R v Dullroy & Yates; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Dullroy & Yates; ex parte A-G (Qld) [2005] QCA 219

PARTIES: R v DULLROY, Christopher Thomas (respondent) YATES, Dennis Francis (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 111 of 2005 / CA No 112 of 2005 / DC No 102 of 2005

DIVISION: Court of Appeal

PROCEEDING: Appeal against Sentence by A-G (Qld)

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 24 June 2005

DELIVERED AT: Brisbane

HEARING DATE: 9 June 2005

JUDGES: de Jersey CJ, White and McMurdo JJ / Separate reasons for judgment of each member of the Court, White and McMurdo JJ concurring as to the orders made, de Jersey CJ dissenting

ORDERS: In CA No 111 of 2005: Appeal dismissedIn CA No 112 of 2005: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OTHER OFFENCES – where respondents pleaded guilty, among other things, to robbery in company while armed with a gun and a knife – where respondents were imprisoned for four years, wholly suspended, and ordered to make restitution and perform community service – where respondents were comparatively young – where neither respondent had any prior criminal history – where respondents had completed some of the community service ordered against them – where respondents’ rehabilitation was described as “excellent and already well under way” – where robbery was meticulously planned – where respondents stole a gun for use in the robbery – where robbery was executed at night – where respondents wore balaclavas to conceal their identity – where robbery had an adverse impact on complainants – where respondents committed offences after the robbery – whether the full suspension of imprisonment rendered the sentence manifestly inadequate / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where violent crime is carried out at night against shop attendants who are vulnerable and in need of protection – whether deterrence, denunciation and punishment are factors which should strongly inform sentencing in cases like this – whether sentencing judge allowed issues of mitigation and rehabilitation to distract from these considerations / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PROTECTION OF COMMUNITY AND PREVENTATIVE DETENTION – where offenders were aged 16-17 and 22 at time of offences and 18 and 24 at time of sentencing – where sentencing Judge determined there was some real prospect of rehabilitation if not sent to jail – where amendment to s 9(4) of the Penalties and Sentences Act 1992 (Qld) removed principles that sentence of imprisonment should only be imposed as a last resort and sentence that allows offender to stay in community is preferable in relation to offences of violence – where Act now requires sentencing court to be primarily concerned with protection of community from risk of further offending by that offender in relation to violent offences – whether sentencing judge adequately balanced competing considerations / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – POWERS OF APPELLATE COURT – GENERALLY – where respondents’ term of imprisonment was wholly suspended – where Attorney-General sought a twelve-month actual imprisonment term – whether moderation should attend the disposition of the appeal – whether appeal should be allowed given respondents would consequently lose their personal liberty for a relatively short period / Criminal Code 1899 (Qld), s 669A(1) / Juvenile Justice Act 1992 (Qld), s 144 / Penalties and Sentences Act 1992 (Qld), s 9, s 113 / Dinsdale v R (2000) 202 CLR 321, cited / Everett v R (1994) 181 CLR 295, cited / House v R (1936) 55 CLR 499, cited / Lahey v Sanderson [1959] Tas SR 17, cited / Lowe v R (1984) 154 CLR 606, cited / R v AS; ex parte A-G (Qld) [2004] QCA 259; CA No 183 of 2004, 30 July 2004, cited / R v Bainbridge, Cullen and Ludwick**i [1993] QCA 428; (1993) 74 A Crim R 265, cited / R v Breeze [1999] QCA 303; (1999) 106 A Crim R 441, followed / R v Clark [1998] QCA 477; CA No 283 of 1998, 8 October 1998, followed / R v Lovell [1998] QCA 36; [1999] 2 Qd R 79, cited / R v Maslen [1998] QCA 198; CA No 89 of 1998, 18 June 1998, followed / R v Melano; ex parte A-G (Qld) [1994] QCA 523; [1995] 2 Qd R 186, cited / R v Moss [1999] QCA 426; CA No 270 of 1999, 8 October 1999, applied / R v Price [1978] Qd R 68, cited / R v Smith [2004] QCA 31; CA No 19 of 2004, 18 February 2004, followed / R v Solway; ex parte Attorney-General [1995] QCA 374; CA No 187 of 1995, 22 August 1995, cited / R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323; (1999) 106 A Crim R 578, cited

COUNSEL: C Heaton for the appellant / A J Rafter SC for the respondent, Dullroy / M W Harrison for the respondent, Yates

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Ryan & Bosscher (Maroochydore) for the respondent, Dullroy / Locantro Lawyers for the respondent, Yates

de JERSEY CJ: The Honourable the Attorney-General appeals against sentences imposed in the District Court on 6 April 2005 following pleas of guilty. The most serious of the offences was robbery in company while armed, for which each respondent was imprisoned for four years, wholly suspended for an operational period of four years.

It is that full suspension upon which the appellant fastens for the contention that the result is manifestly inadequate. Counsel for the appellant, Mr Heaton, submitted in writing that the suspension should have been ordered to operate only after the serving of 12 months actual incarceration, though at the hearing of the appeals he contemplated a lesser period, while emphasizing that actual imprisonment should have been ordered.

Counsel for the respondents make the substantial point that their clients have not been imprisoned, so that ordering now that they be imprisoned would impose particular hardship; and also, that they have completed some of the community service ordered against them (in Dullroy’s case 88 hours, and in Yates’s case 140 hours).

There were strong personal features operating in favour of the respondents. Each is comparatively young: Dullroy was 16 to 17 years of age at the time of his offending, and 18 when sentenced (as an adult); Yates was 22 years old at the time of the offences, and 24 when sentenced. Neither respondent had any prior criminal history, although four months after the armed robbery, Yates committed an offence of breaking and entering and committing an indictable offence, for which in November 2004 he was admitted to probation and ordered to carry out 50 hours community service. Each respondent pleaded guilty upon an ex officio indictment.

The report of a psychologist, Ms Bendall, speaks of disruption to Dullroy’s youth because of his parents’ move from Australia to the United States, and his sense of alienation from his peer group. He turned to marijuana and other drugs. Prior to this robbery, he had committed a break and entering offence with a friend, in relation to which he was given a “warning” by the police. The major offence, robbery in company while armed, was committed on 10 August 2003. Dullroy committed a further offence, attempted robbery while armed, on 19 July 2004. His reason for committing that offence was to obtain money to pay his university fees. Although Dullroy was sentenced as an adult, the sentencing Judge was obliged to have regard to the fact that he was a child when he committed, especially, the major armed robbery in company, and to the sentence which might have been imposed upon him if sentenced as a child (s 144 Juvenile Justice Act 1992 (Qld)).

As to Yates, the psychologist’s report suggests he is a vulnerable person, dyslexic, who has some residual problems with communication. Yates explained his involvement in the crimes by reference to peer pressure.

The learned Judge gave comprehensive and extensive reasons when sentencing the respondents. His remarks disclose no particular error. The real question now is whether the Judge nevertheless allowed the issues of mitigation and rehabilitation in particular, to distract attention unduly from the considerations of general deterrence and punishment. To deal with that question, I turn now to the offences themselves.

The robbery was meticulously planned. Although Yates was the older man, Dullroy was the main instigator. Further, it was Dullroy’s idea to use a gun, and it was he who carried the gun. It was he who locked the staff in the cold room. The robbery occurred on 10 August 2003 at the Caloundra Kentucky Fried Chicken store. There were four male offenders, former school friends. Dullroy had asked Yates if he wanted to be involved in the robbery, which was his (Dullroy’s) plan, and asked where they could get a gun. Yates gave that information to Dullroy. Then, between June and August 2003, they entered a dwelling and stole the gun (and live ammunition). That offence attracted 240 hours community service.

Dullroy had previously worked at a KFC store. His plan was for a late night robbery, on the basis that the takings then would be optimal. He was hoping to steal between $50,000 and $75,000. The plan involved Dullroy and Yates entering the store, after another man, a look out with a two-way radio, had advised that there were no customers or police about. The fourth man was to stand at the rear door, through which they would leave. The robbery proceeded according to plan.

Dullroy and Yates wore balaclavas and dark clothing. Dullroy was the first to enter the store, and he was carrying the gun which was unloaded. Yates also entered, carrying a fish knife. Dullroy pointed the gun at a 16 year old female employee’s head, above her right ear. He held the gun to the back of another. He ordered the staff into the cold room. Upon Yates yelling out that he needed the manager to open the safe, Dullroy ordered her at gunpoint from the cold room for that purpose. When he ordered the manager back into the cold room, and she entered, he secured the door with a strap to impede the later exit of the staff. Dullroy and Yates stole $2,457.45, from which Dullroy received $1,257.45, and Yates received $1,000.

For this offence, they were each sentenced to four years imprisonment fully suspended for an operational period of four years. Restitution was ordered, and is apparently being made.

The respondents also pleaded guilty to six counts of unlawfully confining persons against their will, relating to their detention in the cold room, and that attracted the 240 hours community service imposed also in respect of the count concerning the theft of the gun.

Unsurprisingly, the robbery had an adverse impact on the staff members. Three provided victim impact statements confirming the compromising of their sense of security. One even had to change employment to avoid face to face contact with customers, and suffered financial loss.

Dullroy committed two further offences. Approximately 11 months after the robbery of the KFC store, he bought a stolen replica pistol. He pleaded guilty to receiving in respect of that transaction, for which he received a fully suspended 12 month term of imprisonment. At about 8am on 19 July 2004, wearing a balaclava and brandishing that pistol, he entered a Dick Smith store at Caloundra as the manager was opening the store that day. He menaced the manager and threatened to “pistol whip” him. When the manager stood up to him, Dullroy ran from the store, and was then apprehended. His object had been to steal goods and sell them. For that attempted armed robbery, he was imprisoned for two years, fully suspended.

In terms of the comparability of the overall positions of Dullroy and Yates, the learned Judge proceeded, reasonably in my view, on the basis they should receive the same treatment. While Dullroy was the younger man, and a child when he committed the robbery, it was he who instigated and planned it, and he carried out a larger role. Further, he carried the additional burden of the later offending. There seems no particular reason however why they should in the end have been treated differently.

As to the youthfulness of the respondents, that works, since the amendments to the Penalties and Sentences Act 1992 (Qld) made in 1997, less strongly in their favour, with offending of this character, violent by nature if not technical legal designation. See also s 9(3). Of course, however, youthfulness remains a material consideration (R v Lovell [1998] QCA 36; 2 Qd R 79, 83).

The learned Judge was strongly influenced by the respondents’ young ages and other personal circumstances, and his understandable wish not to prejudice their prospects of rehabilitation, which he described as “excellent and already well under way”. It is tragic to have to expose young or otherwise vulnerable persons to a prison environment, but sometimes the gravity of the offending, and the records of the offenders, mean that, responsibly, that has to be done.

The armed robbery in company especially, was a serious example of that offence. It was characterized by careful advance planning, including a house breaking to obtain the gun; the robbery was executed at night time; it was carried out at a fast food outlet, where staff are vulnerable and need protection; the gun and knife were used to menace the staff; balaclavas were worn to conceal the identity of the offenders; the staff were corralled in the secured cold room; a substantial amount of money was stolen; and there was resultant detriment to the residual wellbeing of the staff members. General deterrence and denunciation are features which should strongly have informed this sentencing process.

The term of four years imprisonment imposed for the armed robbery in company was an appropriate head term. I refer to R v Moss [1999] QCA 426, where a range of three to five years imprisonment for a first offence of this kind was mentioned.

The learned Judge referred, and we were referred, among other cases, to R v Taylor & Napatali; ex parte A-G (Qld) [1999] QCA 323, (1999) 106 A Crim R 578, where the Court of Appeal dismissed an Attorney’s appeal against the imposition of intensive correction orders for an offence of armed robbery in company. The offenders were young – 17 and 20 years of age – and the decision concerns the tension between advancing the rehabilitation of young offenders, and the features of deterrence and denunciation. That single instance of armed robbery was much less serious than this one. It was planned during a drinking session on the same day, for example, whereas this robbery was planned over a substantial period, and involved an earlier housebreaking to obtain the gun; there was an amateurishness about the robbery committed by Taylor and Napatali which is absent here – for example, they did not trouble to conceal their faces. The menacing in that case was confined to the attendant and a customer – here, the menace was of the six staff members, and extended to confining them in the cold room against their will; and there was here, in the case of each respondent, the additional prior housebreaking and stealing offence, and in the case of Dullroy, the later, quite separate, attempted armed robbery. The ensuing six years since Taylor & Napatali have I believe seen some strengthening in the courts’ response to offending of this general character. I do not consider that Taylor & Napatali militates to require an order which ensures these respondents avoid actual imprisonment.

Reference to a number of other cases in relation to young offenders tends to confirm the marked leniency of such a result. For example, Maslen (R v Maslen [1998] QCA 198) was a 17 year old with no prior convictions who, together with three other men, and carrying weapons, robbed a newsagency in the early morning, menacing the attendant and stealing cigarettes. They required the attendant to take them from the scene. The Court of Appeal did not interfere with a sentence of two years imprisonment with parole recommended after nine months. Breeze (R v Breeze [1999] QCA 303, (1999) 106 A Crim R 441) was a 16 year old who, with two others, robbed a convenience store. He was unarmed, but another of the men used a screwdriver to menace the attendant. Breeze informed the police of the names of his accomplices. The Court of Appeal did not interfere with his sentence, of two years imprisonment with parole recommended after eight months. Smith (R v Smith [2004] QCA 31, CA No 19 of 2004) was a 17 year old with no prior convictions, who drove the car containing three other men who went on to commit the armed robbery of a convenience store. The level of violence within the store was greater than here. Smith cooperated substantially with the police. He was sentenced to two years imprisonment suspended after three months. Clark (R v Clark [1998] QCA 477) was a 17 year old with no prior convictions who suffered from mental problems. For an armed robbery, and an attempted robbery, he was sentenced to six months imprisonment followed by three years probation. His offending was substantially less serious than the present.

In my view, the effect of the full suspension of these four year terms was to render them manifestly inadequate for offending of this gravity, and the considerations of mitigation and rehabilitation on which the learned Judge substantially relied did not justify that result. It has been said repeatedly that considerations of deterrence and denunciation are very strong factors in sentencing for violent crime like this. In terms of R v Melano; ex parte A-G (Qld) [1994] QCA 523; [1995] 2 Qd R 186, 189, 190, the full suspension rendered the penalty “manifestly inadequate” and “outside the sound range of the sentencing judge’s discretion”.

Counsel for the respondent Yates submitted that if this court were to interfere with the orders made in the District Court, it should not go beyond imposing an intensive correction order. I consider that would be an inadequate response, and that the respondents should be required to serve 12 months actual incarceration. Because that would make the continued performance of the community service orders impracticable, I would discharge those orders forthwith.

The 12 months to be served, of a four year term, would adequately allow for the pleas of guilty and other circumstances of mitigation, and the amount of community service performed to date; and would also, in my view, reflect the moderation which ordinarily attends the disposition of an Attorney’s appeal (notwithstanding the court’s “unfettered” discretion: s 669A(1) Criminal Code 1899 (Qld)), including, in this case, realization that the respondents would consequently lose their present personal liberty.

I would order, in each appeal, as follows:

that the appeal be allowed;

that the sentence imposed in respect of count two on the indictment, armed robbery while in company, that is, four years imprisonment wholly suspended for an operational period of four years, be varied to the extent of removing the full suspension and ordering that the term of four years be suspended after the serving of 12 months imprisonment, for an operational period of four years;

that the community service orders imposed in respect of counts one and three to eight be discharged forthwith, but that the convictions recorded in respect of the offences in those counts be confirmed;

that the sentences otherwise imposed in the District Court on 6 April 2005 be confirmed;

that there be a declaration that the respondent was in custody from 4 to 6 April 2005, referably to these offences, and that those two days are to be taken as time served under these sentences; and

that a warrant issue for the arrest of the respondent, to lie in the Registry for seven days pending execution.

WHITE J: The Attorney-General has appealed against the sentence of four years imprisonment imposed on the respondents for the offence of robbery whilst armed and in company not because of the manifest inadequacy of the head sentence but because the judge suspended the whole of that sentence. There can be little argument that the sentence was a lenient one in the context of the facts and circumstances of the offending conduct.

An appeal may be brought by the Attorney-General pursuant to s 669A(1) of the Criminal Code which provides:

“The Attorney-General may appeal to the Court against any sentence pronounced … and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.”

The word “unfettered” was inserted into the section in 1975 following the decision in R v Liekefett, ex parte Attorney-General [1973] Qd R 355 (and R v Saunders, ex parte Attorney-General ibid at 532) that the discretion under the then s 669A was not unfettered. Williams JA, with whom the Chief Justice and Mullins J agreed, in R v AS; ex parte A-G (Qld) [2004] QCA 259 drew attention to the unfettered nature of the discretion referring to observations by Gummow J (Kirby and Hayne JJ agreeing) in Bryan v The Queen; Lewis v Attorney-General of Queensland [2004] HC Trans 246 (23 June 2004). They were special leave applications from successful Attorney-General’s appeals to this court. Gummow J, refusing the applications, referred to the unique position of s 669A(1) of the Code which, his Honour said, “differ[ed] significantly from the provisions governing the disposition of prosecution appeals against sentence elsewhere in Australia”. During the course of discussion with counsel for the applicants each of their Honours suggested that, accordingly, different considerations would apply to Queensland appeals. This may well militate against a moderate approach which is applied to applications for leave to appeal by a prosecuting authority as in Everett v The Queen (1994) 181 CLR 295 or as discussed in Dinsdale v The Queen (2000) 202 CLR 321 explaining and applying House v The King (1936) 55 CLR 499 at 505.

The approach by this court to an Attorney-General’s appeal was laid down in R v Melano, ex parte Attorney-General [1995] 2 Qd R 186 (Fitzgerald P, Davies JA and Lee J) and has been acted upon since. The court said at 189:

“While the present power of the Court on an appeal by the Attorney-General is very widely expressed, it must be borne in mind that an “unfettered discretion [to] vary” is an unfettered discretion either to do so or to decline to do so.”

Furthermore, the exercise of the discretion, wide as it is, must be informed by the inherent limitation that the power may only be exercised for the purpose for which it was given and the application of relevant sentencing principles set out in the Penalties and Sentences Act 1992. The court may only vary a sentence in order to impose one which, as to the court, seems proper, s 669A(1). In Melano this court endorsed at 189 what was said by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 612:

“As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.”

It went on,

“Unless the sentencing judge has erred in principle, either because an error is discernable or demonstrated by a manifest inadequacy or excessiveness, the sentence he or she has imposed will be “proper” … Variation by this Court will not be justified in such circumstances, unless, perhaps, in exceptional circumstances; for example, to establish or alter a matter of principle or the sentencing range which is appropriate …”

It was there acknowledged that the application of s 669A(1) is generally consistent with the established principles relating to appeals against discretion, House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-5. This was said to be so largely because of the discretionary nature of the original sentencing process. Accordingly, the court concluded at 190:

“Support for the view that, ordinarily, this Court should not allow an appeal under s 669A(1) unless the sentence is outside the sound exercise of the sentencing judge’s discretion is to be found in factors that are material to the exercise of the Court’s discretion. For example, an appeal against sentence by the Attorney-General ‘has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed’ … And a sentencing judge, who has seen the accused the perhaps witnesses and heard oral evidence, ‘is uniquely well placed … to exercise a discretion’.”

It was not submitted before us by the Attorney-General that Melano should be revisited.

Finally, before turning to the facts of these appeals the relevant provisions of the Penalties and Sentences Act 1992 need to be kept in mind. The principles which must govern sentences imposed in Queensland (subject to the exceptions relating to children and Island Courts in s 6) are to be found in s 9(1) which provides:

“9(1)The only purposes for which sentences may be imposed on an offender are-

to punish the offender to an extent or in a way that is just in all the circumstances; or

to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

to deter the offender or other persons from committing the same or a similar offence; or

to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

to protect the Queensland community from the offender; or

a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”

By s 9(2) in sentencing an offender a court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable. There are then set out a large number of matters which the court must have regard to. The principle mentioned in s 9(2)(a) that prison is to be considered as a last resort does not, by s 9(3), apply to the sentence of an offender for any offence that involved the use of violence against another person. This court concluded in R v Breeze (1999) 106 A Crim R 441 that making a threat is capable of constituting a crime involving an element of violence. In the context of the commission of a robbery the threat of violence to induce compliance is itself violence for the purpose of s 9(3), Breeze at para 19.

In its original form s 9(4) provided that first offenders under the age of 25 years might be sentenced to imprisonment but only if the court was satisfied after taking into account the desirability of not imprisoning such an offender, that no other sentence was appropriate. That provision was recast into its present form by the Penalties and Sentences (Serious Violent Offenders) Amendment Act 1997.

Byrne J with whom Davies JA and, generally, Pincus JA agreed, said of those amendments in Lovell v The Queen [1999] 2 Qd R 79 at 83:

“The 1997 amendments reflect a legislative conviction that less hesitation by the courts in requiring a violent offender to undergo the rigours of imprisonment conduces to the protection of the community from the offender and from others who might be tempted to commit similar offences. Nonetheless youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community. And among the matters to which the court is required by s 9(4) to pay primary regard are ‘the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed’ (g), and ‘the antecedents, age and character of the offender’ (h).”

McPherson JA affirmed this statement in R v Taylor & Napatali; ex parte A-G (Qld) (1999) 106 A Crim R 578 at 585-6, a case to which I shall return.

There are particular considerations to which the court must have regard in sentencing an offender to whom s 9(3) applies. The court must have regard primarily to:

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

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

the personal circumstances of any victim of the offence;

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;

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

any disregard by the offender for the interests of public safety;

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

the antecedents, age and character of the offender;

any remorse or lack of remorse of the offender;

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

anything else about the safety of members of the community that the sentencing court considers relevant.”

Keeping those various matters in mind, the sentences imposed below may be examined.

The respondents pleaded guilty on ex-officio indictment on 4 April 2005 to one count of entering a dwelling between 1 June 2003 and 11 August 2003 and stealing a rifle for which they were sentenced to perform 240 hours of unpaid community service; one count of robbery whilst armed and in company on 10 August 2003 at the Kentucky Fried Chicken store at Caloundra for which they were sentenced to four years imprisonment wholly suspended with an operational period of four years; six counts of deprivation of liberty for which they were sentenced to 240 hours of unpaid community service. Those six charges related to the staff members of Kentucky Fried Chicken who were confined in the store cold room during the robbery. The respondent Dullroy also pleaded guilty to one count of receiving on 5 July 2004 and one count of attempted armed robbery on 19 July 2004. He was sentenced to periods of imprisonment of 12 months and two years wholly suspended for four years respectively. They were ordered to pay $3,857.45 to the Registrar of the Court being the amount of unrecovered losses to the complainants. Dullroy has performed 88 hours community service and Yates has performed 140 hours. Dullroy has paid his share of the compensation. Yates has paid $600.00 and his employer is making direct payment on his behalf out of his wages.

The Attorney-General concedes that the head sentence of four years imposed in respect of the armed robbery is within the applicable range. It is the failure to require any part of that term of imprisonment actually to be served which is the subject of challenge.

Dullroy was born on 19 October 1986 and was 16 at the time of the 2003 offences and 17 at the time of the 2004 offences. He was 18 years when sentenced. He was to be sentenced as an adult but the court was required when doing so to keep in mind that he was a child when committing the 2003 offences, Juvenile Justice Act 1992 (Qld), s 144(2). He had no previous criminal history. Yates was born on 7 September 1980 and was 22 at the time of offending and 24 when sentenced. Yates had no prior criminal history. He had pleaded guilty in the Maroochydore District Court on 8 November 2004 in respect of a charge of entering premises with intent on or about 22 December 2003 for which no conviction was recorded. He was given 12 months probation, 50 hours community service and required to pay $450.00 in compensation.

The respondents and two others who were involved as lookouts in the armed robbery knew each other at their school at Caloundra where Yates, who had previously been school captain, was a youth worker. Dullroy had worked at another Kentucky Fried Chicken store and was aware of its layout and procedures. Although Yates was older, he was a socially vulnerable young man concerned to be accepted and easily led. He was asked by Dullroy if he wanted to be in the hold up which Dullroy thought might bring in up to $70,000.00. Yates was asked by Dullroy if he knew where a gun could be obtained and said that he did - at the home of a person who attended at the school. A few nights before 10 August, Yates and Dullroy entered the dwelling of this person through an unlocked but closed sliding door. They searched the house and eventually found the gun and a case containing about ten bullets in a wardrobe in the main bedroom behind some clothing. Yates took the gun and bullets.

On the evening of 10 August 2003 Dullroy and Yates approached the Kentucky Fried Chicken store at Caloundra wearing balaclavas just before 10.00pm. Six employees were still working. Dullroy was armed with the gun stolen a few days earlier which was unloaded, Yates had a knife described by him as a de-hooker for fishing. Dullroy kicked open the front door of the store, entered and approached one of the staff members, a sixteen year old girl. He grabbed her by the sleeve, pointed the gun at her head above her right ear and yelled at her to “go” and pushed her towards the back of the store. He held the gun to her back and led her by the shoulder. He commanded all the remaining five staff to get into the cold room. Yates was unable to open the safe so the manager was taken out of the cold room at gunpoint by Dullroy and told the open the safe. This she did and was then led back to the cold room by Dullroy. He placed a black strap through the doors to make it difficult for the staff to leave. He knew from his previous employment at Kentucky Fried Chicken that the cold room could be opened from the inside. The respondents then placed the cash from the till and some envelopes into a bag and left. They took a total of $2,457.45. One of the lookouts met the respondents at the back door. Yates handed him the bag and the three ran back to Dullroy’s house. He was taken home and the respondents counted and divided the money. Yates received $1,000.00, the lookout received $200.00 later, Dullory received $1,257.45 and the other lookout got nothing.

Victim impact statements were tendered from three of the four women staff members. It is no surprise that they have suffered greatly as a result of the events of that night. The manager said she had become much more vigilant and feared being attacked while asleep. She does not like the open/close shifts at work because she has to enter and leave the darkened store alone and turn on/off the alarm. She likes her job but would like one which did not involve money and therefore not be vulnerable to robbery. She is unable to change jobs.

The first staff member whom Dullroy held up with the gun to her head said it was the most frightening moment she had ever experienced in her life. She said that for the first 12 months after the incident she could not watch films, go out to parties or do anything at night because she was scared that something would happen to her again. She wrote, it might be thought with considerable restraint,

“I wish that Chris [Dullroy] thought about what he did to the victims of the robbery and how his decisions changed peoples lives not just him getting lots of money. And I just thought he should know that it’s not nice having to see a therapist every now and then to be able to sleep at night.”

The third employee who gave a victim impact statement said that she had to change to a lower paying job as a consequence of the robbery because she did not feel safe working in that environment. When she gave her statement she had difficulty visiting new places, being in the dark and needed the assistance of a psychologist. She, too, is hyper-vigilant. She said that hardly a day went by without her thinking of the hold up and is reminded of the worse day of her life. These statements make clear, if there was any doubt, the terrifying nature of such an experience.

At about 8.00am on 19 July 2004 Dullroy entered the store of Dick Smith Electronics in Caloundra. He entered wearing a black balaclava and holding a replica pistol. He told the complainant that it was a robbery and that he was to get into the office section of the shop. The complainant declined to do so and Dullroy threatened to pistol whip him to which the complainant respondent “hit me and I will hit you”. Dullroy then ran from the shop, was chased by the complainant and another person who apprehended him until the police arrived. Dullroy participated in a record of interview and admitted purchasing the replica pistol for $400.00. It was this purchase which led to Dullroy being charged with receiving stolen goods. He admitted entering the store with the intention of taking whatever money or merchandise he could.

About a month after being charged with the offence at the Dick Smith store, Dullroy returned and apologised to the complainant for what had happened. He had attempted this robbery to obtain money to pay his university fees. Yates wrote to the manager and staff of Kentucky Fried Chicken apologising for the robbery and acknowledging the effect that it had had on the six staff members. He also apologised to the owner of the gun and acknowledged the exploitation of their prior school friendship.

His Honour below had the benefit of favourable personal references about the respondents and a psychological report in respect of each of them from Ms Cecilia Bendall. Dullroy’s personal circumstances were explored by Ms Bendall. He accompanied his parents when they accepted teaching posts in the United States of America. He was isolated and depressed living in America at about age 15, missing his school and friends. When he returned to Australia in 2002 he felt alienated from those friends. He completed Grade 12 in 2003 and commenced a design degree at university the following year. He suffered (and suffers) a serious genetic disorder to his knee which caused him significant pain. He became dependant on strong analgesics and started smoking marijuana towards the end of 2003. He gradually started smoking concentrated amphetamines and used ecstasy whenever he could afford to do so. He told Ms Bendall that he ceased using those substances after he was charged over the attempted robbery at the Dick Smith store. He also told Ms Bendall that he recalled the staff training video when he worked for Kentucky Fried Chicken that in the event of a hold up staff were to hand over money without offering resistance to ensure no one was hurt. When he was released on bail he was permitted to join his parents in London. His father became extremely ill with a life threatening condition and he returned with his father to Australia and cared for him. He worked over the five weeks of the university vacation as a house painter. He is hoping to be employed in the art/signwriter field. Ms Bendall reported that Dullroy had been able to withdraw from illegal drug use successfully which suggested that he had not developed a dependency. He was waiting for an operation on his knee but learning to manage the pain better. His counsel told the primary judge that he was attending a new church and had matured since he was responsible for caring for his father.

The respondent Yates was born in the Philippines to a woman who was then in a correctional centre. At the age of 18 months he was sent to an orphanage and adopted when he was three by his parents who provided a very good family life for him in Australia. He excelled at athletics at school, holding every track and field record in his school. He became school captain. Unfortunately he had learning difficulties which made it very difficult for him to perform intellectually anywhere near the way in which he was able to succeed in athletics. Ms Bendall described Yates as dyslexic, but with the support of his parents and his own perseverance has learned to read and write and has rudimentary mathematical ability. He has no history of drug taking. He has worked since leaving school and declined to go on the dole when unemployed. He has been employed in the field of sport and recreation teaching and most recently as an industrial rope access technician. He commutes between his parents’ home and the Gold Coast where he boards at his employer’s home. The reference from the employer and his wife indicate that he is affectionately well-regarded by them. He has expressed remorse. Ms Bendall reported that this remorse was accompanied by an awareness of the wrong he has perpetrated on his victims and that he accepted full responsibility for his actions. She wrote:

“He impresses as a sensitive young gentlemen who, although not gullible, lacks in assertiveness skills, and is non-confrontational to the point of being at risk of acquiescing to the will of others, and is capable of being manipulated and taken advantage of, despite his morals and ethics … should the Court decide that a custodial sentence is warranted, it is considered that [Yates] could be at risk for the above-mentioned reasons, and would require psychological support throughout his period of incarceration.”

The Judge remanded the respondents in custody for two days while he considered the appropriate sentence. The Attorney-General points to no specific error in the lengthy and careful reasons for sentence given by his Honour. He addressed the relevant principles in s 9(3). He considered the serious effect of the crime on the victims of the Kentucky Fried Chicken store robbery. He carefully considered the comparable sentences which had been referred to him of appeals concerning young offenders who had been convicted of armed robbery. Although his Honour noted that this was a case where little actual violence was used and that violence was not charged as a circumstance of aggravation, nonetheless recognised, by the gesture of holding the rifle to a young woman’s head and holding her arm, that the threat of serious violence was implicit and was terrifying to her. His Honour noted the objects which must be kept in mind when sentencing as set out in s 9 of the Penalties and Sentences Act recognising that a balance must be struck between just punishment of the offender, his rehabilitation, denunciation of the community acting through the court of the kind of conduct in which the offender was involved, and a need to keep in mind the victims’ justifiable sense of grievance for the harm done by the offence.

His Honour concluded that both of these respondents went “seriously off the rails”. In the case of Dullroy he thought his age and immaturity and the unsettling experience of being taken out of his familiar environment were major factors in his wrongdoing whilst Yates, despite his additional years, was vulnerable due to his background and circumstances. He found that in both young men the prospects of rehabilitation were excellent and already underway. This is not disputed by the Attorney-General. He noted the need for general deterrence being of the view that personal deterrence was not needed. He recognised that there are many places where workers are isolated and that the offence was typically a terrifying event for many of them often leaving long lasting psychological scarring. He correctly recognised that there was no basis for differentiating between the two.

A number of cases have been referred to by counsel: R v Moss [1999] QCA 426; R v Mather [1999] QCA 226; R v Reu, ex parte Attorney-General [1999] QCA 196; R v Maslen [1998] QCA 198; R v Smith [2004] QCA 31; R v Clark [1998] QCA 477; Breeze; and Taylor & Napatali; ex parte Attorney-General (Qld). Of these cases, only that of Taylor and Napatali needs be considered closely because it most closely resembles these appeals. It was decided after the 1997 amendments to the Penalties and Sentences Act. The Attorney-General appealed against the imposition of a 12 month intensive correction order pursuant to s 113 of the Penalties and Sentences Act for the offence of robbery in company with violence. The two offenders aged 17 and 20 pleaded guilty on ex-officio indictment. Neither had any previous convictions. Both came from difficult family backgrounds. The principal complainant, a 28 year old woman was on duty in the course of her employment at a 24 hour service station in Kingston. She was serving a customer, when the two offenders came into the service station shop holding guns, one a single barrelled rifle and the other a pistol. Neither gun was loaded and the pistol was a replica pistol although the complainants did not know this. The offenders had been drinking and decided, relatively spontaneously, that they would carry out the robbery. Although their heads were covered their faces were not and one was recognised as a regular customer to the shop. Napatali pointed the rifle in the direction of the female complainant and then jammed it at the back of the customer’s head. Taylor demanded money be put in a shopping bag and they ran from the shop. The amount taken was about $600. Police interviewed the two young men who confessed to committing the offence. The court received favourable references in respect of each.

In that case as here, the critical factor influencing the sentencing discretion was that the respondents were youthful first offenders for whom the sentencing judge considered there was some real prospect of rehabilitation if they were not sent to jail. McPherson JA observed at 583 that that has long been regarded as a significant factor in sentencing. His Honour quoted with approval from the reasons for judgment of Wanstall CJ (with whom Matthews and Kelly JJ agreed) in R v Price [1978] Qd R 68 at 70-71 who in turn quoted from the reasons for judgment of Burbury CJ in Lahey v Sanderson [1959] Tas SR 17:

“The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime, the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree.”

The Chief Justice said that was a correct principle to be applied.

McPherson JA reviewed extensively a number of previous decisions dealing with youthful first offenders convicted of armed robbery. He concluded that the repeal of s 9(4) of the Penalties and Sentences Act did not remove the discretion whether or not to impose a term of imprisonment on a young first offender. His Honour noted that the primary judge had attempted to reconcile the competing interests of victims and offenders and concluded that the decision to punish them by way of an intensive correction order, having regard to other sentences in cases involving offenders and offences of a similar nature, the sentence could not be regarded as manifestly inadequate.

McMurdo P noted the desirability of not sending youthful offenders without prior conviction to prison because of the chances of favourable reformation. She noted that the schedule of sentences imposed in armed robbery cases on 17 year olds between 1988 and 1992 referred to in R v Bainbridge (1993) 74 A Crim R 265 showed that where the offender had no relevant previous convictions, only 7 of the 24 matters involved custodial sentences and three were for six months or less. She noted that the combined effect of s 9(3) (the amending provision) and many of the matters listed for consideration in s 9(4) had the result that although the youth of an offender was still relevant, its weight was less than prior to the 1997 amendment. She concluded at 589:

“Parliament has wisely left judges an unfettered sentencing discretion to impose the most appropriate sentence in order to meet the unique facts of each case. That discretion must, of course, be exercised properly and will only be reviewed on an Attorney-General’s appeal where the sentencing judge has erred in principle either because an error was discernable or a manifest inadequacy demonstrated: see Melano.”

She agreed, as did Thomas JA, that the appeal should be dismissed there being no discernable error or manifest inadequacy in the sentence.

Mr Heaton, for the Attorney-General, here sought to distinguish Taylor & Napatali on the basis that Dullroy and Yates had planned this robbery compared with the impulsivity of the decision to rob the service station for no very sound reason by Taylor and Napatali; that those offenders did not trouble to cover their faces whereas these respondents did so. These seem to me to be immaterial differences. On the other hand, Taylor and Napatali were charged with the additional aggravating factor of violence not here present in the charge. The subsequent conduct of Dullroy in attempting to rob the Dick Smith store was certainly a serious and aggravating factor to take into account as was Yates’ conduct in taking from a shop in November 2003. These respondents are well on the way to completing their community service; the compensation ordered is almost repaid; Yates has a good job in a steady supporting environment; Dullroy is managing his personal problems and can look forward to employment when his studies are completed; both acknowledge the harm that was inflicted on their victims. The effect of the conduct of these respondents on at least three of the victims has been serious and long lasting. It cannot be said that the primary judge disregarded the need for denunciation of the respondents’ unlawful conduct. He properly regarded himself as guided by the detailed reasons in Taylor & Napatali. In balancing the various matters that he was required by law to take into account, it cannot be said that his Honour fell into error when he preferred to elevate the rehabilitation of the respondents above that of a custodial sentence actually to be served in prison. This is not to suggest that the sentences imposed were trivial although lenient. The respondents have been required to carry out lengthy periods of community service. They are at risk of being required to serve the term of imprisonment should they offend during the four years’ operational period, and they have had the distress and shame of their families’ to contend with. I cannot conclude that the sentences were manifestly inadequate and would dismiss both appeals.

McMURDO J: I agree with White J.

In 1997, the Penalties and Sentences Act 1992 (Qld) was amended in relation to the punishment of persons convicted of offences involving violence. Part 9A was introduced to provide that persons declared to have committed serious violent offences should serve at least 80 per cent of their terms of imprisonment in actual custody. And the exercise of the sentencing discretion was affected by amendments to s 9, so as to distinguish offences involving violence from other offences. In each case, the purpose of the amendments was said to be a perceived need to protect the safety of the community. In his Second Reading Speech, the Attorney-General and Minister for Justice, the Hon D E Beanland, said that the bill amended sentencing guidelines so that for offences of violence, the protection of the community would be a “primary sentencing consideration”.¹ The principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable, were then made inapplicable to the sentencing of an offender for an offence of violence, by the substitution of the present s 9(3). And by the enactment of the present s 9(4), the court must have regard primarily to the considerations expressed in that provision when sentencing an offender for an offence involving violence. The considerations within s 9(4) are concerned with the protection of the safety of the community from risk of further offending by that offender. They consist of the particular matters described within paragraphs (a) through (j) as well as “anything else about the safety of members of the community that the sentencing court considers relevant” (s 9(4)(k)). From the same expressed concern for community safety, the previous distinction in relation to offenders aged under 25 was removed.

Prior to these 1997 amendments, sentencing courts placed great importance upon the factors, where they existed, of the youth of the offender, the absence of a significant criminal history, the absence of any experience of imprisonment, and the risk that a term of actual imprisonment would make the offender more likely to reoffend. The long standing acceptance of that approach is discussed and demonstrated, for example, in the judgements in R v Taylor & Napatali; ex parte A*‑*G (Qld) [1999] QCA 323; (1999) 106 A Crim R 578. In that case McPherson JA cited R v Price [1978] Qd R 68, where the Court of Criminal Appeal unanimously approved the passage from Lahey v Sanderson [1959] Tas SR 17 which White J has set out in her judgment in the present matter. That approach accepted that the rehabilitation of a youthful offender was always an important consideration, and “in the ordinary run of crime”, the dominant consideration.

As cases since the 1997 amendments have recognised, the dominance of that consideration is affected, in cases involving violence, by the terms of the present s 9(4). The dominant consideration is now expressed to be the protection of the safety of the community from any risk of further offences of violence being committed by that offender. Nevertheless, as cases since 1997 have held, the concern to promote the rehabilitation of a youthful offender should be given great weight: Taylor; R v Lovell [1999] 2 Qd R 79. And as Byrne J explained in Lovell, the rehabilitation of an offender and the protection of the community are overlapping objectives, because the “rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community.”²

In the present case the sentencing judge found that the rehabilitation prospects of each offender were “excellent and are already well underway” and that there was no need for “personal deterrence”. Given these findings, which are not challenged, the considerations prescribed by s 9(4) are of relatively less importance. Upon those findings, the sentencing judge was clearly satisfied that there was no appreciable risk of further offences, and in particular offences of violence, if these two were not sent to prison. On the contrary, in the judge’s view, which again is not challenged, there was a greater prospect of reoffending if they did go to prison.

On the findings in this case then, the concern with the rehabilitation of youthful first offenders was a particularly strong consideration, just as it had long been said to have been, by courts of high authority. Of course, it did not become the only consideration. But the sentencing judge adverted to all matters which required consideration, as the submissions for the Attorney-General accept. One other important matter, was what his Honour described as general deterrence. His Honour said:

“General deterrence … is an important factor. These sorts of offences are not rare. There are many premises where workers are isolated over the whole 24 hour period of a day. This sort of offence is typically a terrifying event for many of them, often leaving long lasting psychological scarring. This case is an example. All law abiding members of the community would strongly denounce this sort of offending.”

The question of whether these sentences are manifestly inadequate depends upon whether it was open to the judge to impose them whilst adequately weighing and balancing various considerations. The Attorney-General’s submission is that the criminality in these cases was so serious that it demanded penalties of actual imprisonment. That submission must be assessed against a body of case law dealing with offences of this type committed by young first offenders with good prospects of rehabilitation, of which Taylor is a leading case. No submission was made for the Attorney-General that decisions since that case have resulted in some upward trend, and nor were there cited decisions which would demonstrate such a trend. Indisputedly Taylor was in conformity with earlier decisions. Ultimately then, this appeal involves the proposition that the present offences are so different from those in Taylor that they represent cases of a different category and for which orders of immediate imprisonment were the only ones which could have been made.

For the reasons given by White J, the differences between these cases and Taylor are not of that significance. Of course there are differences, and in some respects they are adverse to the present respondents. Yet in Taylor, there was still an offence committed by two men, one of whom was carrying a rifle and the other what appeared to be a pistol, which was committed in a service station operated by a woman working alone. The rifle was jammed into the back of the neck of an 18-year-old customer. That offence was also of a kind which the community would rightly regard as very serious, and unfortunately prevalent. As the argument for the Attorney-General emphasised, there was a degree of planning of the robbery in this case which exceeded that in Taylor, but again that difference, considered with the other relevant facts and circumstances of the respective cases, does not so distinguish these cases as to require a different approach. The factors which make rehabilitation such a strong consideration still exist in these cases, despite those differences. And those differences are not such as to significantly shift the balance between rehabilitation and other relevant considerations.

A further circumstance, as recognised by several decisions of this Court,³ is that these offenders have remained in the community following their being sentenced. Pincus JA said in R v Solway; ex parte Attorney-General [1995] QCA 374; CA No 187 of 1995, 22 August 1995 that the sentence there could be considered a lenient one but that “it is an unusual course to send an offender who is at large to prison for a relatively short period, as we are urged by the Attorney to do.” The “short period” to which he was referring was one of 18 months. In the present case the Attorney-General has sought a period of actual custody of something less than 12 months.

As White J has said, these were lenient sentences. A dismissal of this appeal by no means indicates that non custodial sentences for offences in similar circumstances should be expected. But these sentences were not manifestly inadequate. The appeals should be dismissed.

Footnotes

1. Hansard 19 March 1997, p 595. ↩

2. At 83. ↩

3. R v Welch; ex parte Attorney-General [1996] QCA 165; CA No 64 of 1996, 31 May 1996; R v Hoffman; ex parte Attorney-General [1997] QCA 377; (1997) 98 A Crim R 177. ↩