R v Collins [1998] QCA 280

Court of Appeal (Qld)|1998-09-18|Before: Before McMurdo P, McPherson J, Ambrose J, McMurdo P, Murdo P

1 This is an application for leave to appeal against a sentence imposed in the District Court in Maryborough on 22 June 1998. The applicant pleaded guilty to unlawful use of a motor vehicle with a circumstance of aggravation (count 1) and armed robbery (count 2).

2 He was sentenced to seven years' imprisonment on the armed robbery offence and was declared to be convicted of a serious violent offence pursuant to s. 161B(3) of the Penalties and Sentences Act 1992 ("the Act"). The effect of this declaration is that he must serve at least 80 per cent of that sentence before becoming eligible for release on parole; he is not eligible for any remission of his sentence and no early recommendation for parole can be made: see s. 166(1)(c)(i), Corrective Services Act 1988.

3 There is no complaint in respect of the sentence imposed of two years' concurrent imprisonment for count 1.

4 The applicant claims the sentence was manifestly excessive and that the declaration of conviction of a serious violent offence was unwarranted.

5 The applicant is 32 years old. His criminal history, although two and a half pages in length, was not as serious as it first appeared. Many of the entries were traffic matters, although it is worth noting he had breached a number of fine option orders in respect of them. In 1984 he received 12 months' probation for an offence of unlawful use of a motor vehicle and in 1990 received 40 hours' community service for a stealing offence. He therefore had only two convictions for dishonesty, the last in 1990 for an offence committed in October 1989, about eight and a half years prior to the commission of this offence. He had no prior convictions for violence.

6 The circumstances of the offence were serious. On 12 February 1998 the applicant and his girlfriend and co-accused Johnson (who has not yet to the knowledge of this Court been dealt with) had been renting a house managed by Ray White Real Estate. The applicant was in financial difficulty and had unsuccessfully sought a loan from the Department of Social Security in the morning. He then decided to steal a car and to rob the Ray White office that same day, which he knew was rent day. The applicant was clearly the instigator. He entered the office with a stocking over his head and carrying a sports bag, a bucket containing some petrol, a cigarette lighter and an empty juice bottle containing petrol and a rag, referred to in the indictment as a molotov cocktail. There were four staff members and a customer in the office. The applicant emptied the fuel onto the office side of the counter. Most of it went on to the floor and over the counter but some went on to the legs of a female staff member. A witness heard the applicant say "This is fuel", and that he had a lighter. Cash from the cash drawer was given to the applicant who put it in the sports bag. As the banking had just been done, there was not as much money as he expected and he demanded more. The applicant had a lighter in his left hand and the molotov cocktail in his right hand. A witness saw the applicant slowly roll the wheel on the lighter that creates a spark and at the same time he said "Hurry up. I'm going to light this", holding up the molotov cocktail and lighter. It is not suggested a flame was ignited. A customer offered his own cash to the applicant in order to defuse the situation. The applicant would not take the customer's money, believing the real estate office would be insured, and continued to demand money from a second till. Eventually the applicant accepted that the amount of about $1,000 that he had already received was all he would get. He decamped in the car the subject of count 1 which he had left with the driver's door open and the engine running.

7 A fingerprint was located on the bucket which had been left at the scene by the applicant. The fingerprint was later identified as belonging to the applicant. He was interviewed by police on 26 February 1998 and readily admitted committing the offences because of financial hardship. He was unemployed and, as already mentioned, had unsuccessfully attempted that morning to obtain a loan. He was caring for his girlfriend and her school age child. He decided to commit the offence in this way because "he wasn't into violent acts and didn't want to be waving a gun around". He initially denied having a cigarette lighter but now accepts he did. He spent the proceeds on bills, including registration and repairs to his girlfriend's car.

8 At sentence, the defence submitted the applicant did not intend to light the fuel or to harm anyone. He did not intend to put petrol on any person but accepted that petrol accidentally splashed on to one woman's legs. Defence counsel submitted it was physically impossible for the applicant to light the fuel on the carpet from where he was standing as he would have had to throw the cigarette lighter at the spilt petrol. It was a BIC lighter which, for safety reasons, automatically extinguishes if it is thrown or dropped. He had no intention to light the molotov cocktail and the lighter was kept separate from the molotov cocktail. At no stage did he actually ignite the lighter. The learned sentencing judge seems to have accepted this but rightly noted there is always the potential for injury in such case, despite the initial intention of the offender. The applicant expressed remorse during the record of interview saying "I certainly wish I'd never done it, that's for sure. Ever since then I've just had sleepless nights and constant guilt feelings all the time." He was also concerned about getting caught.

9 During the sentencing process, a letter from the applicant was tendered to the judge. He had the support of family, some of whom were present. He had made an effort whilst in pre-sentence custody to rehabilitate himself and assist other prisoners by taking part in the Buddies Scheme and becoming a member of the Centre Information Activities Committee. A letter from his employer offered him future employment and indicated he was a good worker. He had a good work history.

Is the sentence of seven years' imprisonment manifestly excessive?

10 There are as yet few comparable sentences for the offence of armed robbery committed since 1 July 1997, the date when amendments to the Act effected by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 ("the 1997 Act") came into force. A review of comparable sentences for offences of armed robbery committed before 1 July 1997 does not persuade me that a head sentence of seven years' imprisonment for this offence is, in all the circumstances, outside the range of a sound sentencing discretion. The applicant is not a youth but is 32 years old. He has had the benefit of non-custodial sentences in the past. The offence had serious aspects and would have been a frightening experience for the victims. It cannot be said in those circumstances, despite the mitigating factors, that the sentence imposed of seven years is in itself manifestly excessive.

What matters should be considered when exercising the discretion given under s. 161B(3) of the Act?

11 The next question for consideration is whether the learned sentencing judge erred in exercising his discretion to declare the applicant a serious violent offender pursuant to s. 161B(3) of the Act.

(i) against a provision mentioned in the schedule; or

(b) sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C;

the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence."

Armed robbery is an offence listed in the schedule referred to in s. 161B(3)(a)(i). The applicant was sentenced to a term of imprisonment within s. 161B(3)(b). Once those two matters are established, the sentencing judge "may" (that is, the judge has a discretion to) declare the offender to be convicted of a serious violent offence as part of the sentence. The effect of such a declaration is that the offender is neither eligible for any remissions nor for parole until he has served at least 80 per cent of his sentence, in this case, 5.6 years.

13 The learned sentencing judge understandably, on the facts of this case, found the exercising of his discretion difficult and noted: "I have given anxious consideration to what I should do in relation to count 2, bearing in mind that it is a scheduled serious violent offence."

14 The Act gives no specific guidance as to what factors should be considered by a sentencing judge exercising the discretion pursuant to s. 161B(3) of the Act. Part 9A - Conviction of Serious Violent Offences provides pursuant to s. 161B(1) of the Act that if the sentence imposed on a schedule offence is ten years' imprisonment (or is taken by virtue of s. 161C of the Act to be "the specified years of imprisonment") then the offender is automatically not entitled to any remission (s. 161D) nor parole until he has served at least 80 per cent rather than the usual 50 per cent of the sentence (s. 166(1)(c)(i) Corrective Services Act 1998) These consequences will not flow if the offender is dealt with for a schedule offence and is sentenced to between five and ten years unless the sentencing judge makes a declaration under s. 161B(3). In the absence of guidance from the Act one would expect that normally no such declaration would be made unless there were reasons to justify the making of a declaration. Some particular reason or reasons must exist to satisfy the court that the declaration is warranted and that in all the circumstances the appropriate sentence is one, in this case of seven years, without remissions and with no parole eligibility until 80 per cent of the sentence is served.

15 The 1997 Act which added Part 9A also amended s. 3 of the Act which deals with the purposes of the Act as follows:

"3. Purposes. The purposes of this Act include -

(b) providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is of paramount consideration; ...".

16 It also amended s. 9 of the Act which deals with sentencing guidelines and inserted new sub-ss. (3) and (4) in the following terms:

"(3) However, the principles mentioned in sub-section (2)(a) do not apply to the sentencing of an offender for any offence -

(a) that involve the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

(b) that resulted in physical harm to another person.

(4) In sentencing an offender to whom sub-section (3) applies, the Court must have regard primarily to the following -

(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b) the need to protect any members of the community from that risk;

(d) the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

(e) the nature of extent of the violence used, or intended to be used, in the commission of the offence;

(f) any disregard by the offender for the interests of public safety;

(g) the past record of the offender including any attempted rehabilitation and the number of previous offences of any type committed;

(h) the antecedents, age and character of the offender;

(i) any remorse or lack of remorse of the offender;

(j) any medical, psychiatric, prison or other relevant report in relation to the offender;

(k) anything else about the safety of members of the community that the sentencing court considers relevant."

17 Section 9(3) set out above refers to s. 9(2)(a) which states:

"(2) In sentencing an offender, a Court must have regard to -

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; ...".

18 The wording of s. 161B(3) of the Act suggests that the declaration, if made, is part of the sentence.

19 In the absence of specific guidelines in the Act as to what considerations should be taken into account when exercising this discretion, the general sentencing principles including those set out in s. 9 of the Act should be considered. It is conceded that this offence is one that comes within s. 9(3) of the Act and therefore the principles mentioned in s. 9(2)(a) do not apply. Section 9(4) of the Act requires that the sentencing judge "must" have regard primarily to the eleven factors listed in it. The word "primarily" does not exclude other relevant matters also being taken into account as long as the eleven matters listed in s. 9(4) are the primary considerations.

20 This approach is consistent with the second reading speech in Parliament of the 1997 Act when the then Attorney-General, the Hon. D.E. Beanland said:

"The Government went to the people at the last election and made a promise -

`... to introduce into the penalties and sentences legislation a section dealing with serious violent offences that reflects our concern for community safety as well as community outrage with this form of crime.'

The provisions of the new Part in the Penalties and Sentences Act 1992 will expressly reflect the Government's concern with community safety in relation to serious violent offences, as well as community denunciation of this type of crime. The Government went to the people at the last election promising that -

`In determining the appropriate length of a custodial sentence for a serious violent offender, a court will take into account the protection of the community as a primary sentencing consideration.'

This Bill delivers that promise by amendments to the purposes section and the sentencing guidelines of the Act.

The previous Government placed three stumbling blocks at the feet of sentencing judges. One: while the Act currently mentions protection of the community among the purposes of sentencing, section 9(1), there is nothing in section 9(2), the sentencing principles, requiring the court to actually have regard to the protection of the community as a sentencing consideration. ..."

"The new Part 9A will provide that in considering the question of the protection of the community, a court must have regard to:

(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b) the need to protect any members of the community from that risk;

(d) the circumstances of the offence, including the death or injury to a member of the public or any loss or damage resulting from the offence;

(e) the nature of extent of the violence, whether apparent or real, used, or intended to be used, in the commission of the offence;

(f) any disregard by the offender for the interests of public safety;

(g) the past record of the offender, including any attempted rehabilitation and the number of previous offences committed whether serious violent offences or not;

(h) the antecedents, age and character of the offender;

(i) any remorse or lack of remorse of the offender;

(j) any medical, psychiatric, prison or other relevant report in relation to the offender;

(k) any other matters relevant to the safety of individuals or the public that the court thinks fit.

The matters listed are to be regarded as primary sentencing considerations and in addition to those sentencing guidelines currently referred to in section 9(2) of the Penalties and Sentences Act 1992.

The matters referred to do not limit the matters to which a court may have regard in determining the length of any custodial sentence imposed upon a serious violent offender, but that they shall be the primary considerations."

"We recognise that a ten year threshold may in some cases be too high to adequately deal with some offences involving serious harm and serious violence, so the courts will be given a specific discretion to declare a person to be convicted of a serious violent offence where the person is convicted upon indictment of an offence in the Schedule and sentenced to 5 or more than 5 but less than 10 years imprisonment.

Current sentencing patterns suggest that a very significant degree of harm and violence needs to be inflicted and exhibited before the courts will sentence someone to over 5 years imprisonment.

Now the primary consideration will have to be the protection of the community.

If the maximum penalty for an offence is 10 or less than 10 years, then the courts will have the discretion to declare the offender to be convicted of a serious violent offence where the protection of the community is called for by the facts and the offender will serve at least 80% of the term."

The intention to protect the community from future violent offending seems to have been the paramount consideration of the legislature in enacting the 1997 Act.

21 Pursuant to s. 9(4)(a) and (b) of the Act, the sentencing judge must consider the risk of physical harm to members of the community if a custodial sentence were not imposed and the need to protect any members of the community from that risk. A seven year sentence was warranted in this case but the material provided at sentence did not suggest that the applicant was likely to be at risk of causing physical harm to members of the community in the future. The defence submission, which was not contested, was, in effect, that the applicant committed this offence whilst under stress and that it was out of character. He had no prior convictions for violence.

22 Section 9(4)(c) of the Act requires the sentencing judge to consider the personal circumstances of any victim of the offence. The victim impact statement of Rachel Lorraine Stephenson indicated the offence has had a serious effect on her, both personally and professionally. She has lost confidence is dealing with the public in her position as Property Manager. She was in the early stages of pregnancy with twins at the time of the robbery and whilst she has no medical material to substantiate her claim, feels the stress of this incident is at least in part responsible for complications she now has with her pregnancy. She is much more anxious and security conscious. Sadly, such consequences to victims of armed robbery offences are relatively common. The court recognises this in imposing substantial terms of imprisonment, in this case seven years, for offences of this type.

23 Section 9(4)(d) of the Act requires the sentencing judge to consider the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence. Fortunately, no death or physical injury arose out of the offence, however the offence was frightening and potentially dangerous.

24 Section 9(4)(e) of the Act requires the nature or extent of the violence used or intended to be used in the commission of the offence to be considered. Whilst no actual violence was used other than the accidental splashing of petrol on a staff member, the threat of violence in this case was very real to those present. The applicant did not intend to use actual violence although there was real potential for violence.

25 Section 9(4)(f) of the Act requires the sentencing judge to consider any disregard of the offender for the interests of public safety. The applicant here had significant disregard for the interests of public safety. Although he did not intend to light the molotov cocktail or the petrol, he deliberately created a potentially dangerous situation.

26 The sentencing judge is also required pursuant to s. 4(g), (h) and (i) to take into account matters relevant to the offender. His previous lack of a violent history, his attempted rehabilitation, his good prospects, his lack of any convictions since 1989, his remorse, cooperation and plea of guilty have already been noted.

27 Section 9(4)(j) and (k) have no particular relevance in this case.

28 A sentencing judge exercising the s. 161B(3) discretion must also consider the matters listed in s. 9(1) and (2) of the Act, other than s. 9(2)(a). Section 9(1)(c) of the Act states that one purpose of sentencing is to "deter the offender or other persons from committing the same or a similar offence". The applicant's conduct in this case warranted the seven year sentence which, it is hoped, would deter him and others from acting in such a frightening and potentially dangerous way.

29 The clear intention of the legislature in enacting the 1997 Act was that judges should exercise the s. 161B(3) discretion in appropriate circumstances. Section 3 demonstrates that protection of the community was an important consideration for the legislature, as was punishment and rehabilitation. Sections 9(3), 9(4)(a) and 9(4)(b) reinforce the view that the legislature was primarily concerned to protect the community from offenders who pose an on-going risk to the community. The Attorney-General's second reading speech of the 1997 Act is also consistent with this approach.

Was the discretion under s. 161B(3) of the Act properly exercised?

Did his Honour, after considering the primary factors listed in s. 9(4) of the Act and any other relevant factors, properly exercise the s. 161B(3) discretion in declaring that the offender had been convicted of a serious violent offence, such that he should have no remissions and only be eligible for parole after serving 5.6 years of his seven year sentence?

"I have concluded that such a declaration should be made. I think that I must and have concluded that I must make that declaration in discharge of my duty to the public, because the circumstances of this particular offence demonstrate that it was potentially very dangerous, was indeed committed with violence, and it is such that the community should receive the additional protection that it will have if I make such a declaration.

I have concluded, too, that without that declaration and its consequences, the deterrence, the sanction and the rehabilitation opportunities necessary would not be appropriately available."

31 It is difficult to see what rehabilitation opportunities would be provided by making the declaration. I would have thought a prisoner with limited criminal history, especially for violence, job prospects and family support would have a much better chance of rehabilitation during a substantial parole period in the community, rather than serving a longer jail sentence with a comparatively short parole period in the community.

32 More importantly, whilst his Honour considered the matters set out in s. 9(4)(c)-(e) of the Act and also gave some lesser weight to the matters set out in s. 9(4)(g)-(i) of the Act, he failed to consider the issue, very important in the eyes of the legislature, of whether the applicant needed to be incarcerated for at least 80 per cent of his sentence and without remissions because of the risk of him physically harming a member of the community in the future. Although this incident was frightening, no one was physically hurt. The undisputed defence submissions were that the applicant had no prior convictions for violence, had acted out of character whilst under stress, was genuinely remorseful, had pleaded guilty at an early stage, and was attempting to rehabilitate with family support and job prospects. These factors suggest he is unlikely to commit a similar offence in the future. There is no suggestion that robberies committed in this fashion are prevalent. In my view, his Honour's sentencing remarks and the facts of this case fail to provide sufficient reasons to justify the making of the s. 161B(3) declaration.

33 It is my view that to require the applicant to serve at least 80 per cent of his seven year sentence is to impose a sentence which is manifestly excessive in all the circumstances, and as a result his Honour's exercise of discretion pursuant to s. 161B(3) of the Act has miscarried. I would grant the application for leave to appeal and allow the appeal to the extent of omitting the declaration that the offender has been convicted of a serious violent offence.

34 The next issue is whether a recommendation for early release on parole should be given. Prior to the 1997 Act, an early recommendation for release on parole earlier than halfway through, and sometimes after one third of the sentence, was commonly given in sentences of this type where there were substantial mitigating factors. The applicant was cooperative with authorities and pleaded guilty at an early stage. For the reasons already mentioned, he appears to have good prospects of rehabilitation. It is my view that a recommendation for release on parole after serving two and a half years' imprisonment is warranted.

35 I would allow the appeal and vary the sentence below by deleting the declaration and adding a recommendation that he be released on parole after serving two and a half years' imprisonment.

1 This is an application for leave to appeal against sentences of imprisonment, ordered to be served concurrently, of (1) four years for unlawful use of a motor vehicle with circumstances of aggravation, and (2) seven years for armed robbery, to which the applicant pleaded guilty in the District Court at Maryborough on 22 June 1998. In imposing sentence, the learned judge also made a declaration under s.161B(3) Penalties and Sentences Act 1992 that the applicant was convicted of a "serious violent offence".

2 It is primarily against the making of that declaration that the present application is brought. The effective sentence of imprisonment for seven years was, I understand, not seriously challenged at the hearing before us. Even if I am mistaken about that, I would in any event not be disposed to give leave to appeal against that sentence. Two offences were involved, and the robbery was plainly a very serious one.

3 On 12 February 1998, which was a working day, the applicant entered the business premises of a real estate agent in Hervey Bay. He was equipped with a bucket of petrol, a cigarette lighter, and a bottle, which contained petrol and a rag. It was described in the indictment, and without objection at the hearing below, as a "molotov cocktail", which was no doubt the appearance it was designed to present. The applicant had a stocking over his face, and he demanded money from those in the office. His demand was not at first treated with much attention by the four staff members and customer who were present, so the applicant emptied the contents of the bucket over the counter and on to the carpet behind it. Some of it went over the legs of one of the employees, who was a young woman named Miss Bowie. At the sentence hearing, counsel for the applicant said it was not the intention to throw the petrol over anyone; but it is difficult to accept that such a consequence was not both foreseeable and foreseen. Having paid $3.00 for the petrol at the service station that morning, it is a fair inference that the quantity involved was some four litres or more. The stain it left on the carpet, as it appears in photographic ex.2, can be seen to cover a substantial area, more or less precisely where one would have expected members of the office staff to have been standing behind the counter when he approached them and threw the contents of the bucket.

4 When the applicant did this, he was facing the property manager, who was a Mrs Rachel Stevenson. She saw that in his right hand he had the molotov cocktail or bottle containing petrol, and that in his left hand he had a cigarette lighter. He was slowly rolling the flint wheel of the lighter, while holding up the bottle and lighter, saying as he did, "Hurry up. I'm going to light this". He was given some $1,200 from the cash drawer, which was placed in a sports bag he had brought with him, but he insisted on more. The staff assured him that there was no second till as he claimed, but he was not persuaded by what they said. His actions then became sufficiently threatening for a customer to approach him and offer him his own wallet. The applicant refused to take it, saying he wanted the estate agent's money. Eventually he left the office with what he had been given, and drove off in the car (which was the subject of count 1), which had been left waiting with its engine running outside.

5 He was later identified through the discovery of his fingerprint on the bucket which he had left behind at the scene, and in the course of a later search at the place where he lived some clothes and a length of hose were found. After being interviewed, he confessed to having committed the offence, and explained the circumstances which had led him to do it. In essence, it was that he was desperate for money to pay various pressing debts, such as car registration, and so on.

6 Accepting as I do that a sentence of imprisonment for seven years was not inappropriate for the second offence, and certainly not for the two offences taken in conjunction, the question on this application is whether the learned judge was wrong in declaring the offender to have been convicted of a serious violent offence. The concept is a new one, having been inserted in the Penalties and Sentences Act 1992 by an amendment to the legislation which came into effect on 1 July 1997. Section 157(7) of that Act provides in substance that, in sentencing an offender convicted of such an offence, a court cannot, under s.157, make a recommendation that reduces the period of imprisonment which must be served before the offender becomes eligible for release on parole under s.166(1)(c) of the Corrective Services Act 1988; and that a recommendation of that kind will have no effect in accelerating such eligibility to a point earlier than that fixed by the statute. Reference to s.166(1) of the Corrective Services Act shows that a prisoner is now not eligible for release on parole:

"(c) if the prisoner is serving a term of imprisonment for a serious violent offence - until the prisoner has served the lesser of the following -

(i) 80% of the term of imprisonment to which the prisoner was sentenced;

Apart from that provision, a prisoner would, subject to specific exceptions, ordinarily be eligible under s.166(2) for release on parole after serving half of the term of imprisonment to which he or she was sentenced. The restriction imposed in 1997 therefore represents a serious curtailment of a privilege that a prisoner has hitherto been able to expect. In addition, it is expressly provided in s.161D of the Penalties and Sentences Act that the sentence of an offender convicted of a serious violent offence cannot be remitted under the Corrective Services Act 1988, pursuant to which provision is made in Part III of the Corrective Services Regulations 1989 for a remission for good behaviour amounting in general to about one third of the sentence.

7 The conditions under which a "serious violent offence" may be declared to have been committed are set out in ss.161A, 161B, and 161C, which, together with s.161D, comprise the whole of Part 9A of the Penalties and Sentences Act. Section 161A divides those offences into two categories. For both categories, it is a prerequisite that the offender be convicted on indictment of an offence against a provision mentioned in the accompanying schedule: see s.161A(a)(i)(A) and s.161B(3)(a)(i); or else of counselling, attempting, or conspiring to commit it or procuring its commission: see 161A(a)(i)(B) and s.161B(4). In addition, for offences in the first category under s.161A(a), the offender must first have been sentenced to imprisonment for 10 or more years: s.161A(a)(ii). In the case of an offence in the second category, the period for which the offender must first have been sentenced for the offence is five years or more but less than 10 years: s.161A(3)(b); but that does not make it a "serious violent offence" unless the court also declares the offender to be convicted of a serious violent offence "as part of the sentence": s.161B(3).

8 It was under s.161B(3) that the applicant was declared to have been convicted of a serious violent offence in the present case. Section 161B(3) is as follows:

(i) against a provision mentioned in the schedule; or

(ii) of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in the schedule; and

(b) sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C;

the sentencing court may decare the offender to be convicted of a serious violent offence as part of the sentence."

In this instance, s.161B(3)(a)(i) was satisfied because the applicant was convicted on indictment of an offence against a provision mentioned in the schedule. The schedule contains a list of some 46 specified offences, of which no. 42 on the list is "Section 409 (Robbery)", which was, of course, the second of the two offences of which the applicant was convicted; and, because he was sentenced to seven years imprisonment for that offence, the requirement of s.161B(3)(b) was also satisfied.

9 The result was that all the conditions of s.161B(3) were fulfilled subject only to the court exercising the power conferred by that subsection to declare the offender to be convicted of a serious violent offence as part of the sentence. It is clear that, in using the word "may" in s.161B(3), the intention was not to confer a power which is to be applied mechanically or automatically, but rather to invest a discretion to be exercised judicially and with proper regard for all relevant circumstances including the consequences of making the declaration. So much is shown by the structure of the provisions comprising Part 9A itself. It is only in relation to the first category of offences under s.161A(a) that the court under s.161B(1) "must" declare the conviction to be of a serious violent offence. Where it is an offence in the second category under s.161B(3), the court "may", but is not bound, so to declare. Moreover, since the effect of such a declaration is penal and prejudicial to the liberty of the subject, the conclusion necessary to sustain the declaration is not one that is to be reached unless it is fully warranted in the circumstances. The impact on the applicant here will be that, disregarding the matter of remissions, his eligibility for parole will be postponed from 3.5 years, as it would otherwise ordinarily have been under s.166(1)(d) of the Corrective Services Act in the case of a seven year sentence, until he has served 5.6 years of that sentence. That is not a result that is to be arrived at without proper judicial consideration, even if it is true that, as is often claimed, not all prisoners are granted parole before they have served out their sentence in full.

10 The provisions of Part 9A provide no specific guidance about the way in which the discretion under s.161B(3) is to be exercised in making a declaration of a serious violent offence. That being so, the general principles or considerations ordinarily governing the sentencing of offenders fall to be applied so far as they are relevant and applicable to a matter like this. Those principles or considerations were at one time largely contained in judicial practice and reported decisions of the courts; but, at least since 1992, they have been specified in s.9 of the Penalties and Sentences Act 1992. Most of the relevant matters are listed there, but the statutory specification cannot be considered exhaustive if for no other reason than that, after prescribing the various factors to which a sentencing court must have regard, the list in s.9(2) concludes with:

It is therefore not possible, in my opinion, to approach s.9 as if it represented a completely exhaustive code or specification of the considerations governing or regulating sentencing or of the factors relevant to it.

11 In its original form s.9(2) of the Act provided, and in fact continues to provide, that in sentencing a court must have regard to:

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable ...".

The principles that imprisonment is a penalty of last resort, and that an offender should if possible be allowed to remain in the community, were always judicially recognised and acted upon before 1992 except, of course, in cases where imprisonment was mandatory, or the offence so serious as to admit of no other course but imprisonment. Offences that were serious and violent were an obvious illustration of the latter kind. They were and after 1992 continued to be offences that, except in unusual or special circumstances, commonly attracted terms of imprisonment. Few were bold enough to argue that s.9(2)(a) operated to govern sentencing in cases of offences of that kind at least in the case of adult offenders. Armed robbery of banks and financial establishments are a prime example.

12 Recently, however, these "principles" have undergone some degree of statutory modification or alteration in the course of the legislative amendment effected by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997, which was the Act that also introduced Part 9A. On that occasion s.9 was amended by inserting ss.9(3) and 9(4) as they now are. Section 9(3) qualifies the operation of the principles mentioned in s.9(2)(a) by expressly excluding their application to the sentencing of an offender in two cases. They are, briefly stated, in sentencing for an offence (a) that involved the use of violence against another person; or (b) that resulted in physical harm to another person.

13 In the case of an offence of that kind, the effect of s.9(3) is that courts, in sentencing, are no longer required to have regard under s.9(2)(a) to the principle that imprisonment is a punishment of last resort, or that it is preferable that the offender be permitted to stay in the community. Instead, the sentencing regime that is to apply to such offences is now prescribed in s.9(4), which provides that the court in sentencing an offender to whom s.9(3) applies must have regard "primarily" to the series of factors or considerations listed in s.9(4). Of these, the first two in subs.(4) are:

"(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b) the need to protect any members of the community from that risk."

14 The learned President in her reasons, which I have had the advantage of reading, approaches s.9(4) on the footing that, in the absence of other more specific guidance (of which none is given by Part 9A), the exercise of the discretion under s.161B(3) to declare a serious violent offence is governed by the factors or considerations specified in s.9(4) including s.9(4)(a) and (b). Adopting that approach is said to have the consequence of exposing an error in the sentencing process in the present case, in that the material provided at sentence did not suggest that the applicant was likely to be at risk of causing physical harm to members of the community in the future; and, further, that ss.9(3) and 9(4)(a) and (b) reinforce the view that the legislature was primarily concerned to protect the community from offenders who pose an ongoing risk to the community. The drafting of all these provisions is no doubt in some respects unsatisfactory; but, with great respect, I am unable to accede to this interpretation of these and other relevant provisions or, in consequence, to regard them, when so construed, as governing the exercise of the discretion conferred by s.161B(3) to declare a serious violent offence.

15 There are several reasons for arriving at a contrary conclusion. It may be accepted that the principal objects of s.9(4)(a), in requiring a sentencing court to have regard to the risk of physical harm to members of the community "if a custodial sentence were not imposed", is to engage the sentencing process as a means of protecting the community "from offenders who pose an ongoing risk to the community". The fact that such a risk is posed, and that community members need to be protected from it, is a cogent reason for sentencing such offenders to a term of imprisonment. But that is not the question which a court, when called on to make a declaration of a serious violent offence under s.161B(3), would be engaged in considering at that stage. To have arrived at that juncture in the sentencing process, the judge must already have concluded at least that a sentence of imprisonment of not less than five years ought to be imposed. Otherwise the jurisdiction to make the declaration under s.161B(3) would not exist. Indeed, on a literal reading of s.161B(3)(b), the court must first have imposed a term of imprisonment of the requisite duration before the jurisdiction becomes exercisable at all.

16 It follows, of course, that in a case in which the making of such a declaration is being properly entertained, there can be no inquiry whether or not community members will be put at risk "if a custodial sentence were not imposed". That question must at that stage necessarily already have been resolved in favour of imposing such a sentence. Equally, the need, in terms of s.9(4)(b), to protect community members from that risk by sentencing the offender to imprisonment will also have been resolved before the matter of exercising the discretion arises under s.163B(3). At that juncture the question that the court will be considering will not be whether the offender should be sentenced to imprisonment as a protection to the community, but whether, having been so sentenced, he is to be deprived of eligibility for parole after serving half his sentence and further penalised by deferring it until 80 per cent of that sentence has been served.

17 Support for this conclusion is to be found in the form in which s.9(4)(a) is expressed. It speaks of "the risk ... if a custodial sentence were not imposed". That form of language is what is known as the old English subjunctive, described in Fowler as "a verbal form or mood expressing hypothesis usually denoting what is imagined, wished, demanded, proposed, exhorted, etc.". The New Fowler's Modern English Usage, 3rd ed., title subjunctive mood. Used as it is in s.9(4)(a) it confirms that what the drafter had in mind was a state of affairs in which the court was still in the process of considering the hypothesis of whether or not to impose such a sentence. It is not a form of expression appropriate to the making of a declaration under s.161B(3), where such a sentence must already have been imposed before the jurisdiction to make a declaration becomes exercisable at all.

18 It follows in my opinion that ss.9(4)(a) and 9(4)(b) cannot be considered as governing, or indeed even relevant to, the exercise of the discretion to make a declaration under s.161B(3). Having regard to the express exclusion by s.9(3) of "the principles mentioned in subsection (2)(a)" of s.9, it seems reasonably clear that the function of paras.(a) and (b) of s.9(4) is limited to filling the void created when those two paragraphs of s.9(2) were specifically displaced in their application to sentencing of offenders for offences involving (a) the use of violence, or (b) the infliction of harm, against another person. Without some provision like those inserted in s.9(4)(a) and s.9(4)(b), there would have been no statutory prescription of the kind that the legislature intended to supply for the sentencing of such offenders of the kind described in s.9(3) and, indeed, no statutory guide at all in such cases.

19 The conclusion I have reached therefore is that s.9(3) and s.9(4)(a) and (b) do not control the discretion exercisable under s.163B(3) to declare a serious violent offence to have been committed. If it is correct to say that in other respects s.9(4) provides guidance in the exercise of that discretion, then the succeeding paragraphs of the subsection provide ample authority for performing that task, concluding as they do with the final para.(k), which enjoins the court to have regard in sentencing to:

"(k) anything else about the safety of members of the community that the sentencing court considers relevant."

20 Turning to the present case, the learned sentencing judge in making the declaration in question considered and had regard to a wide range of factors mentioned in s.9(4) and otherwise, including the antecedents, age and character of the offender: cf. s.9(4)(h); his remorse and plea of guilty, his understanding now of how wrong his offence had been, his current efforts in prison to rehabilitate himself, and the absence of any evidence of violence in his prior conduct or behaviour. Having concluded in the light of all the circumstances that a sentence of imprisonment of between 5 and 10 years was appropriate, his Honour went on to decide that he ought to make the declaration sought under s.161B(3). He did so, he said, "in the discharge of my duty to the public:

"... because the circumstances of this particular offence demonstrate that it was potentially very dangerous, was indeed committed with violence, and it is such that the community should receive the additional protection that it will have if I make such a declaration."

His Honour then went on to add that, "without that declaration and its consequences, the deterrence, the sanction, and the rehabilitation opportunities necessary would not be appropriately available".

21 Some difficulty was encountered in determining what was meant by the learned judge in referring to "rehabilitation opportunities" in this context. For my part I suspect it was no more than a reference to the applicant's participation in various rehabilitative activities in the prison environment, including the Buddies Scheme and the Centre Information Activities Scheme, for both of which he had received certificates that were tendered, and of which something was made by counsel for the applicant in the course of his submissions at the sentence hearing. Whatever the precise subject intended, it is plainly not so critical a matter as to vitiate the exercise of his Honour's sentencing discretion in other respects.

22 In the end, the question now before this Court is whether his Honour went wrong in exercising the discretion under s.161B(3) to declare the applicant to be convicted of a serious violent offence. Given that, for reasons already explained, "the risk of him physically harming a member of the community in the future" was not a matter to which he was required to have primary regard under s.9(4)(a), I am unable to agree with the conclusion that his Honour failed to consider the critical issue in making the declaration that is challenged before us. He specifically adverted in his sentencing remarks to the fact that, if the declaration were made, the applicant would be obliged to serve 80 per cent of the sentence before becoming eligible for release, and that the applicant would not receive the benefit of any remissions. He cannot in that respect be said to have overlooked the consequences of the declaration if made.

23 I have in the end been unable to identify any error in the exercise of the discretion to make the declaration under 161B(3). It cannot be said that the circumstances of the offence were such that such a declaration was not warranted. The means adopted to commit the offence, and the threats uttered in the course of it, were intended to create real fear in the minds of those present in the real estate office and in that way compel them to submit to the applicant's demands. That they had their intended effect is evident from the reactions induced in those present. Mrs Stevenson, who was pregnant at the time, was, as so often happens with victims of crimes like these, adversely affected, both personally and professionally, by the experience. In her victim impact statement dated 19 June 1998, she complains of a lack of confidence in dealing with the public in the course of her work, and describes her sense of obligation, as property manager, for the safety of the office staff as "now overpowering from time to time". She has become concerned about strangers who come into the office and is fearful of being alone at night.

24 Consistently with the principles on which this Court acts in reviewing sentences, it is to my mind not possible to hold that the learned judge was wrong in making the declaration. What the applicant did in committing the offence was plainly dangerous and fraught with the potential of harm of the most serious kind to several quite innocent and inoffensive people. His conduct in entering the office with an open container containing a not insubstantial quantity of highly inflammable fluid was itself culpable to the point of recklessness. That he should have deliberately thrown it in the direction where some of those individuals were standing makes his deed even more reprehensible. Everyone knows how readily petrol vaporises in the atmosphere and how suddenly and unexpectedly it ignites. To have revolved the flint wheel of the cigarette lighter, even slowly, under those circumstances was to court catastrophe. The applicant can count himself fortunate that the predictable result did not ensue, in which case he would almost certainly be facing far more serious charges. It was not through careful forbearance on his part that a tragedy was avoided.

25 To say that the primary judge was wrong in declaring the applicant's offence to be a "serious violent offence" under s.161B(3) is, in my respectful opinion, unsustainable. The deterrent effect is in this instance not likely to be insignificant. If other offenders in custody come to learn of the applicant's sentencing fate, they may reasonably be expected to adopt other methods of carrying out robberies. If the various circumstances, place, time, occasion, potential danger and impact on those present did not combine to render this a serious offence, then it is not altogether easy to conceive of other instances of the schedule offence of robbery in which the statutory declaration could legitimately be made. Cases of threatening with a loaded firearm, a bomb, or a stick of explosive, seem to me, potentially at least, to be no more serious or violent than this. If the declaration in the present case were to be set aside, it would reduce s.161B(3) to virtual irrelevance, which in interpreting and applying Acts of Parliament it is not the function of the judiciary to bring about.

26 I would refuse the application for leave to appeal.

1 I have had the advantage of reading draft reasons for judgment of the President and those of McPherson J.A. Those reasons together canvas in detail the facts relevant to the issue on appeal and as well set forth the terms of the relevant legislation.

2 It is unnecessary and would be unhelpful for me to re-state those matters. I will therefore merely consider the relatively short points argued upon appeal which have been canvassed at some length by the other members of this Court.

3 Section 161B(3) of the Penalties and Sentences Act 1992 gives a sentencing court a discretion to "declare the offender to be convicted of a serious violent offence as part of the sentence", where the offender is convicted on indictment of an offence "against a provision mentioned in the `Schedule' to the Act" and the sentence imposed is more than five but less than ten years imprisonment.

4 The consequence of such a declaration being made is to be found in s.166(1) of the Corrective Services Act which provides that a prisoner serving a term of imprisonment for "a serious violent offence" (presumably so declared as part of the sentence) of more than five but less than ten years imprisonment is not eligible for release on parole until 80 per cent of the term of imprisonment imposed has been served.

5 A further consequence of the making of a declaration is that under s.161D the offender becomes ineligible for any remission of the sentence.

6 If a sentencing judge in the exercise of his discretion declines to declare the offender to be convicted of a serious violent offence then under s.166(1)(c)(i) of the Corrective Services Act 1998 the offender will become eligible to apply for parole after 50 per cent of his sentence has been served and he will also of course be "entitled to" or at least eligible for remission of part of his sentence under Part 3 of the Corrective Services Regulations 1989.

7 Having regard to the consequences of making a declaration that an offender is convicted of a "serious violent offence" it is not surprising that the making of such a declaration is treated as "part of the sentence" under s. 161B(3). If such a declaration is made the effect will be to make the sentence of imprisonment imposed for that serious violent offence significantly more onerous than it would otherwise be. While it may be by no means certain that parole will be granted to an offender upon application made when he first becomes eligible to do so, or indeed upon one made long after he has become eligible to do so, nevertheless to lengthen the period of eligibility by 30 per cent of the length of the sentence clearly increases its severity. Similarly the abolition of any entitlement to remission also significantly increases its severity.

8 For many years in imposing sentences this Court, as did the Court of Criminal Appeal, has regarded the date when an offender becomes eligible for parole as a factor affecting the severity of the sentence.

9 In Hantzisavvas [1981] Qd.R. 74 the Court of Criminal Appeal upon a sentence appeal varied the sentence by recommending that the applicant be considered for parole after the expiration of a shorter period than that fixed by the sentencing Judge. The members of that Court held that a sentence included not merely the custodial term imposed but also the recommendation for parole engrafted upon it which affected eligibility for release from custody under the sentence.

10 In R v. Lennard [1984] 1 Qd.R. 1 the Court of Criminal Appeal held that in making a recommendation for eligibility for release on parole, a sentencing Judge had a discretion to recommend that the offender be released at a time earlier than or later than half way through the custodial term imposed. Under s. 157(7) of the Penalties and Sentences Act a sentencing Court no longer has power to reduce the period for eligibility for parole to less than 50 per cent of the term of imprisonment imposed when the offence involved is "a serious violent offence" as defined.

11 For many years now it has been assumed that if the circumstances of a case warrant, it is possible for a sentencing Judge to make an order that an offender become eligible for parole only after serving perhaps 60 per cent or more of the sentence; of course the length of effective postponement of eligibility has been constrained to some extent by any remission of sentence which might be obtained.

12 If such a recommendation for postponement of eligibility beyond the half-way mark in service of a sentence were made, it would clearly be part of the sentence and an offender could seek leave to appeal against such a recommendation on the basis that it rendered the sentence "manifestly excessive".

13 Up to the present time it has not been within the power of a sentencing Judge to make any order having effect on any entitlement to remission of part of the sentence (for good behaviour etc). The power to grant remission has traditionally been regarded as being within the administrative powers of the Community Corrections Board and designed to assist in the administration of the prison system.

14 Part 9A of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 however, gives a sentencing Judge a discretion to make a declaration which will have the effect of -

(a) depriving the offender of an eligibility for remission of sentence which he would otherwise have pursuant to the Corrective Services Regulations etc; and also

(b) postponing eligibility for parole until 80 per cent of the imposed sentence has been served.

15 With respect to (a), this is a power never before bestowed upon a sentencing Judge, whereas with respect to (b), this is a power of the sort which has been exercised at least since 1983 when R v. Lennard (supra) was decided.

16 In my view there can be no doubt that an appeal may be brought against the making of a declaration under s.161B(3) on the ground that the whole of the sentence imposed (including the making of the declaration) is manifestly excessive.

17 As I read the grounds of application for leave to appeal -

"1. That the sentence given by the Court was manifestly excessive in all the circumstances;

2. That the declaration of the Court of armed robbery as a serious violent offence was unwarranted."

the application simply seeks to have this Court in all the circumstances canvassed before the sentencing Judge both on trial and upon sentence, alter the sentence imposed to delete the declaration made under s. 161B(3).

18 In many respects, the arguments advanced to support this variation of sentence are similar to those which might be advanced to reduce a period of eligibility (as in Hantzisavvas) or to increase it beyond the half way mark (as in Lennard).

19 In my view to succeed upon his application the applicant must show that in imposing the sentence of seven years and in making the declaration under s.161D(3) of the Penalties and Sentences Act the sentencing discretion of the learned sentencing Judge miscarried.

20 To show this he must show that the sentencing Judge:

(1) Failed to take into account something that he should have taken into account; or

(2) Took into account something that he should not have taken into account; or

(3) Made some mistake of fact or law or ultimately imposed a sentence which was so severe that it went beyond the exercise of a sound sentencing discretion.

21 In my judgment it is unhelpful to compartmentalize factors relevant to imposition of the sentence in this case by reference to the various provisions of the Penalties and Sentences Act. One must approach the balancing of the serious nature of the offence committed by the applicant against matters of his background, remorse and employment prospects etc. which are personal to him. These of course, are all matters upon which the proper exercise of a sentencing discretion must be based - both in selecting the length of sentence and in determining whether or not the declaration be made. The declaration is merely part of the sentence. It is the whole of the effective sentence which in my view must be considered to determine whether or not it is manifestly excessive.

22 In my view, the learned sentencing Judge appears to have considered all matters relevant both to the length of the sentence imposed and the making of the declaration having the inevitable statutory consequence of destroying eligibility for any remission and the postponement of eligibility to apply for parole.

23 The sentence of seven years imprisonment is within range taking into account the applicant's plea of guilty.

24 The significant matters for consideration - which the learned sentencing Judge did in fact on the record carefully consider, were -

(1) The offence committed had been planned carefully and was executed in a way designed to cause great fear of imminent danger to persons in the real estate office and in fact to expose them to the danger of horrible injury or death by the use of petrol and the Molotov cocktail which the applicant had the ability to ignite immediately and threatened to ignite to effect the robbery.

(2) The use of such explosive material capable of causing great injury and damage and so readily procurable one would think, in the community, makes it very desirable to deter like-minded persons from resorting to the same terror tactics in places, to which the public have access, or indeed in any places for that matter.

25 In my view the sentence imposed and the declaration made would bring home to persons who might contemplate robbery, the abhorrence with which Courts will treat such an offences or other offences involving threats of personal violence by the use of petrol bombs or buckets of petrol with the the apparent means to ignite them. As I read his Honour's sentencing remarks this was an important consideration in deciding to make the declaration.

26 To my mind, the assertion that the applicant did not ever really intend to set fire to the petrol in the bucket or the petrol bomb he produced carries about the same weight as an assertion by a robber who uses a loaded shotgun or firearm of some sort to effect a robbery but insists that he or she did not intend to pull the trigger or if the trigger was pulled, did not intend to point the weapon in the direction of any person who might be injured by its discharge.

27 In my view the commission of this offence involved the potential for a devastating and tragic destruction of life and/or serious personal injury to people in a relatively small room who were strangers to the applicant. The serious nature of the offence is recognized by having that very offence contained in the schedule and so described as a "serious violent offence". There is no doubt that the circumstances of this particular offence made it a much more serious offence of robbery than perhaps other offences of robbery which would come within the schedule, the nature of which would not have the potential to cause such devastating injury to so many people should the threat be carried out or by chance some accidental ignition of the petrol in the bucket and the bomb be effected.

28 In my view, it cannot be said that the learned sentencing Judge took into account anything that he should not have taken into account or failed to take into account things that ought to have been taken into account. The applicant's real contention was that the sentence was so severe as to lead to the conclusion that the exercise of sentencing discretion must have miscarried

29 It was clearly the intent of the legislation amending the Penalties and Sentences Act in 1997 to remove the power of a sentencing Judge to lessen the severity of a sentence by making an order shortening the period of eligibility for parole when imposing a sentence for a serious violent offence as defined, and indeed to empower that Judge to increase the severity of a sentence for such an offence by making a declaration under s.161B(3) if the circumstances so warrant.

30 I am quite unpersuaded that the sentence viewed as a whole - the custodial term of 7 years imprisonment imposed with the declaration made, as part of it, that the offence for which he was sentenced - defined to be a "serious violent offence" under the Act - was one, is so manifestly excessive as to demonstrate a departure from the exercise of a sound sentencing discretion.

31 I would refuse the application for leave to appeal.

Sentences (Serious Violent Offences) Amendment Act 1997

Corrective Services Act 1988

Penalties and Sentences (Serious Violent Offences) Amendment Act 1997

Corrective Services Act 1998

Services Regulations 1989

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