R v Slattery - [2001] QCA 108

[2001] QCA 108

COURT OF APPEAL

McMURDO P
MOYNIHAN J
DUTNEY J

CA No 354 of 2000

THE QUEEN

MICHAEL JOHN SLATTERY Applicant

BRISBANE

..DATE 21/03/2001

JUDGMENT

DUTNEY J: The applicant pleaded guilty in the District Court to an offence of armed robbery in company, for which he was sentenced to a term of three years' imprisonment suspended after nine months for an operational period of three years. He seeks leave to appeal against that sentence.

Apart from the applicant, the co-offenders were aged respectively 14, 15 and 15. The applicant was aged 21 at the time of the commission of the offence.

Briefly the circumstances of the offence were as follows. The applicant was the driver of the motor vehicle used in connection with the robbery at the Matilda Service Station at Wardell Street, Enoggera. On the day of the offence, 24 January 2000, the applicant was drinking with the co-offenders in a park. The applicant was asked by one of the co-offenders to drive the group to the service station. According to the applicant's account when interviewed by the police:

"They pulled me aside and asked if I would be willing to park the car round the corner while they went into the servo and stole money, and because I had a couple of beers in me, I agreed to do it."

The robbery occurred at 11.30 in the evening. The applicant says he was not aware a knife would be used in the robbery, but did concede thinking one of the co-offenders might pretend to have a gun in his pocket.

During the robbery, the co-offenders covered their faces by wrapping shirts around their heads. One demanded money, $560 and some cigarettes were stolen. The co-offenders returned to the vehicle where the applicant had remained throughout. The vehicle was apparently some blocks from the scene. One of the co-offenders had been involved in a robbery at the same service station only a couple of days earlier. The applicant's share of the proceeds amounted to only $20. To some extent this may reflect the relative importance the parties placed on the applicant's role.

Ordinarily one could anticipate a significant period of actual imprisonment for involvement in an armed holdup. The applicant had previous convictions. He had been fined $300 for stealing in November 1999, only a couple of months prior to this offence. He also had some minor drug convictions in November 1999 and September 2000.

Despite the fact that the sentence imposed of three years' imprisonment suspended after nine months, is high for a driver with little relevant prior criminal history. It would not necessarily be considered outside the appropriate range, particularly if the adult had encouraged the juveniles to involve themselves in the crime. Despite this, the applicant says that it is manifestly excessive on the facts of this case and so grossly disproportionate to the sentences imposed on the co-offenders who actually carried out the robbery that it warrants intervention.

The sentences imposed on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Slattery

Details

AGLC: R v Slattery [2001] QCA 108
Case: [2001] QCA 108
Decision Date: 21/03/2001

CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal against sentence from Michael John Slattery, who had pleaded guilty to armed robbery in company. The applicant was sentenced to a term of three years' imprisonment suspended after nine months, with a three-year operational period. The applicant contended that the sentence was manifestly excessive and grossly disproportionate to the sentences imposed on the juvenile co-offenders. The legal issues before the Court were whether the sentencing judge should have taken into account the sentences imposed on the co-offenders and whether the sentence imposed on the applicant was excessive.

The Court found that the sentencing judge should have considered the sentences imposed on the co-offenders, even if only to indicate why they provided little or no guidance for the proper sentence for the applicant. The Court noted that the sentencing regimes under the Juvenile Justice Act and the Penalties and Sentences Act were different, but in this case, the disparity in ages between the applicant and the co-offenders was significant. The Court considered the applicant's role in the crime, his age, and his prior criminal history in determining that the sentence imposed was excessive. The Court substituted the sentence imposed below with a sentence of 131 days' imprisonment followed by two years' probation.

The final orders were that the applicant's sentence be set aside and substituted with a sentence of 131 days' imprisonment followed by two years' probation, with the applicant to report to Chermside under Section 103 of the Penalties and Sentences Act.

Orders