R v Taylor & Napatali; ex parte A-G (Qld)

[1999] QCA 323

IN THE COURT OF APPEAL	[1999] QCA 323
SUPREME COURT OF QUEENSLAND
Brisbane [R v Taylor & Napatali; Ex Parte A-G]

T H E Q U E E N

v

BEAU LINCOLN TAYLOR

- and -

RUBEN JOSEPH NAPATALI

Respondents

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P
McPherson JA

Thomas JA

Judgment delivered 20 August 1999

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

ATTORNEY-GENERAL'S APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: CRIMINAL LAW - Jurisdiction, Practice and Procedure - Pleas -

Robbery - Aggravation - Sentencing - Whether young offenders with no prior convictions should be sentenced to mandatory imprisonment

Criminal Code (Qld), s409

Penalties and Sentences Act (Qld) 1992, S9

Bainbridge, Cullen & Ludwicki (1993) 74 A Crim R 265
House v The King (1936) 55 CLR 499
Lahey v Sanderson [1959] Tas SR 17
R v del Arco (CA 289/1993, 25 March 1994)
R v Fitzgerald (Indictment No 2500/ 1992, Trafford-Walker DCJ, 11
Dec 1992)
R v Lovell [1999] 2 Qd R 79

Counsel:	Mr P Keane QC, with him P Rutledge, for the appellant Mr M Shanahan for the respondent Taylor Mr P Leask for the respondent Napatali
Solicitors:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondents
Hearing Date:	9 July 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 20 August 1999

1. I have read the reasons for judgment of McPherson JA, who has set out the

   relevant facts.

2. The courts have long recognised the desirability of not sending youthful offenders without prior convictions to prison because of the chances of favourable reformation.[1] The schedule of sentences imposed in armed robbery cases on 17 year olds between 1988 and 1992 referred to in R v Bainbridge, Cullen & Ludwicki[2] shows that at that time where the offender had no relevant previous convictions only seven of the 24 matters included in the schedule involved custodial sentences and three of these were for six months or less. The Court there noted that s 9(4) of the Penalties & Sentences Act 1992 gave legislative support for the view that youthful first offenders should not be incarcerated unless no other sentence was appropriate in all the circumstances.

   [1]            R v Price [1978] QdR 68

   [2] (1993) 74 A Crim R 265

3. That section was repealed in 1997 when substantial amendments were made to the Penalties & Sentences Act 1992.

4. Sentencing guidelines are set out for the Court in s 9 and include:

"(b) to provide conditions in the court's order that the court
considers will help the offender to be rehabilitated."

Section 9(2) provides:

"In sentencing an offender, a court must have regard to -

(a)

principles that -

(i)	a sentence of imprisonment should only be imposed as a last resort; and
(ii)	a sentence that allows the offender to stay in the community is preferable."

Section 9(3) provides:

"... the principles mentioned in subsection (2)(a) do not apply to the

sentencing of an offender for any offence -

(a)	that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or
(b)	that resulted in physical harm to another person."

1. In this case the pushing of the rifle muzzle against the back of the customer's head involved the use of sufficient physical force to constitute violence against another person and clearly bring this case within s 9(3). Section 9(4) sets out the matters which a court must primarily consider when sentencing offenders like Taylor and Napatali to whom s 9(3) applies. Included in the factors listed under s 9(4) are:

   "...

(g)	the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
(h)	the antecedents, age and character of the offender;

(i)         any remorse or lack of remorse of the offender;

(j) any medical, psychiatric, prison or other relevant report in relation to the offender."

The combined effect of s 9(3) and many of the eleven matters listed for consideration in s 9(4) have the result that although the youth of the offender is still a relevant factor, its weight is less than it was prior to the 1997 amendments to the Penalties & Sentences Act 1992.[3]

[3]            See R v Lovell [1999] 2 QdR 79; [1998] QCA 36

1. It should not be forgotten that s 13 requires the court to take into account a guilty plea and gives statutory encouragement to the reduction of the penalty imposed because of the plea of guilty.

2. A review of the pertinent sections of the Penalties & Sentences Act 1992 demonstrates that with the exception of the mandatory sentence of life imprisonment for murder and the removal of the ability of courts to make recommendations for parole where an offender is declared to be convicted of a serious violent offence under Part 9A, Parliament has wisely left judges an unfettered sentencing discretion to impose the most appropriate sentence in order to meet the unique facts of each case. That discretion must, of course, be exercised properly and will only be reviewed on an Attorney-General's appeal where the sentencing judge has erred in principle either because an error was discernible or a manifest inadequacy demonstrated.[4]

3. The respondents here pleaded guilty by way of ex officio indictment; they cooperated fully with police: the respondent Taylor was 17 years old and Napatali was 20 years old; neither had previous convictions; in Napatali's case there was a favourable report from a Boys Town senior youth worker and a number of references, and in Taylor's case there was a favourable report from a senior social worker and references from a drug and alcohol counsellor and relatives. Despite the very serious aspects of the offence set out by McPherson JA, I agree with him that the sentence imposed upon each respondent cannot, in all the circumstances, be said to be manifestly inadequate. The learned and experienced sentencing judge carefully weighed the competing interests and finally concluded that each respondent should be sentenced to 12 months imprisonment to be served by way of an intensive correction order.

4. I agree that the appeal should be dismissed.

   REASONS FOR JUDGMENT - McPHERSON JA

   Judgment delivered 20 August 1999

   [4]            See R v Melano ex parte Attorney-General [1995] 2 QdR 186

5. This is an appeal by the Attorney-General against sentences imposed in the District Court at Beenleigh on the ground that they are inadequate.

6. At about 8 pm on 27 October 1998 Ms Sonja White, aged 28, was on duty in the course of her employment at the Ampol 24-hour Service Station at Kingston. She was busy serving a customer Adam Walsh, aged 18, when the two respondents to this appeal came into the service station shop. They were holding guns. One, who was the respondent Ruben Joseph Napatali, was holding a single barrelled rifle. He was wearing a baseball cap, but his face was uncovered and Ms White recognised him as a regular customer of the shop. The other was the respondent Beau Lincoln Taylor. He was holding what appeared to be a pistol. He had a bandanna on his head, but his face was also uncovered.

7. Napatali first pointed the rifle in the direction of Ms White. He then jammed it at the back of Adam Walsh's head. Taylor said "give us your fucking money". He held out a white shopping bag, telling Ms White to hurry up and put the money there. She did what she was told. She suspected that the pistol held by Taylor was a replica (as indeed it was) but she was afraid to take any preventive action while the other respondent Napatali had his gun at Walsh's head. She put the money in the bag, and the two respondents ran out of the shop. They apparently escaped on foot. Once they had gone, she locked the doors and called the police. The amount of money taken was about $600. The reason why there was so much in the cash register at the time was that the service station shop had been too busy to enable Ms White to carry out a periodic clearance of the register before the respondents came in.

8. That was on 27 October 1998. Two days later Ms White was again on duty in the shop when a young woman with a child came in to purchase some confectionery. Accompanying her was a man whom Ms White recognised as one of the respondents who had been involved in the offence only two days before. She ascertained he was called Joey. After he left the shop, she engaged in conversation with the young woman, who told her that his surname was Napatali. The police were advised and conducted a search of Napatali's house in Woodridge. He gave them the name of his co-offender Taylor, who was located at home. A search conducted there uncovered a rifle buried in the yard. It lacked a firing pin, and so was incapable of being fired; but Ms White and Adam Walsh had, of course, no means of knowing that at the time it was used to menace them.

9. The police interviewed the respondents, each of whom made full and frank confessions of having committed the offence. Napatali said they had been drinking together when they formed the idea of robbing a service station. They obtained the weapons, including the replica pistol, from Taylor's place. Napatali remembered placing the muzzle of the rifle against the back of the customer's head. Afterwards they went to Taylor's place where they divided the proceeds. Napatali spent his share of the money on cigarettes and food. Taylor confirmed Napatali's account of events. He spent his share on marijuana. He buried the rifle in the back yard to prevent its being found and threw the replica pistol into the creek.

10. The offence committed by the two respondents was armed robbery in company with violence. It was a robbery because, when they stole the money, they did so with a threat of actual violence (Criminal Code, s409). They were armed with the rifle and the replica pistol. Even if those weapons were in fact incapable of being discharged, they pretended that they were dangerous. Because the offence was carried out by the two of them together, it was robbery in company, and they were both criminally responsible for what was done by each of them. Such a combination of circumstances renders an offender liable to a maximum term of imprisonment for 14 years. See s412(2) of the Code. Under s412(3) the offence attracts a maximum penalty of life imprisonment if the offender is armed with any dangerous or offensive weapon and at the time of the assault, he either wounds, or uses that weapon to do other personal violence to, any person. In law, not much is required to constitute personal violence. In this instance pushing the rifle muzzle against the back of Walsh's head was presumably enough to constitute "personal violence" under s412(3).

11. Each of the respondents pleaded guilty to a charge of armed robbery with those accompanying circumstances of aggravation. Their pleas were taken on 9 April 1999 on what is called an ex officio indictment, which means that they did not put the prosecution to the trouble and expense of committal proceedings in the magistrates court in which the witnesses would be called to give evidence. They were no doubt advised that, in view of their confessions to the police, it would have been pointless to require that process to be gone through. Still, it is a factor that weighs in their favour on sentencing because it is not unknown for offenders to insist on pleading not guilty even when, to everyone else, their case appears indefensible. Section 13(1)(a) of the Penalties and Sentences Act 1992 requires a sentencing court to take a guilty plea into account. It uses the expression "must take the guilty plea into account". Having done so, the court "may then reduce the sentence imposed" (see s13(1)(b) of the Act), and, in doing so, have regard to the time at which the offender pleaded guilty or advised the intention of doing so: s13(2). This confers a discretion on the sentencing court; but it is plainly intended that the sentence will ordinarily undergo some reduction on that account. If it is not so reduced, the reasons for not doing so must be stated in open court:s13(4).

12. In the present case the respondents' plea of guilty following on their full and frank confessions to the police at an early stage were taken into account in arriving at the sentence, which was imposed on 12 April 1999. That sentence was, however, nothing like the maximum life sentence authorised under s412(3) of the Code. Such a maximum shows how seriously the offence is capable of being regarded. The reason is not difficult to identify. Offences such as armed robbery strike at the roots of stable society. They commonly have severe effects on the health and well-being of the victims threatened by such conduct. Even where guns are not used or discharged, victims often suffer shock sometimes with long-lasting consequences that prevent them from working or leading a normal life again. In the present case direct evidence to that effect is pretty scant. The prosecution did not tender a written victim impact statement. According to counsel for the prosecution, Adam Walsh said he did not wish to provide such a statement; but counsel also said it was evident from the complainants' statements that there was "some quite significant effect" on both complainants. Ms White said she was terrified she would be shot, and was worried for the safety of Adam Walsh. It is considerably to her credit that she returned to work at the same place so soon after the event. Perhaps she was compelled to do so by economic necessity; or perhaps she is the kind of person who does not readily give in to threats of force. In any event, there is good reason for supposing that her experience of being robbed inflicted genuine and perhaps lasting hardship on her.

13. Why, then, did the learned judge in this case not sentence these two offenders to a term of imprisonment? On one view of it, he did. He sentenced each of the respondents to imprisonment for 12 months to be served, as s113(1) describes it, "by way of intensive correction in the community". Although s113 refers to it as "a term of imprisonment", it is, as was observed in the course of this appeal, a form of "double-speak" involving the legislative fiction that someone is in prison when quite plainly they are not. So much is, indeed, partly recognised by the legislation itself, which in s113(2) declares that, for the purpose of any other Act providing for disqualification, etc., an offender subject to such an order is taken not to have been sentenced to a term of imprisonment. A sentence under s113 is really a partly disguised form of short-term probation designed to impose such close and continuous supervision of an offender that he (or she) has much less opportunity to re-offend within the stipulated period of 12 months. It is a useful method for dealing with young offenders, and it is used particularly where there is considered to be some prospect they will not re-offend.

14. That is the principal reason why the sentencing judge chose that form of sanction in the case of these respondents. His Honour had before him for sentencing two offenders, one of whom Taylor was only 17 years old, while the other Napatali was 20. Both had pleaded guilty. Neither had any previous convictions of any kind. There were detailed reports or references in respect of each of them. They both had deprived family backgrounds. Shortly after Taylor was born, his father had left home, having earlier told Taylor's mother that she had to choose between him and the boy. Since then, his father has refused to have anything to do with him. His mother, to whom he was at one time "very close", has since had several different male partners, who, while they have to some extent fulfilled the role of a father-figure in Taylor's life, have treated his mother with repeated violence and physical brutality. Taylor has grown up in this disturbed atmosphere at home, which has been made worse by having a brother who is autistic with a tendency to violence. There is a family history of alcohol addiction, and Taylor himself began consuming alcohol when he was only 13 years old. At 16 he started using "speed" and he also used marijuana, as he did on the night of the offence. He struggled at school, which he left part way through grade 9. He worked for some eight months with a packaging company, which helped to improve his self-esteem; but he lost his job there, and he has not found work again.

15. Napatali has a similar, but in some ways rather more hopeful, family background. He was one of six children, whose mother died when he was only four years old. His father took to alcohol, with the result that there was often no food in the house. Some kindly persons, a Mr Russell and his family, who knew of their plight, began giving the father money for food; but he used it for drink instead. Mr Russell then gave money for food and clothing to Napatali's sisters, who could be trusted to apply it for that purpose. The Napatali family included an old grandmother, but she was very sick. Nevertheless, Mr Russell, who gave evidence at the hearing, said that the morals of the children were good ; "there was", he said, "not a bad bone in their body". In particular, Joey, as Napatali is known, is said to be a very capable athlete, but is less successful at sport than some others, because he lacks aggression. He is, says a Mr Davidson in his report which was tendered, "a non- violent person, who is very patient with people, quiet, friendly and very respectful". Napatali has worked before in landscape gardening, and is now working successfully as a trainee horticulturist. Everyone who knows him is satisfied with the way he is complying with the intensive correction order imposed.

16. His Honour was thus faced with a choice of sending these two offenders to gaol or of imposing a sentence of the kind he did. He chose the latter, after reserving his decision for some days and considering the need for deterrence and protection of the community from violent offences of this sort, against which he said he had to balance the need for rehabilitation. "Doing the best I can", he said, "to reconcile the different considerations on sentencing, an intensive correction order will be made". He warned the respondents that if they broke the conditions of the order, they would face a term of imprisonment of some four years. In his Honour's report to this Court under O IX, r 15 of the Criminal Practice Rules, he notes that Taylor had appeared to him to be "a very weak or vulnerable person". He considered that imprisonment "would be likely to result in his moral corruption and the real chances of his rehabilitation within the prison system would be slim". Taylor was, of course, the younger of the two. The judge thought Napatali was "a much stronger character with a developed moral sense". He considered it unfair to differentiate between the two of them, which was no doubt partly why Napatali was also sentenced to intensive correction.

17. The Attorney-General was not misled by s113 into believing that what was imposed was a real sentence of imprisonment. He now appeals against the sentences imposed on these two offenders on 12 April 1999 and argues that the respondents be sent to gaol. Because the notice of appeal was filed on 12 May 1999, the appeal was, as counsel for the respondents correctly conceded, instituted within the time allowed. The grounds of the Attorney's appeal are that the sentence was manifestly inadequate in that: (1) the sentencing judge failed to give proper weight to the prevalence of the offence; and (2) the need for deterrence. It is clear from what the learned trial judge said that he took both of these matters into account in arriving at the sentences imposed. As he said in his report, no judge sitting in Beenleigh could be unaware of the prevalence of the offence of robbery. On the appeal before us, the Solicitor-General Mr P A Keane QC, who led for the Attorney, based the appeal on a more specific submission. It was that, if the offence of armed robbery with violence in company is committed at a service station at night, then those offending must be sentenced to a substantial term of imprisonment, regardless of the fact that they are young first offenders with prospects of rehabilitation.

1. There is no doubt that, to succeed on this appeal, it is necessary for the Attorney-General to go so far as to establish the proposition stated as a matter of law. That is because on an appeal against sentence, this Court does not simply substitute its own view for that of the sentencing judge from whom the appeal is brought. If it did, there would be appeals against sentence in practically every case; but it is not that consideration that is decisive. Rather, it is because sentencing is a process that is regarded as involving the exercise of a judicial discretion which, it was long ago settled, will not be interfered with on appeal unless it appears that the primary judge has made some identifiable error in exercising it. See House v The King (1936) 55 CLR 499, 505, where, in explaining the nature of the error that must be shown on appeal, Dixon, Evatt and McTiernan JJ described it in these terms:

   "If the judge acts upon a wrong principle, if he allows extraneous matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so".

   The same general approach prevails in an appeal by the Attorney-General against inadequacy of the sentence imposed: see R v Melano [1995] 2 Qd R 186.

2. The critical factor influencing the judge's sentencing discretion in the present case was that the respondents were youthful first offenders, for whom the judge considered there was some real prospect of rehabilitation if they were not sent to gaol. That has been regarded as a significant factor in sentencing for as long as any of us can remember, and no doubt for very much longer. It is not one that is confined to this State, as can be gathered from the following passage in the reasons for judgment of Wanstall CJ (with whom Matthews and Kelly JJ agreed) in R v Price [1978] Qd R 68, 70-71. His Honour quoted with approval from the Tasmanian case of Lahey v Sanderson [1959] Tas SR 17, where Burbury CJ said:

   "The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree."

   That, Wanstall CJ added, was a correct principle to be applied in the case of a youthful offender with no previous convictions whose chances of reformation were favourable. It is a principle or factor that has repeatedly been adopted and applied in the process of sentencing in courts in Queensland.

3. R v Price was not a case of armed robbery but of the lesser offence of unlawful use of a motor vehicle, for which a sentence of imprisonment for three months had in that case been imposed, but which was set aside on appeal. It is obvious that there are some offences in relation to which being a youthful first offender would not prevent the imposition of a sentence of imprisonment. Rape is an instance. In the case of an offender who was not a mere juvenile, I cannot recall any occasion on which a prison sentence has not been imposed for rape. Armed robbery in company with violence is capable of producing consequences that can be as serious as some instances of rape. The harm done to a victim's bodily integrity, mental well-being and future happiness is sometimes both severe and permanent; but, at least where these features are not shown to be present, a sentence in prison has not always been regarded as an inevitable penalty in the case of a youthful first offender. An example is R v Fitzgerald (Indictment No 2500 of 1992, Trafford-Walker DCJ, 11 Dec 1992) in which a 17 year old offender without previous convictions was sentenced on 11 December 1992 to probation for three years, together with 200 hours of community service, for two separate offences of armed robbery in company committed at different shops on 1 September and 5 September 1992. In each case a replica handgun was used to threaten shopkeepers from whom amounts of $495 and $74 were stolen. The circumstances of each of those robberies were similar to the offence committed here except, of course, that there were two offences in that case, which involved more careful planning, and in each instance the offender concealed his identity by wearing a hooded parka and sunglasses.

4. There was no appeal by the then Attorney-General against the inadequacy of the sentence in that instance. I have no wish to revive or to prolong the mortification of the young man involved on that occasion especially in view of his subsequent successes; but, his case, which attracted public attention at the time, has remained in the collective memory of the community. I refer to it here not only because of the need to ensure that public confidence is maintained in the even-handedness of the sentencing process, but also because his example demonstrated that society can afford and must on some occasions be prepared to take some risks with the future of young offenders rather than simply consigning them to prison as a matter of course. Unless the law has changed since 1992, the respondents here are entitled to expect the same treatment as others like them have received in the past.

5. The sentence imposed, as well as the facts and circumstances of the offences in the case referred to, can be gathered from the reasons for decision of this Court in R v del Arco (CA 289/1993, 25 Mar 1994), which was an appeal against sentence by the co-offender, who had not entered either of the shops himself. At 21 years, he was somewhat older than the other offender; but, what was more important, he had a significant criminal history dating back to 1991, for which he had received a short prison sentence followed by parole. It was while he was serving that prison sentence under home detention (another statutory fiction that is used to describe imprisonment) that he took part in the subject two robbery offences in 1992, together with a third offence of fraudulently obtaining the replica pistol by means of a false cheque. The sentence imposed for all of these offences, which included the balance of the sentences still to be served from 1991, was fixed by this Court on appeal at four years and three months, but with a recommendation for parole on 1 December 1994. An attempt by that appellant to claim parity with his younger co-offender was unsuccessful because of the age difference between them, the appellant's prior criminal record, and his conduct in abusing his privileges by committing the 1992 offences while on home detention or parole.

6. In commenting on the sentence imposed on del Arco, the Court of Appeal referred with evident approval to remarks of the sentencing judge in that case, which were that sentences for offences of robbery of that kind must reflect the community's strong disapproval of such criminal behaviour, and the particular vulnerability to it of persons conducting such businesses, as well as to his Honour's statement that:

   "in a number of cases where there are very young offenders involved with no significant criminal history and perhaps other extenuating circumstances, non-custodial sentences have been imposed ..."

   In referring to R v Fitzgerald in the later case of Bainbridge (1993) 74 A Crim R 265, 267, this Court mentioned a schedule tendered by the Crown which collected sentences imposed between 1988 and 1992 on 17 year old youths for armed robbery, or armed robbery in company. It showed that during that period 15 out of 28 such sentences were non-custodial; that is, they did not involve imprisonment. In five of the others that did so, where the offender had no relevant previous convictions, periods of imprisonments, one of them as short as nine days, were imposed. The younger offender in the case first referred to was sentenced very soon after a relevant part of the Penalties and Sentences Act 1992 had been brought into force; but, for present purposes, the significance of the schedule used in sentencing him is that it shows the prevailing sentencing pattern during the period of four or more years before that Act took effect.

7. It is true that, in its original form, the Act of 1992 contained in s9(4) a quite explicit provision that first offenders under the age of 25 years might be sentenced to imprisonment but only if the court was satisfied, after taking into account the desirability of not imprisoning such an offender, that no other sentence was appropriate. It was in reference to s9(4) that this Court in Bainbridge (1993) 74 A Crim R 265, 268, said it gave:

   "... legislative support to the view which ... had all along been the view of the courts with respect to youthful first offenders. It need hardly be said that the younger the offender generally the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment; though there are, of course, some cases which are so serious that notwithstanding youth and the absence of relevant previous convictions, the offender must go to gaol."

8. Section 9(4) of the Act was repealed in 1997. On behalf of the Attorney on this appeal it was submitted that the effect of that repeal, taken perhaps with some other amendments to the Act in 1997, had the consequence in law that, apart from what are described as "exceptional circumstances", the courts are now required to impose substantial terms of imprisonment, even on youthful first offenders, for a single offence of armed robbery in company with violence. Reference was made to R v Lovell [1999] 2 Qd R 79; [1998] QCA 36 where Byrne J, with the concurrence of Davies JA and the substantial agreement of Pincus JA, said of those amendments ([1999] 2 Qd R 79, 83):

   "For offences mentioned in the new s9(3), the shift in emphasis from the 'principles' stated in s9(2)(a) to having 'regard primarily' to the considerations expressed in s9(4) diminishes somewhat the value of the guidance to be derived from cases of violence decided under the previous sentencing regime. That is particularly true of those decisions where the sentencing discretion was constrained by the former s9(4), which provided that a Court may only sentence a first offender under the age of 25 years to imprisonment if, having considered all other available sentences and taken into account the desirability of not imprisoning a first offender, the Court was satisfied that no other sentence is appropriate. The 1997 amendments reflect a legislative conviction that less hesitation by the Court is requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the Court is required by s9(4) to pay primary regard are 'the past record of the offender, including any attempt at rehabilitation and the number of previous offences of any type committed' (g), and 'the antecedents, age and character of the offender' (h)."

   Lovell's case was one in which a 19 year old offender, accompanied by a 17 year old who acted as lookout, engaged at night in robbery of a corner store attached to a house in which the proprietor and his wife lived. Lovell was armed with a wooden cue, which he used as a bat or club with which to threaten the 43 year old proprietor. A physical struggle ensued, in which the offender several times kicked and it seems damaged a door of the shop or house. In the end, he was unsuccessful in opening the shop cash register and finally gave up the attempt. His appeal against a sentence of imprisonment for six months, followed by probation for three years, was dismissed. It can scarcely be regarded as representing the "substantial period of imprisonment" of from three to five years contended for by Mr Keane S-G in the present case, although there are some obvious similarities between the offences committed in the two cases.

9. R v Lovell does not, in my respectful opinion, establish the proposition submitted by the Attorney-General on this appeal. The continued, even if now diminished, relevance of youth as a mitigating factor in sentencing for offences of this kind was expressly recognised by Byrne J in the passage set out above, as well as by Davies JA in his reasons ([1999] 2 Qd R 79, 82). What Pincus JA said (at 82) was:

   "Although the youth of the offender is still made a relevant factor by the statute, it appears to me that its weight is diminished in cases caught by the new s9(3) of the Act, and that the applicant's sentence is therefore a correct one. It is plain that not all of the decisions of this Court and indeed of the Court of Criminal Appeal relating to young offenders may necessarily be used in future as guidance in cases covered by s9(3) of the Penalties and Sentences Act 1992."

   As can be seen, the language of this passage was carefully chosen.

10. I am, with respect, unable to identify anything in the Act of 1992, as amended in 1997, which now compels the imposition of a substantial sentence of imprisonment on a young first offender as a matter of course; or, in other words, which deprives a sentencing judge of his or her discretion, in a case of this kind, of deciding in appropriate circumstances not to impose a sentence of imprisonment or actual detention in prison. The repeal of s9(4) cannot be regarded as having had that effect. In the form in which it was enacted in 1992, it considerably enlarged the category of young or youthful offenders by extending it to all persons under 25 years; and it imposed what was in effect a statutory embargo on imprisoning such offenders if some other appropriate form of sentence could be identified. Its repeal went far, even if not the whole way, to restoring the sentencing regime that prevailed before it came into force late in 1992. If Parliament had intended that all youthful first offenders should be gaoled for offences of this kind, it could easily have said so in clear and unmistakable terms. Where mandatory prison sentences are dictated by the 1997 amendments, this Court has faithfully given effect to the amending legislation irrespective of previous sentencing practice, as in R v Collins (CA 238/98, 18 Sept 1998; [1998] QCA 280), R v Booth (CA 338/1998, 30 Mar 1999), and R v Crossley (CA 477/1998, 18 June 1999; [1999] QCA 223). All that is required is an unambiguous statement of legislative intention to that effect, which, for those holding power in Queensland's unicameral Parliament, is less difficult to achieve than it sometimes is in other legislatures in Australia or elsewhere in the common law world.

11. In the absence of some such explicit direction here, I do not think we are justified in assuming or inferring from the Penalties and Sentences Act, as it has been amended, a legislative policy, like that contended for by the Solicitor-General on this appeal, that young first offenders committing offences must, apart from exceptional circumstances, necessarily be sentenced to substantial terms of imprisonment. The Attorney-General's appeal in this case cannot succeed on that ground. It is not an instance of the courts wilfully preferring some cherished principle of their own in preference to the law laid down by Parliament. It is simply that there is no firm indication that Parliament intended to lay down any such rule.

12. It remains to be considered whether, on a broader plane, it can be said that the sentence imposed in the case of these two offenders was manifestly inadequate, which is the settled and well-publicised criterion on which this Court acts in determining sentencing appeals like these. The seriousness of offences of this kind, and their actual or potential impact on the welfare of the individuals subjected to them, cannot be underrated. Ms White was carrying out the duties of her employment at a time and place of a kind that serves the convenience of the community, but which are becoming increasingly vulnerable to attacks of this character. She, and others like her, deserve all the protection the law can give. It does not help to be told that the two offenders were themselves unemployed, and that they committed the crime in what appears to have been a completely uncaring way and for the most casual of reasons. The reports from social workers and others suggest that, as much as anything, they did it because they were bored. They acted in a way that unfortunately is characteristic of the immaturity of youth.

13. The very natural outrage of victims, their relatives and friends is understandably increased by seeing such offenders go free under a statutory sentencing regime that says they are being imprisoned when they are not. Similarly placed, most of us would react in the same way. But it is precisely because, with such strong feelings, we are incapable of being dispassionate about a matter in which we would be personally so involved that the function of determining the appropriate sentence is imposed on someone quite dissociated from either victim or offender. As much as anything, it is that consideration, as well (I suppose) as experience of sentencing and a knowledge of the law, that has marked out judges as the persons who have to discharge that duty. For doing it, they earn little credit and much opprobrium from both victims and offenders, or their sympathisers and others. An alternative which has sometimes been mooted is to transfer the sentencing function to a panel of experts on penal theory assisted perhaps by other persons, like those who supervise the parole system. Whether that would meet with general public approval, or be more successful than a system of sentencing by judges, is not for us to say. But no one, so far as I am aware, has seriously suggested that the persons to be chosen for that purpose should be either the offenders themselves, or the victims of their crimes, or their relatives and friends, who have understandably intense feelings about the outcome of the sentencing process.

14. Until some acceptable alternative is found, the judges on whom the duty of sentencing now rests must, as his Honour said here, continue trying to reconcile the competing interests of victims and offenders in cases like this. Having been invested with a discretion whether or not to send these two young offenders to gaol, the sentencing judge in this case decided, for reasons which he gave, not to condemn them to that course. It was not an easy decision, nor was it lightly or hastily arrived at. It was, however, not contrary to, but in conformity with, the law which he was bound to apply. Having regard to other sentences in cases involving offenders and offences of a similar character, the sentence imposed here cannot be regarded as manifestly inadequate. Uniformity of treatment of offenders in approximately the same category is something that must be maintained if public perceptions of injustice (or something more suspicious) to individuals are to be avoided. That being so, and applying the principles on which we act, the sentencing decision in the case of these two offenders cannot properly be altered by increasing it in this Court.

1. The appeal by the Attorney-General must be dismissed.

   REASONS FOR JUDGMENT - THOMAS JA

   Judgment delivered 20 August 1999

2. I agree that the appeal should be dismissed for the reasons given by the

   President.