SUPREME COURT OF QUEENSLAND

1. THOMAS JA  and ATKINSON J:  The applicant was convicted on 4 September 2000 on his own plea of guilty on one count of armed robbery, one count of unlawful use of a motor vehicle with a circumstance of aggravation and one count of dangerous operation of a motor vehicle; and on 12 February 2001 on one count of armed robbery whilst in company, seven counts of armed robbery, one count of attempted armed robbery, seven counts of unlawful use of a motor vehicle with a circumstance of aggravation, one count of unlawful use of a motor vehicle, one count of dangerous operation of a motor vehicle, one count of burglary, two counts of stealing and one count of fraud.  He was sentenced on 12 February 2001 in the District Court in Southport to 10 years imprisonment on each of the counts of armed robbery and armed robbery in company; 8 years imprisonment on the count of attempted armed robbery; 3 years imprisonment on the counts of unlawful use of a motor vehicle with the circumstance of aggravation; 2 years imprisonment on the counts of unlawful use of a motor vehicle, dangerous operation of a motor vehicle, burglary and stealing and 1 year imprisonment on the count of fraud and a count of serious assault.  All sentences were to be served concurrently and the judge declared that the 405 days spent in presentence custody be deemed to be time already served under the sentence.  A declaration that the applicant was a serious violent offender was automatic in light of the 10 year sentences which were passed.

2. The applicant, who appeared in person, submitted that the sentences were manifestly excessive, had a crushing effect on him and failed to give sufficient effect to the rehabilitative purpose of sentencing. He referred the court to a number of comparable cases including R v Crossley^[1] and R v McMahon^[2], as well as a psychological report prepared by Dr Peter Stoker before his sentence. 

3. In R v Crossley, leave to appeal against sentence was refused.  Crossley had been sentenced to 10 years imprisonment on three counts of armed robbery and one of attempted robbery after pleading guilty.  The applicant in this appeal sought to distinguish that case on the basis that actual violence was used against the victims of each of the armed robberies.  The applicant says that, unlike Crossley, he did not actually discharge a firearm.  However, the firearm used by Crossley was an air rifle which caused no permanent damage to anybody, whereas the applicant used a variety of weapons including a baton, a sawn off rifle, a hand pistol, a knife and a sawn off shot gun when he committed offences for which he was sentenced.  The offences committed by Crossley occurred on only three separate evenings.  The case concerned an alleged disparity between the sentence received by Crossley and his co-accused rather than the excessiveness of the sentence given to Crossley considered in isolation. 

4. In R v McMahon, the applicant was refused leave to appeal a sentence of 12 years imprisonment on each of nine counts of armed robbery.  A recommendation was made for parole 9 months before his usual half term eligibility date which in the view of the court on appeal was a generous one that fully took into account his unfortunate life, which had led to his heroin addiction, his co-operation with the police and his prospects of rehabilitation.  That case predated changes to the Penalties and Sentences Act 1992 which preclude the court making any recommendations for parole where the defendant is declared to be a serious violent offender.  If the head sentence is 10 years or more, such a declaration is automatic.

Criminal History

5. The applicant in this case has an extensive criminal history dating back to his childhood. He was born on 10 February 1974 and was therefore aged 25 at the time of the offences on the indictment. The first offence that appears on his criminal history was for unlawful use of a motor vehicle and unlawful escape from a place of detention. He received custodial sentences as a child for offences of breaking and entering a dwelling house with intent, breaking and entering a place with intent, wilful and unlawful damage to property, unlawful use of a motor vehicle, stealing and escaping legal custody. On 19 November 1990, he was detained under s 63 of the Children’s Services Act at Her Majesty’s pleasure in relation to burglary, stealing, rape and unlawful use of a motor vehicle.  He was then convicted of wilful damage in July 1991 and placed on probation for 2 years.  He then received prison sentences in March 1994, principally for break and enter offences as well as for receiving and possession of a motor vehicle.  He was sentenced to 3 years imprisonment.

6. In October 1995, he was again sentenced to 3 years imprisonment for dangerous driving and was also convicted and sentenced in relation to possession of a motor vehicle and further dishonesty offences and in May 1996, the applicant was imprisoned for 4 months in relation to possession of a dangerous drug, such sentence being in effect cumulative upon the October 1995 offences.

Offences

7. The circumstances of the offences in respect of which this application is brought are fully set out in the outline of submissions on behalf of the respondent to this appeal. In July 1999, the applicant drove past police at high speed while they were performing random breath test duties on the Gold Coast Highway. He was pursued by the police and reached speeds of 120 kilometres per hour. He was seen to travel through a red light and against a red arrow in the Tugun area. He was apprehended after he stopped the vehicle and ran off. When apprehended he admitted he had been taking drugs and claimed to have been under the influence of heroin and amphetamines. This gave rise to the charge of dangerous operation of a motor vehicle. When he was being escorted back to the police vehicle he lashed out with his right arm and struck a police officer in the head causing him to fall to the ground. This is the basis of the serious assault charge. He was also dealt with for a number of summary offences arriving out of this incident including possession of a dangerous drug (cannabis sativa), obstructing police, speeding, failing to obey a police signal, disobeying a red light and disobeying a red arrow. He was convicted in relation to his offences but not further punished for these summary offences.

8. He was released on bail on 8 July 1999 but failed to answer his bail on 22 November 1999. This meant that all further offences were committed whilst on bail or after a warrant was issued for his apprehension.

Counts 1 and 2

The facts of counts one and two were that the applicant took a Ford Laser motor vehicle from outside the Gold Coast Hospital whilst the complainant was visiting his wife.  It was located at Labrador with a smashed windscreen after it had been used in an armed robbery of a convenience store at Frank Street, Labrador on 10 October 1999.  The applicant had entered the store undisguised and reached into an open till to take $90, and at the time swung a baton near the complainant’s head.   The complainant then armed himself with a baton and chased the applicant from the store and smashed the windscreen of the car as it was driving away.

Counts 3 and 4

9. A vehicle was stolen from Surfers Paradise and then used to commit a robbery. The robbery occurred at the Brentleigh Theatre Restaurant at midday on 26 October 1999, on the day when staff pays were done up in cash indicating some degree of planning. The two male offenders involved entered the restaurant wearing dark clothing and Halloween masks. One was carrying a sawn off rifle and the other carrying a hand pistol. One said words to the effect, “Do as I tell you and give me the pays”. The staff huddled together in fear. The speaker asked for the rest of the money and, when told there was none, repeated the demand and was given a cash tin containing a small amount of money. The speaker asked again for money and was told that the banking had just been done and there was no more money. He became agitated and advanced towards the staff and pointed the gun towards them. The two offenders left after demands were made for the phones to be pulled from the wall which was done. The vehicle was found at the Lutwyche Shopping Centre and the applicant’s fingerprints were located on the outside of the driver’s door. Both weapons were found the next day in the vehicle the subject of count five and both weapons were loaded although the hand gun was not capable of discharging a projectile. A sum of $8,491.00 was taken.

Count 5

10. The applicant hired a utility in his own name on the following day. He was driving it when directed by police to stop and appeared to do so when he suddenly accelerated away causing the police officers to jump out of the way to avoid being hit. Pursuit ensued for a few minutes in which another vehicle was forced to take evasive action. The applicant ran from the vehicle whilst it was still moving causing injury to an elderly man. The vehicle continued to roll and stopped when it hit a dwelling with not much force. The applicant evaded police at the time but dropped a bag containing the firearms used in count four and $7,200 in cash. The applicant’s fingerprints were found on the outside of the driver’s door of the utility. Summary charges were laid for the possession of money, possession of instruments for production of a dangerous drug (including a recipe for the production of methyl amphetamine), obstructing police, possession of weapons and other Weapons Act offences and one count of dangerous operation of a motor vehicle.

Count 6 and 7

11. Another Ford Laser motor vehicle was stolen from Broadwater car park in Southport and was later located at the Ashmore TAFE College. This vehicle was used in the attempted armed robbery of a convenience store at Labrador. These events are the basis of counts six and seven. The female complainant operated the convenience store with her husband. The applicant entered the store at about 1 pm on 14 November 1999 and selected 30 cents worth of sweets, paid for them and then walked around the store. Another customer came in and the applicant waited until that person had left and then engaged the complainant in conversation. The complainant noticed that he was holding a black handled knife about 30 centimetres long in his hand. He jumped the counter and the complainant fearing for her safety picked up a cut down broom handle and swung it, hitting him on the left hand. The complainant called out to her husband to call police and the applicant left the scene in the motor vehicle. The applicant was identified from a photo board.

Counts 8 and 9

12. The facts of counts eight and nine appear from the following circumstances. The male complainant lived next door to where the applicant had been boarding. The applicant had been asked to leave the premises and was leaving on 18 November 1999. On 19 November 1999, the complainant returned to his house to find he had been burgled. The applicant’s fingerprints were found on the laundry window which appeared to be the point of entry. The applicant stole a quantity of compact disks, a stereo system, a knife, a quantity of jewellery and a birth certificate.

Counts 10 and 11

13. Counts ten and eleven occurred on the same day as counts eight and nine. The applicant took another Ford Laser motor vehicle from the Runaway Bay Shopping Centre and it was located two days later at Labrador. It had been used in the commission of an armed robbery of a 7-2-7 convenience store at Benowa at about 3.30 pm on 19 November 1999. The applicant entered the store, approached the complainant and asked for a packet of cigarette papers. As he was handed change from the purchase of the papers, he reached into his pants and pulled out a knife and held it in his left hand. He put the knife up to the complainant, put his right hand over the counter and jumped over the counter. The knife was described as being nearly 20 centimetres long. Once he had jumped the counter, the applicant held the knife against the complainant’s forearm and demanded that the till be opened and then asked for the notes which were given to him. He asked for another till to be opened but found no money in it. He then asked that the trays be lifted to see there was no money. He then asked for the rest of the money and was given some money kept in a separate place. As he left he said words to the effect, “This better be all of it”. A total of $700 was stolen.

Counts 12 and 13

14. The events that were the basis of counts twelve and thirteen occurred on the following day, 20 November 1999, when once again a Ford Laser motor vehicle was stolen from the Runaway Bay Shopping Centre. The vehicle was used in an armed robbery of a KFC store at Benowa and was later abandoned. On that occasion a 16 year old attendant was confronted by the applicant wearing a mask and carrying what she described as a big gun. The complainant said that the gun was pointed at her and the applicant yelled out words to the effect, “Everyone get on the floor”. She dropped to the floor and then heard the applicant say, “Get the money”. The applicant had come around the counter and was standing near the cash registers yelling at her. She saw the gun was being pointed at her and motioned so as for her to move to the cash registers. She told him she needed keys and when he continued to demand the till be opened she used a lid of a pen to open the lock. The applicant was getting angry and began hitting the front of the cash register before she had opened it. Once open, the applicant took all $50 notes and as he was doing this he was holding the gun in the direction of her head. The applicant demanded that the money be put into a bag and when this was done he left the store. He left in the Laser motor vehicle which was being driven by another person who has not been identified.

Count 14

15. Count fourteen occurred on 21 November 1999 when the applicant took another Ford Laser motor vehicle from the Runaway Bay Shopping Centre. Police were on patrol near the Ashmore City Shopping Centre and the applicant apparently recognised one of the detectives. He was seen carrying a striped bag which he threw into the stolen car and ran off. During the pursuit of the applicant, he dropped a mobile phone which was linked to him. In the bag in the car, the police found a mask very similar to the mask referred to in count thirteen and a sawn off shot gun similar to the description given by witnesses in count thirteen. DNA material found on the mask was that of the applicant. Police were unable to capture the applicant at this time.

Counts 15, 16 and 17

16. Counts fifteen, sixteen and seventeen occurred when a Laser motor vehicle was taken from the Ashmore City Shopping Centre on 22 November 1999. Property was stolen from the vehicle and pawned at Cash Converters at Runaway Bay for $100. The vehicle was located at an address linked to the applicant. The applicant had used his own photo identification at the Cash Converters store.

Counts 18, 19, 20 and 21

17. Counts eighteen to twenty-one occurred on 24 November 1999. The applicant took a Mazda, which was a similar model to a Laser, from a car park at Pindarra Hospital in the Benowa area. Counts nineteen to twenty-one were three armed robberies which all occurred in one incident. The applicant conducted an armed robbery at the Suncorp Metway bank at Labrador Park Shopping Centre at about 2.30 pm on 24 November 1999. He confronted a female teller. As he approached her he threw plastic bags at her saying, “Give us your money”. At the time he was carrying a gun described as being 20 – 30 centimetres long. He kept demanding the money be given to him and when told she had to get keys he started yelling out “quicker”. All the money was removed from the teller’s cash drawer and the applicant said, “What about the other ones?”, and was told that she could not gain access to the other drawers. The applicant then took handbags from a number of other customers. He obtained $5,900 as a result of count nineteen.

Count 22

18. Count twenty-two concerned an armed robbery at a Post Office at the Ashmore Plaza Shopping Centre on 25 November 1999. The female complainant was serving a customer when she heard the applicant yell out, “All right you folks” and saw an elderly couple being pushed by the applicant. When she said “Hey” to him he replied “What are you hey about? I’m fucking serious”, and pointed a gun at her head which she believes was only a couple of inches from her. The applicant then said, “put all the fucking money in the bag” and placed a bag on the counter and ran to the other side of the counter still holding the gun saying, “I want all the fucking money, all of it”. He came up to the complainant and put the gun very close to her head as she placed the money in the bag. He then moved to a second teller using similar language and made demands that the money be placed in the bag. Whilst this was being done he was checking paper work apparently to make sure he was getting all of the money. The applicant was asked if he wanted coins and he used vulgar language to indicate he did not. He then left the scene. The complainant received treatment and as a result of the trauma suffered decided to sell the business.

Counts 23, 24 and 25

19. Counts twenty-three, twenty-four and twenty-five occurred when the applicant took a Laser motor vehicle from Frederick Street, Surfers Paradise on the morning of 30 November 1999. At 5.15 pm on the same day, he committed an armed robbery at the Homestead Convenience Store at Southport. The applicant was disguised with a stocking over his face and was holding a shot gun which was found in his possession later that day still loaded. He demanded of the male complainant that the till be opened. He was told there was not much money because the banking had been done and he was given what was there. He then demanded, “Where’s the rest? I know you have more. You put it under the counter, I have seen you put it there”. This was correct because there was other money under the counter which again shows some planning by the applicant. The complainant was told to get down on the floor and when he was on his hands and knees was told to lie flat on the ground. As he was leaving, the applicant threatened two other customers with the gun as they were coming in.

20. The number plate of the vehicle was taken and given to police who then dispatched a large number of police vehicles to the vicinity. The applicant and the vehicle was located and a pursuit ensued. The pursuit was in streets with busy pedestrian traffic and included travelling in the wrong direction in a one lane street at Mermaid Beach. The pursuit continued until he was cornered by police vehicles and there was a collision with a police vehicle. When located, the vehicle contained a loaded sawn off shot gun, a brown wig and a unit key. When the unit was searched, the police located shot gun cartridges of the same type already found in the applicant’s possession.

Sentence

21. The learned sentencing judge referred to the following additional matters which were relevant on the sentence. The applicant had pleaded guilty to numerous serious offences, the most serious of which were the armed robbery charges. On some occasions the applicant had used a loaded firearm or was in possession of a knife. Threats of violence were made although no actual violence was used on any person. There was no discharge of the firearm. The offences would have caused severe mental anguish to a number of victims and Victim Impact Statements to that effect had been tendered. A number of the robberies showed a degree of planning on the applicant’s part with the use of disguises and some knowledge of where the money was and what day was pay day in one case. The cost of the offences and financial terms amounted to $37,330 for property stolen or damaged. The offences were committed over a comparatively short period of time and some while the applicant was on bail or after a warrant was issued for his arrest. The applicant had a bad criminal history spanning twelve years and it seemed the applicant had been institutionalised since he was a child being first before the court in 1988. The applicant’s history include numerous offences of dishonesty, a rape when the applicant was much younger and since being an adult, he had been imprisoned for periods up to 3 years. The applicant’s main problem according to a psychologist’s report by Dr Stoker which was filed on his behalf, was addiction to drugs with a heroin habit costing up to $400 a day at one stage, although this was not a justification for the commission of any of the offences.

22. In light of the submissions, a recommendation that the applicant receive rehabilitative treatment including psychological and psychiatric treatment was considered appropriate. With regard to all of the circumstances, the learned sentencing judge took the view that a substantial custodial sentence was the only option.

Respondent’s submissions

23. Counsel for the Director of Public Prosecutions referred in particular to the decision of the Court of Appeal in R v Matthewson [2001] QCA 4, 30 January 2001.  The applicant in that case was sentenced to 10 years imprisonment for eight offences of armed robbery, two of which were committed in company.  There was also one offence of attempted armed robbery in company.  The 10 year sentence had the automatic consequence that the applicant was declared to be a serious violent offender.  There were also other lesser offences for which the applicant had received cognate sentences.  It was, as counsel for the respondent submitted, very similar to this case although the only weapon used was a knife and the applicant, whilst a heroin addict, did not have a particularly serious history.  The offences however were committed shortly after his release from prison and some whilst he was on bail.  The application for leave to appeal against sentence was refused.  That case is very similar to the circumstances of the present applicant.

Conclusion

24. The psychological report tendered before the sentencing judge, and referred to by him in his remarks, demonstrates that the applicant has had a very troubled life and his prospects of rehabilitation will be difficult. However, there was no doubt that his serious and persistent offending required a sentence in the order of that imposed by the learned sentencing judge. The application for leave to appeal against sentence should be refused.

25. MUIR J:  I agree that the application for leave to appeal against sentence should be refused for the reasons given by Thomas JA and Atkinson J.