R v Smith

[1994] QCA 372

IN THE COURT OF APPEAL  [1994] QCA 372

SUPREME COURT OF QUEENSLAND
  Appeal No. 280 of 1994

[R v. Smith]

T H E     Q U E E N

v.

STEVEN ALLAN SMITH
  (Appellant)

Davies JA
  McPherson JA
  Mackenzie J

Judgment delivered 21/09/1994

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS:   CRIMINAL LAW - ARMED ROBBERY - identification - three robberies - consistent descriptions of the robber - whether the appellant or another person committed the crimes - admissibility of photograph of the other person.

CRIMINAL LAW - SENTENCE - whether eight years imprisonment excessive - extensive criminal record - lack of remorse - three robberies in one day.

Counsel:       A. Rafter for Appellant

B. Butler for Crown

Solicitors:     Legal Aid Office for Appellant

Director of Prosecutions

Hearing date:   14 September 1994

JUDGMENT OF THE COURT

Judgment delivered 21/09/1994

The appellant was convicted of three offences of armed robbery committed in Cairns on 20 November 1993.  A total amount of $4,230.59 was stolen from the three businesses, one of which was a convenience store and the other two, service stations.  In each case a man armed with a knife entered the premises and threatened the person in charge.  After the first robbery the bandit was observed getting into a white station wagon, the registration number of which was taken by a witness.  There was another man in the vehicle as well. The vehicle was located soon after the robberies at the appellant's residence.  Another man, Gregory Andrew McIntyre, was located in possession of a set of keys for the vehicle at about 4.30 p.m. on the same afternoon.  The appellant was located by police riding a bicycle a short distance from his home at about the same time.  He was wearing a backpack containing clothing, a knife and $3,414 in cash.  Two of the victims said that the knife was similar to that used in the robbery.  The other victim recalled a different kind of knife.
     None of the witnesses were able to identify the appellant from a photo identification board but they gave descriptions of the person who entered the premises.  The appellant gave a video-tape record of interview in which he admitted being with McIntyre and no other person in the white station wagon at the scene of the offences.  The appellant denied that he was the person who had entered the premises and told the police that he had not known that McIntyre was committing robberies until after the second robbery. 
     The Crown relied primarily on the proposition that the appellant was the person who actually entered each of the business premises and committed the robberies.  Alternatively, it submitted that the jury would be satisfied that the appellant was at least a party to the crimes. 
     Because of the way in which the case was conducted the issue whether the person who entered each of the business premises was the appellant was important.  If the jury thought that the person who had entered the premises and committed the robberies was McIntyre or if it was not satisfied that it was not McIntyre, it had to address the issue whether it was a reasonable possibility that the applicant may not have known that at least the first two robberies were being carried out.  The Crown submitted that the descriptions of the robber given by the eye witnesses were consistent with the accused but not McIntyre.  It was therefore relevant for the jury to know the general appearances of the appellant and McIntyre to assist them in determining whether the description given by the eye witnesses excluded one or other of them as the person who entered the premises.  The appellant submitted that a photograph of McIntyre should not have been admitted in evidence.  The purpose of admitting that photograph was to allow the jury to see what his general description was on the day of the offences.  The photograph of the appellant was admitted for the same purpose notwithstanding an allegation that he had changed his appearance by shaving off facial hair.  He claimed he had come home from work during the morning and done so.  The Crown alleged, on the basis of quantities of hair found in a sink at the appellant's residence, that he had done so after the robberies.  It is not surprising that the jury after seeing the photographs presumably decided that the person described by the eye witnesses was not McIntyre.  The ground of appeal fails because the photograph of McIntyre was relevant and there was no reason to exclude it. 
     So far as the other grounds are concerned the learned Trial Judge summed up accurately and comprehensively on the issue of identity and referred in the summing-up to the failure of any eye-witnesses to see tattoos on the appellant, a threat allegedly made to his girlfriend to induce him to give a record of interview and a discrepancy between the time at which a helicopter pilot said he had begun to observe the premises and the time of the second and third robberies.  The point of this was that the helicopter pilot said he observed the car used in the first robbery in the driveway of the house from which the appellant emerged prior to being apprehended at a time before that nominated as the time of each of those offences.  These aspects of the case were for the jury to resolve and as the jury resolved them adversely to the appellant there is no ground of appeal upon which he can rely successfully.  The appellant makes the point that there were no fingerprints on the weapon.  That is true.  However, that was never in dispute and it was not incumbent on the learned trial Judge to refer to that fact in his summing up.  There is no substance in any of the other grounds.  The appeal against conviction is therefore dismissed. 
     There is also an application for leave to appeal against sentence.  The applicant was sentenced to eight years imprisonment.  He had at the time of conviction an extensive criminal history dating from 1981.  He had served terms of imprisonment for breaking, entering and stealing, housebreaking, false pretences, and stealing.  He had also served periods in prison for unlawfully wounding, assault occasioning bodily harm and escaping from lawful custody.  The learned trial Judge referred to the prevalence of the offence of armed robbery and that it was necessary to impose sentences upon offenders which would deter them and others from that conduct.  He accepted that the applicant was the person who entered the premises and that the circumstances were obviously greatly distressing to the victims.  He took into account that the applicant had a substantial criminal history but noted that that may have flowed from an unfortunate childhood and an addiction to various substances over the years.  He observed that the pleas of not guilty indicated a lack of remorse. 
     The applicant, who had spent a lengthy period on remand and who held a Queensland Master Fisherman's ticket claimed to have been instrumental in formulating the idea of netmaking as a prison activity.  He had also undertaken a computer course and a drug and alcohol programme while in prison.  It was also submitted that the recovery of a large part of the proceeds was a mitigating circumstance.  It was also submitted that the Crown Prosecutor had said that the starting point for imposing sentence was in the range five to six years imprisonment.  However, that remark must be read in context and it was intended to indicate what was the bottom of the range for these kinds of offences.
     Because of the number of robberies committed on the one day and the applicant's criminal history a sentence of eight years imprisonment is within the proper range and is not manifestly excessive.  The application for leave to appeal against sentence is dismissed.