DAVIES JA: The applicant pleaded guilty on 2 November 1998 to the offence of attempted armed robbery on 16 May 1998. He was sentenced in the District Court to five years imprisonment for that offence and the learned sentencing Judge made a declaration pursuant to section 161A(3) of the Penalties and Sentences Act 1992 that the applicant was convicted of a serious violent offence.

This had the consequence that the applicant would not become eligible for parole until he had served more than 80 per cent of that sentence and prevented him also from obtaining remissions for good behaviour in serving that sentence. The applicant seeks leave to appeal against the sentence imposed. However, he does not contend that the sentence of five years imprisonment was outside the range which would've been appropriate for the offence committed here.

The contention is rather than when the declaration is added to that sentence the total sentence imposed was manifestly excessive. The question before this Court then involves, in effect, only the declaration which was imposed. The circumstances of the offence were as follows: late in the morning of 16 May 1998 the applicant walked into a pharmacy and pointed a knife at a 72 year old male pharmacist who was sitting near a computer terminal in the dispensary area of the pharmacy.

The pharmacist grabbed the knife by the blade and twisted it, breaking it off at the handle. As he stood up the applicant pushed him causing him to fall backwards striking his right shoulder and face against some shelves. He was slightly injured. The applicant then dropped the knife and ran from the store. He had previously warned the shop assistant who was in the act of running out of the store to call the police not to go "or I'll kill him".

As appears from what has been said so far the attempted robbery was a rather incompetent affair. In addition the applicant was a registered customer of the pharmacy and was recognised by the shop assistant and as well he drove a hire car to the pharmacy to commit the robbery. For these reasons he was quickly apprehended although he initially gave a false alibi. Indeed he contested the identification evidence in a committal hearing before pleading guilty. It appears that he was heavily drugged at the time of the attempt.

The applicant has apparently a long term drug problem having first used heroin at age 14. He has had a difficult early life like many such offenders. He had a not insubstantial criminal record mostly for offences of dishonesty and drug offences. He had been imprisoned on several previous occasions the longest being one of two years imposed in August 1993 for a number of offences of receiving, false pretences, forgery and uttering.

He had only one previous conviction…

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 Moodie

Details

AGLC: R v Moodie [1999] QCA 125
Case: [1999] QCA 125
Decision Date: 14/04/1999

CaseChat Overview and Summary

In the matter of R v Moodie, the applicant, John Geoffrey Moodie, appealed against the sentence imposed by the District Court. Moodie had pleaded guilty to the charge of attempted armed robbery and was sentenced to five years imprisonment. Additionally, the sentencing judge made a declaration under section 161A(3) of the Penalties and Sentences Act 1992, declaring Moodie to have been convicted of a serious violent offence. This declaration resulted in Moodie being ineligible for parole until he had served more than 80 per cent of his sentence and prevented him from obtaining remissions for good behaviour.

The primary issue before the Court of Appeal was whether the declaration made by the sentencing judge was appropriate. Moodie did not challenge the length of the sentence itself but argued that the total sentence, including the declaration, was manifestly excessive. The Court had to determine if the sentencing judge had erred in making the declaration without providing adequate reasons or indicating his intention to do so, and whether the circumstances of the offence warranted such a declaration.

The Court of Appeal found that the sentencing judge was incorrect in making the declaration without providing sufficient reasons or indicating his intention to do so. The judge's decision was influenced by the circumstances of the offence, but the Court determined that these circumstances did not necessitate such a declaration. Factors such as Moodie's lack of a substantial history of violent conduct and the incompetency of the attempted robbery suggested that the declaration was inappropriate. The Court concluded that the sentencing judge's discretion was misapplied, and the declaration should be set aside. The appeal was allowed, and the orders made by the sentencing judge were varied to exclude the declaration under section 161B(3)(b) of the Penalties and Sentences Act.

Orders