Attorney-General (Qld) v Newton [1992] QCA 80

1 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 COURT OF APPEAL [1992] QCA 080 MACROSSAN CJ McPHERSON JA WILLIAMS J Appeal No 263 of 1991 ATTORNEY-GENERAL OF QUEENSLAND and KIRBY EDWARD NEWTON BRISBANE ... DATE 2/4/92 JUDGMENT -- 1 of 8 -- 2 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 JUDGMENT McPHERSON JA: On 6 September 1991 Kirby Newton, who is the respondent to this appeal by the Attorney-General, was sentenced after a trial in the District Court at Townsville for his part in an armed robbery of a service station known as BP Cranbrook on the Ross River Road. The sentence imposed was a term of imprisonment for 18 months with a recommendation for parole after six months. It is of some relevance to the disposition of this appeal to notice that Newton has now served some 7.5 months of his sentence. However, because of s 172 of the Corrective Services Act, the full operation of the recommendation is in abeyance pending the outcome of this appeal. The circumstances of the offence were these. At or shortly before 10 p.m. on 8 January 1991 two young women were on duty in the shop of the service station, of which the father of one of them is the proprietor, when they were confronted by a male wearing only a pair of shorts and with a stocking over his head. He brandished a knife with a serrated edge, rather like a bread knife, and demanded money. He was given an amount of about $650 and ran outside with it. Waiting outside was a car in which he was driven off. -- 2 of 8 -- 3 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 As it emerged, there were altogether five individuals involved in the robbery, and it is necessary to say something of the part played by, and the penalty imposed upon, each of them. First, there was the youth who brandished the knife and took the money. His name was Symons and he was only 14 years old at the time of the offence. He was accordingly dealt with in the Children's Court, which placed him under supervision for 18 months. Another youth named Pearce also left the car and acted in the role of a lookout outside the service station. He was 16 years old, almost 17, and was placed under care and control for 18 months, of which he has spent some two months in detention in Westbrook. A third youth aged 16 going 17, whose name is Katthagen, was also placed under care and control for 18 months. On the material in the record it is not entirely easy to identify the precise part he played in these event, but he was waiting in the car and he evidently participated in some way. He received a small part of the proceeds of the robbery. In addition to those three there was a 19-year-old woman named Helen Neven. She owned the car and she drove it to and from the -- 3 of 8 -- 4 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 service station. She was tried and sentenced with Newton in the District Court at Townsville. The learned District Court Judge considered that her role in the offence was prompted by her friendship for Newton. She received none of the proceeds of the robbery. She had no previous convictions and she had a supportive family background and good character references. His Honour placed her on probation for 18 months and ordered her to perform 240 hours of community service. I turn now to the respondent Newton. At the trial he was 21 years old with no previous convictions. The precise part he played in the events is again not perfectly clear. He was in the car outside the service station and it is plain that he knew then that Symons must have had robbery in mind, at latest when he left the car with the stocking and the knife. At the trial there was evidence from Symons himself that all four of these young men had taken part in a discussion on the previous day about obtaining a sum of $400 needed to satisfy a traffic fine sustained by Newton. The three juveniles were on what has been described as a crime spree at the time and they offered to obtain the money for Newton. He knew then that the money was to be obtained illegally although the plan to commit a robbery in order to obtain it may -- 4 of 8 -- 5 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 not have been formed until shortly before it was executed, after their other plans had been thwarted. Newton received $400 of the stolen money. The three juveniles received about $40 each. On appeal, counsel for the Attorney-General has submitted that a sentence of 18 months' imprisonment is inadequate as a head sentence for an offence of this kind committed as it was at night against people conducting a business like a service station. He submitted that the range for such a serious offence may be considered as commencing at about four years, even in the case of a first offender. It may be difficult to disagree with this as a general proposition in many cases, although much, of course, depends on the particular circumstances of the offence and the particular part played by the particular offender being sentenced. In sentencing Newton, His Honour was evidently influenced by the penalties imposed on the co-offenders in the Children's Court. He said: "I must have some regard to the sentences which were imposed on your co-offenders, particularly having regard, as I have said, to the extent of their involvement." Earlier he had also said: "I must also have regard to the sentences which were imposed upon your co-offenders and to the roles which they played." Counsel for the Attorney-General submitted that such an approach -- 5 of 8 -- 6 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 was wrong because of the special factors involved in dealing with juveniles, as to which he referred to what was said in The Queen v Watts (1990) 2 QdR 381, 282. In any event, there is authority in The Queen v Homer (1976) 13 SASR 377, 382 to 383, that no useful comparison can be made between an order under a non- punitive regime applicable to juveniles and a sentence passed upon an adult offender. Except perhaps in rare cases or as an indication of the extent of their respective roles or participation in a particular offence, I would be inclined to think that what was said on the subject in that South Australian case is, generally speaking, a correct statement. In this case His Honour was therefore not, I think, justified in relying to the extent that he did on the orders made with respect to the three juvenile offenders when he came to sentence Newton. The problem is whether anything can or should now be done about the matter on this appeal. The principle of parity of co- offenders may have little or no relevance where the comparison to be made is of juvenile and adults penalties. However, now to increase Newton's sentence here would almost certainly offend the parity principle in relation to the sentence that was imposed on Helen Neven. Admittedly she was a year or two younger than Newton and she gained nothing from the offence; however, she -- 6 of 8 -- 7 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 provided and drove the car and, like her, he had no previous criminal record. There has been no appeal against sentence in her case on the ground of its inadequacy. Counsel for the Attorney-General candidly, and if I may say so, fairly, said he would not press for an extension of the non- parole period if the head sentence were increased in this case. That period has, as I have already mentioned, now expired. In all these circumstances, and although it may be that both Neven and Newton escaped with sentences that were lighter than might well have been justified for an offence of this nature, I would not be disposed to alter the head sentence of imprisonment imposed on Newton in this case. It follows that, although left with some impression that the policy of deterrence may not have been fully recognised or well served in this case, I would dismiss the appeal. WILLIAMS J: I agree. THE CHIEF JUSTICE: I agree. The order of the Court is that the appeal is dismissed. -- 7 of 8 -- 8 _________________________________________________________________________________ ________________ 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Tel:(07)2274360 Fax:(07)2275532 ------- -- 8 of 8 --