R v Webster - [2013] QCA 286

[2013] QCA 286

COURT OF APPEAL

MARGARET McMURDO P
MULLINS J
HENRY J

CA No 163 of 2013
DC No 175 of 2013
DC No 208 of 2013
DC No 209 of 2013

THE QUEEN

WEBSTER, Brock James Applicant

BRISBANE

TUESDAY, 1 OCTOBER 2013

JUDGMENT

THE PRESIDENT: Justice Mullins will deliver her reasons first.

MULLINS J: On 29 May 2013 the applicant pleaded guilty in the District Court to one count of armed robbery in company, one count of armed robbery and one charge of breach of bail condition. For each of the armed robberies he was sentenced to three years’ imprisonment with the date for his release on parole fixed at 29 November 2013. A pre-sentence custody declaration was made in respect of 242 days spent in pre-sentence custody between 18 July 2012 and 24 February 2013 and between 10 and 29 May 2013. The applicant was also convicted of the breach of bail condition but not further punished.

The applicant, who appears for himself, applies for leave to appeal against sentence, primarily on the basis that the sentence was manifestly excessive, as the parole release date was fixed after 14 months’ imprisonment rather than 12 months’ imprisonment.

Soon after the applicant’s 18th birthday, he entered a Subway restaurant in the evening of 11 June 2012 and threatened a 17 year old female staff member with a knife whilst he was wearing a “hoodie” and balaclava, and obtained $224. His co-offender’s involvement was going into the restaurant and checking it out first, before the applicant entered. The staff member was scared to continue working as a result of the robbery and resigned a couple of weeks later.

The applicant had 222 days on remand before he was released on bail. It was an aggravating circumstance that whilst on bail he committed the second armed robbery. An ex officio indictment was presented for the second armed robbery charge when the applicant was due to be sentenced for the first armed robbery.

The second armed robbery was committed on 4 May 2013 in the evening, when the applicant entered a video rental store where the 17 year old female staff member was working by herself. He looked around, left the store, but returned 10 minutes later when there were no other customers in the store. He was wearing a “hoodie” and a black balaclava. He held a knife that was 20 to 25 centimetres long and about three centimetres wide, and told the complainant to “hand over the cash”. He became aggressive and came around behind the counter. He took about $500. The applicant was observed by members of the public to run from behind the store and meet another male, and they rode away on bicycles.

Police attended the applicant’s nearby residential address and noted that he was not present in breach of the curfew condition of his bail. Police located the other male, who made admissions. A latent fingerprint on the counter of the store was identified as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Webster

Details

AGLC: R v Webster [2013] QCA 286
Case: [2013] QCA 286
Decision Date: 1 OCTOBER 2013

CaseChat Overview and Summary

The matter of R v Webster involved the applicant, Brock James Webster, who appealed against his sentence imposed by the District Court. The applicant had pleaded guilty to armed robbery in company, armed robbery, and breach of bail condition. He was sentenced to three years' imprisonment for each of the armed robberies, with a parole release date fixed at 29 November 2013. The applicant argued that the sentence was manifestly excessive because the parole release date was fixed after 14 months' imprisonment instead of 12 months' imprisonment.

The legal issue before the Court of Appeal was whether the sentence imposed on the applicant was manifestly excessive. The Court considered whether the overall effect of the sentence was disproportionate and whether the applicant's sentence was an abuse of the sentencing discretion. The Court was required to review the sentencing principles and the specific circumstances of the case to determine whether the sentence was manifestly excessive.

The Court of Appeal held that the sentence imposed on the applicant was not manifestly excessive. The Court considered the overall effect of the sentence and found that the notional head sentence of four years was used for calculating the non-parole period of 14 months, but the head sentence that was imposed was three years imprisonment. The Court found that the sentence imposed for each of the armed robberies was consistent with a sound exercise of the sentencing discretion in all the circumstances. The Court also noted that the applicant had committed the second armed robbery while on bail, which was an aggravating circumstance. The Court further observed that the sentencing judge had been referred to R v Gordon and had relied on that case in setting the parole eligibility date.

The Court of Appeal refused the applicant's application for leave to appeal against sentence. The Court emphasised the importance of the applicant focusing on having a good life organised for himself when he was released on parole and to avoid getting back on drugs and alcohol. The Court wished the applicant well for his future.

Orders