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  • Unreported Judgment

R v Moore; ex parte Attorney-General

 

[2002] QCA 116

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Court of Appeal

PROCEEDING:

Appeal against sentence by A-G (Qld)

ORIGINATING COURT:

DELIVERED ON:

26 March 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2002

JUDGES:

McPherson and Williams JJA and Byrne J
Separate reasons for judgment of each member of the court, each concurring as to the order made.

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL  AGAINST SENTENCE – APPEAL BY ATTORNEY GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE - JUDGMENT AND PUNISHMENT- FACTORS TO BE TAKEN INTO ACCOUNT – OFFENCES COMMITTED WHILE ON BAIL OR PAROLE AND EFFECT OF BREACH OF PAROLE – where respondent on parole at time of committing offences – the weight to be given to the ‘totality principle’ - a sentencing judge must consider all sentencing options that are open in arriving at a sentence that is ‘just’.

Corrective Services Act 1988 (Qld) s 187

Corrective Services Act 2000 (Qld) s 135(2)(c), s 152(2), s 152(3), s 268A

Criminal Code (Qld) s 592A

Penalties and Sentences Act 1992 (Qld) s 9(2), s 156A(2)

R v Irving [2001] QCA 472, followed.

R v Keating [2002] QCA 19, distinguished.

R v Matthewson [2001] QCA 4, distinguished.

R v Shillingsworth (2001) 121 A Crim R 245, considered

COUNSEL:

B G Campbell for the appellant

AW Moynihan for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant

Legal Aid Queensland for the respondent

[1] McPHERSON JA: I agree with the reasons of Byrne J for dismissing this appeal by the Attorney–General.

[2] I would add only that it is plain that provisions like s 156A(2) of the Penalties and Sentences Act are having the effect of distorting standard sentencing tariffs by encouraging lower head sentences with a view to avoiding their stringent consequences.

[3] WILLIAMS JA: I agree with the reasons of Byrne J and with the order he proposes.

[4] BYRNE J: This is an appeal by the Attorney-General against sentences imposed in the District Court in respect of seven armed robberies committed by the respondent between 5 January and 10 November 1999. The sentences - seven years’ imprisonment, with a declaration pursuant to Part 9A of the Penalties and Sentences Act 1992 (“the Act”) that the crimes were serious violent offences - are said to be inadequate on several grounds, including that the sentencing judge gave undue weight to the totality principle.

[5] The respondent was born in December 1953. In August 1995, for seven armed robberies committed between December 1994 and May 1995, he was sentenced to 10 years imprisonment, with a recommendation that he be eligible for parole after serving three years. The offences all involved the use of a replica pistol in robbing financial institutions, mostly banks. In aggregate, about $97,000 was taken.

[6] On 31 August 1998, the respondent was released on parole. A little more than four months later, he embarked on the spree of offences that has led to this appeal.

[7] In early January 1999, the respondent entered a bank at Sherwood wearing a balaclava, armed with his small, replica pistol. He aimed the weapon at various tellers, demanding money.

[8] Six weeks later, he entered a branch of a different bank at Morayfield, again wearing a balaclava, pointing his replica pistol at tellers and others, and demanding money. When a female customer attempted to walk away, the respondent told her to stay where she was, and took money from her. As he was leaving the bank, the respondent brandished the gun, warning staff and customers not to follow.

[9] A month later, the respondent adopted the same modus operandi to rob another Sherwood bank. Witnesses were frightened.

[10] On 31 August 1999, once more wearing his balaclava, and menacing tellers with his pistol, the respondent took money from a bank at Tewantin.

[11] On 25 October 1999, the respondent entered the branch of a Warwick credit union wearing his balaclava, carrying the gun, demanding money. He pointed the gun directly at a female branch supervisor. When he returned two weeks later, he pointed the gun at several people while he demanded money.

[12] In all, the respondent collected about $46,000 from the seven robberies.

[13] Before his release on parole in 1998, the respondent had served three years and three months of the 10 year sentences imposed in 1995. He was returned to prison on 10 November 1999 and has remained in custody ever since, his parole having been cancelled because of the re-offending.[1]

[14] The judge, as he was obliged by s 156A(2) of the Act to do, ordered that the seven year sentences be served cumulatively upon the other terms of imprisonment. So the respondent’s full-time discharge date is, we are told, 3 April 2013. According to a calculation made by an officer of the Department of Corrective Services, which has been adopted as correct on both sides, the earliest date on which he is eligible for post-prison community-based release is 18 May 2007.[2] By then, he will have been in custody for about 10 years and 9 months since commencing to serve the 1995 sentences.

[15] By re-offending, the respondent must, it seems, therefore serve at least about another seven and a half years’ imprisonment.  And as he seriously re-offended in 1999 shortly after being granted parole, his prospects of being awarded post-prison community-based release[3] much before the expiration of his 10 year sentences are agreed to be insubstantial. Moreover, the Part 9A declaration in respect of the sentences that have occasioned this appeal means that he must serve at least 5.6 of the seven years in custody.[4]

[16] If, as seems more than likely, the respondent does not secure early release in respect of his 10 year sentences, he will be confined in prison for an additional 11 years or so by reason of the 1999 robberies even if he succeeds in obtaining parole after serving 5.6 of the seven year sentences. The combined effect of the loss of parole in respect of the 1995 sentences, the Part 9A declaration in respect of the seven year sentences, and that the recent sentences are cumulative upon the 10 year sentences therefore amounts to a considerable measure of punishment for the 1999 offences. It was in recognition of such consequences that the judge ameliorated the sentences which he considered might otherwise have been imposed because of “the totality principle, which I think is important.”

[17] Leaving aside the loss of parole on the 10 year sentences and that the seven year sentences are necessarily cumulative, but making due allowance for the tardy[5] guilty pleas and other material considerations, Mr Campbell contends that the sentence ought to have been not less than 10 years, which is correct.[6] From this, he argues that the imposition of a sentence below the 10 year mark on “totality” considerations ignores, impermissibly, two legislative mandates: loss of parole on the 10 year sentences on the commission of the later robberies; and that the subsequent sentences, committed whilst on parole, must be served cumulatively.

[18] The notion that the loss of parole is to be ignored conflicts, however, with s 9(2) of the Act by which,

 

“in sentencing an offender, a court must have regard to –

(l) sentences already imposed on the offender that have not been served; and

(m) sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender …”.

[19] And while the weight that on ordinary “totality” considerations might be accorded to cumulative sentences is necessarily affected by the specific provision which the Parliament has made in enacting s 156A(2), as McPherson JA has said,[7] in R v Shillingsworth[8] this Court decided that:

 

“A sentencing judge must consider all sentencing options that are open in arriving at a sentence that, when taken in conjunction with the other statutory provisions including s 156A, is ‘just’.”

[20] The judge was referred at a little length to Shillingsworth. It therefore seems likely that his reference to “totality” was merely intended as a shorthand reference to the principles for which the case is authority. If so, his remarks disclose no error of principle. In any event, the effect achieved by the sentences is, in the result, so substantial as to be adequate punishment.

[21] The appeal should be dismissed.

Footnotes

[1] S 187 Corrective Services Act 1988.

[2] Presumably, the calculation treats the four months on parole before the first of the offences as “time served”: see s 152(2) Corrective Services Act 2000. Another calculation indicates that the respondent might be eligible for release somewhat earlier than mid-May 2007. If so, in the circumstances, that would not matter.

[3] See s 152(3) Corrective Services Act 2000.

[4] S 135(2)(c) and s 268A Corrective Services Act 2000.

[5] The guilty pleas were entered during a hearing pursuant to s 592A of the Criminal Code challenging the admissibility of identification and other evidence.

[6] Cf R v Matthewson [2001] QCA 4 and R v Keating [2002] QCA 19.

[7] R v Irving [2001] QCA 472 at [8], Ambrose and Cullinane JJ concurring.

[8] (2001) 121 A Crim R 245.

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Editorial Notes

  • Published Case Name:

    R v Moore; ex parte A-G

  • Shortened Case Name:

    R v Moore; ex parte Attorney-General

  • MNC:

    [2002] QCA 116

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Williams JA, Byrne J

  • Date:

    26 Mar 2002

Litigation History

No Litigation History

Appeal Status

No Status