R v Brennan [2001] QCA 253

Court of Appeal (Qld)|2001-06-27|Before: Davies JA, Thomas JA, Williams JA

The applicant is 36 years of age, having been born on 11 July 1964. He has a substantial criminal history dating from 1981, but perhaps surprisingly, he does not appear to have committed any offences at all since 1992. His most serious previous offences, which were both of stealing with actual violence whilst in company, were committed in 1985 and 1987; that is, two of them, one in each of those years.

Prior to the commission of those offences, he had not committed any offence which warranted a sentence of more than a fine or community service, the community service being imposed for a drink driving offence. And since the commission of those more serious offences in 1987, his only other offence appears to have been one of receiving, which was also committed in 1987.

Nevertheless, it seems to me that there were a number of aspects of this case which brought it below the high end of the range for sentences for armed robbery. Of particular importance is the applicant's previous criminal record. Though it's quite serious, it doesn't include any previous offences for armed robbery and he had not been engaged in robbery at all since 1987.

It is true, of course, that during a substantial part of a period after 1987 he was in gaol. As best can be gleaned from the material, it appears that he was released from gaol some time either in or between 1992 and 1995, but that still leaves a substantial crime-free period before the commission of this offence, and his criminal history over the period since 1987 was in respect to very minor offences only.

Whilst I would not wish to underestimate the fear which the applicant caused the complainant by his actions, the complainant's ability to retreat from the line of fire with what appears to have been relative ease at least gives some cause to doubt the extent to which the applicant intended or was even capable of causing the complainant serious harm.

In those circumstances, it seems to me that the sentence of 12 years' imprisonment was manifestly excessive when regard is had to the comparable authorities, particularly those referred to by Mr Reed. He referred us in all to four cases. They were Lund [2000] QCA 85; Brown [2000] QCA 402; Williams [1999] QCA 505; and Amery, CA No 299 of 1990.

The first three of these are, in my view, all of some help in assessing the appropriate sentence here. Lund, for example, had an even more serious criminal history, including a number of armed robberies, though, rather like this case, there had been a lessening in the number and seriousness of offences in the period immediately preceding the commission of the subject offence.

The armed robbery in that case was demonstrably of a more sophisticated kind, having been carefully planned for some time, and it caused considerable psychological harm to the person in the shop the subject of the robbery.

Nevertheless, the applicant in that case was sentenced - admittedly on a plea of guilty - to seven years' imprisonment, and the declaration that it was a serious violent offence was removed by this Court.

It is true that the sentence of seven years was not one imposed by this Court, but I do not think in the circumstances of that case it was manifestly inadequate. I do not think it is necessary to go through the other cases to which I have referred, but Brown and Williams also have similarities to this case, and they were cases in which substantially lower sentences were either imposed by this Court or accepted by this Court as correct.

Notwithstanding the absence of evidence of planning, I think that this offence was more serious than, for example, Lund because of the use of a gun and that might explain why in Lund's case the declaration was removed, the offensive weapon there being scissors.

The applicant submits the appropriate range was one of eight to 10 years. I think that is a very reasonable submission. In my opinion, a sentence of eight years' imprisonment would have been appropriate, having regard to the seriousness of the offence and the applicant's previous criminal history.

The applicant also contends that if the sentence was one of less than 10 years' imprisonment, this Court should not exercise its discretion in favour of making a declaration under Part 9A. In my opinion, however, it would be appropriate to make such a declaration.

The use of a gun, the threat to shoot and kill on more than one occasion, and the apparent capacity to carry out those threats, when considered in the light of his previous criminal history of violence to which I have already referred, in my opinion make this a case in which a declaration is appropriate.

I would accordingly grant the application, allow the appeal, set aside the sentence imposed below and impose, in lieu, a sentence of eight years' imprisonment with a declaration that the offence was a serious violent offence.

I should also add the declaration which was made below; that the applicant has served 299 days of the sentence, those days being between 25 January 2000 and 21 November 2000.

WILLIAMS JA: In my view, a sentence of 12 years' imprisonment in the circumstances of this case was manifestly excessive. Given the circumstances of the case, the criminal history of the applicant and the fact that this was a conviction after trial, I am of the view that a sentence of eight years' imprisonment with a declaration that it is a serious violent offence, is towards the lower end of the applicable range.

But nevertheless, I agree with the learned presiding Judge that such a sentence is the appropriate one in the circumstances to impose. I therefore agree with the order proposed by the presiding Judge.

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