The Queen v Downard[1997] QCA 164

COURT OF APPEAL

McPHERSON JA

MOYNIHAN J

de JERSEY J

CA No 147 of 1997 

THE QUEEN 

v. 

PETER FLOYD DOWNARD 

BRISBANE

DATE 30/05/97 

JUDGMENT

 McPHERSON JA:  This is an application to extend the time within which to apply for leave to appeal against a sentence imposed in the District Court at Cairns.  There is some, but not much, explanation for the delay.  The applicant says that he was not aware of his right to apply for leave to appeal. 

The real question is, however, whether there is a prospect of success in the application for leave if the time to make it is extended.  The sentence was imposed on 3 February 1997.  It was an effective sentence of imprisonment for eight years for three offences, armed robbery, attempted unlawful use of a  motor vehicle, and unlawful use of a motor vehicle.

The circumstances, very briefly, are that the applicant robbed a branch of the Westpac bank in Cairns using a loaded rifle.  He then attempted to escape by menacing the female owner of a vehicle and obtaining keys from her.  When he tried the keys in the vehicle it turned out that they were the wrong keys.  He then applied himself in a similar fashion to another car owner, and made his escape, although only briefly, by that means.

He was apprehended and when charged made a full confession and pleaded guilty to the offence.  He is 24 years old and has one previous conviction recorded in Cairns for attempted breaking and entering in the night-time.  The written material with which the application is supported is persuasive and well presented.  The real problem is the gravity of the offence, aggravated, as it is, by the use not only of a rifle but a rifle that was loaded.  In addition, the Judge noticed that the applicant had been drinking at the time of the offence.  He had, it seems, fortified his courage by taking alcohol beforehand in what appears to have been a planned attempt to recover his financial fortunes from a misfortune that he had suffered through the activities of a woman with whom he had a relationship.

The reality of the matter is that what he did and, in particular, his condition of insobriety when he did it, made it an extremely dangerous offence.  Counsel for the prosecution has referred us to a number of sentences in comparable cases where terms of imprisonment as high as 10 years have been imposed in circumstances not dissimilar to these.

The gravamen of the applicant's complaint is that the Judge should have considered a recommendation for parole and, while, on the face of it, there appears to be some substance in the submission having regard, as I say, to the age of the applicant and his relatively criminal free history, the fact of the matter is that the Judge took those considerations into account.  In doing so he said in his sentencing remarks the following: 

"I give you credit for the factors in your favour.  I am not going to make a recommendation that you be considered for parole any earlier than usual but I will make the sentence a bit shorter than I otherwise would have." 

Having regard to the matters I have mentioned, it seems to me that what the Judge said on that point was not simply the repetition of a verbal formula.  He did allow for a reduction of the sentence rather than providing for a recommendation for parole of the kind that is now asked for.

In the circumstances, and not without some regret, I think that the application to extend time is not one that can succeed and will not result in any variation in the sentence imposed.  I would accordingly refuse the application.

MOYNIHAN J:  I agree.

de JERSEY J:  I agree.

McPHERSON JA:  The order of the Court is that the application to extend time within which to seek leave to appeal against sentence is refused.