R v Smith [2004] QCA 31

Court of Appeal (Qld)|2004-02-18|Before: de, Jersey CJ and McPherson and Williams JJA, Separate reasons for judgment of, each member of the Court, each concurring as to the orders made

Director of Public Prosecutions (Queensland) for the respondent

He is an 18 year old man who when aged 17 took part on the 16th of March 2003 in an offence of armed robbery in company with personal violence. He was the driver of three other male persons who robbed a convenience store in the late evening. The others had prior criminal experience. One of those others was the instigator and it was he who enlisted the services of the applicant.

It was a serious instance of armed robbery with five persons in the shop kicked and threatened and in the case of one of them, struck with a rifle butt and cut with a knife. Money and cigarettes were stolen.

The applicant who waited five to 10 minutes in the car while the robbery took place knew that weapons were to be used, although he had identified only a baseball bat. In any event, as a matter of criminal responsibility, he must now bear responsibility for what occurred, and what occurred was particularly violent.

It must be said that the driver of three armed men bent on a robbery in company must foresee the real prospect of significant personal violence not to say terror.

Ten days after the offence the applicant took the step of giving himself up to the police and in the public interest he identified his co-offenders. They were, in consequence, arrested and the applicant is to be credited not only with that, but with having brought a spree of similar offending to an end.

It is because he has suffered recrimination in consequence of that apparently that he determined not to give evidence against the others in the proceedings to be brought against them.

The applicant had no prior criminal history and pleaded guilty. The conviction has placed his apprenticeship in jeopardy.

The learned sentencing Judge properly acknowledged all relevant considerations, especially the need for deterrence and on 30th January 2004 sentenced the applicant to two years imprisonment suspended after three months.

In cases of this character the consideration of general deterrence is very important carrying with it the need to protect those who, especially during the evening or at night time, are present within convenience stores, generally considered quite vulnerable situations.

The position essentially urged for the applicant is that he should not have been required to serve any time actually in prison in view of his youth, his lack of any prior criminal history, his certainly substantial co-operation and his being the driver of the vehicle, rather than an active participant within the store in the offence.

But in my view the learned Judge's discretion was not limited in that way and it is not appropriate to say that because of the requirement that the applicant must serve a short term of imprisonment the sentence imposed upon him was manifestly excessive.

I would compare, generally, Carlton, Court of Appeal 289 of 1990 and Hourigan, Court of Appeal 152 of 1985. Were the position otherwise a sentencing Judge would be subject to a straight jacket. Fortunately under our system of sentencing straight jackets are not the characteristic: the fully informed judicial sentencing discretion is the hallmark.

There were substantial points in the applicant's favour certainly, but the fact remains that he facilitated the commission of serious and violent crime which needs actively to be deterred in the community interest.

Now, it is true that a fully suspended sentence could properly have been imposed and in that regard I mention Taylor and Napatali, Court of Appeal 157 and 158 of 1999. But in requiring the applicant to serve this comparatively short term the learned Judge did not, in my view, err in the exercise of his discretion.

Views will differ on the question whether there is utility in requiring short terms of this character to be served, especially with young first time offenders, but the view there is, which obviously based his Honour's approach, was open and, in my view, must at this appellate stage be respected. It must be acknowledged that the Judge apparently very carefully considered all relevant considerations.

I should say, finally, that I cannot accept Mr Hamlyn-Harris's submission that the sentencing process miscarried because of the limited extent to which the Judge was referred to relevant cases. He is a very experienced Judge in the criminal jurisdiction and was undoubtedly aware of relevant trends and possibilities.

I would refuse the application. Mr Hamlyn-Harris told us that he was informed this morning by the applicant's parents that the applicant, in fact, spent two days in custody referable only to this offence, but as we can see no declaration in respect of that was made by the learned Judge. That is explained by the fact that it was not drawn to the learned Judge's attention.

I would invite counsel to explore that matter and submit an order in writing setting out a declaration in that regard signed by both counsel which, in that event, I will initial and it will operate as an order of the Court should my colleagues agree.

There will be no need in that circumstance for any further attendance at Court and the Registrar will ensure that the correctional facility officers are advised of the declaration so that it will be taken into account in diminution of the period the applicant will otherwise be required to serve.

McPHERSON JA: I agree. To say that this young applicant could not properly have been sentenced to any period in custody for this offence is to say that a sentencing Judge has simply no discretion to adopt such a course.

It is not possible to find anything in the Act or the general law governing sentencing that confirms such a conclusion, or to say that the judicial discretion in a case like this can be exercised in only one way, that is by imposing no custodial sentence at all. That cannot be so.

In my view the applicant has not demonstrated that there was an error in the exercise of the sentencing discretion such as would entitle us to intervene on appeal. I agree with what the Chief Justice has said on that matter.

WILLIAMS JA: In agreeing with the Chief Justice I would emphasise that the applicant was aware that those who entered the store were armed and in consequence the use of actual violence was a probable consequence of the commission of the robbery.

That means that it was proper for the learned sentencing Judge to regard this as a particularly violent instance of the offence of armed robbery in company.

It was also correct for the learned sentencing Judge to have regard to the element of deterrence, bearing in mind the prevalence of this type of offence.

Were it not for the applicant's youth and the fact that he gave himself up to the police a much higher head sentence would have been called for.

I can discern no error in the reasoning of the learned sentencing Judge in determining in the exercise of his discretion that the applicant should serve some time in actual custody. There is no basis on which this Court could interfere with the sentence.

I agree with all that has been said by the Chief Justice and Justice McPherson, and I agree with the order proposed.

THE CHIEF JUSTICE: Application refused. Liberty to apply for a declaration in the manner indicated.

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