R v Quinn

[1996] QCA 515

IN THE COURT OF APPEAL	[1996] QCA 515
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 422 of 1996
[R. v. Quinn]

T H E Q U E E N

v.

CARL TREVOR QUINN

(Applicant) Appellant

Thomas J. Dowsett J. White J.

Judgment delivered 13 December 1996

Judgment of the Court

1.APPLICATION FOR LEAVE GRANTED
2.APPEAL ALLOWED
3.ORDER OF THE DISTRICT COURT SET ASIDE

4.APPLICANT SENTENCED TO IMPRISONMENT FOR 6½ YEARS WITH A

RECOMMENDATION FOR PAROLE ELIGIBILITY ON AND FROM 28

APRIL 1998

CATCHWORDS:	CRIMINAL LAW - sentence - armed robbery in company with personal violence - sentence manifestly excessive
Counsel:	Ms K. McGinness for the appellant Mr D. Bullock for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing date:	15 November 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13 December 1996

The applicant applies for leave to appeal against a sentence imposed upon him by a District Court Judge at Brisbane on 12 September 1996 after he had pleaded guilty to one count of armed robbery, in company, with personal violence. His Honour sentenced him to imprisonment for 10 years and recorded a conviction. He recommended that he be eligible for parole, "on and from 28 October 1998". In other words, he is to serve three years from the date of arrest. The applicant indicated an intention to plead not long after his committal proceedings on 16 April 1996. He was in custody in connection with this offence for three periods prior to his sentence, from 28 October 1995 to 10 January 1996 (75 days), from 30 January to 17 July 1996 (170 days) and from 19 August to 12 September 1996 (25 days), a total of 270 days.

On 27 October 1995, the applicant and an accomplice entered the Matilda Service Station at Enoggera. The applicant was carrying a knife. His accomplice was carrying a baseball bat and wearing gloves. The accomplice demanded that the service station attendant lie down. The applicant told him that they were after money, that he should lie down and that he would not get hurt. They were unable to find enough money to satisfy them and demanded more. The attendant showed them the safe. The accomplice told him to get back down on the floor and then hit him twice across the back with the baseball bat. He then tripped and fell on him. The attendant grabbed the baseball bat but dropped it when he realised that the applicant was carrying a knife. The applicant filled a knapsack with cigarettes. The value of cigarettes taken was about $1100. It is not entirely clear, but it appears that some were recovered. About $600 to $700 in cash was also taken. The offenders smashed shelving in the shop before leaving, and the applicant said to the attendant, "Sorry mate, I didn't want you to get hurt." The police located the applicant because his fingerprints were found on a cigarette packet which he had dropped.

The attendant suffered bruising to his shoulders and back and was in considerable pain for a few days. He has also suffered psychological effects in that he is too frightened to seek employment involving night duties. As a result he was unemployed until not long before sentence.

The applicant was born on 10 February 1960, was 35 at the time of the offence and 36 at the time of sentencing. He has been a heroin addict since age 14. He has three children aged 5, 4 and 2 as the result of a relationship with another addict who has now left him. Prior to his arrest, he had custody of the children. They are presently in foster care. He claimed to have no recollection of the offence, probably as a result of the effects of his addiction and of his having had a fight with his accomplice in which he was struck with a baseball bat. At the time of sentence he was in protective custody because of information which he had provided to the police at some time in the past. While on remand, he had made attempts to overcome his heroin addiction.

The applicant's criminal history commenced in 1976 and included numerous street offences, drug-related offences, house-breaking and other offences of dishonesty. His most serious conviction was for armed robbery, in company, with actual violence in 1982 for which he was sentenced to six years' imprisonment. After this offence he had no further convictions until early 1988 and had not been sentenced to any period of imprisonment until the present charge. During that period he had been placed on a reconnaissance for a period of 12 months and had completed a period of probation of three years, although not without some difficulties along the way. It is reasonable to view him as somebody who, given his background prior to 1982 and his drug addiction, had made serious attempts at rehabilitation prior to this offence.

The factors expressly taken into account in the sentencing remarks were as follows:

(a)there were two offenders and they were armed;
(b)actual violence was used;
(c)property in excess of $1800 in value was taken and shop fittings were damaged;

(d)the attendant suffered injury and consequential psychological effects, adversely affecting his

capacity to earn income;

(e)the offence was contrary to the Australian way of life and a serious breach of the law;
(f)the applicant had a criminal history including offence of dishonesty and an earlier robbery;

(g)the absence of serious offences for some years following the earlier robbery suggested an

attempt at rehabilitation;

(h)the early plea and "hand-up" committal;
(i)time in custody prior to sentence;

(j)he had declined to be interviewed, although his Honour seems to have thought that there was

some explanation for this in his being a long-term heroin addict;

(k)his attempts at rehabilitation since arrest;
(l)his remorse;
(m)his domestic circumstances; and

(n)the need to protect those who are at service stations in the night time in the course of their

employment.
Of the various cases to which we were referred, two are of significant assistance. The

first is Flemming (C.A. No 4 of 1996 - judgment delivered 26 April 1996). Flemming pleaded guilty to one count of armed robbery in company, three of deprivation of liberty and one of unlawful use of a motor vehicle with a circumstance of aggravation. On the armed robbery count he was sentenced to imprisonment for a period of seven years with a recommendation for parole after 28 months. He was 25 at the time of the offences and 26 at the date of sentence. He had what was described as a, "substantial criminal history, particularly between 1990 and 1993, involving a number of offences of dishonesty." In respect of convictions in 1993, he had been sentenced to terms of imprisonment ranging from six months to two years."

In the robbery in question, he enlisted the assistance of two younger men as accomplices. He used a stolen car, a sawn-off shotgun and a radio scanner which was able to track police movements. The offence was against a "Dial a Pizza" store. He carried the sawn-off shotgun and one co-offender carried a knife. The other co-offender waited in the car. Three persons found in the shop were confined in a cold room. The shotgun was unloaded. Both offenders wore balaclavas.

In imposing the sentence in Flemming, the learned sentencing Judge took account of the professional nature of the robbery, the terror which would have been experienced by its victims, the use of a gun, the prevalence of such robberies and the fact that Flemming was the eldest of the group and the mastermind. He was given credit for the early plea of guilty. This Court was of the view that the sentence of seven years was high but within the appropriate range. The recommendation was considered to be "a generous one".

The second case is the decision of this Court in Maynard (C.A. No. 94 of 1994 - judgment delivered 18 May 1994). This was an Attorney's appeal. Maynard was convicted of armed robbery, in company, with personal violence and deprivation of liberty. The offences occurred in execution of a plan to rob a convenience store in preparation for which the offenders obtained masks and gloves and armed themselves with weapons, the accomplice with a cut-down cricket stump and Maynard with a small cricket bat. When they arrived at the convenience store, they found it closed and so they decided to rob an adjoining take-a-way food store. They watched the shop for some time and when the owners commenced to lock up, they went to the rear of the store and attracted their attention by making a noise. The male owner, a Chinese man aged 67, opened the door, they grabbed him and forced him inside. The co-offender held the cricket stump to his throat, and Maynard grabbed his wife, threatening to kill her if they did not hand over their money. He pulled her by the hair to the front of the shop and then required the male complainant to open the till. Maynard removed the money. The co-offender then asked the male complainant for his wallet and was handed $200. He then demanded cigarettes and was given five packets. They both ran out of the shop but were apprehended shortly thereafter, made full admissions and pleaded guilty to ex officio indictments.

During the weeks prior to the offence in question, which was committed on 29 December 1993, both offenders had committed other offences together. On 23 November 1993, they committed the offences of unlawful use of a motor vehicle and stealing. On 1 December 1993, they were dealt with for those offences, being admitted to probation and ordered to do community service. On the night of 1 December 1993, they together committed an offence of breaking and entering, two offences of stealing and one of wilful damage. As we have said, the offence in question occurred on 29 December 1993. On 14 February 1994, (two days before they were dealt with for it) they were sentenced for the offences committed on 1 December 1993. It therefore appears that at the time of the offence in question, they were both on probation for the offences committed on 24 November 1993 and on bail in respect of the offences committed on 1 December 1993. Maynard was sentenced to an effective term of imprisonment of four years with a recommendation that he be eligible for parole after serving 18 months. This sentence was to be served concurrently with those imposed on 14 February 1994. With the exception of the offences to which we have referred, Maynard's previous convictions were only in respect of street offences and minor drug offences. He was aged 38 years at the time. The Court doubted the extent of his remorse. The sentence was increased to six years' imprisonment with a recommendation for parole (to recognise the plea of guilty) after serving two years.

On a comparison with those decisions, and with the general survey of armed robbery cases in R v. Hammond (C.A. 445 of 1996) published today, the sentence in the present case was manifestly excessive. The appropriate sentence would be one of 6½ years imprisonment with consideration of parole after 2½ years. We would therefore allow the appeal, set aside the sentence and substitute a sentence of imprisonment for 6½ years with a recommendation for parole eligibility on and from 28 April 1998.