R v Williams [1999] QCA 505

Court of Appeal (Qld)|1999-12-02|Before: Chesterman J, Pincus JA, Thomas JA

PINCUS JA: Mr Justice Chesterman will deliver the first judgment.

CHESTERMAN J: On 7 May 1999 after a trial the applicant was convicted of robbery with violence in company on 8 October 1998. On 30 July 1999 the applicant pleaded guilty to armed robbery with violence in company on 10 October 1998. Both offences occurred at Woorabinda.

The facts relevant to the first count are that the applicant, who was intoxicated, approached the publican at the Mimosa Club. He wished to buy alcohol and pay for it by some form of credit card. Either the publican would not accept the proffered form of credit or the applicant was unable to use the card correctly; what happened is not made clear in the record but it is accepted that the applicant used personal violence towards the publican in order to steal a quantity of alcohol. The publican suffered minor injury, a small laceration to his upper lip. The value of the liquor stolen was $768.65.

Two days later the applicant and two others returned to the Mimosa Club which at the time was closed. His companions were armed with sticks. A security guard employed at the club had allowed two elderly ladies into the club to use its facilities. As he opened the door to let them out the applicant and his companions pulled the door open and rushed into the club. The guard was hit in the stomach with the sticks and was forced back against a table.

The applicant threatened to kill him if he moved. While his companions restrained the guard the applicant stole alcohol from a fridge. He then demanded that the guard tell him the combination of the safe. The guard swore that he did not know it and the robbers left after again threatening the guard with death if he should call the police. The value of property stolen was $71.70.

The applicant was sentenced to seven years' imprisonment on each count to be served concurrently. A declaration was made that 288 days of pre-trial custody be taken to be imprisonment served under the sentences. The applicant applies for leave to appeal against the sentences on the grounds that they are manifestly excessive.

The applicant is an Aboriginal man born on 9 January 1961. He was 37 years of age when the offences were committed. He has a very extensive criminal history for offences of dishonesty and violence. By the time he was 27 the applicant had been convicted of about a dozen offences some of which were for violence or for serious dishonesty which attracted terms of imprisonment. On 29 March 1988 the applicant was sentenced to five years' imprisonment for armed robbery with violence in company. On 15 February 1989 he was sentenced to eight years' imprisonment for manslaughter committed in the course of a robbery. While in prison he was convicted of assaults on prison officers and other prisoners.

He escaped from custody in February 1993 and was recaptured after about a month of freedom. On his return to prison he appears to have committed further assaults upon prison officers and other prisoners.

The applicant had been released from prison only about a month before the offences were committed. It is urged on his behalf that the sentencing Judge did not sufficiently take into account circumstances of mitigation. They are said to be that the applicant is a chronic alcoholic and that the offences were committed to obtain liquor rather than money. It was also said that the applicant was released from prison without having received any worthwhile preparation for independent living and was given no adequate assistance in overcoming or coping with his dependence upon alcohol. In that regard he relied upon his mother but she unhappily had died the day before the first offence. The applicant thereupon became depressed and began drinking excessively. The first offence was committed, as I mentioned, while he was intoxicated.

It is emphasised that the offences were not planned or premeditated neither was there any danger to life. Only one complainant was injured and his wound was superficial. It is submitted that a sentence of no more than four years should have been imposed. The learned Judge took into account all the matters that had been advanced in favour of the applicant.

His Honour noted that the applicant had been released back into the community without the benefit of any pre-release program which might have assisted him to re-integrate himself into society and which might have assisted him to avoid violating the law. His Honour also mentioned the applicant's criminal history noting that there had been 13 previous convictions for assault and 11 for offences of which stealing is an element. His Honour took into account the plea of guilty in respect of the second offence, the applicant's depression and alcohol dependence. His Honour also noted that the first offence appeared to have been unplanned.

In my opinion the applicant has not demonstrated that the sentences imposed were beyond the appropriate range. It may be that seven years is a severe penalty for the first offence which was, in a sense, spontaneous and borne of frustration at his lack of success in buying liquor but actual violence was used and a substantial amount of property was taken.

The second offence appears more serious. It was clearly planned. The applicant's companions armed themselves for the purpose of overcoming any resistance from club employees. The guard was in fact assaulted and twice threatened with death. Although only a small amount of liquor was taken an attempt of sorts was made to steal money from the safe.

We have been referred to a number of decisions of this Court on the hearing of appeals against sentences for similar offences. In Collins, CA 238/98, the President noted of a 32 year old that:

"A review of comparable sentences for offences of armed robbery committed before 1 July 1997 does not persuade me that a head sentence of seven years imprisonment is outside the range of a sound sentencing discretion."

Sentences of eight and indeed nine years for robbery in company with violence are not uncommon. As the Judge pointed out, referring to Hammond, CA 455/96:

"The level of sentence will depend upon the particular way in which the offence was committed with regard to the factors of the degree of violence, the harm done, the property taken, the degree of professionalism and planning involved and the extent of the accused's involvement."

The applicant was the instigator in both offences. He himself used violence or made threats of violence and the purpose behind the robberies was to satisfy the applicant's craving for alcohol. His age and previous history made it impossible to extend much leniency.

We have been supplied with a schedule of sentences imposed for armed robbery and like offences involving shops and similar businesses. A review of the schedule suggests to me that seven years is by no means excessive if the two offences are considered together as the sentencing Judge did. Substantially lesser periods of imprisonment have been imposed only where no violence was offered to the shopkeeper or where though the accused was apparently armed he had not in fact the means of inflicting injury. I would refuse the applicant.

THOMAS JA: The circumstances reveal the applicant to be a person with poor self control who seems to have thought he could plunder with impunity a liquor outlet at Woorabinda. These are not mitigating features. On the contrary, they raise considerable concern. There is a need for Courts to support those who crave law and order in such communities. With these factors in mind I do not think the seven year sentences were excessive. I would add that I agree with what Justice Chesterman has said.

PINCUS JA: The order of the Court is application for leave to appeal against sentence refused.

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