R v Rieck

[1998] QCA 146

COURT OF APPEAL

[1998] QCA 146

PINCUS JA
WILLIAMS J

FRYBERG J

CA No 431 of 1997
THE QUEEN
v.

WAYNE JASON RIECK Applicant

BRISBANE
..DATE 27/02/98
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FRYBERG J: On 4 November 1997 the applicant was convicted on
one count of armed robbery in the District Court at Toowoomba.
He was sentenced to three years' probation and 200 hours'
community service. A conviction was recorded. He now seeks
leave to appeal against the recording of the conviction.

It will be apparent already that this was a most unusual case. On 3 July 1997 the applicant entered a convenience store at Dalby. The store was operated by Mr and Mrs Walker and Mrs Walker was alone in the store at the time. She saw that the applicant was holding a small knife in his right hand with the blade pointed toward himself. He said, "I need money. Open the till." Mrs Walker was afraid of the applicant and asked how much he wanted. He replied, "A couple of hundred." She gave him two $50 notes. He then ran from the store. He wore no disguise throughout although subsequently he told police that he attempted to disguise his voice. He made no attempt to leave town. He was found by the police on the streets of the town within an hour.

This was his second encounter with the police that day. Earlier he had been to the police station to report that $250 had been stolen from his flat the previous night. He said that upon leaving the police station he decided that he would rob a shop to get some of his money back. He said he had to have some cash to live on for a little bit longer until his next pay. He was living on unemployment benefits although he did have some history of working. He said that he was waving the knife around while he was in the store so that it would scare the female employee. In fact, his victim did not see him waving the knife, 270298 T7/JB M/T COA27/98

or so His Honour found, and said that she felt no lasting effect from the experience. He said he got the idea for the robbery from watching a television show called "Australia's Most Wanted".

The applicant has no previous criminal history. Evidence presented to the trial Judge showed that he had minimal brain dysfunction, limited intellect and a schizoid personality. He was assessed as having a borderline/low average intelligence level. He told a psychiatrist he was angry about the theft of his money and decided to carry out a robbery in order to get money for his needs. He knew there was a high chance of getting caught.

His Honour found that he was left "with a chronological 19 year old, of substantially less mental age, a crude, almost childlike, offence that had no chance of success, a childlike boasting of a more serious offence and not, unimportantly, no lasting effect on the complainant." The applicant spent five days in custody.

His Honour evidently took a very favourable view of the applicant. That is apparent from the sentence which he imposed.

The submission before this Court was that the sentence imposed on the applicant was manifestly excessive because His Honour ordered that a conviction be recorded. His Honour said that he did this because of the seriousness of the offence. There is no doubt that that is a material factor.

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In The Queen v. Briese, ex parte Attorney-General, unreported,
CA No 390 of 1996, a decision delivered on 20 November 1996, the
approach which should be taken to the question of whether to
record a conviction was discussed. It was held by a majority of
the Court that the question is to be considered as part and
parcel of the whole process of sentencing.

On behalf of the applicant before us it was urged that His Honour's reasons do not disclose any reference to the employment history of the applicant and to the fact that he was aware that the offence might have an effect on his future employability. However, there was no express reference to these questions by counsel on behalf of the applicant when making submissions to His Honour on the question of whether to record a conviction and, in these circumstances, it is not surprising that His Honour did not expressly refer to the rather tenuous evidence on the points discernible from one of the exhibits.

It seems to me that His Honour has taken all relevant considerations into account and, indeed, in the end counsel did not contend that there was a failure to consider relevant considerations. Rather the application was based on the assertion that the sentence was manifestly excessive. In the case to which I have referred, Mr Justice Dowsett said, though he was dissenting on other aspects of the matter, that armed robbery was a case where the seriousness of the offence dictated the recording of a conviction in all but the most exceptional circumstances.

While that, no doubt, leaves it open to a Judge not to record a
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conviction in exceptional circumstances, it seems to me that it
makes it very difficult to argue that a decision by a Judge, in
a case of armed robbery, to record a conviction is, in the face
of the circumstances, manifestly excessive. His Honour has
taken into account the many factors which conduce to a light
penalty in the present case. I am unable to see solely from the
fact that a conviction has been recorded that His Honour's
discretion must be inferred to have miscarried. In my judgment
the application should be refused.

PINCUS JA: I agree and I would only add that in my view the sentence that the Judge imposed, including that part of it which is presently challenged, was a sensible one.

WILLIAMS J: The facts have been fully set out in the reasons given by Mr Justice Fryberg. I am not persuaded that in all those circumstances the sentence imposed was manifestly excessive because a conviction was recorded. The application should be refused.

PINCUS JA: The application is refused.

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