R v Mikaele [2008] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION: R v Mikaele [2008] QCA 261

PARTIES: R v MIKAELE, Michael (applicant)

FILE NO/S: CA No 51 of 2008 / SC No 3072 of 2007 / DC No 919 of 2007 / CC No 1282 of 2007 / DC No 1868 of 2007 / DC No 2099 of 2007 / DC No 340 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 5 September 2008

DELIVERED AT: Brisbane

HEARING DATE: 20 August 2008

JUDGES: Keane JA, Mackenzie AJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal refused

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 REFUSED – where the applicant plead guilty to doing grievous bodily harm with intent to do grievous bodily harm and was sentenced to nine years imprisonment with a serious violent offence declaration – where the applicant was 17 years old at the time of the offence – where the offence involved an unprovoked attack by a group of five youths upon a member of the public at a train station – where the applicant did not initiate the attack but punched, kicked and stomped on the complainant – where the applicant returned to inflict further violence on the unconscious complainant once his co-offenders had ceased their attack – where it was not possible to identify the extent of harm caused by the applicant alone – where it was argued that the offence was not beyond the norm for offences of grievous bodily harm with intent – whether the sentencing discretion to make a serious violent offence declaration miscarried – whether the head sentence should have been reduced to allow for the effect of the serious violent offence declaration – whether the sentence was manifestly excessive in all the circumstances / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – GENERAL PRINCIPLES – where an adult co-offender was dealt with as a party to the offence under s 8 Criminal Code Act 1899 (Qld) – where the co-offender was sentenced on the basis that they were a party to the intent to do grievous bodily harm, rather than personally holding such intent – where the co-offender was sentenced to seven years imprisonment with parole eligibility after three years – where, as a consequence of the serious violent offence declaration, the applicant is unable to apply for parole before serving seven years and two months imprisonment – whether, notwithstanding the co-offender’s more limited basis of culpability, the sentences are disproportionate – whether the applicant has a justifiable sense of grievance / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PLEAS OF GUILTY, CONTRITION AND CO-OPERATION – where the applicant completed a number of courses in custody – where the learned sentencing judge did not make specific reference to such courses in his sentencing remarks – whether the learned sentencing judge made sufficient allowance for mitigating factors in the applicant’s favour, in particular the applicant’s prospects of rehabilitation / 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 REFUSED – where the applicant was also convicted on his plea of guilty of two counts of armed robbery in company and one count of robbery in company with personal violence – where the later two robberies occurred nine days apart, while the applicant was on bail for the first robbery – where the applicant was sentenced to five years imprisonment on each count to be served concurrently with the nine year sentence for grievous bodily harm – whether the sentence was manifestly excessive in all the circumstances / Criminal Code Act 1899 (Qld), s 8 / Penalties and Sentences Act 1992 (Qld), s 9(3), s 9(4) / R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94, cited / R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited / R v Bryan; ex parte A-G (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, cited / R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, cited / R v Eade [2005] QCA 148, cited / R v Janz [2008] QCA 55, cited / R v Keating [2002] QCA 19, distinguished / R v Lovell [1999] 2 Qd R 79; [1998] QCA 36, cited R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365, distinguished / R v Moss [1999] QCA 426, cited / R v Nguyen [2006] QCA 542, cited / R v Price [2006] QCA 180, cited R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323, cited / R v Tuki [2004] QCA 482, cited / R v Tupou; ex parte A-G (Qld) [2005] QCA 179, cited

COUNSEL: R East for the applicant / S G Bain for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading in draft the comprehensive reasons prepared by Mackenzie AJA. I respectfully agree with all that has been said by Mackenzie AJA. I agree with the order proposed by his Honour.

MACKENZIE AJA: This is an application for leave to appeal against sentence. The application concerns two aspects of the sentences. The first concerns the sentence of nine years for the offence of doing grievous bodily harm with intent to do grievous bodily harm. The second concerns the imposition of concurrent sentences of five years imprisonment for three offences of robbery with various circumstances of aggravation.

In his submissions in support of the application, Mr East raised the following issues in relation to the sentence for doing grievous bodily harm with intent:

Whether the exercise of the discretion to make a serious violent offence declaration miscarried because the offence was not beyond the norm for offences of doing grievous bodily harm with intent to do grievous bodily harm; and, if it did not miscarry, whether a sentence of nine years made sufficient allowance for mitigating circumstances;

Lack of parity between the applicant and the other adult offender Faavesi Isaako; and

Failure of the sentencing judge to refer to positive steps toward rehabilitation taken by the applicant.

With regard to the offences of aggravated robbery, it was submitted that the sentences were manifestly excessive by comparison with other like offences committed by youthful offenders.

The Offences Charged

The applicant pleaded guilty to a series of offences committed from 7 October 2005 to 30 July 2006. When the series of offences began, the applicant was almost 16 years and eight months old and, when it concluded, was not quite 17 and a half years of age. While only some of the sentences are directly involved in this application, it is necessary to set out the full sequence of events to gain an appreciation of the setting in which the sentencing proceeded.

There were six indictments before the court. Chronologically they were as follows. The first was for wilful and unlawful damage of a van on 7 October 2005. He had been a passenger in the van and picked up a brick and smashed its windows after he had become frustrated with the complainant, apparently because the vehicle had run out of fuel.

The second was for armed robbery of a video store on 27 March 2006 whilst in company and whilst armed with a dangerous weapon and an offensive weapon. Four offenders entered the store. The applicant was armed with a knife and another youth had a broken beer bottle. The applicant menaced the proprietor with a Rambo type knife, demanded money and made him lie face down on the floor. He threatened him again and demanded more money when he found the first register had little money in it. The person in charge of the store suffered a minor cut to his elbow but how it happened is not clear. The amount of $458 was stolen. There are indications in the schedule of facts relating to this offence, not contradicted in the sentencing proceedings, that the offenders were acting as members of a gang at the time. The applicant was arrested for the offence on or about 20 April 2006, and released on bail.

The third indictment was for wilful damage to a taxi on 16 April 2006. The applicant had been a passenger in it. After an argument with the driver who had asked for part payment of the fare when the applicant had asked for the cab to be stopped en route, he smashed the windscreen of the cab by punching it in a drunken rage. He then ran off without paying the fare, which resulted in an associated summary charge of evading the cab fare.

The fourth indictment was for armed robbery of a newsagency in company whilst armed with an offensive weapon on 2 July 2006. This offence was committed in breach of the bail conditions imposed in respect of the offence in the second indictment. He had also breached the conditions of the bail in the week preceding the armed robbery by failing to report. The applicant and four other youths entered the newsagency. After asking about the availability of a particular soft drink, the door of the premises was shut. The applicant ordered the female proprietor to lie on the floor. She saw he was armed with a shopping trolley bar. Money and cigarettes were then taken. When she got up from the floor as the offenders were leaving, the applicant ordered her to lie down again.

A fifth indictment was for robbery in company with personal violence on 11 July 2006. On this occasion, the applicant and another youth assaulted a similarly aged youth at a shopping centre, and stole $35 from him. The offence occurred after the complainant and two friends, one of whom knew the applicant, had left a cinema about 10.30 pm. Before they had gone to the movie, there had been a conversation during which one of the applicant’s associates had said that they had intended to bash them but would not do so because one of them was a friend of the applicant.

When they emerged from the theatre, the applicant approached the person he knew and said that he and his associates were going to rob his friends. In answer to a question why he kept joking about it, the applicant replied that they were not joking. After inviting the other youth to join them in the robbery, which he declined to do, the applicant invited one of the youths to fight him. The third youth, the complainant, went with one of the applicant’s associates to an area near a loading bay where a demand was made of him for money. During the course of that conversation, the applicant ran at him and knocked him to the ground with a punch. He was then punched and kicked a number of times by the applicant and at least one other as he lay curled up on the ground. Afterwards, he found his wallet missing.

Despite the offence being violent, the injuries sustained by the complainant were fortunately minor. The identity of the offender was, of course, known and the incident was reported to the police.

The sixth indictment was one in respect of which a plea of guilty to doing grievous bodily harm with intent to do grievous bodily harm on 30 July 2006 was accepted in full satisfaction of the indictment. That involved an attack on a man who was waiting at Sunnybank Railway Station for a train. He was very seriously injured by punching and kicking during the course of it by the applicant and four other youths. The details of this will be set out shortly.

Interspersed in the chronology, there were summary offences of public nuisance on 18 February 2006 for which the applicant was dealt with in a Magistrates Court on 23 March 2006 and, on the day after that, 24 March 2006, of possession of a knife in a public place. His explanation was that it was in his cousin’s bag which he was minding for him, with the knowledge that the knife was in it.

The Grievous Bodily Harm with Intent Charge

The complainant had no memory of what happened to him. The facts relied on by the Crown were that the complainant had been to a football game at Suncorp Stadium. After having some drinks in the City afterwards, he boarded a train about 7.20 pm to a destination on the Gold Coast line. By the time the train reached Sunnybank, he decided to get off and try to get his wife to pick him up. She advised him to catch the next train to Coomera where she would collect him. Part of the evidence against the applicant and his co-offenders is derived from surveillance video at the station.

From the video surveillance, it was apparent that the complainant was clearly affected by alcohol to a significant degree. Other material to the same effect was placed before the sentencing judge. A youth, F, and Faavesi Isaako, who had recently turned 18, went up to him. F challenged the complainant to a fight. F then punched him and Isaako joined in, by punching him. The complainant fell straight to the ground and Isaako kicked him in the temple area of his head; Isaako said he heard a cracking noise when he did so. Immediately, he removed the complainant’s mobile phone from his pocket. After that, there were five people attacking the complainant at once. There were punches and kicks to his body and his head was stomped on.

After that, the attack ceased and the group started to move off. Then the applicant returned and attacked the obviously unconscious complainant again, which involved stomping on his head. Subsequently, the applicant and another one of the group dragged the complainant to a car park area some metres away and placed him on a mattress near a charity bin.

By way of further context, it is helpful to summarise what the applicant told the police when questioned about the offence. He claimed to be the most senior person in the group and that, in his opinion, he was listened to by the other members. He had “gone psycho” during the attack. He admitted delivering “lots of kicks” to the complainant and in particular to his head. He also told the police that he had lifted up the victim’s head while he was on the ground and punched him about six times during the attack. After that, he had kicked his head a further four to six times resulting in his foot being sore. He did not specifically refer to stomping on the victim’s head but there was ample other undisputed material put before the sentencing judge to verify that that happened when the applicant returned to further assault the victim after the others had ceased their attack.

Consequences for Victim

The victim suffered a closed brain injury. There were nine or 10 identifiable facial fractures, many of them comminuted to such an extent that repairing them by inserting plates was impractical. He suffered post traumatic amnesia for 22 days. He developed a blood clot in his lung and a collapsed lung and was placed in an induced coma and ventilated for a week. At the time of sentencing he had memory and concentration deficits. He suffered headaches. His victim impact statement suggested that his hearing had deteriorated. He was apprehensive in public places. The victim impact statements of him and his wife showed that the event had caused a major ongoing disruption to the family routine and lifestyle. Both he and his wife had suffered financially as a result of his inability to work for a period and because of other lost job opportunities.

The Sentencing

At sentence, the Crown Prosecutor submitted that a sentencing range of eight to 11 years imprisonment, with a serious violent offence declaration was appropriate for the applicant’s case. Mr East told the sentencing judge that there was no dispute about nine years being an appropriate head sentence for the offence of doing grievous harm with intent. The point of departure between him and the Crown was whether a serious violent offence declaration was called for. It was said that the applicant had pleaded guilty on the basis that, in going back to further kick the unconscious victim, he had intended to cause grievous bodily harm. But that did not mean that he had caused the only grievous bodily harm, some of which may have been caused by someone else before he joined in the assault, and the applicant should not be made a scapegoat for the totality of the victim’s injuries. Although there is little to indicate it directly in the transcript of the sentencing hearing, Mr East informed this Court that the submission that nine years was appropriate was subject to the reservation that, if a serious violent offence declaration was made, the sentence should have been less than nine years.

It was also submitted at the sentencing that, although examples could be found of serious violence offence declarations being made in respect of very young offenders, such declarations were not common. Examples cited by the Crown of instances where a declaration had been made in the case of a young person convicted of the same offence were R v Eade [2005] QCA 148, where the offender was 17 and a half and the declaration automatic, and R v Nguyen [2006] QCA 542, where the offender was 23 and the declaration discretionary. To these may be added R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94 where Schipper had just turned 18 and the declaration was discretionary, and R v Janz [2008] QCA 55, where he was 19 and the declaration automatic.

The sentencing judge said that he intended to sentence the applicant on the basis that he clearly personally intended grievous bodily harm to the complainant. He accepted that the applicant had co-operated with the police, made full admissions and had entered an early plea of guilty. However, he noted that the last offence in the sequence was extremely serious and that the courts were clear that for that sort of conduct, even young offenders were sent to jail for substantial periods of time. He said that, because of his personal involvement in the offence and the nature of the attack, it should be classed as a serious violent offence. He recognised that that would have a significant impact on the sentence imposed upon him and noted that others in the group had already been dealt with.

He said there were parity issues between him and the others, notwithstanding that he was an adult at the time of the commission of the offence. However, there were a number of distinguishing features. The sentencing regime for the juveniles was different, with a different maximum penalty. Also they were sentenced on the basis that they were parties to the intent to do grievous bodily harm rather than personally holding that intent. From what is said elsewhere in the record, I take that to mean that they had formed a common purpose to unlawfully assault the victim in circumstances where doing grievous bodily harm with intent to do so was a probable consequence of the prosecution of the purpose. He went on to say that, notwithstanding all of the distinguishing matters, some element of parity needed to be recognised. He intended to sentence towards the bottom of the range contended for by the Crown because he was intending to make a declaration. When he said that the offence of grievous bodily harm with intent should carry a penalty of nine years imprisonment, he said that the penalty was to reflect all of his criminality involved in the matters before the court. The sentencing judge’s reasons also set out why he thought it was appropriate to make a serious violent offence declaration in the applicant’s case.

With regard to Faavesi Isaako, who was sentenced to seven years imprisonment for the offence of doing grievous bodily harm with intent, he noted that he had said that he had heard a cracking noise when he delivered a kick to the complainant’s head but also noted that he was being sentenced on the basis that he played no further part in the violence after his initial assault although he was present while it was occurring. He was to be sentenced on the basis that he was a party to the intent to cause grievous bodily harm but he did not personally have that intent.

Faavesi Isaako was therefore sentenced on a more limited basis of culpability than the applicant. The sentencing judge fixed a parole eligibility date of three years from sentence, expressly saying that that amount of discount took into account the fact that he had sentenced him at the lower end of the range also. It is also able to be seen from the sentencing remarks why a serious violent offence declaration was not made in his case.

The sentencing principles in s 9(3) and (4) of the Penalties and Sentences Act 1992 (Qld) place emphasis on the protection of members of the public from those who are minded to commit acts of violence. Sections 9(4)(b) to (f) and (k) illustrate this. Section 9(4)(a), although academic in this case, is in the same category. On the other hand, sections 9(4)(h) to (j) are concerned with personal circumstances of the offender. His antecedents, age, character, remorse or lack of remorse, and any medical, psychiatric or other reports in relation to the offender are relevant matters.

The young age of the applicant is clearly one factor that has to be considered in deciding whether the sentences imposed are manifestly excessive. The effect of immaturity on culpability is often recognised as a factor which mitigates the seriousness of offending behaviour. Regard is also had to the benefit to society if there are demonstrated prospects of rehabilitation of the youthful offender. This approach has its greatest application where the offender has previously been of good character, there is evidence of a capacity for rehabilitation, and the issue is whether a community based order should be made rather than a requirement to serve some time in actual custody (eg. R v Taylor & Napatali; ex parte Attorney-General of Queensland (1999) 106 A Crim R 578; [1999] QCA 323). It is also a factor to be taken into consideration in deciding whether the sentence is manifestly excessive in that a serious violent offence declaration has the consequence of 80 per cent of whatever sentence is imposed has to be served before eligibility for parole.

Having said that, in the present case it was accepted that the appalling nature of the offence required the applicant to serve substantial time in prison. His situation was that although he had only one previous offence of public nuisance, he came before the court as a person who had committed a series of offences over a period of about 10 months, some while on bail, which showed a disturbing tendency to act violently and in an intimidatory manner in relation to members of the community with whom he randomly came into contact. In relation to offences of violence, there is now more emphasis on the considerations listed in s 9(4)(a) to (f) of the Penalties and Sentences Act, with the consequence that the youth of an offender, while still relevant, does not have the weight it once had, before the principles in s 9(2) were made inapplicable to offences of violence (R v Lovell [1999] 2 Qd R 79; R v Price [2006] QCA 180).

What is said about it in Lovell appears in the following passages from the reasons of Byrne J and Davies JA at pages 83 and 80 respectively:

“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.”

“(T)he youth of an offender, whilst still relevant, does not have the weight which it had, especially where violence is used or physical harm caused to another person, in considering whether a term of actual imprisonment should be served.”

The approach of this Court to offences of random violence in public places is illustrated by several recent authorities. In Price, White J said:

“Deterrence, as well as vindicating the victims of violence, particularly in the case of street violence by gangs of adolescents and young men is of great importance and is enshrined in the sentencing guidelines in the Penalties and Sentences Act 1992 (Qld), s 9(1)(c). Street violence which was once regarded as an isolated occurrence is now reported as happening with alarming frequency in our cities and suburbs. No community can contemplate without unease the kind of activity which the facts of these two incidents reveal. This Court has consistently denounced street violence.”

In R v Tupou; ex parte A-G (Qld) [2005] QCA 179, de Jersey CJ said the following:

“In a number of recent decisions, the Court of Appeal has emphasised the strength of the importance of deterrence in sentencing for violent offending of this general character. The public rightly expects the Courts by their sentences to achieve so much as can be achieved to help ensure the cities of this State are safe places for those who venture out during the night.”

R v Bryan*; ex parte A-G* (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, Williams JA said:

“Given the nature and circumstances of the crime, deterrence must be the major factor influencing sentencing. Ordinary citizens must be able to make use of areas such as the Mall, even at night, sure in the knowledge that they will not be savagely attacked. The only way courts can preserve the rights of citizens to use public areas in going about their own affairs is by imposing severe punishment on those who perpetrate crimes such as this.”

Application for Leave to Appeal (a) Serious Violent Offence Declaration

Mr East submitted that one respect in which the discretionary exercise of the power to declare the offence a serious violent offence miscarried was that the offence was not beyond the norm for an offence of its description. It was said that the offence charged, by definition, necessarily involved serious violence. Nor was it an unusual feature of the offence that a bodily injury that was of such a nature that, if left untreated, would endanger or be likely to endanger life was caused. It was accepted that the complainant suffered serious life threatening injuries. However, they came about as the result of a joint attack which the applicant did not initiate. Unlike R v McDougall and Collas [2007] 2 Qd R 87; [2006] QCA 365 it was spontaneous rather than a premeditated act of revenge. Nor did it involve weapons.

It was accepted that, by the time the applicant went back and attacked the victim, he was in a very bad way. Also, there was no doubt that the applicant’s further assault was gratuitous violence and was accompanied by an intent to cause serious harm (albeit an intoxicated intent). It was not possible to say to what extent the applicant’s individual subsequent attack caused significant further grievous bodily harm, although it was accepted before this Court that it was inherent in the plea of guilty on that basis that he actually did grievous bodily harm with intent to do so. (It may also be observed that, although the focus was on the applicant’s actual intent to do grievous harm, his admissions show that he could be treated as a s 8 party to the acts of doing grievous bodily harm by others as well). But, it was submitted, it did not follow, from the fact that the Crown had accepted pleas of guilty from the other offenders on the basis of s 8 liability, that the applicant alone should shoulder full responsibility for the victim’s injuries. That is, no doubt, accurate, if understood as meaning that he did not necessarily inflict all of the blows or kicks that caused grievous bodily harm.

In my view, the submission that the offence was not beyond the norm for offences of doing grievous bodily harm with intent has no substance. There was an attack on a member of the public waiting for public transport. He had done nothing to provoke the attack. He was obviously at a disadvantage because of intoxication. While the applicant did not instigate the attack, the victim almost immediately fell to the ground once it started and was probably unconscious for most of the time it was carried out. The applicant joined in the assault and engaged in repeatedly punching, kicking, and stamping on the victim. The description given to the police of his own role by the applicant graphically confirms this. It also demonstrates an almost incomprehensible degree of callousness and disregard for the likelihood that the victim would be seriously injured. Then, after all the others had ceased, the applicant returned to inflict more violence on the unconscious victim. That, according to the evidence, also involved attacking the victim’s head. The sentencing judge said that it seemed to him that the nature of his attack on the victim deserved the appellation of a serious violent offence. It is an inevitable conclusion that the sentencing judge did not err in that regard.

(b) Disparity

Mr East submitted on the applicant’s behalf that he had a justifiable sense of grievance in the disparity between his and Faavesi Isaako’s respective sentences. Isaako would be eligible to apply for parole after three years but the applicant would only be able to do so after seven years and two months. It was submitted that a disparity of that kind was disproportionate even having regard to the distinction as to intent.

The question is whether, having regard to the different level of responsibility of each offender and the different sentencing regime that applies, once the difference in seriousness of the two instances of offending is recognised by making a serious violent offence order in respect of one of them, the sense of grievance, which may be assumed to exist, is a justifiable one. In my view the applicant’s argument must fail on this issue. The contrast between the undoubtedly serious but limited involvement of Isaako and the basis of his plea on the one hand, and, on the other, the applicant’s behaviour on the night brings into focus the significant difference between the nature of his offending and Isaako’s. Further, R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223 is authority for the conclusion that, once a serious violent offence declaration is appropriately made in one case but not made in the other, the principle of parity that would ordinarily apply has little scope for operation.

There is no dispute that the sentencing judge sentenced on the basis that the applicant’s head sentence would be appropriately towards the bottom end of the range for the offence. In principle, the mere fact that there will be a substantial disparity between the eligibility dates for parole, accounted for by the different sentencing regimes, cannot, of itself justify exercising the discretion against making a declaration, in a case where the head sentence and making a declaration are appropriate, simply to avoid the consequences of the declaration. Because the example of his offending went beyond the norm for offences of grievous bodily harm it fell within the proper scope of a serious violence offence declaration.

(c) Reduction to Allow for Effect of Serious Violent Offence Declaration

The other limb of the argument concerning the length of the sentence was that, if a serious violent offence declaration was made, the sentence should have been reduced from nine years to allow for the effect of the declaration on the potential release date. A further issue raised in oral submissions was whether the plea of guilty and cooperation with the administration of justice had been properly allowed for. The sentencing remarks show that the sentencing judge was mindful of them. A submission was made that if they had been, the starting point for calculating the sentence must have been more than 11 years. If so, the starting point was well outside the appropriate range for the offence. The problem with this submission is that the range suggested by the Crown Prosecutor seems, in context, to have been expressed in terms of what was an overall appropriate sentencing outcome for the particular offence, one element of which was a declaration. On that assumption, the head sentence would be within the range of eight to 11 years. The sentencing judge apparently agreed with that submission and then expressly sentenced in the lower part of that range, which is in conformity with the approach in R v Bojovic [2000] 2 Qd R 183 at 191-192. Imposing the sentence at that level does not suggest that the sentencing process miscarried in the ways suggested.

(d) Rehabilitation

The final matter raised by Mr East is the failure of the sentencing judge to refer to positive steps toward rehabilitation taken by the applicant in his sentencing remarks. It is true that the applicant has completed a number of courses in custody. A series of relatively short courses commenced on 8 December 2006 and concluded on 8 March 2007. Since then he has been undertaking a tertiary preparation course, which apparently is equivalent to Senior English and Mathematics, three days a week. He expects to complete that by the end of 2008. It is commendable that the applicant has undertaken these courses. However, there were no expert reports before the sentencing judge that shed light on the extent of the applicant’s prospects of addressing successfully the underlying factors which led him to reject the family values with which he grew up and enter the environment that led to the violent offending in which he engaged in the incident at Sunnybank, and over a period of several months before that.

Reference has already been made to the concept that evidence that a process of rehabilitation has begun, especially if the offender is young, and that there are real prospects that it will achieve the utilitarian outcome of returning the offender to the mainstream of society, often results in mitigation of a sentence to allow the process to proceed. The present case is one where behaviour of an exceptionally callous and brutal kind was engaged in by the applicant towards a helpless victim. Substantial evidence of some real prospects of rehabilitation is absent, in the sense that the question was only addressed in the material placed before the sentencing judge in a limited way. There is reference to the taking of the courses and expressions of family support. The high water mark is a document from a Service Manager of an organisation acting in a welfare and advocacy role that suggests in fairly unspecific terms that the applicant may be developing insight into the nature of his offending and is remorseful. While the writer apparently holds qualifications in psychology and criminology, it is described as a “letter of support” and does not address the kind of issues that would have given the sentencing judge an insight as to the prospects of rehabilitation upon which he could confidently act to significantly reduce the head sentence. I should add that these observations are made with reference to the kind of case of which the present one is an example. They do not intend to impose a general rule as to what might be sufficient in other cases.

Returning to the precise issue argued by Mr East, where the prospects of successful rehabilitation of an offender would depend on a profound attitudinal change, undertaking the courses does not, of itself, have such weight in mitigation that it can be said that the sentence imposed is rendered manifestly excessive because too little weight has been given to it, or that the sentencing process has miscarried because of the absence of specific mention in the sentencing reasons of the fact that they have been done while on remand.

(e) Robbery Sentences

Two of the robbery offences involved youths going in a group to small business premises where security was likely to be minimal and there was likely to be cash available. In each case, the applicant had a weapon and was the person who forced staff members to comply with the demands made. The other robbery involved the use of violence by him, while in company with other associates, on a youth whose wallet was stolen. The violence involved punching and kicking. The second and third robberies were committed nine days apart, while he was on bail for the first robbery. The first two were not robberies of small businesses by a single offender. There was therefore the probability that the circumstances would be more intimidatory because of the force of numbers. The sentencing judge was justified in treating the applicant as the person who menaced the employee in each of the first two robberies and as the person who initiated the physical violence in the third robbery.

While the last robbery falls into a different category from the first two, it was the last in a series of three, and if the penalty might otherwise have been less for it, imposition of the same penalty for it is explicable on the ground that it merited a higher penalty than might otherwise have been imposed because it was the last in a series.

Cases where a sole offender, even one who is armed, is involved do not provide great assistance; the circumstance of aggravation that the offender was in company with another or others can elevate the seriousness for the reason previously alluded to.

The respondent referred to two authorities in support of the sentence. R v Keating [2002] QCA 19 involved a single offender who, over a period of nine days, committed nine robberies or attempted robberies of small businesses, using an apparently blood-filled syringe. He was also sentenced for fraud, unlawfully using a motor vehicle and assault. A sentence of eight years with a serious violent offence declaration was confirmed on appeal. That, overall, is a worse case; one aspect particularly focused on was the fear of harm generated by the use of a blood-filled syringe as a weapon. In R v Moss [1999] QCA 426, where there was a single offender and the use of a knife to menace the employee of a video store, this Court substituted five years imprisonment for the six years imposed by the sentencing judge. It was said that the authorities the Court had been referred to suggested that the range for a first offender in an offence of that kind was ordinarily between about three and five years. That tends to support the present sentences.

On the other hand, Mr East submitted that there were authorities suggesting that, for a young first offender and an offence committed in broadly comparable circumstances, a sentence of no more than four years was appropriate. He referred particularly toR v Tuki [2004] QCA 482, where a sentence of four years was held not to be manifestly excessive for an offence of robbery, while armed and in company, of a store. The offender had also been sentenced to three year terms for an attempted armed robbery committed a fortnight after that offence and for an armed robbery in company committed about a year before. He was 17 and 18 at the time of the offences. He was of low intelligence.

In the first offence in time, Tuki, who had some kind of weapon, remained outside the shop while his accomplice threatened the attendant with an iron bar and robbed him. In the second, Tuki went in to a service station and threatened the operator with an iron pole. When the operator tried to dissuade him, Tuki pointed to his accomplice standing outside, who indicated he had a knife. He then entered the station as well, wearing a gorilla mask. He advised the operator to hurry up after which they escaped with the till. The third offence occurred when they returned with a third youth to the same service station where the same operator was working. That youth was let in. Then the operator saw Tuki and the other youth outside, armed with bats. He recognised one of them and locked the door immediately, preventing the youth inside from leaving and the other two from entering.

It is apparent from the facts of Tuki that the offences, while no doubt traumatic to the victims, were amateurish compared with the two store robberies committed by the applicant and his confederates. While it may be thought that the sentences imposed on the applicant for them and the other robbery may have been towards the top end of the range, I am not persuaded that they were manifestly excessive when set in the context of his violent offending which had escalated over a period of seven months up to the time of the last robbery.

Conclusion

For the reasons given, the application for leave to appeal should be refused.

DOUGLAS J: I agree also with the reasons of Mackenzie AJA and the order proposed by his Honour.