R v Thornton

[1999] QCA 78

99.78

COURT OF APPEAL

PINCUS JA DAVIES JA THOMAS JA

CA No 422 of 1998
THE QUEEN
v.

KARL MATHEW THORNTON Applicant

BRISBANE
..DATE 18/03/99
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DAVIES JA: The applicant was sentenced in the District
Court on 22 October last on the plea of guilty on one
count of armed robbery in company, one of entering
premises with intent, one of deprivation of liberty,
three of wilful damage and two of breaking and entering
premises and committing an indictable offence therein.

He was sentenced to five years imprisonment for the first of those offences, two years imprisonment for the second, two years imprisonment for the third, three months imprisonment for each of the counts of wilful damage and two years imprisonment on each of the counts of breaking and entering and committing an indictable offence. All sentences were concurrent.

The learned sentencing Judge concluded that 236 days already spent in custody be time served under the sentences.

The principal offences and some of the subsidiary
offences were committed on the night of 26 February
1998. The applicant and his two co-offenders entered a
Red Rooster Store at Labrador on the Gold Coast after it

had closed. Three staff members were cleaning the store.

The offenders were all armed, the applicant carried a
machete, one of his co-offenders carried a crowbar and
the other a replica pistol. Each was masked and wore
dark clothing.
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To enter the store they broke a lock on the rear gate
and opened the screen door. Once inside they tied up
one of the staff members, a young boy of only 14, and
ordered the female assistant manager to open the safe.

After some difficulty she did so and $800 was taken from the safe. She was also then bound up. A number of personal items were also taken, these included cash transaction cards and an engagement ring valued at $2,500.

The offenders then left. They were soon apprehended because someone had taken the number of the car in which they escaped. This was traced to the applicant. The police searched the applicant's residence and found clothing and weapons consistent with those used in the robbery. They also found property which the applicant had stolen during the commission of the two break and enter offences referred to earlier. He told the police in respect of each of those that he had smashed a window to enter premises and disabled an alarm system. The property stolen in each case was worth over $8,500.

The applicant in this Court today for the first time
says that he did not steal that property, that he was
not the thief but a receiver of the goods and that he
told the police he was the thief because he did not want
to get the owner of the house into trouble.
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That is an inherently incredible story and in any event
in my view we should disregard it with his having
pleaded guilty and having told the police what I have
just related.

The applicant was 24 years of age when he committed these offences and nearly 25 at the time he was sentenced. He has quite a substantial criminal history although most of it involves motor vehicle offences and minor drug offences. However he has been convicted on a number of occasions for offences involving dishonesty.

In 1990 he was convicted on two occasions of breaking and entering with intent and one of receiving. In 1991 he was convicted on two occasions of breaking and entering with intent, one of possession of car breaking implements and one of stealing.

In 1992 he was sentenced to imprisonment for the first time receiving an 18 months sentence for possession of amphetamine with intent. He received another 18 month sentence in 1994 for burglary and some smaller concurrent sentences for possession of cannabis.

Again in 1995 he was convicted twice for burglary but on
both occasions he received probation. He makes the
point today that the last of these offences was three
years ago and committed in Western Australia but he came
here to get away from the company in which he got into
trouble and that some account should be taken of the
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fact that it has been three years or so without
committing an offence.

It must be said however that it appears that neither probation nor short terms of imprisonment seem to have any deterrent effect on the applicant.

The armed robbery offence was as the learned sentencing Judge noted premeditated, it involved weapons and was committed in company at night-time. His Honour noted the prevalence of these offences in the area in which he sat and rightly thought that general deterrence was a relevant factor in the sentencing process.

Of the three employees of the Red Rooster Store, two of them, a young woman and the boy to whom I have already referred, continue to have psychological problems in consequence of their experiences on the night of the robbery.

The main complaint of the applicant here appears to be that he did not receive a recommendation for early parole because of his guilty plea. However the learned sentencing Judge took into account the guilty plea and said so but he took it into account in reduction of a sentence which he imposed.

The respondent has submitted that a sentence of seven
years would have been appropriate or at least well
within range and that consequently a sentence of five
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years having regard to the guilty plea and any other
matters which might be taken into account is also within
range.

The only other point which appeared at first glance to be of some substance raised by the applicant here was that there was a disparity between the sentence imposed on him and that of one of the co-offenders who was being sentenced who received a sentence of three years and nine months.

However there were two substantial factors which shows that there was no disparity in the sentences. One is that the co-offender had little or no previous criminal history and the other perhaps even more important matter is that he gave the police information which assisted them.

For the reasons I have mentioned I cannot be satisfied that having regard to the comparable cases referred to as those with which we are familiar that a sentence of seven years would have been outside the range of a sound discretionary judgment and that consequently a sentence of five years having regard to the matters which should be taken into account in the applicant's favour is outside that range.

I would therefore refuse the application.
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PINCUS JA: A submission was made by counsel for the
Crown that the sentence imposed was too light in one
respect, in that the applicant had the benefit of a
declaration that a period of 236 days spent in custody
was part of the sentence already served. Counsel
suggested that the period should have been less than 236
days. However, the Attorney-General has not appealed
against the sentence.

Counsel also submitted that perhaps the Corrective Services Commission could have authority to correct what he asserted was an error in the Judge's order. To the best of my knowledge the Corrective Services Commission has no authority to keep people in gaol a day longer than is ordered by the Court and certainly none has been referred to. If the Commission had such authority it would be an alarming position.

Apart from that comment I wish to add nothing to what has been said by Mr Justice Davies about the matter. I agree with His Honour's reasons and with the order which His Honour proposes.

THOMAS JA: I agree with the observations made by Mr
Justice Davies and with the further observations of

Justice Pincus.

PINCUS JA: The order of the Court is application
refused.
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