R v Watson

Case [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…

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Details
AGLC
R v Watson [2021] QCA 225
Case
[2021] QCA 225
Decision Date

CaseChat Overview and Summary

The applicant, who was convicted of armed robbery and common assault, appeals against the sentence imposed by the sentencing judge. The applicant was sentenced to four years imprisonment for the armed robbery charge and six months imprisonment for the assault charge, to be served concurrently. The applicant had already served approximately 14 months by the time of the sentencing hearing. The applicant argues that the sentence was manifestly excessive and that proper allowance was not made for the applicant’s early guilty plea.

The court was required to decide whether the sentence was manifestly excessive and whether the sentencing judge had made proper allowance for the applicant’s early guilty plea. The court noted that the sentencing judge had discounted the head sentence to take into account the peculiar circumstances of the offending but had not considered the guilty plea. The court also noted that the sentencing judge set the parole eligibility date having regard to known delays in parole board applications being heard.

The court held that the sentence was manifestly excessive and that proper allowance had not been made for the applicant’s early guilty plea. The court noted that the sentencing judge had not considered the guilty plea when determining the head sentence and had only made provision for the guilty plea by setting a parole eligibility date. The court held that the parole eligibility date should be set to take into account the guilty plea and the known delays in parole board applications being heard. The court held that the sentence was manifestly excessive and that the sentence should be varied to suspend the sentence of four years forthwith for an operational period to expire on 9 March 2024.

The court allowed the appeal and varied the sentence to suspend the sentence of four years forthwith for an operational period to expire on 9 March 2024.

Orders

Orders of the court

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.

Background

Background to the litigation

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 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. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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