction against a young man.

We were also given a number of appellate decisions and some emphasis was placed on Baragwanath (C.A. 371 of 1990, 27 March 1991) where a 24 year old applicant, convicted of armed robbery, was sentenced to 7 years imprisonment; he had been in custody for nearly 10 months. There were two men in company, loaded firearms were used and a substantial sum was taken. The applicant had a significant criminal record, for offences of theft and burglary, but there was a psychiatric report suggesting that his problem was at least partly due to the taking of excessive amounts of steroids. The court upheld the sentence, but recommended that the applicant be eligible for parole after having served two and a half years.

We propose to reduce the sentence imposed in respect of the sole robbery conviction (count number 2) to eight years, and to reduce the sentence imposed in respect of the conviction on count 4, which was a conviction of stealing, to two years. There will be a recommendation of eligibility for parole after 3 years and that will apply to all the sentences, including those imposed for unlawful use of a vehicle.

The orders will therefore be as follows:

1.Application for leave to appeal against sentence granted and

appeal allowed.

2.In lieu of the sentence of 11 years imprisonment imposed by the primary judge in respect of the conviction of robbery (count 2), the applicant is sentenced to eight years imprisonment, commencing on 3 September 1993.

3.In lieu of the sentence of 11 years imprisonment imposed in respect of the conviction on count 4, which was in law a conviction of stealing only, a sentence of imprisonment of two years is imposed, commencing on 3 September 1993.

4.It is ordered that the applicant be eligible for parole three years after the date of commencement of all sentences imposed in the District Court on 3 September 1993 - i.e. that he be eligible for parole on 3 September 1996.

5.In all other respects the orders of the primary judge are

confirmed.