R v White

[1998] QCA 127

[1998] QCA 127

COURT OF APPEAL
DAVIES JA
McPHERSON JA

MUIR J

CA No 483 of 1997
THE QUEEN
v.

CLINTON GEORGE WHITE

BRISBANE
..DATE 17/04/98
170498 T9-10/JAP/20 M/T COA 79/98
McPHERSON JA: This is an application for leave to appeal
against a sentence imposed on 4 December 1997 in the District
Court at Maryborough.

The applicant was charged on count 1 with housebreaking; count 2, stealing; count 3, unlawful use of a motor vehicle with circumstances of aggravation; count 4, attempted armed robbery; counts 5 to 9, fraud; count 10, possessing a rifle without authorisation and count 11, with driving while disqualified.

The applicant pleaded guilty to all these charges and was convicted and sentenced to imprisonment for 18 months on count 1, to six months on count 2, 18 months on count 3, six years on count 4, that is, to say the attempted armed robbery, six months on counts 5 to 9, only two weeks on count 10, and six months on count 11. He was recommended for parole after serving only 18 months of the sentence, and he was also disqualified absolutely from holding or obtaining a driver's licence.

The applicant seeks leave to appeal only in respect of the sentence of six years imposed for the attempted armed robbery in count 4 but, of course, in considering the application for leave to appeal, and the appeal itself, it is necessary to take into account all the offences and the effective sentence viewed in the light of all those offences.

The circumstances of the attempted armed robbery offence are that on 23 August 1997 the applicant, who was 25 years old at the time, together with an unnamed co-offender, stole a rifle from a neighbour of another of the co-offenders, a young man 170498 T9-10/JAP/20 M/T COA 79/98

named Wieland. He did so after breaking into the neighbour's
house.

A motor vehicle was then stolen by an unnamed friend of the applicant who made it available for use in the attempted robbery. Wieland drove the vehicle to and from the scene of the attempted robbery. At about 7.15 p.m., on the same day as the rifle was stolen, the applicant entered a grocery store carrying the rifle, which had, it seems, been sawn off after being stolen, and wearing a balaclava made out of a T-shirt, he demanded money from the 46-year-old female store proprietor Mrs Kynoch. She refused to comply and he threatened her with the rifle.

It is, in my view, helpful to see the terms in which he addressed this victim. He said to her, four or five times, "This is a fucking hold up. Open the register, put all the money in the bag and fucking hurry up". Mrs Kynoch refused to hand the money over saying, "I stand here all day and you are not getting it". The applicant responded by threatening to shoot her. She showed remarkable courage in resisting his threats and might, perhaps, have suffered a worse fate than she did had her husband not arrived on the scene at about this time.

The applicant operated the mechanism of the rifle which was
pointed towards Mr Kynoch. He nevertheless wrestled with the
applicant and eventually obtained possession of the rifle. In
the course of the struggle for its possession the rifle was
discharged.
170498 T9-10/JAP/20 M/T COA 79/98
The learned Judge accepted that this was an accident; but it is
relevant to point out that either then, or at a later stage, the
applicant set about trying to reload it. Looking at the
statement of the prosecutor at the sentence hearing, we see that
he said that the applicant "then began to work the action of the
rifle, either trying to unjam it or reload it". Then after
mentioning the struggle for the gun and its discharge, counsel
for the prosecution went on to say that what was clear was that
White, that is the applicant, appeared to try and reload the gun
because, when the police attended at the scene, they found a
number of undischarged shells on the floor where White had been
standing and working the action of the gun.

In the end, however, despite his being armed with a loaded firearm, he was vanquished by his victims. The applicant then tried to flee. He pulled over a display stand and threw eggs and another object at Mr Kynoch. He succeeded in making good his escape but ran into a store room which he mistook for the rear exit. He was thereupon seized by Mr Kynoch in a head lock and was punched by his captor. His wife joined in by striking the applicant twice over the head with a can of baked beans, which is said to have caused lacerations. Mr Kynoch released his grip when the applicant said he gave in or gave up.

However, upon being released, the applicant ran to the front door in an effort to escape only to find that the female shop keeper had locked it and him in the shop. His co-offender Wieland in the get-away car drove off. The applicant threw a bottle of soft drink through a glass pane and then kicked a hole large enough through which to escape, and decamped into the 170498 T9-10/JAP/20 M/T COA 79/98

night.

The latter stages of the conflict might now appear in a comical light but for the fact that this was, obviously, a very serious instance of the use of a loaded weapon to commit a robbery, in the course of which the weapon was discharged, very fortunately, without any injury to any of those involved.

When the applicant was approached by the police a couple of days later, he at first denied any involvement and claimed that his co-offender Wieland would give him an alibi. Wieland himself denied any involvement, but then told the police that he had heard the applicant talking about what he had done. After this, the applicant eventually confessed that he was the person who had carried out the attempt.

His submission before this Court is that the sentence imposed was manifestly excessive and that it should have been no more than four years' imprisonment with a recommendation for parole after 12 months.

He submits that the sentence fails to reflect a number of
mitigating factors or to do so adequately. They include his
early plea of guilty, cooperation with authorities and so on.
In the end, however, Mr Hunter of counsel who appeared for the
applicant on this appeal, confined his submissions to an
argument that the sentence imposed upon the applicant was
grossly disproportionate in its severity when compared with that
imposed on his co-offender Wieland.
Wieland, it has been mentioned, drove the stolen get-away
vehicle. He was ordered to perform only 240 hours community
170498 T9-10/JAP/20 M/T COA 79/98
service and no conviction was recorded against him. This lower
penalty was selected on the basis that Wieland's participation
in the offence was, as the Judge said, slight, and that he was
lacking in forethought or foresight of the consequences of what
he was doing.

He is a young man, being only 18 years of age at the time the offence was committed, whereas the applicant is 25 years old. It is plain that the applicant took the leading part in the planning and execution of the robbery, and I would not hesitate to regard him as having led Wieland into the exercise.

The applicant has a history of some prior convictions, none of them particularly serious, whereas Wieland has no previous criminal record at all. It was Wieland who, in a sense, effectively identified the applicant to the police. He, in addition, has a stable and supportive family background which led the learned sentencing Judge to conclude that he was not likely to be a problem in the future.

When regard is had to the limited extent of Wieland's participation in this exercise and the fact that he was led by an older man into taking part in it, it seems to me that there was a proper basis for distinguishing between them in the way in which the Judge did in this case.

The applicant himself seems to me to have emerged from the sentencing process with remarkable success. He was, as I said, sentenced to a term of six years' imprisonment for the attempted armed robbery. It is right to point out that the Judge in 170498 T9-10/JAP/20 M/T COA 79/98

sentencing him said that he began with a head sentence of eight years for the offence, but allowed a 25 per cent discount for the plea of guilty. He then, it should be emphasised, made a generous recommendation for parole after serving only 18 months.

In considering the proportionality of the two sentences imposed on these offenders, it is right to emphasise that, although the attempted armed robbery was the major offence and to that extent subsumed the sentences on other offences which were made concurrent, it was the function of the Judge and of this Court, on appeal, to consider the sentence in the light of all the offences committed.

There were, in this instance, eleven in all, whereas Wieland was charged and convicted only for his part in the attempted armed robbery. The offences committed included the five counts of false pretences, which were carried out some two days before this particular offence, and involved the passing of cheques that were later dishonoured.

I cannot see that, simply because the applicant has committed one major, and a number of lesser, offences, he is to be considered only as if he had committed the major offence in this case. He fell to be sentenced not only for the attempted armed robbery but also for some 10 other offences. Most of them, it is true, were committed in order to facilitate this robbery; but that does not apply to all of them.

In the end what looms large in the sentencing process in this case is the fact that the applicant used a loaded rifle, which he had evidently sawn off, and that, in carrying out the 170498 T9-10/JAP/20 M/T COA 79/98

attempt, he made a deliberate effort to activate the rifle in
such a way as to fire it or to fire it again.

The commission of all the other offences, in the context of that most serious one, is a matter which, despite the difference in the penalties imposed on these two offenders, tends, to my mind, to elevate the applicant's criminal conduct well above the level of that of his younger co-offender.

When all these matters are considered, I can see no basis on which the applicant can complain about the sentence he received for what, in substance, was a life-threatening offence, which remained as an attempt and not as a completed offence only because of the remarkable determination and courage of the two victims who were imposed upon in this way.

For all these reasons I consider that the application for leave to appeal has nothing to commend it, and I would dismiss it.

DAVIES JA: I agree.

MUIR J: I agree.

DAVIES JA: The application is dismissed.

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