R v Crossley [1999] QCA 223

R v Crossley [1999] QCA 223 - QCA 1999 case summary — Zoe

[4]

4 Count 1 was committed with a co-accused Salkeld who provided an undertaking under s13A Penalties and Sentences Act 1992 and was sentenced under that section to a notional sentence of five years imprisonment. Salkeld was 20 years old and was on probation for robbery at the time of committing this offence. In imposing the notional sentence under s13A Penalties and Sentences Act 1992 the learned sentencing judge did not note whether he would have made a declaration pursuant to s161B(3) Penalties and Sentences Act 1992 but nothing turns on this as it is not suggested that there is lack of parity in respect of Salkeld's sentence. 5 The applicant submits however that the sentence imposed on him was manifestly excessive in that it lacked parity with the sentence imposed on his co-accused Banks in counts 3 and 4. Banks was 20 or 21 years old and had no relevant prior convictions. Banks gave evidence on the applicant's sentence claiming that he was coerced into involvement in counts 3 and 4 and was not a willing participant. The applicant gave evidence denying this. His Honour found neither prisoner completely credible, concluding that he was not satisfied beyond reasonable doubt that Banks participated out of fear for his life. His Honour was satisfied that the idea for commission of these offences came from the applicant and a third person; that Banks was probably influenced by the applicant's superior status as a criminal and may have been a hesitant, perhaps even a reluctant, participant. Banks, like Salkeld, provided an undertaking under s13A Penalties and Sentences Act 1992 and a notional term of imprisonment of four years was imposed upon him under that section. Banks would have been eligible for parole after having served two years of that notional sentence. It is conceded by the applicant that any comparison as to parity must be made in respect of that notional sentence and not the reduced sentence imposed after taking into account Bank's undertaking. The appellant is therefore required to serve a period in custody four times longer than Banks before becoming eligible for parole.

[14]

2 The first offence with which we are concerned was committed in July 1997 when the applicant (who had not long before completed a prison sentence) and one Salkeld robbed a service station. Both were disguised and carrying knives. The service station employee was alone; $450 and some cigarettes were stolen and the employee was kicked in the ribs several times. The offence to which the appellant pleaded guilty was armed robbery in company with personal violence. The second offence was committed six months later at a take-away pizza store which the applicant robbed by himself. He was armed with an air rifle and disguised. An employee of the store attempted to take the rifle off the applicant, who shot him in the chest, causing no permanent injury. The offences on this occasion were attempted armed robbery and wounding. The third offence was committed on the same night as the second, when the applicant with two other people, Hughes and Banks, went to the house of a man called Edwards. It is said that Hughes mistakenly thought that Edwards had been involved in sexual offences against girls. All three entered Edwards' house, breaking in through the back door. Again, the applicant had his air rifle. Hughes and Banks each had a sword and all were disguised. Edwards was threatened in his bedroom, where he had been asleep with his wife, and demands were made for money and drugs. The applicant had his air rifle pointed at Edwards; he punched Edwards in the head, cutting his eye. Hughes started wielding his sword and chopped into the bedhead near Mrs Edwards and also into the wall on her side of the bed. The assailants were directed to Mrs Edwards' purse and the applicant went downstairs to obtain it; when he came back he made demands for balances in bank accounts and PIN numbers. The attackers left and it was discovered that the telephone line had been cut and property stolen. The applicant pleaded guilty to armed robbery with personal violence in company. The fourth and last robbery was of a service station. On this occasion the applicant had a .22 rifle and he was in company with Banks. He waved the weapon at the service station operator and went behind the counter demanding money; $89 in cash and $120 worth of cigarettes were taken.

[20]

8 The error which is ascribed to the primary judge is that his Honour did not adjust the sentence imposed on the applicant in such a way as to avoid the creation of the gap, said to be too large, between the punishment imposed on the applicant and that imposed on Banks. Specifically, it is said that if there had been a sentence of 9 years producing a non-parole period of 4½ years, the relationship between the applicant's sentence and that imposed on Banks might have been much more defensible. There was discussion before us as to whether, if the sentence were reduced in this way, a declaration would be made under s. 161B(3). The Crown argues that the judge was not entitled to take the course contended for by the applicant, which it is said is inconsistent with this Court's decision in Booth (CA No 338 of 1998, 30 March 1999). Booth was sentenced to 12 years imprisonment for various offences and because of the provisions of s 156A(1)(b)(ii) of the Penalties and Sentences Act 1992, dealing with offences committed while on parole, the 12 year sentences had to be made cumulative upon a substantial balance remaining to be served under earlier sentences. Booth relied in his application on the totality principle, because the result of the sentences imposed on him was that he had a full-time release date more than 17 years ahead. Further, because of the provisions which are in question here requiring service of 80% of the term before eligibility for parole, the parole date was considerably deferred. McPherson JA referred to a method of setting parole, where a cumulative sentence is imposed, which was discussed in Coss (1995) 78 A Crim R 551. I interpolate, although it is not relevant to the present case, that a method of fixing a parole date, said to be that advocated in Coss, was not treated favourably in Walton (CA No 338 of 1997, 18 November 1997), a case on which comment was made in Hartigan (CA No 109 of 1998, 17 September 1998). To return to the principal point of Booth, McPherson JA referred to the statutory requirement in s 156A(2) that the sentences in question be served cumulatively and said:

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