R v Partridge

[1993] QCA 77

THE COURT OF APPEAL  [1993] QCA 077

SUPREME COURT OF QUEENSLAND

C.A. No. 358 of 1992

Brisbane

[R v. PARTRIDGE]

BETWEEN

T H E     Q U E E N

- and -

FRANCIS MICHAEL WILLIAM PARTRIDGE
  (Applicant)

Mr Justice McPherson
                  Mr Justice Derrington

Judgment delivered 18/03/93

Reasons for judgment by the Court.

APPLICATION FOR LEAVE TO APPEAL REFUSED

CATCHWORDS        CRIMINAL LAW - Sentencing - Unlawful use of motor vehicle - Armed robbery in company - First offence - Custodial sentence.

Counsel:W.T. McMillan for the  applicant

Solicitors:Robertson O'Gorman t/a for Witheriff Nyst, Southport, for the applicant

Director of Prosecutions for the Crown

Hearing Date:     15 March 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 358 of 1992

Brisbane

Before    Mr Justice McPherson
         Mr Justice Derrington

[R v. PARTRIDGE]

BETWEEN

T H E     Q U E E N

- and -

FRANCIS MICHAEL WILLIAM PARTRIDGE
  (Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 18/03/1993

The applicant for leave to appeal against sentence was convicted on pleas of guilty in the District Court at Southport of one count of armed robbery in company and one count of unlawful use of a motor vehicle.  The sentence imposed on 25 September 1992 was imprisonment for four years in the case of the offence of robbery, coupled with a recommendation to be considered for parole after 9 months, and imprisonment for 6 months in respect of the offence of unlawful use.
     The circumstances of the offence are that on 10 February 1992 the applicant and his co-accused Stephen Blayney went to a car sales yard at Southport and arranged to test drive a white Porsche that was on display there.  They set off with Blayney driving, the car salesman Kevin Jensen being seated next to him, and the applicant in the back seat.  Before they had gone very far Jensen felt himself grabbed and held by the applicant with some force round the neck.  He also felt a cold metallic object, which he took to be a gun, pressed into his neck.  The applicant said to him "Don't move"; and Blayney said "You better do as he says".  The object in question was later identified as a cap pistol.
     The car was evidently brought to a halt.  Jensen was ordered to put his hands together, which he did.  His wrists were taped together; he was ordered to walk away and keep walking, and he did that.  The car was driven away.
     What the applicant and Blayney did then was to return to the flat where they lived, and collect some clothes, and, it seems, a semi-automatic rifle and some 500 rounds of ammunition.  They later said their destination was to have been Darwin; but the engine of the car overheated, and they got no further than Ormeau, where they were ultimately located and arrested by police.  The damage to the engine of the vehicle cost $6000 to repair.  Not all of the repair costs or associated expenses were covered by insurance.
     Viewing it in the abstract, it can scarcely be said that a sentence of four years imprisonment for a robbery of this kind is beyond the permissible range.  Involving as it does an individual like a car salesman, whose work necessarily obliges him to trust customers whom he accompanies, the case to some extent resembles robbery of a taxi driver, with respect to which the courts have always taken a serious view.
     It was submitted on appeal that the sentencing process was vitiated because his Honour erroneously considered himself bound to impose a term of imprisonment in the case of an offence like this, which would have involved an illegitimate fettering of his sentencing discretion.  However, it is plain that his Honour did not approach the matter in that way.  What he said was:

"I have seriously considered, in the light of the psychiatric and psychological evidence that has been placed before me, imposing a non-custodial sentence.  However, in my view, the offence of armed robbery in company to which you have pleaded guilty in Count 3 is such a serious offence that I feel I cannot impose a non-custodial sentence.  However, I do intend to make a recommendation that you be considered for release on parole at a very early stage."

It is really quite clear that what was meant was that in his Honour's opinion the circumstances of this case of armed robbery in company were so serious as to take it outside the class of cases in which only a non-custodial sentence might properly be imposed.  No miscarriage of sentencing discretion is discernible in his Honour's approach to the question in this instance.
     It was nevertheless submitted that the sentence failed to give sufficient weight to the applicant's youth and to the fact that these were his first offences of any kind.  The applicant was born on 29 March 1973.  The offences were committed on 10 February 1992, so that he was just under 19 years of age at that time.  He is now only a few days short of his 20th birthday.
     In framing the sentence imposed his Honour took account of both of these factors, and more particularly of the applicant's mental condition at the time.  After the offences were committed the applicant submitted to a series of psychological tests and psychiatric examinations by different specialists.  He was apparently the victim of adolescent fantasies.  It was at one time thought that he might be suffering from some form of mental illness; but after being kept under observation in hospital for some two weeks, the most that could be said was, according to Dr Flanagan, that the applicant's behaviour disclosed a personality disorder, and that he was not a person with either major depression or a psychotic condition.
     The sentencing judge specifically took into account the psychiatric report by Dr Flanagan together with reports provided by a number of other practitioners.  As well as these, there was a lengthy narrative history from the applicant's mother recounting various childhood problems experienced by the applicant.  His Honour said he found this account useful; but none of the matters described in the history afford any reason for doubting the accuracy of Dr Flanagan's conclusions about the applicant's mental condition.  It was, however, the psychiatric and psychological evidence placed before the court that led his Honour to make the recommendation for release on parole at what he described as "a very early stage".
     It was submitted that his Honour might have done better to have sentenced the applicant to imprisonment for 6 months followed by a period of say two years probation.  It was suggested that probation has more to offer a young man like the applicant than the parole system.  However that may be, it is simply not possible on an application like this, to contend that in adopting one course rather than the other, the judge made an error so fundamental that it ought to be corrected on appeal, the more so when it is seen that the date at which the applicant may be expected to be considered for parole is now not far off.
     When all these matters are considered it is, we think, not possible to identify any operative error in the sentencing process.  On one view, his Honour may be thought to have adopted a lenient approach to the applicant's offence.  His co-accused Blayney did not fare nearly so well.  He was, it seems, younger by about a year than the applicant, and he had in some respects had a disadvantaged background.  Unlike the applicant he was gainfully employed at the time of sentence.  He apparently had not engaged in criminal conduct of any kind until after the applicant came to live with him in his flat.  On 21 January 1992 he went to the premises of Southport Suzuki, where he arranged to take a 500 cc motor cycle for a test drive.  He was provided with the keys and the motor cycle, which he never returned.  On 28 January 1992 Blayney was seen on the motor cycle with the applicant as his pillion passenger.  The police gave chase, leading to speeds in excess of 170 k.p.h. through the Gold Coast and Southport.  Eventually the motor cycle crashed.  The two men were fortunate not to be seriously hurt.
     In respect of unlawfully using the motor vehicle and of driving it dangerously, Blayney was sentenced to imprisonment for 6 months and two years respectively.  The applicant was perhaps fortunate that, being no more than a pillion passenger, he was not guilty of any offence.  The head sentence imposed on Blayney for the robbery was also four years; but in his case consideration for release on parole was postponed until after 18 months had been served.  Differences between the conduct, age, and personal circumstances of these two young men are not so marked as to justify showing greater leniency to the applicant without provoking in Blayney an understandable sense of grievance at the disproportion that would then result in the sentences that were imposed on each of them.
     For all these reasons we do not consider that the sentences imposed on the applicant should be disturbed.  The application for leave to appeal should be refused.