R v Tupe

[1996] QCA 509

IN THE COURT OF APPEAL	[1996] QCA 509
SUPREME COURT OF QUEENSLAND

C.A. No. 421 of 1996

Brisbane

[R. v. Tupe]

THE QUEEN

v.

SIONE HALU TUPE

(Applicant)

Thomas J Dowsett J White J

Judgment delivered 10 December 1996

Judgment of the Court

1.Application for leave to appeal against sentence granted.
2.Appeal against sentence allowed.

3.Sentences imposed below in respect of the appellant's convictions for armed robbery in

company with personal violence (count 3) and for robbery with personal violence
(count 5) be set aside.

4.In lieu the appellant be sentenced on each count to imprisonment for six years with a recommendation that the appellant be considered eligible for release on parole after serving two years.

5.Pre-sentence custody direction undisturbed.

CATCHWORDS:  CRIMINAL LAW - SENTENCE - 19 year old offender - armed robbery in company with personal violence and robbery with personal violence - whether sentence manifestly excessive.

R v. Hammond CA No 445 of 1996; R v. Lawrence CA No 13 of 1992; R v. Teufel CA No

306 of 1993; R v. Donohoe CA No 270 of 1992.

Counsel:	Mr D. Rangiah for the Appellant Mr D. Bullock for the Respondent
Solicitors:	Legal Aid Office for the Appellant Director of Public Prosecutions for the Respondent

Hearing Date: 15 November 1996

JUDGMENT OF THE COURT

Judgment delivered 10 December 1996

The applicant seeks leave to appeal against sentences imposed in the District Court with respect to ten offences committed in a four-week period. The offences, their dates of commission and the sentence imposed were as follows:

1	28 November 1995	Robbery	5 years
2	28 November 1995	Attempted stealing	6 months
3	3 December 1995	Armed robbery in company with personal violence	7 years
4	4 December 1995	Unlawful use of a motor vehicle	1 year
5	7 December 1995	Robbery with personal violence	8 years
6	7 December 1995	Wilful damage in the night time	2 years
7	16 December 1995	Break, enter and steal	2 years
8	23 December 1995	Wilful damage in the night time	2 years
9	23 December 1995	Break and enter with intent	2 years
10	23 December 1995	Arson	5 years

The applicant was eighteen years old when he committed these offences and was nineteen at the time of sentence. He had only a relatively minor criminal history consisting of unlicensed driving and driving under the influence (and a consequential breach of a fine option order on those matters); an assault occasioning bodily harm committed a few days before the offences with which we are concerned, which was not regarded as sufficiently serious to warrant the recording of a conviction; and a breach of the Bail Act for failing to appear on that charge on 8 December 1995.

Obviously the total criminality of his conduct will impact upon the appropriate level of the operative sentences. The sentences the subject of the present appeal are the sentence of seven years in respect of the third offence, and eight years in respect of the fifth offence. The learned sentencing judge recommended release on parole after three years. Thus the overall effect of the sentences was eight years' imprisonment with a recommendation after three years. It may also be noted that after his arrest he was kept in custody until his sentence, and he was given the benefit of a declaration of having already served 207 days of the sentence.

The catalogue of his activity between 28 November and 23 December reveals repeated vicious physical attacks driven by anger and activity dangerous to persons with whom he came into contact. The offences may shortly be summarised as follows:

1. Robbery
The complainant was a thirty-one year old woman who was at the Kingston Railway Station at

10 p.m. with her bag alongside her on a seat. The applicant who was in a group of five persons, took her bag. She told him to bring it back and walked after him, claiming the bag. He turned towards her, put up his left arm and covered her face with his hand pushing her backwards and hurting her face, telling her to "fuck off". One of the other persons then tried to pull the complainant's track pants down. She kept calling "bring it back" but they disappeared. The bag was valued at $25 and it contained $15 in cash. The applicant later denied to the police that he had laid a hand on the complainant, but said she was annoying him and he probably would have punched her as he was getting angry.

2. Attempted stealing
On the night of 28 November 1995 he attempted to steal the public telephone money-box at

Kingston Railway Station. He used a jemmy-bar, but unsuccessfully. He said he committed the offence because he was hungry.

3.Armed robbery with personal violence whilst in company
The complainant, Ricky Elias was aged twenty-one years. He found that someone had taken his

motor vehicle without his consent from where he had parked it at the Kingston Butter Factory. When searching for his car later that night he saw five persons near the overpass to the Kingston Railway Station and asked them if they knew anything about it. They denied having done it, and one of them later said that there was a car burning in the bush. They walked into bushland with the complainant and a friend of the complainant. The burning car was not his. He and his companion separated and he looked for further cars. At some stage the five persons formed a circle around him and started assaulting him. The applicant admitted being involved in "rolling" the complainant and having got him onto the ground by placing him in a headlock and holding him on the ground whilst the others started kicking him. One of them picked up a bumper-bar and struck the complainant with it. He finally broke loose and ran to a community hall where he collapsed on the ground and was physically sick. He required seven stitches to his head, and suffered a broken nose and bruising. The incident has made him apprehensive about going into the Kingston area and he has lost his general trust in people.

The applicant and the others spent the money taken from the complainant's wallet on food.

4.Unlawful use of a motor vehicle

On 4 December 1995 the applicant was found by the police as a passenger in the front seat of a

stolen motor vehicle. He told the police he knew it was stolen but did not take part in taking

it. His activity was described as a joy ride.

5.Robbery with personal violence
The applicant was on bail for an earlier charge of assault when this offence was committed. The

complainant was at Kingston Railway Station at about 10 p.m. when the applicant approached him and asked him for a cigarette. The complainant declined but offered him $2. The applicant then started "laying into" the complainant as he thought the complainant "might have called him a name". The complainant who was apparently a fit young man trained in martial arts remembers practically nothing of the incident, having woken up in hospital the next day. His injuries included a laceration over his left eye which has resulted in permanent scarring; severe bruising to most of his body with both eyes blackened; and five chipped teeth which he cannot afford to repair. He also had four stitches to a cut on the back of his head and stitches to the forehead above the left eye. His sports watch and a set of keys were missing. He still has constant pain in his back and is fearful of catching trains at night, and has lost his faith in people.

This is a serious example of robbery with personal violence and can fairly be described as

thuggery.

6.Wilful damage

On the night of 7 December 1995 the applicant walked past the complainant's house at Kingston

and accused the complainant (who was unknown to him) of looking at him. He then smashed

the windscreen of the complainant's vehicle and walked off.

7.Breaking entering and stealing

The premises of a pet-food company were broken into. He and another person used a jemmy to

break into the premises and took a bag of clothing.

8, 9 and 10. Wilful damage, breaking and entering, arson
On 23 December 1995 the applicant had been rejected by his girlfriend, had consumed alcohol

and was angry. He went to the house next door to her home, which was unoccupied at the time, picked up rocks and smashed windows (21 louvres and 7 panes of glass), kicked in the front-door, walked into a back bedroom, applied a lighter to a magazine, put it down and walked out. A fire started and he made no effort to extinguish it. $7772 damage was caused to the house.

In addressing the applicant the learned sentencing judge described him as "one of the most vicious young criminals that I have ever encountered in all the years that I have been a judge. You have an absolute contempt for the rights of other human beings; an absolute contempt for their property rights". He doubted that a prison sentence would bring home to the applicant that there was no future in being a criminal. His comments on some of the offences were that the robbery on Ms Wilson was a cowardly attack; that he and the rest of his pack had decoyed Mr Elias who was concerned about his stolen car, with the intention of robbing him; that the injuries inflicted upon Mr Priddle made it the most serious of the offences; that one of the wilful damage charges was the mindless, brainless, senseless smashing of a windscreen belonging to a man the applicant did not know; and that an incredible amount of damage had been done by way of wilful destruction and arson. His Honour also noted that a number of these offences were committed when he was on bail, and that it was a matter of great regret that he could not be sent back to Tonga where he had come from.

A pre-sentence report suggests that over the offending period he was using a variety of drugs including heroin and alcohol. The writer of the report also noted that he had indicated a great deal of "remorse for his personal situation and admitted that his behaviour was wrong". As counsel for the applicant noted during the sentencing procedure, the report fails to tell the court much about the applicant or what is wrong with him. His parents had separated in Tonga when he was two years old and he was eight years old when he came to Australia. He did not at that time speak English, and this created difficulties in his education. He left home at the age of fifteen whilst still attending school. After leaving school he found only intermittent employment, mainly casual work. Substance abuse and a violent temper were identified as his problems. This suggests that drug-counselling and anger-management should be compulsory programmes for him while in custody. In addition it was suggested that when the time approaches for him to be released on parole, the home detention period, which is an intensive form of community supervision, would be a useful commencing time for such measures.

The dominant features of this case then are -

1.Young offender (eighteen at the time).

2.Very little prior criminal history.

3.A spate of criminal activity comprising ten offences including two robberies with personal

violence (one in company) over four weeks.

4.The property taken was of small value. The value of the property damage that has been

caused is higher, but is still not in the very high category.

5.The applicant made full admissions to police and pleaded guilty.

6.There is some evidence of realization of the effects of drugs and alcohol on his behaviour and

some evidence of shame.

7.His weakness for drugs and alcohol suggests that any rehabilitation programme must be aimed

at assisting him to avoid those substances in the future.

8.He has not up till now been given whatever benefits such programmes may offer.

9.The mental and physical damage to the personal complainants represents a serious aspect of

the offences, as also does the mindless nature of the violence.

Review of Cases

The cases with which comparison and contrast may most usefully be made include Lawrence, Teufel, and Donohoe. These are discussed in the review of cases in R v. Hammond (C.A. 445 of 1996) published today, and it is unnecessary to repeat the discussion in these reasons. It may be noted that a comparison of the present circumstances and factors with those in Lawrence, Teufel and Donohoe yields in each instance some factors that are worse and others that are not as bad as those in those cases. The sentences in those cases were respectively six years, five years (with a recommendation after eighteen months) and five years. The dominant factors in the present exercise are the particularly offensive and potentially dangerous circumstances, along with the youth of the offender, his minor criminal history and the absence of organised assistance to date.

In our view the sentences on the robbery counts were out of line with comparable matters and are manifestly excessive. The appeal should be allowed and those sentences should be replaced with sentences of six years with a recommendation for consideration of parole after two years. The declaration concerning pre-sentence custody will remain.