R v Newton

[2011] QCA 221

SUPREME COURT OF QUEENSLAND

CITATION:

R v Newton [2011] QCA 221

PARTIES:

R
v
NEWTON, Michelle Lee
(applicant)

FILE NO/S:

CA No 142 of 2011
DC No 231 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

Orders delivered ex tempore 12 August 2011
Reasons delivered 6 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2011

JUDGES:

Margaret McMurdo P, White JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 12 August 2011:

1.     The application for leave to appeal against sentence is granted.

2.     The appeal is allowed to the extent of setting aside the parole release date fixed at 2 October 2011 and substituting a parole release date fixed at 12 August 2011.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment with a parole release date fixed after four months for robbery – where her co-accused was sentenced to four years imprisonment to be served concurrently with terms of imprisonment to which he was then serving suspended after 16 months – where the applicant's role in the robbery was limited to driving the co-accused away from the scene of the robbery – where the applicant had many mitigating factors – where the applicant contended her sentence failed to reflect her lesser culpability for the offence when compared to her co-accused and failed to take into account her guilty plea – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited
R v Sherman [2007] QCA 322, considered
R v Voysey [1992] QCA 321, considered

COUNSEL:

H C Fong for the applicant
P J McCarthy for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MARGARET McMURDO P: The applicant, Michelle Lee Newton, pleaded guilty on 2 June 2011 in the Rockhampton District Court to robbery. She was jointly charged with Michael James Mostyn who also pleaded guilty that day. Mostyn was sentenced to four years imprisonment, to be served concurrently with terms of imprisonment to which he was then serving. His sentence was suspended after 16 months, that is, on 2 October 2012, with an operational period of four years. The applicant was sentenced to 18 months imprisonment with a parole release date fixed at 2 October 2011, that is, after four months. She applied for leave to appeal against her sentence, contending that it failed to sufficiently reflect her lesser culpability for the offence when compared to her co-accused; it was manifestly excessive; and that the judge failed to take into account her guilty plea under s 13 Penalties and Sentences Act 1992 (Qld).

1. On the hearing of her application on 12 August 2011, this Court granted leave to appeal and allowed the appeal to the extent of setting aside the parole release date fixed at 2 October 2011 and substituting a parole release date fixed at 12 August 2011.  This Court reserved its reasons for those orders.  What follows are my reasons for joining in those orders.

1. Mostyn was 31 at the time of the robbery and 33 at sentence.  His criminal history was three and a half pages long.  It commenced in the Mt Isa Magistrates Court in 1996 when he was fined without conviction for property offences.  Later that year, he was fined, this time with convictions, in the Southport Magistrates Court for further property offences, a street offence and a bail breach.  More significantly, in August 1997, he was sentenced to 10 years imprisonment for manslaughter.  In 2000 in the Brisbane Magistrates Court, he was convicted and sentenced to three months cumulative imprisonment for assault occasioning bodily harm.  In 2004, he was convicted and sentenced to seven days imprisonment for possessing prohibited articles.  In 2008, he was convicted and fined for possession of a knife in a public place, street offences, and a bail breach.  In February 2009, he was convicted and fined for contravening a direction and a bail breach.  The present offence occurred on 10 September 2009.  On the following day, he was convicted and fined for possessing dangerous drugs.  In March 2010, he was convicted and fined for a bail breach.  Later that year, he was sentenced to short terms of imprisonment for bail breaches and stealing, and was convicted but not further punished for failing to properly dispose of a needle and syringe.  In February 2011, he was convicted and sentenced to an effective term of nine months imprisonment with parole eligibility set at 19 September 2011 for driving without a licence, a bail breach and burglary. 

1. It must be noted that Mostyn's criminal history and his pre-sentence custody certificate, both tendered at sentence, did not correlate.  According to the confusing Corrective Services calculations attached to the certificate, which the sentencing judge seemed to accept, Mr Mostyn's full time discharge date was 8 March 2012; his custodial end date and earliest discharge date was 20 November 2011; and his parole eligibility date was 19 September 2011.

1. By contrast, the applicant was 18 at the time of the present offence and 20 at sentence.  She had one prior entry in her criminal history on 3 July 2009 for possessing tainted property and possessing utensils or pipes for which she was fined $500 without conviction.  On 22 January 2010, after the commission of this offence, she was dealt with for breach of bail and fined $150 without conviction.

1. The circumstances of the robbery offence were as follows.  The complainant was a 19 year old employee at a Rockhampton service station.  Just before 9.00 pm on

   
   

   10 September 2009, she locked the till and went to the bathroom.  When she returned behind the counter, she saw Mostyn.  He was wearing a black hooded jumper and shorts and his legs were tattooed.  He dropped something on the ground, picked it up and walked behind the counter.  He was much taller than the complainant.  He said, "Give us the coin."  He raised his left arm to mid-chest height, which was the height of her throat.  He was about a metre away from her.  He pointed to the safe behind the counter and said, "What's this?" and "Open this up."  She knelt down but explained she did not have the code.  He pointed to the cash register and said, "Open this up."  The complainant described his voice as not threatening in tone and nor did he articulate any threats.  After she opened the till, he reached forward and took the notes.  He went to lift up the tray in the till but the complainant told him there was nothing there.  He ran from the service station with $500 cash.  The applicant was waiting outside in a car and drove him away.  When arrested, neither the applicant nor Mostyn participated in an interview with police. 

1. The prosecutor at sentence submitted that general deterrence and denunciation were important matters when sentencing for an offence of this kind.  Mostyn should receive a sentence of four years imprisonment and the applicant a sentence of two years imprisonment.  Mostyn should serve one-third of his sentence in prison.  By way of supporting the difference in those proposed sentences, the prosecutor referred to R v Voysey,[1] an armed robbery of a service station with a knife, resulting in the theft of $1,000.  Voysey, who had a lengthy criminal history received a five and a half year sentence with a recommendation for parole after two years.  The getaway driver had no prior convictions and was sentenced to three and a half years with a parole recommendation after 12 months.

   [1][1992] QCA 321.

1. Mostyn's counsel made the following submissions.  Mostyn became a ward of the state at six months of age and, in his words, was shunted between foster families.  He lived on the streets from 11 years of age.  He was only 18 when he committed the offence of manslaughter.  He had spent significant periods of his life in custody.  His subsequent criminal history to this offence was relatively minor.  When released on parole for manslaughter, he claimed he received nothing more by way of support than "half a Centrelink benefit cheque".  He formed a relationship from which a child was born.  Although the relationship had ended, he kept in touch with his former partner.  He then formed a relationship with the applicant, but this ended following the commission of the offence.  Whilst in the community he had a good work history and was a qualified chef.  He had been drinking on the day of the offence.  It was an unsophisticated robbery with very limited planning.  The complainant knew and recognised him.  His motivation was to obtain money for drugs.  He pleaded guilty at an early stage and the matter proceeded by way of a hand-up committal.  The appropriate penalty was three years imprisonment suspended after one-third.

1. The applicant's counsel made the following submissions.  He emphasised her youth and that she grew up in a loving family, although her parents separated when she was young.  She was living with her mother and younger sister at sentence and saw her father regularly.  Her mother was in court to support her.  After completing Year 10, she obtained employment in the racing industry and worked with horses for two years.  She then obtained positions at supermarkets and in customer service in food outlets.  At sentence, she had been working in the same casual position for eight months.  She suffered from Type 1 diabetes and was insulin dependent.  She also suffered from depression for some time before the offence and was taking anti-depressants and had consulted a psychologist.  At the time of the offence, she was using cannabis and amphetamines to which she was introduced by Mostyn.  She was under the influence of amphetamines when she offended.  She rarely drank alcohol because of her diabetes.  Her relationship with Mostyn ended after she was charged and she had now ceased using illegal drugs. 

1. She knew that Mostyn was planning the robbery but her recollection of events was sketchy.  He told her to drive to the service station and park outside in the shadows and she complied.  As she was in a relationship with him, she felt she should assist in the offence.  She was caught up in the moment and gave little thought to her actions and their consequences.  She was now remorseful.  She had pleaded guilty at an early stage and had cooperated with the administration of justice through a hand-up committal proceeding.  She had no relevant criminal history and had remained out of trouble since this offence occurred.  A subsequent entry in her criminal history for breach of bail related to a failing to report.  She had the support of a loving family and was in steady casual employment.  She had already commenced her rehabilitation and had good prospects of succeeding in it.  She offered to make restitution over time from her wages.  Her counsel submitted that she should be sentenced to a lengthy period of probation and community service.  If the judge considered a term of imprisonment must be imposed, a sentence of 18 months imprisonment wholly suspended with an operational period of two years was appropriate.

1. In sentencing Mostyn and the applicant, the judge made the following observations.  The offence occurred at night, targeted a vulnerable young woman, and netted $500.  After further reciting the facts of the offending, the judge noted that Mostyn's criminal history was serious, containing entries for manslaughter, stealing and assault.  The applicant's criminal history was far less serious.  The judge referred to the offenders' antecedents, early pleas of guilty and consent to a full hand-up committal proceeding.  Mostyn had a disadvantaged and dysfunctional upbringing.  He was a qualified chef.  His current full time release date was 8 March 2012.

1. In referring to the submissions made on the applicant's behalf, the judge noted her good upbringing, lack of prior relevant criminal history, youth, early plea of guilty, cooperation with the courts and her sound prospects of rehabilitation.  His Honour continued:

"The robbery of targets such as service stations is regrettably a very prevalent crime. The community is fed up with offences of this nature, which seem to regularly occur throughout the state. The Courts must impose sentences that emphasise not only general deterrence, but also specific deterrence."

1. As noted earlier, the judge sentenced Mostyn to four years imprisonment to be suspended after 16 months for an operational period of four years and the applicant to 18 months imprisonment with a parole release date fixed at 2 October 2011 (that is, after four months).

1. The applicant's counsel submitted to this Court that, because of the way Mostyn's sentence was structured, he will serve less than six months additional time in prison after the applicant is released on 2 October 2011.  Counsel submitted that this gives rise to a justifiable sense of grievance as discussed in Lowe v The Queen[2] and Postiglione v The Queen.[3]  That submission does not give effect to the fact that Mostyn has spent a considerable amount of time in custody since the commission of the offence and will have served 16 months of the four year sentence imposed on him for this offence before his release.  By contrast, the applicant will have served four months.  In my view, that, in itself, does not give rise to the applicant having a justifiable sense of grievance when her sentence is compared to Mostyn's. 

   [2](1984) 154 CLR 606; [1984] HCA 46.

   [3](1997) 189 CLR 295, 301-302; [1997] HCA 26.

1. The real question is whether the applicant's sentence was manifestly excessive.  In answering that question it is necessary to compare her sentence to Mostyn's.  There is no doubt that Mostyn had to be sentenced to a considerably more severe penalty than the applicant.  He was much older; played a leading role; and had a significant prior criminal history for offences of violence.  The sentence imposed by the primary judge gave some recognition to those differences, but in my view did not give enough weight to the many additional mitigating features on behalf of the applicant.

1. She fell into the category of youthful offenders without a significant criminal history who committed the serious offence of robbery.  Importantly, the robbery had no aggravating circumstances: it was not armed, nor in company and nor was it done with wounding or actual violence.  The maximum penalty was 14 years imprisonment.  Had it been armed or in company or with wounding or actual violence, the maximum penalty would have been life imprisonment. 

1. Denunciation and, as the primary judge recognised, general and specific deterrence are relevant considerations in sentencing for robbery offences.  Robberies of service stations are prevalent and can have a severe detrimental impact on complainants.  But no victim impact statement was tendered in this case and the complainant described a robbery involving minimal threats and violence in which the applicant was not the principal offender.  This service station robbery was not a serious example of the offence.  The applicant's role as getaway driver was, in the circumstances of this case, less culpable than Mostyn's.  She entered a timely plea of guilty and cooperated with the justice system by consenting to a full hand-up committal.  Her minor criminal history supported the conclusion that all her offending occurred in a period in her life when she was under Mostyn's influence.  She joined in the robbery at a time when she was in a relationship with her much older and criminally experienced co-offender.  She subsequently ended that relationship and her association, through it, with drugs.  Importantly, she had stayed out of trouble for the 21 months between the offence and sentence.  By the time of sentence, she was living with her supportive family and was in steady casual employment.  Her offer to pay compensation from her wages over time was an important indication of remorse and rehabilitation.  No doubt it would have been welcomed by the service station proprietor. 

1. In R v Sherman,[4] the applicant pleaded guilty to robbery of a liquor store with her co-offender, Schultz, who, whilst armed with a bat, stole $1,808.  Sherman drove the getaway vehicle.  Schultz was older, had no prior convictions but was a drug addict.  Sherman was 22 at the time and 23 at sentence with a minor drug related criminal history.  She had a five year old child and was pregnant, had a solid work history, was remorseful, and had commenced rehabilitating although this was "far from being an accomplished fact".  Sherman was sentenced to two years imprisonment with parole after about three months.  This Court did not consider that sentence manifestly excessive.

   [4][2007] QCA 322.

1. Unlike the present offence, Sherman involved armed robbery which carried a maximum penalty of life imprisonment, rather than the 14 years imprisonment applicable here.  Sherman was older than the present applicant and her rehabilitative prospects were not as promising.  Sherman persuaded me that the applicant's sentence for an offence of robbery with no circumstance of aggravation, and with her many mitigating features, was manifestly excessive.

1. That error required the Court to re-sentence the applicant.  By the time of the appeal hearing, she had served more than 10 weeks in custody.  This has been a severe punishment.  There can be no doubt that the serving of 10 weeks actual custody in the circumstances of this case has more than provided any necessary requirement for general and specific deterrence and community denunciation.  Both she and the community would best benefit from her immediate supervision in the community on parole for an extended period.  For those reasons, I considered that the applicant should be released on parole on the day of the appeal hearing and joined in the orders of the Court on 12 August 2011.

1. WHITE JA:  On 12 August 2011 I joined in orders that granted leave to appeal to the applicant and allowed the appeal to the extent of setting aside the parole release date and substituting one of 12 August 2011.  The court reserved its reasons for those orders.

1. I have read the reasons of the President and agree with those reasons for making the orders.

1. MARGARET WILSON AJA:  I, too, concurred in the orders made on 12 August 2011.  I agree with the President’s reasons for making them.