R v Horne [2005] QCA 218

SUPREME COURT OF QUEENSLAND

CITATION: R v Horne [2005] QCA 218

PARTIES: R v HORNE, David Clifford (applicant)

FILE NO/S: CA No 104 of 2005 / DC No 21 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Beenleigh

DELIVERED EX TEMPORE ON: 22 June 2005

DELIVERED AT: Brisbane

HEARING DATE: 22 June 2005

JUDGES: Williams, Jerrard and Keane JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Application for leave to appeal against sentence granted / **2.**Appeal allowed / **3.**Sentence of three years imprisonment set aside / **4.**In lieu thereof, applicant to be sentenced: / **(a)**on count 1, the break and enter offence, to three years imprisonment suspended after 83 days for an operational period of three years; and / **(b)**on count 2, the armed robbery offence, to imprisonment for 83 days, with 83 days time in custody being declared as time served, and then to be released on probation under the supervision of an authorized Corrective Services officer for a period of two years and nine months / **5.**A condition of the probation order is that the applicant make full restitution to the complainants of the sum of $750.00. Probation order will be in the usual terms in requiring a reporting condition within 24 hours of release

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES - where applicant was convicted on his own plea of guilty of one count of entering premises with intent to commit an indictable offence and one count of armed robbery in company - where offences had involved the taking of money with threats of violence from a hot bread shop - where no actual violence was involved and the amount of money taken amounted to $750 - where applicant had participated in an interview with police and identified his co-offender - where applicant originally sentenced to three years imprisonment to be suspended after nine months for an operational period of four years - whether learned sentencing judge gave adequate weight to the applicant's co-operation with the police and his apparently substantial prospects of rehabilitation - whether the sentence originally imposed was manifestly excessive / R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404, cited / R v Hammond [1996] QCA 508; [1997] 2 Qd R 195, cited / R v Perez-Vargas (1986) 8 NSWLR 559 / R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323; (1999) 106 A Crim R 578, cited

COUNSEL: P E Smith for applicant / R G Martin SC for respondent

SOLICITORS: Compass Legal Solutions (Beenleigh) for applicant / Director of Public Prosecutions (Queensland) for respondent

KEANE JA: On 1st April 2005, the applicant was convicted upon his plea of guilty of one count of entering premises with intent to commit an indictable offence and one count of armed robbery in company. The offences occurred on 23 February 2003. The learned sentencing judge imposed a sentence of three years imprisonment, suspended after a period of nine months for an operational period of four years.

The offences occurred in the following circumstances. At approximately 3.00 am on 23 February 2003 the complainants were working in the back bakery section of their hot bread shop at Marsden. The front of the store was secured and, although the rear door of the store was opened, the rear security door was closed.

The applicant's co-offender walked into the store holding a piece of wood. He pushed one of the complainants against one of the metal trolleys of bread. He then started hitting the trolley near the complainant whilst shouting "Money, money!"

One of the complainants then ran to the front of the store when the applicant entered the store holding a metal pipe. The applicant told the complainant: "Do not open the door, or I'll hit you." The other complainant then handed a bag containing the money which was the store's float to the applicant. Both the applicant and his co-offender then left by running out of the rear door.

The applicant was located by police more than a year later on 20 April 2004. The applicant participated in an electronic record of interview. He told the police that he and two other males, including his co-offender, had been at a party prior to the commission of the offences. They had consumed a very large amount of alcohol. The three of them went for a drive in search of more alcohol and, upon noticing the hot bread shop, decided to enter the premises to steal money. The applicant identified his co-offender to the police, and the applicant's evidence established the case against his co-offender. The applicant told police that he was physically sick with remorse at his offence.

The Crown accepted that no actual violence was inflicted on either of the complainants. It appears that $750 was taken. It is not clear, however, how much money, if any, was recovered. There is no evidence of any restitution. Nor is it clear why the charges were not dealt with until almost a year after the appellant made his admissions to the police.

The applicant was born on 8 May 1980. He was 22 years of age at the time of the offences and 24 years of age on the date of sentence. He has a history of minor criminal offences which are of no present relevance. He had not previously been incarcerated before he began serving his current sentence. The learned sentencing judge proceeded on the basis that a deterrent sentence was required in this case bearing in mind the particular vulnerability of small shop owners who provide services at night to the public. See R v Hammond [1996] QCA 508 at [46]; [1997] 2 Qd R 195 at 211.

The learned sentencing judge also took into account the applicant's pleas of guilty, his co-operation with the administration of justice and the resultant saving of expense to the State in the prosecution of these matters. It may be noted that the learned sentencing judge did not differentiate between the applicant and his co-offender in this latter regard, notwithstanding the circumstance that the applicant cooperated fully with the police, making full admissions and identifying his co-offender, whereas the applicant's co-offender declined to be interviewed by the police.

The learned sentencing judge said:

" … deterrence is a significant factor in imposing an appropriate sentence for such an offence. It seems to that it is only in an exceptional case that an offender for this type of offence is not required to serve a period in actual custody and the exceptional case almost invariably involves young persons, 17 to 20 years, with no criminal history, and a variety of other relevant discretionary issues pertaining to the accused or the circumstances of the offence."

It is argued on behalf of the Crown that the learned sentencing judge proceeded on the correct footing in treating a non-custodial sentence as exceptional in cases of armed robbery involving an invasion of vulnerable business premises and in concluding that the circumstances of the present case were not sufficiently exceptional to warrant a non-custodial sentence. The Crown contends that in imposing a sentence which involved nine months in actual custody the learned sentencing judge did not err in principle so as to require this Court to reconsider the exercise of the sentencing discretion.

While the learned sentencing judge was no doubt correct in identifying deterrence as a significant factor in imposing an appropriate sentence for offences of this kind, there is also, it is clear in principle and on the authorities, a place for a consideration of the prospects of rehabilitation. This was recognised, for example, in R v Taylor & Napatali; ex parte Attorney-General [1999] QCA 323 esp at [9]; (1999) 106 A Crim R 578 esp at 581, where an intensive correctional order was identified by Justice McPherson as "a useful method for dealing with young offenders … where there is considered to be some prospect that they will not re-offend".

In the present case, the offence was committed in circumstances which involved no actual violence. There was no planning or anything which might be described as "professionalism". The applicant's frank admissions and, importantly, his unblemished record between the date of the offences and the date on which he was sentenced provide firm evidence both of genuine remorse and of a real prospect that he is unlikely to re-offend. The learned sentencing judge did not advert to the applicant's unblemished record since the occurrence of the offences and the prospects for rehabilitation which are supported by that record. These considerations do not seem to have claimed the attention of the learned sentencing judge.

In my respectful opinion, the learned sentencing judge appears to have been influenced by considerations of deterrence to the exclusion of a consideration of the compelling claims in this particular case of rehabilitation. In this regard, in my respectful opinion, the learned sentencing judge erred.

It also seems that the learned sentencing judge gave no recognition to the applicant's co-operation with the authorities as evidenced by him agreeing to take part in a record of interview. This was something that the applicant's co-offender had refused to do. In the debate with counsel that preceded the delivery of his sentencing remarks, the learned trial judge appeared to accede to the submission put by counsel, who was not the counsel who appeared for the applicant in this Court, that it would be inappropriate to differentiate between the two accused, and so by extension give any weight to the applicant's participation in the interview, on the grounds that the applicant's co-offender possessed the legal right to refuse to participate in the interview and should not be penalised for choosing to exercise it. With respect, this approach fails to recognise that the importance of any co-operation with the authorities lies in what it communicates about the attitude of the accused. An accused has the legal right to refuse to co-operate if he or she chooses and such a refusal should not be held against that accused in a sentencing process. It does not follow, however, that efforts to co-operate should not be recognised as a consideration tending towards the imposition of a lower sentence. Assisting the police has been recognised by this Court as a matter going to mitigation. See R v Gilles; ex parte Attorney-General [2000] QCA 503; [2002] 1 Qd R 404. See also R v Perez-Vargas (1986) 8 NSWLR 559.

It therefore falls to this Court, in my opinion, to exercise the sentencing discretion afresh. As the applicant has already spent almost three months in gaol it is not necessary to consider whether a non-custodial sentence was appropriate in this case.

As of today's date the appellant has served 83 days in custody. In my respectful opinion, and having regard to the real prospect of rehabilitation evident in this case, I consider that the appropriate sentence is a sentence of three years imprisonment on the break and enter count suspended after 83 days for an operational period of three years and a sentence of imprisonment for 83 days on the armed robbery count with the applicant then to be released on probation under the supervision of an authorised corrective services officer for a period of two years and nine months. It should be a condition of the probation order that the applicant make full restitution to the complainants of the sum of $750.

In my opinion then, this Court should order that the application for leave to appeal be granted and that the appeal should be allowed. The sentence of three years' imprisonment should be set aside and, in lieu thereof, the applicant should be sentenced:

(a) on count one, the break and enter offence, to three years' imprisonment suspended after 83 days for an operational period of three years; and

(b) on count two, the armed robbery offence, to imprisonment for 83 days, with 83 days time in custody being declared as time served, and then to be released on probation under the supervision of an authorised corrective services officer for a period of two years and nine months. It should be a condition of the probation order that the applicant make full restitution to the complainants of the sum of $750.

WILLIAMS JA: Given that the applicant cooperated with the investigating police when first approached and had a clear record during the two year period between the commission of the offence and sentence, I am of the view that the sentence imposed was manifestly excessive. In the circumstances I agree with the reasons of Justice Keane and with the orders he proposes.

JERRARD JA: I agree with the reasons and orders proposed by Justice Keane. I add that there were two matters significantly mitigating the appropriate sentence in this case. One was the applicant's genuine regret for what he had done. He told the police who were investigating that he felt physically sick with remorse the day after the robbery was committed and he said that when he was participating in an interview with those police in which he completely incriminated himself and his co-accused.

The other matter in his behaviour mitigating to penalty to be imposed is his good prospects for the future as a law-abiding citizen. There is the fact of his good conduct for two years after the offence, including his full confession to the police one year later and the fact that he has maintained employment for nearly all of those two years. He has also told his then fiancée, now his wife, about the commission of the offence.

The learned sentencing judge was not much assisted by one of the submissions made below on the applicant's behalf, namely that he should get the same sentence as his co-accused. The opposite is now submitted to this Court and I respectfully agree that this applicant's significant cooperation should be recognised by a different sentence from that which was imposed on the other offender.

The submission made to the learned sentencing judge explains the error in a sentence which in itself was not a severe one but which did overlook that the applicant, Mr Horne, has good prospects of rehabilitation and genuine remorse. I agree with the orders proposed.

WILLIAMS JA: Well the orders will be as Justice Keane indicated. The probation order that he referred to will be in the usual terms in requiring a reporting condition within 24 hours of release.