R v Savage

[1995] QCA 237

COURT OF APPEAL

[1995] QCA 237

McPHERSON JA 
MOYNIHAN J  
de JERSEY J

CA No 75 of 1995

THE QUEEN

v.

JASIN JAMES SAVAGE  Applicant

BRISBANE

..DATE 24/04/95

JUDGMENT

MOYNIHAN JA:  This is effectively an appeal against a sentence which was imposed on 27 January 1995.  The sentence which is the subject of the appeal is a sentence of seven years imprisonment with a recommendation of eligibility for consideration for parole from 27 January 1998. 

I should mention that on the same occasion the applicant was sentenced for other offences of breaking, entering and stealing, house-breaking and stealing and sentenced in respect of each of those to a term of one year imprisonment which was to be served concurrently with the seven years term which is, I say, effectively the subject matter of the appeal.

To my mind it has not been demonstrated that the sentencing discretion miscarried.  There are a number of issues which are raised by the grounds of appeal by which it is said that that has been demonstrated.

It is plain that what weighed significantly with the sentencing Judge is that the applicant, although a young man had a respectable criminal history which is identified in the material which is before us.  I should say that it appears that there may be a misattribution of the date of an offence on paragraph (vi) of the material where an offence is attributed to having occurred on 28 July 1994 when in fact it probably occurred on 28 January of that year and in conjunction with other offences, but in the overall picture that is neither here nor there. 

The applicant had, by the time he came to be dealt with for this offence, been dealt with for a number of offences of varying degrees of seriousness, none of them as serious as that in issue here. He had been convicted and fined; he had been ordered to serve a number of periods of probation; he had been directed to carry out community service; he had had the benefit of a bond to be of good behaviour pursuant to the provisions of the Criminal Code as they then applied.

He had been dealt with for breach of probation and at the time of the commission of the offences - the offence that we are principally concerned with he was both on probation and on bail.  Indeed, the evidence suggests that he was to appear in Court in respect of committal proceedings on the very day of the offence which is in issue here.

His Honour adverted to these considerations in order to make the point that although the policy of the law was to keep young men out of gaol, the seriousness and prevalence of the particular offence in issue here and the criminal history of the accused in the circumstances were such that he could not be dealt with as a young first or second offender.  He had progressed well beyond that consideration.  That was a view that was entirely open to the sentencing Judge, and the fact that he gave effect to it is in my view in no way a demonstration of error found in the interference of this Court.

It is said that insufficient weight was given to the applicant's early plea of guilty.  His Honour did advert to the fact of an early plea of guilty and obviously took it into some account, but as His Honour says, the applicant was apprehended in the performance of the act for which he was convicted by other persons who were present, so that the prospects of a successful defence were relatively remote in all the circumstances.  So, again, I do not think it has been demonstrated that His Honour's sentencing discretion miscarried in that respect.

There is a ground to the effect that the learned sentencing Judge erred in giving insufficient weight to the possibility that the appellant was under the influence of the drug Rohypnol at the time of the offence. 

His Honour correctly recites the position in his reasons where he refers to a muted attempt having been made to suggest that the applicant was under the influence of Rohypnol at the time of the robbery, but that that was not persisted in.  He goes on to say that there was no suggestion in the applicant's behaviour that he was significantly under the influence of the drug.  If anything it seemed to be the reverse.

His Honour acknowledges that the applicant did have a drug addiction problem and he received evidence to the effect that he had in his possession and was likely to have had filled a prescription for Rohypnol.  But, as His Honour says, quite rightly, there was no evidence of any kind to suggest that the applicant was under the influence of the drug at the relevant time.

There is a ground to the effect that excessive weight was given to the element of violence involved in the offence of armed robbery.  What happened is this; the applicant entered a bank and attracted the attention of a teller because of his apparent agitation.  She took certain precautions as a result of that and while she was doing that another customer intervened.  The applicant then jumped over the counter and into a vacant teller's cage and ran down the back of the line of tellers behind the bank counter demanding that the tellers hand over all the cash. 

He dragged out the cash drawers and said to the teller who had taken the precautions I had referred to, I have got a gun, hand over all the cash I will shoot.  In fact, it appears that he did not have a gun although there is every reason to accept that those present at the time did not appreciate that.

In the event another bank customer who was the authorised possessor of a firearm produced it and when he did the accused threatened to shoot him in which circumstance the gentleman concerned said, I will shoot you back.  In the meantime, the accused had collected a significant amount of money from the various tellers and decided to see if he could make an escape from the premises.

He jumped the counter in the direction of the citizen who had produced the revolver and attempted to kick him; he was unsuccessful in this and was then seized by that citizen who, with the assistance of others, held him until the police arrived.

So that one imagines that for those who were involved in the occurrence of the event there was quite a sufficient amount of violence involved.  In the circumstances it does not seem to me to be to the point to be able to point to the fact that in some other cases in different circumstances other degrees of violence might have been involved.

The various considerations by which the grounds of appeal say that the trial Judge erred, then come down to saying that insufficient weight was given to the various provisions of section 9 of the Penalties and Sentence Act, or that the sentence is excessive to the extent of involving demonstrable error.  But none of those considerations, to my mind, has been made out. 

The offence was a bank robbery committed in the circumstances to which I have referred, as His Honour says that calls for very serious considerations of disinhibiting other people from engaging in such activities and the accused's particular criminal history extracted him from that category of young men who might receive a more lenient sentence.

The recommendation for early eligibility for parole is appropriate and there is no basis for showing, to my mind, that the particular recommendation is in any sense a manifestation of error. 

And I should say that, of course, His Honour is sentencing the applicant in the context of the activity reflected in the other sentences to which I have earlier made reference.  No doubt the applicant has had unfortunate experiences in his life and they were adverted to by His Honour in the context of material which was placed in evidence before him and to which he plainly gave consideration when he imposed the sentence in which he did.

I come back to the position that to my mind it has not been demonstrated that the sentencing discretion miscarried in any way and I would refuse leave to appeal against the sentence.

McPHERSON JA:  I agree.  On 4 November 1992 Dr Robinson, a psychiatrist, said, in respect of offences that had then been committed, that a custodial sentence "would be likely to have a detrimental effect on the applicant as he is emotionally vulnerable and a period in prison would be likely to reinforce anti-social attitudes".  Prospects of rehabilitation, his report went on, "would be enhanced with a sentencing option which involved non-custodial supervision and continued counselling".

On the occasion, following very shortly after that report, on which the applicant appeared in the Brisbane District Court on charges of breaking and entering with intent and breaking and entering and stealing, he was placed on probation for 18 months, to undergo medical psychiatric and psychological examination and treatment as directed, and to participate in educational and rehabilitative programs as directed.

It was all to no avail.  He continued to commit offences after that date including the series of offences for which he was sentenced in the District Court on this occasion giving rise to this appeal.  A great deal of effort seems to have been invested by everyone in trying to make him see the error of his ways.  It has all been unsuccessful.  That is regrettable but to some extent his past, although brief, is extensive in terms of criminal offences and it has now caught up with him.

I agree with the reasons given by Mr Justice Moynihan and with the order he proposes.

de JERSEY J:  I agree that the appeal should be dismissed for reasons given by Mr Justice Moynihan and I agree with the observations just made as well.

McPHERSON JA:  The application for leave to appeal against sentence is refused.

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