R v Noble - [1994] QCA 283

IN THE COURT OF APPEAL [1994] QCA 283

SUPREME COURT OF QUEENSLAND

C.A. No. 191 of 1994. C.A. No. 194 of 1994.

Brisbane

[R v. Noble & Verheyden]

T H E Q U E E N

MARK THOMAS NOBLE and PAUL FRANCIS VERHEYDEN

Applicants

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Davies J.A.
Pincus J.A.
Williams J.
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Judgment delivered 10 August 1994
Judgment of the Court
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1.In each case:

(a)Application granted and appeal allowed to the extent

indicated below.

(b)A sentence of 18 months imprisonment in respect of the offence of unlawful use of a motor vehicle, commencing from 6 May 1994, is imposed in lieu of that imposed by the primary judge.
(c)Any time spent in custody before 6 May 1994 is not to be taken to be imprisonment already served under the sentence.
2.The sentences begin to run from 6 May 1994.
3.Sentences imposed below otherwise confirmed.
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CATCHWORDS:CRIMINAL LAW - SENTENCE - attempted armed robbery - co-offenders attempted to hold up antique store - son of owners of shop fired a shotgun twice to ward off robbers - Verheyden seriously injured - Noble some injury - whether injury should be taken into account as a mitigating factor when sentencing - whether time spent in hospital was pre-sentence custody under s. 161(1)Penalties & Sentences Act 1992.

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Counsel:Mr P Callaghan for the respondent.
Mr D Barakin for applicant Verheyden.

Mr R Morgan for applicant Noble.

Solicitors:Director of Prosecutions for the respondent.
Legal Aid Office for applicant Verheyden.

Legal Aid Office for applicant Noble.

Date of hearing:02/08/1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 10/08/1994

These are applications for leave to appeal against sentence. Each of the applicants pleaded guilty to a charge of attempted armed robbery in company and a related charge of unlawful use of a motor vehicle. The District Court judge ordered that Noble, who had been in custody for 4½ months, be imprisoned for 3 years and 3 months; Verheyden was sentenced to imprisonment for 4 years. There was no recommendation for early parole in either case.

An unusual feature of the case is that a member of the family which ran the business the subject of the attempted robbery shot at the applicants during the attempt, hitting each of them; Verheyden was seriously injured by the shotgun pellets, Noble only slightly injured. A question was raised with respect to the relevance of these injuries to fixation of penalty.

The business the subject of the robbery attempt was run by a middle-aged couple and their 20 year old son. In the afternoon of 18 November 1993 the husband was away from the premises leaving his wife and son in charge; the applicants entered the shop and spoke to the wife who was in the front area of the premises. This was observed by the son, who was watching the applicants from the office on a security monitor. Noble produced what appeared to be a hand gun, aimed it at the wife…

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 Noble

Details

AGLC: R v Noble & Verheyden [1994] QCA 283
Case: [1994] QCA 283
Decision Date: 10/08/1994

CaseChat Overview and Summary

In this case, the applicants, Mark Thomas Noble and Paul Francis Verheyden, appealed against their sentences for attempted armed robbery and unlawful use of a motor vehicle. The applicants were co-offenders who attempted to rob an antique store but were shot at by the son of the shop owners, who fired a shotgun twice, resulting in serious injury to Verheyden and slight injury to Noble. The applicants argued that the injuries sustained should be taken into account as a mitigating factor during sentencing and that any time spent in hospital was pre-sentence custody under s. 161(1) of the Penalties and Sentences Act 1992.

The Court of Appeal held that an injury suffered by a robber as a result of the victim's defence of the property may, in appropriate circumstances, go in mitigation of penalty. The Court concluded that Verheyden's grave injuries should have been taken into account as a mitigating factor. However, the Court did not give Verheyden credit for any period of pre-sentence custody as he was being treated for his injuries in hospital, and there was no reason to think that the conditions on which he was held differed substantially from those he would have experienced if he had not been arrested.

The Court also found that Noble should not have been treated more leniently than Verheyden. Although Noble's background was superior to that of Verheyden and Noble suffered less injury, the judge made no error in treating the two as equally deserving of punishment. The Court reduced the penalty for unlawful use of a motor vehicle for both applicants to 18 months imprisonment, commencing from 6 May 1994, and any time spent in custody before 6 May 1994 is not to be taken to be imprisonment already served under the sentence. The sentences imposed below were otherwise confirmed.

The final orders of the Court were as follows:

1. In each case:
(a) Application granted and appeal allowed to the extent indicated below.
(b) A sentence of 18 months imprisonment in respect of the offence of unlawful use of a motor vehicle, commencing from 6 May 1994, is imposed in lieu of that imposed by the primary judge.
(c) Any time spent in custody before 6 May 1994 is not to be taken to be imprisonment already served under the sentence.
2. The sentences begin to run from 6 May 1994.
3. Sentences imposed below otherwise confirmed.

Orders