R v Watson

[2021] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watson [2021] QCA 225

PARTIES:

R
v
WATSON, Joshua Thomas William
(applicant)

FILE NO/S:

CA No 133 of 2021
DC No 174 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 12 May 2021 (Lynham DCJ)

DELIVERED ON:

19 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2021

JUDGES:

McMurdo and Bond JJA and Kelly J

ORDERS:

1.   Leave to appeal against sentence granted.

2.   Appeal allowed.

3.   The sentence imposed in respect of the count of armed robbery is varied by setting aside the order that the applicant be eligible for parole on 12 May 2021 and suspending the sentence of four years forthwith for an operational period to expire on 9 March 2024.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of armed robbery and one count of common assault – where the applicant was sentenced to four years imprisonment for the count of armed robbery and six months imprisonment for the count of assault, to be served concurrently – where the applicant had already served approximately 14 months by the time of sentencing – where the sentencing judge discounted the head sentence to take into account the peculiar circumstances of the offending but not the guilty plea – where the sentencing judge made provision for the guilty plea by setting a parole eligibility date of the date of the sentencing hearing – where the sentencing judge also set the parole eligibility date having regard to known delays in parole board applications being heard – whether the sentence was manifestly excessive – whether proper allowance was made for the applicant’s guilty plea

Penalties and Sentences Act 1992 (Qld), s 13(1)

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
R v Apps [2008] QCA 326, cited
R v CCR[2021] QCA 119, cited
R v Moss [1999] QCA 426, cited
R v Ungvari[2010] QCA 134, cited
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74, cited

COUNSEL:

F Richards for the applicant
S J Dickson for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT

1. On 16 April 2021, an indictment was presented against the applicant which charged him with one count of armed robbery and one count of common assault.  On 7 May 2021, at his arraignment, the applicant pleaded guilty to both charges.  On 12 May 2021, he was sentenced, in respect of the count of armed robbery, to four years imprisonment and, in respect of the count of common assault, to six months imprisonment.  Both sentences were ordered to be served concurrently.  The learned sentencing judge fixed the applicant’s parole eligibility date as 12 May 2021, being the date of the sentencing hearing.  By the time of the sentencing hearing, the applicant had already been in custody for 429 days (approximately 14 months), which time was declared as time already served under the sentences.

2. The applicant seeks leave to appeal against the sentences on the ground that they are manifestly excessive.  In terms of the way in which the application was argued, two separate points emerged.  The first point involved the contention that the judge erred as a matter of discretion by imposing a head sentence of four years, it being contended that the appropriate head sentence, in all the circumstances, was three years.  The second point involved the contention that, given what was known about parole hearing delays at the time of the sentencing, despite his intention to do otherwise, the judge did not make proper allowance for the applicant’s early plea of guilty by fixing the applicant’s parole eligibility date as 12 May 2021.

   Background Facts

3. At about 8.00 am on 9 March 2020, the applicant, who was then 37 years old, parked his car in the car park of a suburban Townsville shopping centre outside a closed pharmacy.  When the pharmacy opened, the applicant waited for two elderly persons to enter and leave the pharmacy.  He then entered the pharmacy, wearing no disguise and carrying a rolled up grey sack in his left hand and a green Woolworths bag in his right hand.  Concealed within the green bag was a tomahawk.  The shop was attended by a female pharmacist who was 23 years old.  A pathology suite was situated within the pharmacy and within that area was a female assistant who was 19 years old.

4. The applicant placed the rolled up grey sack on the pharmacy’s counter and directed the pharmacist to fill it with the drugs kept in the pharmacy’s safe.  The pharmacist hesitated, which led to the applicant repeating his demand and threatening to hurt the pharmacist if she did not fill the bag.  The applicant later recounted to the police that he had said words to the effect that things would ‘get messy’ if the bag was not filled as he directed.  As the pharmacist began to comply with the request, the applicant became aware of the assistant who was in the pathology suite.  The applicant reached for the assistant’s phone, which she was holding, because he was concerned that she would attempt to call the police.  A struggle ensued and the applicant dragged the assistant out of the pathology suite towards the back of the pharmacy, near where the pharmacist was clearing the safe and filling the bag.  At this point, the assistant let go of her phone and the applicant said words to the effect ‘you’ll get your phone back after it’s done’.  The applicant then stood between the pharmacist and the assistant and waited for the grey bag to be filled, all the while keeping an eye on the entrance to the pharmacy.  After a period of some minutes, the applicant said words to the effect that he was out of time, took the grey bag, placed the phone on the counter and left the pharmacy.  The tomahawk at all times remained concealed within the green bag.

5. The applicant drove off in his car.  Within a matter of hours, the car was intercepted by police and he was placed under arrest.  The applicant made a full and frank confession to the police.  He stated that he intended to sell the drugs for money.  He told the police ‘I did it as unaggressively (sic) as possible.  I didn’t want to traumatise people or anything, so hopefully, you know, they’re not too shaken up’.  Based on information provided by the applicant to the police, the stolen drugs, the tomahawk and the applicant’s clothing were recovered.

   The Sentencing Hearing and Reasons

6. Although the applicant had confessed to the police that he intended to sell the drugs for money, the applicant’s counsel submitted to the judge that the offending had occurred by reason of a desire on the part of the applicant to be caught and returned to jail.  The judge accepted that submission and observed that this tragic aspect perhaps reflected the difficult life experienced by the applicant.

7. The offending was found to have involved some premeditation.  The judge recognised that the offending was serious and, in that regard, made reference to the character of the premises involved and the vulnerability of the pharmacist and assistant.  It was accepted that the applicant had not brandished the tomahawk during the offending and had not intended to hurt anyone.

8. At the time of the offending, the applicant was not the subject of any parole or other court orders.  The judge made reference to the applicant’s co-operation with the police and his early plea of guilty.

9. The applicant had a criminal history which included relevant and serious offending committed in July 2016, involving breaking and entering with an intent to commit an indictable offence, sabotage, the serious assault of a police officer whilst armed with a weapon and endangering the life of a child with exposure.  The July 2016 offending occurred when the applicant was under the influence of ice, to which he had then been addicted for approximately one year.  The applicant had drug debts to pay and stole weapons from his stepfather’s house.  He contrived a plan to break and enter the Energex substation at Tin Can Bay and took his six years old daughter as a look out and assistant.  He gained entry to the substation by cutting through wire mesh and forcing a lock.  His plan was to disconnect the power supply to a neighbouring pharmacy which he would then rob.  The applicant had failed to disconnect the power supply but nevertheless proceeded to break and enter the pharmacy.  He caused his daughter to enter the pharmacy with him and he stole items which were later found at his residential premises.  He left but then returned to the pharmacy at around 2.00 am and stole drugs.  He left the pharmacy and returned for a third time later that same morning.  During his third entry, the police arrived and observed the applicant to be holding a large revolver.  The police drew their weapons.  The applicant responded by presenting his firearm and pointing it straight ahead for a few seconds before lowering it to the ground.  A struggle ensued and the applicant was handcuffed.  Rifles and ammunition were found in his car.  For this offending, the applicant was sentenced to an effective head sentence of three years imprisonment with a parole release date fixed at the one third point, being 16 July 2017.

10. In exercising his discretion in relation to the present offending, the judge reasoned that a head sentence of up to five years would fall squarely within the appropriate sentencing range, particularly having regard to the applicant’s criminal history.  The judge was prepared to moderate the head sentence to allow for the particular circumstances of the offending, namely, the unusual desire to be caught and returned to prison and the wish not to traumatise or hurt either the pharmacist or the assistant.

11. The sentencing reasons conclude with a passage which it is convenient to set out in full:

    “Now, it is appropriate also that you be released back into the community on parole. The sentence what (sic) I am going to impose upon you precludes me from fixing a parole release date. I am limited to fixing a parole eligibility date. What I am going to do is, however, fix your parole eligibility date as today’s date, noting that there are delays in parole applications being considered by the parole authorities, and there might be a delay in any application you might immediately make to be considered by the Parole Board, but that ultimately is out of my hands.

    So in all the circumstances, taking into account all the matters said on your behalf by [your counsel], your early pleas of guilty and the other matters which are being touched upon, I will sentence you as follows. In respect to count 1, armed robbery, you are sentenced to four years imprisonment. In respect to count 2, common assault – six months imprisonment. Both those sentences of imprisonment are ordered to be served concurrently. I fix your parole eligibility date in respect of those terms of imprisonment as of today’s date, that is, the 12th of May 2021.

    You have been in pre-sentence custody for approximately fourteen months. I declare the period of 9 March 2020 to the 11^th of May 2021, that being a period of 429 days, as time already served under the sentences I have imposed. I have fixed your parole eligibility date slightly less than the unusual one-third point to take into account the 14 months in pre-sentence custody you have already served and also to take into account as best I can any delays in your parole application being considered by the authorities.”

12. On this appeal, it was accepted by both parties that the judge had attempted to moderate the head sentence for the purpose of showing leniency to the applicant.  The Crown conceded that the reduction to the head sentence was not made on account of the applicant’s early plea of guilty.  Rather, as the Crown accepted, the judge attempted to give credit to the applicant for his early plea of guilty by the manner in which his Honour fixed the parole eligibility date.

    Was the head sentence manifestly excessive?

13. In oral argument the applicant’s counsel made it clear that the applicant was not contending that the four years head sentence was “of itself” manifestly excessive.  Rather, it was submitted that a head sentence of three years, bringing with it the prospect of immediate parole, was the head sentence which properly accounted for the unusual circumstances of the offending and provided “real benefit” to the applicant.

14. In R v Moss,[1] McPherson JA (with whom Davies JA and Jones J agreed) observed in relation to a charge of armed robbery:[2]

    “The problem is, however, that the offence here is a serious one. It carries a maximum of life imprisonment and comparable sentences to which we have been referred, or to which we have access, suggest a range for a first offence of this kind that is ordinarily between about three and five years.”

    [1]R v Moss [1999] QCA 426.

    [2]Ibid p 6.

15. In Moss, five years was identified as the appropriate sentence.  That case involved an 18 year old first offender who had robbed a video store armed with a knife.  No disguise was used in the robbery, which was described as unplanned.  The knife was produced during the robbery with accompanying words to the effect of ‘I’m going to make this real simple for you.  I’m going to take all of your money and you’re going to give it to me now’.  In the present case, whilst the weapon was not brandished, the judge considered that there was an element of premeditation involved and the July 2016 offending was significant and material to the identification of an appropriate head sentence.  The judge also considered it appropriate to ameliorate the sentence by reference to the particular circumstances of the offending, including the applicant’s desire to be returned to prison, the fact that he had committed the robbery without intent to inflict injury and had used as little violence as possible during the offending.  It should not be overlooked that the offending occurred in premises with minimal protection for staff who were vulnerable to this type of offending.  In R v Apps,[3] Mackenzie AJA (with whom Cullinane and Jones JJ agreed) recognised that robbing these types of premises “calls for general and personal deterrence as a major component”.[4]

    [3]R v Apps [2008] QCA 326.

    [4]Ibid [24].

16. As we have observed, in the present case, the judge did not fix the term of the head sentence by reference to the accused’s early plea of guilty.  That mitigating factor was dealt with at the stage when the judge considered the parole eligibility date.  The recognition of an early plea of guilty in the fixing of the non-parole period has become a matter of general practice and serves to maintain consistency in sentencing.[5]  As to the latter matter, as Mason J observed in Lowe v The Queen,[6] “although the recommendation of the non-parole period may operate in some circumstances to reduce the period of time which the applicant would spend in prison, it leaves the sentence unaffected as a judicial assessment of the gravity of the offence which [the applicant] committed.”

    [5]R v Moss [1999] QCA 426 p 8; R v Ungvari [2010] QCA 134 [30].

    [6]Lowe v The Queen (1984) 154 CLR 606, 615.

17. In all the circumstances, we apprehend no relevant error in the judge’s approach to the identification of the appropriate head sentence.  We do not regard the imposition of a head sentence of four years as excessive or outside the permissible range of sentencing for this type of offending.  There was nothing unreasonable or plainly unjust about the imposition of that sentence in the circumstances of the subject offending.

    Was proper allowance made for the applicant’s early plea?

18. By s 13(1) of the Penalties and Sentences Act 1992 (Qld) (“the Penalties and Sentences Act”), a court which is imposing a sentence on an offender who has pleaded guilty to an offence must take the guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. A reduction of the sentence which would have been imposed may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of their intention to plead guilty.[7]  A court that does not reduce the sentence imposed on an offender who pleaded guilty must state that fact in open court, and its reasons for not reducing the sentence.[8]

    [7]Penalties and Sentences Act 1992 (Qld) s 13(2).

    [8]Penalties and Sentences Act 1992 (Qld) s 13(4).

19. In R v CCR,[9] this Court said that although s 13 of the Penalties and Sentences Act does not require a sentencing judge to state in the sentencing reasons the extent of the reduction for the plea of guilty, a practical consequence of the requirements of s 13 is that the judge must form an opinion of the sentence which would have been imposed but for the plea of guilty. The Court noted that the considerations which are relevant to a judge’s decision to reduce a sentence on this ground come from the common law.[10]

    [9]R v CCR [2021] QCA 119 at [15].

    [10]Ibid [16].

20. In Siganto v The Queen,[11] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

    “[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.”

    [11]Siganto v The Queen (1998) 194 CLR 656, 663-664 [22].

21. In Cameron v The Queen,[12] after quoting that passage from Siganto, Gaudron, Gummow and Callinan JJ further explained the rationale for the common law rule that a plea of guilty may be taken into account in mitigation as follows:

    “Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.”

    [12]Cameron v The Queen (2002) 209 CLR 339, 343 [14].

22. When a judge fixes the minimum term before a prisoner is to be considered for release on parole, the judge is making a judicial determination that the circumstances of the offending require the offender to serve no less than that minimum term without the opportunity for parole.[13] Setting a parole eligibility date at an earlier date than that on which an offender would otherwise become eligible is treated as a reduction of the offender’s sentence for the purposes of s 13 of the Penalties and Sentences Act.[14]  That conceptual treatment depends upon the assumption that so proceeding will in fact produce an ameliorating effect on the sentence which would otherwise apply.[15]

    [13]Crump v New South Wales (2012) 247 CLR 1, 16-17 [28] (French CJ).

    [14]R v Corrigan [1994] 2 Qd R 415; R v Maxfield [2002] 1 Qd R 417, 423 [23].

    [15]R v Maxfield [2002] 1 Qd R 417, 423 [25].

23. In R v CCR, the Court acknowledged that the extent of the reduction of a sentence for a plea of guilty is frequently a reduction of the non-parole period by a third.[16]  As was there noted, in R v Ungvari,[17] White JA (McMurdo P and Muir JA agreeing) said that:

    “As a matter of general practice in this jurisdiction, the one-third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty.”

    [16]R v CCR [2021] QCA 119 [18].

    [17]R v Ungvari [2010] QCA 134 [30].

1. Of course, there is no hard and fast rule that this must be the reduction.[18]  But as was said in R v CCR:[19]

   “The frequent application of that degree of discount reflects the value which is ordinarily attributed to the mitigating factors which are the basis for this rule.”

   [18]R v Torrens [2011] QCA 38 [25].

   [19]R v CCR [2021] QCA 119 [18].

2. In the present case, the judge accepted that the sentence was to be reduced on account of the plea of guilty, and that this should be done by bringing forward the date on which the applicant would otherwise have been eligible for parole.[20]  Earlier in his reasons, the judge had explained why he had reduced an otherwise appropriate head sentence of five years to one of four years, from which it is clear there was no reduction to the head sentence on account of an early plea of guilty.  As we have noted, this matter was conceded by the Crown on the appeal.

   [20]That date would have involved serving half of his term: Corrective Services Act 2006 (Qld) s 184(2).

3. On the hearing of the appeal, without objection from the Crown, the applicant was granted leave to rely upon an affidavit which exhibited information concerning the likely time period between the lodgement of an application for parole and the timing of the hearing of that application.  That evidence suggested that, as at late March 2021, the expected delay was approximately five months.[21]  The Crown sought to rely upon different parts of that evidence to submit that, what is referred to as “the court- ordered immediate parole eligibility (COIPE) project”, was available to the applicant and could have been relied upon to fast track his parole application.  Having regard to the state of the evidence in relation to the COIPE project, it remained a matter of dispute as to whether the COIPE project was in fact available to the applicant and, even if it were, it is unclear whether participation in that project would have had any material impact on the timing of his parole application.  On the basis of the material before this Court, the relevance of the COIPE project was not established.

   [21]Affidavit of Madeline Coburne affirmed 8 September 2021, ex MC-1.

4. To the credit of the judge, his Honour recognised the circumstance of delays in the consideration of parole applications and that there might be a delay in the consideration of any application for parole made by the applicant.  The facts as they existed at the time of sentencing brought into sharp focus the difficult implications of those delays for the structuring of a just sentence.  Here, the period of time already served (approx. 14 months) was very significant when compared to the head sentence (four years) and the usual discounted non-parole period (approx. 16 months).  The sentence imposed in respect of the common assault (six months) had been effectively served by the time of the sentencing hearing.

5. The judge did not have the evidence presented to this Court as to the precise extent of expected delays with parole hearings, but, in oral argument, the Crown conceded that as at May 2021, it was notorious that there were significant delays with parole hearings.  This known circumstance required the judge to structure the sentence, so far as possible, so as to ensure that the applicant received an appropriate mitigation of his sentence on account of his plea of guilty.  The judge was not to know what the likely extent of the delay by the Parole Board would be in the applicant’s case.  However, he ought to have recognised the substantial risk that the delay would be of such magnitude that the applicant would have to serve a period of actual custody by which he would be deprived of any substantial benefit from his early plea of guilty.  As the substantial risk existed at the time of sentencing, and existed for reasons beyond the applicant’s control, fixing the parole eligibility date as the date of sentencing, in the circumstances of this case, did not realistically provide appropriate mitigation on account of the early plea of guilty.

6. The judge’s approach was to say that that he was “limited to fixing a parole eligibility date”[22] and that “the delays in parole applications being considered by the parole authorities” were something beyond his control.  With respect, that approach cannot be accepted as correct.  The judge was required to consider whether the appropriate mitigation of the sentence could be achieved by a different order.  Having decided that the appropriate term of imprisonment was four years, an available alternative was to suspend the sentence, if not immediately, then at the usual one-third point or at some other point.  The sentencing reasons expressed the view that it was appropriate that the applicant be released back into the community on parole.  However, that view was expressed without the reasons having given any consideration to whether the partial suspension of the sentence was a just alternative, particularly in the context of the judge’s duty to appropriately mitigate the sentence for the important factor of the applicant’s plea of guilty.  The proper mitigation of a sentence for a plea of guilty is important not only for a just outcome for the applicant, but also to avoid a discouragement to other offenders to plead guilty, whose cases would be similarly affected by known delays in the parole system.  In our consideration, the judge’s failure to consider the alternative of a partially suspended sentence was an error, affecting the exercise of the sentencing discretion.

   [22]The judge would appear to have made this comment because of s 160B(1) of the Penalties and Sentences Act.

7. It is open to this Court, therefore, to re-sentence the applicant.

8. The applicant has now been in custody from 9 March 2020, a period of some 19 months.  The sentence can reasonably be varied by setting aside the order that the applicant be eligible for parole on 12 May 2021 and ordering that the sentence of four years be suspended forthwith for an operational period of four years, the period coinciding with his term of imprisonment.  Suspending his sentence in this manner places a level of personal responsibility on the applicant to avoid committing an offence punishable by imprisonment during the operational period of the suspension.[23]  The imposition of this type of personal responsibility is not inappropriate given the applicant’s age and previous experience with incarceration.

   [23]R v Read [1997] QCA 43.

9. It was suggested by the applicant that supervised release could have been, and could now be, achieved by re-sentencing the applicant on the common assault offence to a term of 12 months to commence on the date on which his four years sentence was suspended, coupled with an order for probation for that 12 months term.  That suggestion is problematical, at least for the reason that the applicant has already served the sentence which was imposed for the assault and would now be punished again for that same offence.  We do not regard that as appropriate in the circumstances.

10. The application for leave to appeal against sentence should be granted.  The appeal should be allowed.  The sentence imposed in respect of the count of armed robbery should be varied by an order setting aside the order that the applicant be eligible for parole on 12 May 2021 and ordering that the sentence of four years be suspended forthwith for an operational period of four years.