Stuart Gordon Apps v The Queen

The appeal concerned Stuart Gordon Apps, who pleaded guilty to one count of aggravated robbery and five counts of obtaining property by deception. He was sentenced by a judge of the Supreme Court of the Australian Capital Territory to three years and six months imprisonment with a non-parole period of 18 months for the aggravated robbery, and concurrent 12-month sentences for the deception offences. The appeal was heard by the Court of Appeal of the Australian Capital Territory.

The legal issues before the Court of Appeal included whether the sentence imposed was appropriate to the appellant's culpability, particularly concerning the extent of his responsibility for the victim's serious injuries. Another issue was whether the sentencing judge was entitled to rely on a victim impact statement, which was not sworn testimony, to find that the victim had suffered very serious injuries. Finally, the court considered the significance of the appellant's prior offences dealt with in the ACT Children's Court, where no convictions were recorded, in assessing his culpability for the aggravated robbery. The court also considered whether the sentencing judge had complied with section 358 of the Crimes Act 1900 (ACT) regarding discounts for promised cooperation with investigating authorities.

The Court of Appeal reasoned that the appellant's plea to aggravated robbery, based on being "in company," was questionable. While the appellant was accompanied by another offender who brought a baseball bat, the common purpose for their presence was to "warn off" the victim, not to commit robbery or inflict violence. The court held that for the offence of aggravated robbery by being "in company," there must be a shared common purpose for the robbery itself, which was not established here. The robbery was opportunistic, and the co-offender's subsequent assault with the bat was not part of a common purpose to rob. The court also found that the sentencing judge may have given undue weight to the appellant's prior Children's Court record.

Consequently, the Court of Appeal upheld the appeal, set aside the sentences imposed, and substituted a plea to simple robbery for the aggravated robbery charge. The appellant was sentenced to two years and six months imprisonment for robbery, with a non-parole period of 12 months. All other sentences were confirmed, and the sentences were ordered to commence on 7 October 2005, with the non-parole period concluding on 6 October 2006.