R v Nolan[2000] QCA 151

DAVIES JA:  The applicant, Mark Robert Nolan, pleaded guilty in the District Court on 6 January this year to a large number of counts. There were two of robbery with personal violence, four of unlawful use of a motor vehicle to facilitate the commission of an indictable offence, eight of stealing and one of robbery. All were committed between 17 and 25 May last year.

On each of the counts of robbery with personal violence he was sentenced to four years imprisonment. On the robbery count he was sentenced to three years imprisonment. On each of the stealing counts he was sentenced to two years imprisonment and on each of the unlawful use of a motor vehicle counts he was sentenced to two years imprisonment.

The sentences were ordered to be served concurrently and were suspended after a period of 21 months with an operational period of three years. 226 days pre-sentence custody was declared to be imprisonment already served under the sentence.

Although the applicant was only 20 years of age at the time of the commission of these offences he already had a substantial criminal history including numerous stealing offences, several burglary offences and one of robbery for which he had been sentenced to 12 months imprisonment in October 1998. He was thus still subject to that sentence although lawfully at large at the time of the commission of the first of these offences.

He had apparently been released from custody only about a month before the commission of the first of these offences. These offences occurred over a period of eight days. They resulted in over $9,600 in damage and the applicant received in total a little over $4,500.

The robbery offences followed a similar pattern. The applicant would enter a store, perhaps purchase some items and when the person at the till opened it, the applicant would then grab the money from the till and run from the store. In each of the cases of robbery with personal violence they involved also pushing the person at the till with some force.

It is unnecessary to describe the offences of unlawful use of a motor vehicle or stealing but they follow familiar patterns.

The applicant was apprehended immediately after the commission of the last of the robbery offences. Thereafter, he co-operated with the police and pleaded guilty at the earliest opportunity. The applicant is or at least has been a heroin addict. His last sentence involved a combined custody and treatment order requiring him to submit for testing periodically although he told us today that he was tested on only two occasions. It does not appear to have achieved its desired effect.

As the learned sentencing Judge said to this applicant on sentence, unless he can overcome his heroin addiction he will continue to offend and receive longer gaol sentences. Heroin addiction is as we all know a terrible thing and extremely difficult to overcome.

The applicant says he has been free of heroin for 12 months, the 12 months he has been in prison so far, notwithstanding the fact that heroin is, as we have heard on previous occasions, able to be obtained inside the prison system. However, having regard to the seriousness of these offences and the applicant's previous criminal history, there was no alternative in my view but to impose a substantial term of imprisonment.

That is what the learned sentencing Judge did. The sentence was no doubt quite a high one but in my view his Honour gave sufficient weight to the mitigating factors by suspending the sentence which he did. I do not think that the sentence as a whole was manifestly excessive and I would refuse the application.

MACKENZIE J:  I agree.

FRYBERG J:  I agree and I would add only that the head sentence was a sentence which the applicant conceded before the sentencing Judge was about right by way of head sentence.

The sentencing Judge imposed a suspended sentence rather than an early recommendation for parole on the request of the applicant. Whether that was the best thing to do in the applicant's own interests might be debated in the light of what the applicant has said to us today. He submitted that he ought to be released early with supervisory conditions. Unfortunately, a suspended sentence does not permit that. However, that was done on the applicant's own submission below and I do not think he can complain of a lack of supervision now. The sentence was not manifestly excessive. The application should be refused.

DAVIES JA:  The application is refused.

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