The Queen v Banks[1998] QCA 218

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 117 of 1998

Brisbane

[R. v. Banks]

THE QUEEN

v.

STEVEN ANTHONY BANKS

  (Applicant) Appellant

Demack J.

Helman J.

Chesterman J.

Judgment delivered 31 July 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND THE SENTENCE IMPOSED IN THE DISTRICT COURT AT TOWNSVILLE SET ASIDE AND IN LIEU THE APPLICANT SENTENCED TO IMPRISONMENT FOR FOUR AND A HALF YEARS, SUCH SENTENCE TO BE SERVED CONCURRENTLY WITH SENTENCES IMPOSED BY THE MAGISTRATES COURT ON 26 FEBRUARY 1998.    DECLARATION MADE THAT THE APPLICANT HAS ALREADY SERVED 106 DAYS IMPRISONMENT SOLELY IN RESPECT OF THIS CHARGE AND THIS PERIOD TO BE IMPRISONMENT ALREADY SERVED UNDER THIS SENTENCE. RECOMMENDATION MADE THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING ONE AND A HALF YEARS IMPRISONMENT.

CATCHWORDS: CRIMINAL LAW - Sentence - Appeal - Applicant assisted police in giving evidence against co-offender - Applicant also assisted police in respect of apprehension of offenders in unrelated matters - Effect on sentence and parole - Penalties and Sentences Act 1992, s 13A. Thompson (1994) 76 A Crim. R. 75 applied.

Counsel:  Mr P. Callaghan for the applicant/appellant.

Mr D. Meredith for the respondent.

Solicitors:  Legal Aid Queensland for the applicant/appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:  19 June 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 31 July 1998

On 30 March 1998, Steven Anthony Banks pleaded guilty in the District Court at Townsville to one count of armed robbery in company.  The offence was committed on 26 January 1997.  He was sentenced to six years imprisonment to be served concurrently with sentences imposed in the Townsville Magistrates Court on 26 February 1998.  He seeks leave to appeal against that sentence on the basis that it is manifestly excessive.

The victims of the robbery were a married couple, a man aged sixty-one years and a woman aged fifty-eight years.  Late in the night, they were woken in their home by three masked intruders who were armed with a sawn-off shot gun, a knife and a steel knife sharpener.  Banks was not one of the three, but he had been asked to provide the shot gun.  He was told it was for a "stickup" and he was offered $500.00 if he provided the gun, which he did.

The three intruders tied up the female victim but did not tie up the male victim.  He had had a heart bypass operation and also suffered from a bad back.  They stole approximately $2,000.00 in Australian currency, $200.00 in American currency and jewellery.  They drove away in the victims’ Landcruiser, having cut the telephone wires.  It took the female victim forty minutes or so to free herself.  Her husband was apparently too unwell to assist.  The police were called.

Next morning two vehicles were stopped by police at Bowen.  Banks was in one of them.  He had $750.00 on him.  Identifiable jewellery taken from the victims was also found in the cars.  The total value of the property stolen was $25,000.00, but only $5,000.00 worth was recovered.

The sentencing judge was provided with the necessary information under s. 13A of the Penalties and Sentences Act 1992 concerning Banks’ co-operation with the police in respect of his co-offenders.  He was to give evidence the next day at a committal hearing.  Since then he has given evidence at two trials.

Banks was born on 7 January 1974.  He appeared first before the Childrens Court when aged fifteen years upon two charges of breaking and entering a dwelling home with intent.  Thereafter, he was regularly before the courts.  He was first ordered to serve a custodial sentence on 13 August 1993 when aged nineteen years.  Every other option had previously been used by sentencing magistrates and judges.  He received an effective sentence of twenty-one months for a number of breaking and entering offences.

On 14 November 1993, he escaped from lawful custody and subsequently received an additional three months imprisonment for that offence.  On 24 September 1994, he committed the offence of unlawfully using a motor vehicle for the purpose of facilitating the commission of an indictable offence.  On the same day, he committed a serious assault upon a police officer.  He was sentenced to an additional one month’s imprisonment for the latter offence on 4 November 1994.  On 21 April 1995, he was sentenced to three years imprisonment in respect of the former offence.  The sentencing judge declared that an unspecified amount of time already spent in custody be counted towards that period of imprisonment.  Calculating that period has been difficult because of his enthusiasm for crime.  When this appeal was heard, it was not known if the matter affected the amount of time Banks had served in prison on the present charge.

On 26 February 1998, Banks appeared before the Magistrates Court Townsville on a number of drug offences for which he was sentenced in all to eight months imprisonment.

In the course of her submissions in respect of the armed robbery in company, the prosecutor suggested an appropriate sentence for Banks was between seven and eight years.  The learned District Court judge said he thought nine years, and he reduced it to six years because of the plea of guilty and the assistance given to police.

Since the sentence was imposed, Banks has continued to assist police into the investigation of another serious crime, unrelated to the robbery charge.  It is clear from the material filed before us that this has led to arrests and has also exposed Banks and his de facto wife to significant risk of physical harm.

Mr Callaghan, who appeared for Banks, submitted that nine years was too high a starting point for the sentence.  He recognised that the men who entered the house and dealt with the aged victims in a frightening way could well be sentenced to such a term of imprisonment.  While Banks provided a gun which he knew would be used in a robbery, he should receive a lesser sentence because he was not present with the victim.  That seems to us to be correct and Mr Meredith for the Director did not argue against that.  In our opinion, seven years would be an appropriate starting point, given Banks’ bad record of criminal behaviour.  That would be within the range of sentences upheld by this Court in comparable circumstances.

Mr Callaghan then submitted that Banks’ co-operation with the authorities in respect of the armed robbery entitled him to a discount of about 40 per cent.  This was said to be in line with this Court’s decision in Thompson (1994) 76 A.Crim.R. 75.  He then asserted there should also be a recommendation for early parole because of the assistance given in the unrelated matter.

Mr Meredith contended there should be only one discount.

The following passage from Thompson encourages the approach taken by Mr Callaghan (at 79):

"The disadvantages under which the court labours in a case like the present are that the information placed before it by the police is necessarily general rather than specific;  further, it is untested.  Having studied the statements made by the police here, and there being no suggestion that they should not be taken at face value, we think the present to be a case  in which a substantial and identified discount should be given for the applicant’s having provided information to assist in the investigation of offences other than those which he himself committed.  To give a ‘lump sum’ discount, allowing for that sort of co-operation as well as the applicant having revealed and given the details of nearly all the offences for which he has himself been convicted, is not an adequate response;  it is better to make clear just how much Ex ‘Z’, considered by itself, has saved the applicant.

In respect of the applicant’s co-operation in relation to other offenders, we would reduce the starting point of 20 years by 40 per cent, to 12 years.  Then we would take one-third off the non-parole period to allow for the pleas of guilty, and other co-operation in relation to the applicant’s own offences, producing a recommendation for consideration of parole after four years."

On this appeal, the Court was not under a disadvantage.  Banks had given evidence against his alleged co-offenders, one of whom was his brother.  This, coupled with his plea of guilty, entitled him to a substantial and identified discount.  If the appropriate sentence of seven years is reduced to four and a half years, that is a reduction of over 35 per cent. and in line with the approach taken in Thompson.

The information Banks gave to the authorities about the unrelated matters was not put before the sentencing Judge in the form required by s.13A of the Penalties and Sentences Act.  However, its general nature was mentioned by Banks in an “in camera” hearing by the sentencing Judge.

The material has been placed before us in the form of an affidavit by a very senior Police Officer.  It describes the information given by Banks, the risk to his own physical safety and that of his de facto wife, the arrest of the alleged offenders and the giving of evidence by Banks at committal proceedings from which two men were committed for trial on a very serious crime.

Banks should receive an early recommendation for parole because of this, and there is sufficient similarity with Thompson to use the same approach.  Banks should then be eligible for parole after serving one and a half years imprisonment.

Enquiries made by Counsel after the hearing of the appeal have confirmed the accuracy of the information given to the sentencing Judge, namely, that Banks had been in pre-sentence custody for 106 days.

Leave to appeal should be granted, and the sentence imposed set aside and in lieu the applicant sentenced to imprisonment for four and a half years, such sentence to be served concurrently with sentences imposed by the Magistrates Court on 26 February 1998.  Declare that the applicant has already served 106 days imprisonment solely in respect of this charge and order that this period be treated as time served under this sentence. Recommend that the applicant be eligible for parole after serving one and a half years imprisonment.