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

v.

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 and walked towards her saying "Don't fucking move"; she ran towards the rear of the store. Noble, in pursuit of her, said "On the ground, get on the fucking ground". Verheyden went to the front door and appeared to be trying to lock it. The son got the shotgun and went towards the applicants; he shot each of them, as has been mentioned. Noble ran away, Verheyden, badly injured, remained lying on the ground. When the police came they found lying next to him a sheathed knife and a knapsack, inside which were a hammer and a pair of gloves.

Verheyden was taken to hospital. Having been given some information, the police obtained a warrant to search Noble's premises and he admitted his involvement in the robbery, but declined to identify his co-offender. He told the police that he was the person holding the pistol in the shop and he said, when asked if it was loaded, that to his knowledge it was.

The evidence was that the members of the family who ran the antique shop the subject of the attempted robbery had suffered in a number of ways as a result of it, although no property was taken.

Verheyden was 27 years and Noble 28 years of age when sentenced on 6 May 1994. There was a considerable amount of information before the Court about the personal background of the applicants and some details of that should be given. Noble was an adopted child of a couple of whom the husband was a public servant and the wife a telephonist. His relationship with the adoptive father was good, but that with the wife less so. He does not appear to have had a deprived childhood, but was unhappy when he went to secondary school. At the age of 16 he committed his first offence, unlawful use of a motor vehicle, and was a persistent offender in his teens; there were numerous breaking and entering offences and stealing offences. As an adult, Noble was convicted in 1989 of eight offences of unlawful use of a motor vehicle. At the age of 23 there were also some stealing offences and, then and later, some relatively minor drug offences. The 1989 offences produced a term of imprisonment of 20 months.

Verheyden appears to have had a much less satisfactory background than Noble. His parents separated when he was an infant; it is said that the father behaved very badly towards his family. After the parents separated, Verheyden's upbringing was, according to the evidence before the primary judge, quite unsettled and unsatisfactory. His criminal history is short but serious. In 1989 he was convicted of armed robbery and associated offences; this produced a sentence of 7 years imprisonment. The offences in question here were committed while he was on parole.

The judge said he proposed to treat the two applicants equally, finding no reason for distinguishing between them. He took into account their early pleas of guilty, but expressed the view that no other course than pleading guilty was open to them.

His Honour said that the appropriate term of imprisonment was one of 4 years, but as Noble had been in custody for 4½ months he reduced that to 3 years and 3 months. He ordered that Verheyden be imprisoned for 4 years.

The argument advanced in favour of Verheyden concentrated on the fact that the offence was not completed, that the applicant suffered injuries in the commission of the offence, and that no account was taken of a period during which he was, it was said, in custody.

As to the first point, that there was an attempt only, that is plainly a factor in favour of reduction of sentence. The second point, the injury, is more debatable. We were referred to no authority on the question whether an offender who was injured in the course of committing an offence should have that taken into account in his favour. The point is discussed in a note in (1980) 4 Crim.L.J. by Mr F Rinaldi at pp. 244-246. The writer discusses a decision of the Victorian Court of Criminal Appeal in a robbery case in which one of the robbers suffered serious injury when his gun discharged during the robbery. The court took the view that the injury should be taken into account on sentence. We would not accept, however, that any injury suffered in the course of committing an offence is necessarily a factor in sentencing.

But it is easy to postulate circumstances in which an injury so suffered would be relevant. If an offender has assaulted another without causing significant injury, and the other has defended himself so vigorously as to cause the offender serious injury, it would ordinarily be right to treat the injury the offender has suffered as at least part punishment - whether or not the retaliation was within lawful bounds. That is not this case, but we are of opinion 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.

Verheyden was quite seriously injured. His abdomen suffered much damage, making it necessary to remove his spleen and part of his colon, and to repair many perforations and lacerations; a colostomy had to be fashioned and the progress of his treatment was by no means uneventful. However, he was said in May 1994, in a hospital report, to be presently in good health.

The judge's view on this point was that the penalty imposed on the applicants should not be discounted because of their injuries, although his Honour accepted that "they provide a significant deterrent against repetition". It appears that in this limited sense the judge regarded the injuries as relevant to sentence; as we have said, we think that the grave damage done to Verheyden should have been taken into account as being, in itself, a mitigating factor.

The third point taken in favour of Verheyden was, as we have mentioned, that he was argued to have spent some time in custody, in circumstances falling within the description in s. 161(1) of the Penalties and Sentences Act 1992 - i.e. "in custody in relation to proceedings for the offence and for no other reason". It is not clear to what extent the pre-sentence period fulfils that description, in relation to Verheyden. The judge was told that his parole (in respect of the 7 year armed robbery sentence) was suspended on 21 January 1994 and the prosecutor told the judge at sentencing that Verheyden was in custody from 24 November, the date when he was arrested by police in the intensive care unit of Gold Coast Hospital. Counsel for Verheyden told the judge that he had been in hospital until March 1994 and was unaware that "anything had actually been undertaken so far as his parole was concerned".

Section 180 of the Corrective Services Act 1988 confers a power of suspension of parole for a period of not more than seven days. We understand, then, that if there was a suspension on 21 January 1994 it must have expired by 28 January 1994. We would have been inclined to invite counsel to place proper information before the Court, to enable a determination to be made whether or not there was ever a period in which the applicant was in custody in circumstances of the kind set out in s. 161(1) of the Penalties and Sentences Act 1992, but for the fact that we have come to the conclusion that this should not affect the result of Verheyden's application. The judge, as is clear from the record, took the view that in a practical sense Verheyden was not in custody. While in hospital Verheyden was being treated for his injuries and there is 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. We see no reason to give Verheyden credit for any period of pre-sentence custody.

As we have explained, the primary judge took Verheyden's injuries into account as being relevant only to the effect they might have as a deterrent; we think that his Honour should simply have treated them as a mitigating factor. Nevertheless, we are of opinion that the sentence imposed on Verheyden was a proper one. This was his second armed robbery, he was on parole from the first and was 27 years of age when sentenced. We are firmly of the view that 4 years imprisonment to be served concurrently with any balance of his existing sentence was not too heavy a penalty.

As for Noble, the principal argument advanced by Mr Morgan was that he should have been treated more leniently than was Verheyden and the basis of that was the absence of any offence of robbery or any other violence from Noble's record. Further, it was pointed out that Noble had committed no offences of dishonesty for some years before the present offences.

The two offenders may be compared with respect to a number of criteria. Noble's childhood background was superior to that of Verheyden and he suffered substantially less injury; it appears that pellets were embedded in the back of his head, but this seems to have caused no permanent injury. Noble carried the gun at the robbery and his co-operation with the police was limited; as has been mentioned, he would not tell the police who he was with during the robbery. There is in Noble's favour, in comparing his culpability with that of Verheyden, that Noble had committed no previous robbery. On the whole, we are of opinion that the judge made no error in treating the two as equally deserving of punishment.

The orders his Honour made require some consideration. No specific reference was made in the orders to the fact that there were two offences and the proper inference is that his Honour intended the penalties imposed to apply to each of the two offences, although this is implicit rather than explicit. It may be rather an academic point, but a suggestion was made during the hearing that a 4 year term of imprisonment for unlawful use of the motor vehicle in the robbery seems disproportionately high compared with the 4 year penalty for the attempted robbery itself. It is our view that that is so and that the penalty in relation to the motor vehicle offence should be reduced to 18 months. Then, as to Noble, it is pointed out by counsel that there is no order under s. 161(1) of the Penalties and Sentences Act 1992 having the effect that the time he spent in custody is not taken to be imprisonment served under the sentence imposed on him, namely 3 years and 3 months. To achieve the result his Honour intended, he should have expressly so ordered; for the sake of certainty such an order should be made as to Verheyden also.

The orders of the Court will therefore be:

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.