R v McQueen

[1992] QCA 79

COURT OF APPEAL             [1992] QCA 079

PINCUS JA
DAVIES JA
SHEPHERDSON J

CA No 322 of 1991

THE QUEEN

and

ALLEN DAVID McQUEEN

(Appellant)

BRISBANE

... DATE 26/3/92

JUDGMENT

JUDGMENT

PINCUS JA:  The applicant, Mr McQueen, seeks leave to appeal against sentence.

The applicant was convicted in the District Court at Brisbane before Acting Judge Forde in September last year on a charge of armed robbery whilst in company.  The offence, which was admitted, was one which took place in October 1990.  The circumstances were that the applicant did not himself directly participate in the offence, but he was deemed to be a principal offender because of the help which he gave - the supply of shelter, clothing and a car.

The applicant has come before us today and said - and it does not seem to be in dispute - that he obtained no financial benefit from the offence; he says he committed it out of a sense of obligation to a principal offender who was apparently regarded as somebody for whom the applicant would do anything.  The robbery in question was what might be described as one of an ordinary kind, that is, the offence was accompanied by the prospect of harm to persons in the vicinity; it was a bank which was robbed; people were forced to lie on the floor and, according to the Judge's view of the matter, one person who stood his ground ran a risk of being shot.

In advancing his application for leave to appeal, the applicant relies in part upon the sentence imposed upon a principal offender, Wilson Francis Speedy, who was convicted before Judge Howell in relation to this and three other armed robberies on 23 November 1990 and was sentenced to 12 years with a recommendation for parole after 40 months.  Speedy was also sentenced in relation to eight break-and-enter offences, in respect of which he had been granted a probation order.  The suggestion which the applicant makes is chiefly that the sentence imposed on him, which was five years, was too harsh, because it involves his being released from prison at a late date compared with Speedy.  He contends, I think, that the unfairness is that no recommendation for parole is made.

The applicant is a person who is 24 years of age and the Judge seems to have taken into account his criminal history, which is rather impressive, in the sense that there is much of it.  Up until the age of 17, an age which the applicant attained on 12 July 1984, he had committed one offence of breaking and entering and a couple of minor offences.  The subsequent history seems to have been fairly consistent each year: from 1984 to 1990, one finds a number of offences in each year and examples should be given.

The applicant was convicted and sentenced to nine months' imprisonment for breaking and entering and stealing in 1986.  In February 1986 he was given a sentence of imprisonment for attempting to escape from lawful custody.  In 1987 he was convicted of a number of offences, including breaking, entering and stealing, wilfully and unlawfully damaging property and attempted stealing and was, again, imprisoned.  In 1988 he was imprisoned on a charge of aggravated assault on a female; then again imprisoned on a charge of stealing and again imprisoned on a charge of assault occasioning bodily harm and again imprisoned on a charge of unlawful use of a motor vehicle.  He was also imprisoned on a charge of assaulting a correctional officer.  It is perhaps unnecessary to go further, other than to say that this pattern of behaviour seems to have been consistent ever since the age of 17.

The applicant says that, as I understand him, his trouble is partly due to excessive use of alcohol.

The assistance which the applicant gave towards the commission of the armed robbery may have been gratuitous but, nevertheless, it was effective.  In particular, a car was loaned which was used in the robbery and the applicant does not deny his part in it; he simply says it was done, in effect, out of the goodness of his heart.

The Judge was told - and it is undoubtedly correct - that these sorts of robberies are prevalent and need to be vigorously discouraged.

The circumstances attending the sentencing of Speedy can be gathered from the record and the remarks which Judge Howell made.  It appears that His Honour was substantially influenced by what he regarded as a considerable degree of cooperation on the part of Speedy.  However, that may be, he thought the peculiar circumstances were such as to make what might otherwise have been thought to be a rather generous recommendation for parole, after 40 months.

Having given the matter consideration, it is my opinion that in the present  case the learned Acting District Court Judge has not been shown to have erred.  It does not appear to me that there is any error shown by way of misapprehension of fact or misapplication of principle; more importantly, it could not be said that the sentence of five years is outside a reasonable range; indeed, it seems to me to be clearly within it.  As to the absence of a recommendation for parole, one might have questioned that were it not for the long and unenviable record of the applicant's criminal history.

In the circumstances I have come to the conclusion that the application should fail and I would refuse it.

DAVIES JA:  I agree.

SHEPHERDSON J:  I agree.

PINCUS JA:  The order of the Court will be that the application for leave to appeal against sentence be refused.

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