R v Whalley

[1997] QCA 310

COURT OF APPEAL

[1997] QCA 310

MACROSSAN CJ
DAVIES JA

de JERSEY J

CA No 267 of 1997
THE QUEEN
v.

CHRISTOPHER RICHARD WHALLEY	Applicant
BRISBANE ..DATE 27/08/97
JUDGMENT
270897 T15/DK/4 M/T COA94/97

de JERSEY J: The applicant is a 23-year-old man who pleaded guilty to three offences: attempted armed robbery, for which he was imprisoned for five years; housebreaking, three years, and assault, one year, all to be served concurrently.

He seeks leave to appeal essentially on the basis that he was not given the benefit of a recommendation with relation to early parole.

It was obviously the seriousness of the offences which caused the sentencing Judge to impose a five year term without a recommendation.

He said that he was inclined to impose a six year term, implicitly I would read it with a recommendation, but as he put it, "Having regard to your youth and the fact that you cooperated with the authorities, I will impose a sentence of only five years and I will not make a recommendation for parole."

The applicant, as I have said, is 23 years old and although he has some past criminal history - two convictions for stealing in 1987 and one for wilful damage in 1997 - the learned Judge did not regard that as serious.

I should mention something of the circumstances of the offence.
They call to mind an observation made in Meier and Stawicki,
483 and 493 of 1995, where the Court said that it must be made
clear "that the community, acting through the Court, does not
approve of the sort of conduct in which the offender was

2   JUDGMENT

270897 T15/DK/4 M/T COA94/97

involved. That is a particularly important purpose to bear in mind in a case like this in which a vicious attack was made on a disabled man."

Here the applicant knew the complainant and targeted him for his vulnerability, it would seem. The complainant was a 36 year old man, but a frail invalid pensioner with only one useable hand, who lived alone.

The applicant broke into his house on a Saturday morning. He wore a mask and carried a replica pistol. Two co-offenders remained outside the house. The applicant demanded money. When the complainant did not comply the applicant attacked him. The complainant fell to the ground; the applicant got on top of him, held his neck and smashed him across the head with the pistol several times, repeating the demand for cash. The complainant was injured and subsequently needed suturing.

When the complainant yelled for help the applicant tried to muzzle him but the noise of the scuffle attracted the attention of a neighbour who came to the house, at which the co-offenders decamped. When the neighbour banged on the complainant's door the applicant disconnected the telephone and himself fled.

The co-offenders were found in the end. The neighbour's son chased the applicant on foot and the applicant threatened him with the replica pistol when he got close. That, in fact, constituted the assault for which he was dealt with by the learned Judge.

3   JUDGMENT

270897 T15/DK/4 M/T COA94/97

Anyway, in the end, when the applicant gave himself up to the police - and I would infer that his ultimate apprehension was reasonably likely anyway - he conceded his role and that he was principally responsible for what had occurred. A part of what he admitted to was having assessed the scene previously at night time.

The consequences have continued to be traumatic for the complainant who suffers flashbacks, insecurity and a sense of betrayal and violation as shown through material put before the Judge.

There is absolutely no doubt that the sentence of five years imposed for the attempted armed robbery was appropriate and within range.

The only issue now is whether the sentencing discretion miscarried through the learned Judge's failure to add a recommendation with relation to early parole.

The factors warranting that arguably are, of course, the age of the applicant - 23 years old - his pleas of guilty and his cooperation with the police following turning himself in to the police.

There is the additional material contained in his letter provided to the Court this morning. He claims in that, in a prima facie compelling way, to have re-directed his life since going to prison. Of course, it's not unusual that this Court is told such things, but it is perhaps of some significance that

4   JUDGMENT

270897 T15/DK/4 M/T COA94/97

the applicant has become engaged to be married. He is the father of one young child and is to become the father of another and he claims to have been undertaking educational courses and courses in anger management and the like.

Approaching that letter with the circumspection generally appropriate in dealing with such material, it nevertheless does provide some assistance, in my view, in our determination of whether we should now interfere to the point of adding a recommendation with relation to parole.

I am inclined to do that, but doing it, of course, does not detract in any way from this Court's serious assessment of the outrageous nature of the offence, the principal offence to which the applicant pleaded guilty, which must be discouraged in the strongest of ways as emphasised through the passage to which I referred earlier from Meier and Stawicki.

Nevertheless, in my view, allowing for the factors which I have mentioned personal to the applicant, he should properly have been given the benefit of an early recommendation with relation to parole and I would allow the application to the extent of adding a recommendation that the applicant be considered for eligibility for parole after he has served 21 months of the sentence.

THE CHIEF JUSTICE: I agree.

DAVIES JA: I agree.

5   JUDGMENT

270897 T15/DK/4 M/T COA94/97

THE CHIEF JUSTICE: The order of the Court then will be that the application is granted and the appeal allowed to the extent only of adding a recommendation to which Mr Justice de Jersey has referred.

All right. Adjourn the Court to tomorrow at 10.15.

THE COURT ADJOURNED AT 12.27 P.M. TILL 10.15 A.M.
THE FOLLOWING DAY

6   JUDGMENT