R v Hammond [1996] QCA 508

R v Hammond [1996] QCA 508 - QCA 1996 case summary — Zoe

[35]

Facts personal to the applicant in Dunn CA No 29 of 1994 make this decision of limited use. The applicant pleaded guilty to armed robbery with violence and a further charge of wilful damage to a computer screen. He was sentenced to 9 years for the robbery with a recommendation for parole after 4 years. The second offence was committed in the course of the robbery when he discharged a loaded shotgun through a closed internal door at the premises where the offences were committed and for this he was sentenced to imprisonment for 12 months. At about 12.30am the applicant with a stocking over his head walked into a service station and menaced one of the attendants with a 12 gauge shotgun. He was given $429 from the cash register and insisted on being given money from the safe. He pointed the gun barrel at the attendant's face. He became distracted by a second attendant whom he also menaced with the gun. The first attendant had succeeded in locking himself in an office and was attempting to telephone the police when the applicant fired a shot through the door. This damaged the computer and narrowly missed the first attendant and was discharged within inches of the face of the second attendant. The applicant then demanded and received car keys from two customers who were lying on the floor of the service station. The Court affirmed the need for deterrence in circumstances such as these where attendants at late night service stations were particularly vulnerable to attack. The applicant was 25 years of age and had a previous record of drug and driving offences, wilful damage to property and robbery of a handbag from a woman in a public toilet area for which he received imprisonment for 2 years. He had successfully undergone a period of probation. He told the police that he was induced to carry out the robbery by the mother of his girlfriend which the court accepted. He was found to have a very low level of mental functioning probably due to head injuries sustained in a car accident at the age of 9. He had a disturbed attendance at school and showed odd personality traits from the time of his injury. He had been abusing alcohol regularly from an early age and was a regular user of other drugs. Although he was not deprived of mental capacity within the meaning of s.27 of Criminal Code it was accepted that his decision making ability was impaired such as to operate as a mitigating factor on sentence. The Court reduced his sentence to 7 years with a recommendation after 3 years. The Court referred to Cohen CA 395 of 1993 where a sentence imposed upon a 36 year old man for armed robbery in company was reduced from 9 to 7 years. The applicant in that case wearing a balaclava and gloves entered a bank on a busy Friday afternoon brandishing a sawn-off shotgun. Customers were ordered to lie on the floor and some $26,517 was stolen. Extensive planning preceded the offence. The shotgun was neither loaded nor discharged. The applicant had an extensive criminal record involving offences for dishonesty and was on probation.

[43]

Barry had an extensive history of burglaries, thefts and a robbery. He asked to have a series of other offences taken into account pursuant to s.189 of the Penalties and Sentences Act including 40 offences of dishonesty and 35 of stealing. Lawrence had convictions for stealing and possession of a concealable firearm as well as breaking, entering and stealing and had other offences dealt with in the Children's Court. He was on parole at the time of the armed robbery offences. He too sought to have a large number of other offences taken into account on sentence. He was then aged almost 19 years. He had not previously had imposed a term of imprisonment to be served. He was sentenced to 6 years' imprisonment in respect of the armed robbery. Rofe was under 16 when the offences were committed and had no previous convictions. He had the support of his family and good references. Both Barry and Lawrence sought an early recommendation for parole. The Court noted that the plea of guilty had been recognised by reducing the head sentence by one year. McPherson JA thought it could have been reduced a little further to reflect the plea of guilty as there was a considerable saving to the Crown in not being required to try the numerous cases, but observed that the head sentence could have been higher so that a reduction to the level to which it ultimately came could not be faulted. In the case of Lawrence, the learned sentencing judge had also reduced his sentence by a year to 6 years on account of his plea of guilty. He was observed to be younger, with a background of hardship and suffered from drug addiction but had relatively few previous convictions. It was noted that for robbery offences of this kind and number it was virtually inevitable that the offender would receive a sentence of imprisonment of some duration. Lawrence was a full participant in all the offences, was on probation at the time and although the term of imprisonment was said to be on the high side the Court did not interfere. There is little assistance to be derived from Rofe's sentence.

[44]

Teufel CA No 306 of 1993 was a 19 year old young man convicted on six counts, one of robbery, two of robbery with personal violence, one of unlawful use of a motor vehicle, one of unlawful use of a motor vehicle with a circumstance of aggravation and one of stealing. He was sentenced to 5 years' imprisonment in respect of one robbery with personal violence and to 4 years' in respect of another. In respect of the robbery offence he was sentenced to 3 years. It is unnecessary to mention the sentences for the other offences. He was recommended for parole after serving 18 months. He had a substantial criminal record of 21 previous offences including 16 for breaking and entering with intent and 3 for attempted breaking and entering with intent. He was ordered to serve a period of 3 years' probation in respect of those offences and was still on probation when he committed the offences the subject of his application. The first robbery consisted of grabbing a bag containing some $2,000 in cash, cheques and other properties from a woman as she was about to enter a bank. Her glasses were knocked off as he pulled her around by the arm holding onto the bag resulting in soreness to her arm. The applicant drove the get away car for another person who used personal violence upon a woman by holding her around the neck and exerting force against her mouth in order to take a bank bag containing about $600 in respect of the second offence of robbery. The third count of robbery consisted of opening a cash register and when confronted by the owner of the premises pushing her in the shoulder causing her to fall onto the pavement injuring her hand, shoulder and ankle. He took $180 from the cash register but was apprehended in the course of the offence. He made early pleas of guilty, had the offer of future employment with his father upon his release from custody and had made some efforts at rehabilitation whilst on remand. The Court agreed that the offences should be looked at as one series of offences occurring over a short period of time. The offences were committed while the applicant was unemployed and addicted to amphetamines. Davies JA observed that the offences were committed in an area where people ought to be entitled to walk with safety and one was committed inside commercial premises. His Honour concluded that the sentence was towards the high end of the range but not outside the range for a series of robberies several with personal violence.

[45]

Assenberg and Maynard CA Nos 93, 94 of 1995 were Attorney's appeals. The respondents were convicted of armed robbery in company with personal violence and deprivation of liberty. Assenberg was 17 and sentenced to an effective 4 years with a recommendation after 15 months. Maynard was 38 and sentenced to an effective 4 years with a recommendation after 18 months. The respondents planned to rob a convenience store and prepared themselves by obtaining masks, gloves and in the case of Assenberg cutting down a cricket stump and Maynard obtaining a small cricket bat. The convenience store was closed on the night in question and they resolved to rob the adjoining shop. They waited until the owners commenced to clean up preparatory to closing and attracted their attention to the back of the shop thereby inducing them to open the back door. The 67 year old male owner was grabbed by the respondents and forced back into the shop. Assenberg put the cricket stump to the man's throat and Maynard, who had grabbed the wife, threatened to kill her if the owners did not hand over their money. Money was taken from the till, from the owner's wallet, and five packets of cigarettes were taken. The applicants were apprehended a short time afterwards with the money. They made full admissions and pleaded guilty on ex officio indictments. They maintained joint responsibility for the decision to carry out the robbery. A month previously the respondents had committed other stealing and unlawful use of a motor vehicle offences. They were sentenced for those offences prior to the robbery and were ordered to perform community service and placed on probation. Shortly afterwards they committed several offences of breaking and entering and stealing and wilful damage for which they were released on bail. Accordingly both respondents were on probation and bail when they committed these offences. They also had a number of previous convictions but no terms of imprisonment had been imposed. They had been sentenced to terms of imprisonment in respect of the second series of offences for which they were on bail when they committed the subject offences. The Court considered the schedule of sentences annexed to Bainbridge and commented that the reason for the apparent leniency extended to such youthful offenders was obvious: the probability of their rehabilitation was generally much higher than that of more mature offenders. The Court doubted Assenberg's prospects of rehabilitation but did not interfere with the sentence imposed. In the case of Maynard bearing in mind the nature of the offence, particularly the threatened violence, and the consequent effect on the complainants the Court thought that an appropriate element of deterrence was necessary, set aside the sentence imposed below and imposed a sentence of 6 years' imprisonment with a recommendation for parole after serving 2 years.

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