Griffiths v The Queen [1989] HCA 39

High Court of Australia Brennan, Deane, Dawson, Gaudron and McHugh JJ. Griffiths v The Queen [1989] HCA 39

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Court of Criminal Appeal of New South Wales allowing the appeal to that Court and quashing the sentence imposed by the sentencing judge. Quash the sentence imposed by the Court of Criminal Appeal of New South Wales. Remit the matter to the Court of Criminal Appeal of New South Wales for determination in accordance with the judgment of this Court. Order that the applicant remain in custody serving the sentence imposed by the sentencing judge pending the making of further order by the Court of Criminal Appeal of New South Wales.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 14 Brennan and Dawson JJ.

The applicant was twenty-one when he committed a series of offences to which he pleaded guilty. The offences arose out of six armed robberies which he committed between 4 December 1987 and 8 January 1988. The armed robberies gave rise to one charge of robbery whilst armed and wounding, five counts of armed robbery, four counts of possessing an imitation firearm and two counts of possessing a firearm with intent to commit an indictable offence, one count of possessing a shortened firearm and two counts of larceny of a motor vehicle. The first four robberies were committed in December 1987, using a replica pistol. The last two were committed in January 1988, using a sawn-off .22 calibre rifle. On two occasions the applicant used a stolen vehicle. The last two offences were the most serious. The circumstances attending the last offence were described by the learned sentencing judge thus:

The accused entered a newsagency in Anzac Parade, Little Bay, on 8 January 1988. He made the employee, Mr. Nabil Habib, lie on the ground behind the till area. Mr. Habib in fact appears sensibly to have been following the prisoner's directions and Mr. Habib says that the prisoner ordered him to get up and to accompany him which he, Mr. Habib, did and as he approached the prisoner, the prisoner shot him in the chest with the sawn-off rifle. The prisoner appears to have thought that Habib was resisting him and shot him to prevent Habib doing so. His Honour found that: At the time he began this series of robberies and throughout the prisoner was heavily addicted to the drug [amphetamines]. He would go without sleep under the influence of the drugs for several days at a time and he experienced considerably altered states of consciousness. Because of his drug addiction his Honour thought that it was possible that the applicant thought that Habib was resisting him but the truth was otherwise. The applicant had begun using illegal drugs about six months before these offences when, a few months after he had broken up with his girlfriend, he came to Sydney and began to associate with criminal drug users. After committing the last offence, the applicant realized the seriousness of what he had done. He readily confessed his guilt and co-operated with the police in their investigations into the other matters. He expressed contrition and remorse which the learned sentencing judge, having heard him give evidence, regarded as genuine. After the applicant was arrested on these charges, he served a short sentence in gaol for stealing. At the end of that sentence, although he had been refused bail on the present charges, he was released by mistake. Within a couple of weeks of his release, hearing that the police were looking for him, he surrendered himself to a police station. He has not taken drugs during this time or since.