R v Irving[2001] QCA 472

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  The applicant for leave to appeal was sentenced to imprisonment for 9 years for armed robbery of a bank at Goodna.  He went into the bank wearing a black balaclava, gloves, a long sleeved black shirt and baggy black trousers.  He was holding a sawn-off semi-automatic rifle with which he menaced the two tellers and the two customers in the bank.  He pointed the gun at the first teller, placed a bag on the counter in front of him, and demanded “all the cash”. While the first teller was fulfilling this demand, the applicant went to the second teller and pointed the gun at her.  He threw another bag on the counter and she began filling it with money. Then he returned to the first teller and took the bag from him before turning back to the second teller. He took the bag from her and moved to the door of the bank pointing the firearm in the direction of  one of the customers as he (the applicant) went out.

2. Acting on information received, the police later arrested the applicant, who agreed to be interviewed. He made a full admission of the offence and later pleaded guilty. He is 38 years old, and is a long-term heroin addict with a habit requiring about $350 per day to satisfy, whereas his or his partner’s pension amounts to only about $400 per fortnight. He had been working for Australian Meat Holdings, but had been suspended about three weeks before because of his heroin habit. He co‑operated with the police and pleaded guilty to an ex officio indictment.

3. Factors taken into account by the learned sentencing judge in imposing sentence included the seriousness of the offence, the fact that it required a degree of planning, and that it involved the use of a firearm. The rifle was not loaded, although of course the applicant did not so inform those at the bank who were menaced. The woman teller was plainly very distressed by the experience she was undergoing. Although there is no victim impact statement from her, she was seen by one of the male customers to be crying and crouched beside the counter. At one stage the security camera film showed a woman customer apparently in an attitude of prayer. The male customer in question has since been suffering a traumatic reaction to his own experience, involving sleeplessness, headaches, and a sense of insecurity which has affected his family, social and working life. There is no reason to doubt his account of those matters, for which he has been undergoing counselling.

4. In mitigation is the fact that the applicant made a full confession and pleaded guilty, although the force of this consideration is somewhat diminished by knowing that the evidence against him was strong. From a psychological report prepared after the offence, it appears that he came from what is described as a criminal family in Melbourne, and that he began abusing drugs from about the age of 13. He is said to have been suffering from the emotional effects of the death of his girlfriend from heroin addiction, although that event took place in January and the offence was committed in March this year. It goes against him that the money stolen from the bank, which was an amount of about $2,700, has not been returned; no doubt it has been expended in feeding his habit.

5. More important than this is the fact that the applicant has an extensive criminal history, and that the offence was committed while on parole for a similar offence of which he was convicted in November 1997. He was sentenced in the District Court at Brisbane to imprisonment for 6 years for robbing a bank with actual violence while pretending to be armed. Parole was recommended after serving two years, and he was released on 9 July 1999, which was about 18 months before this offence was committed. In March 2001 he was convicted and fined for possessing a knife in a public place on 28 February 2001 which was a short time before the bank robbery was committed. Beginning in Victoria in 1974 the applicant has had an almost continuous history of offences, consisting mainly of thefts of motor cars, but including being armed with offensive instruments, burglaries, receiving and drug offences. He has served many prison sentences of varying lengths; but the attempt in 1997 to extend the benefit of early parole to him has plainly been a failure. No doubt his drug addiction is the source of much of his criminal behaviour.

6. In these circumstances the imposition of a sentence of imprisonment of 9 years for a second robbery offence, with much the same personal consequences for the victims, which was committed while he was still on parole for an earlier offence of this kind does not immediately strike me as excessive or out of the conventional range. The fundamental complaint against it on appeal is that it is cumulative on the balance of the sentence of 6 years imposed in November 1997. That, however, is the result not of any decision of the learned sentencing judge but of the operation of s 156A of the Penalties and Sentences Act 1992: cf Siganto v The Queen (1998) 194 CLR 656, 662. The combined effect of that provision, and of the requirement in s 190 of the Corrective Services Act 1988, is that the applicant will have to serve the unexpired portion of his previous sentence, with the consequence that he was left at sentence facing a total head term of imprisonment of some 11 years, made up of the remainder of the first 6 year sentence imposed in November 1997 and the 9 year sentence imposed for the most recent offence, after allowing for remissions and possibly other privileges received. The figure of 11 years is based on information obtained from Corrective Services, which Mr Chowdhury for the appellant has confirmed from that source.

7. The result is to produce a sentence that is said to be so excessive in length as to demonstrate that the learned sentencing judge must have acted on a wrong principle in imposing the term of 9 years for this offence knowing that under s 156A of the Penalties and Sentences Act it would be cumulative. The conclusion to that effect is said to follow from R v Shillingsworth ([2001] QCA 172), which, it is submitted, obliged her Honour in a case like this to moderate the current sentence she was imposing so as to ensure that, when aggregated with the earlier sentence, it did not become unduly harsh or unjust. The decision in R v Shillingsworth placed a gloss on the earlier decision of this Court in R v Booth [2001] 1 Qd R 393. In R v Shillingsworth, Williams JA said that, in giving what was described as the majority judgment in Booth, I had not expressly referred to the guidelines in s 9 of the Penalties and Sentences Act calling for an offender to be punished “in a way which is just in all the circumstances”; and also that the amendment, which introduced s 156A into that Act in 1997, “must be read as subject to the guidelines set out in s 9 of that Act” Of course, I must accept that reproof, subject only to the qualification that, as a later and specific statutory provision, one would, according to ordinary rules of interpretation, expect s 197A to prevail over the earlier and general provisions of s 9.  Indeed, if it did not do so, the amendment in 1997 would not serve any function or purpose at all, and, in enacting it, Parliament would not have accomplished anything.

8. Accepting, however, as I do that the effect of R v Shillingsworth stands at the least for the proposition 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”, it nevertheless seems to me that the sentence of 9 years imposed in this case was not excessive; and that that is so even if it is considered as involving a total of 11 years imprisonment taking into account the balance still to be served of the earlier sentence imposed in November 1997. The applicant cannot reasonably have expected the same or a shorter sentence than 6 years for committing a second offence of this kind within four years and doing so while he was still on parole for the first. One of the sentencing options available on each occasion was the possibility of making a declaration that a serious violent offence had been committed, which would have deferred parole until 80% of the sentence had been served. The learned sentencing judges in both instances refrained from using that option. It would, it may be accepted, not have been illegitimate for her Honour in the present instance to have moderated the sentence she was imposing in the light of the statutory provisions referred to; but it is, in my opinion, quite contrary to those provisions to say that she was bound to do so.  In all the circumstances, I consider that the sentence of 9 years imposed here was not unjust or excessive, and that there was no error in the sentencing discretion in this matter that would justify this Court in interfering with it.

9. In saying this, I have assumed that her Honour proceeded on the footing that s 161C of the Penalties and Sentences Act 1992 had no relevant application or operation to or upon the two sentences of 6 years and 9 years that were, or are now, under consideration in this matter. Such a conclusion accords with the recent decision in R v Powderham [2001] QCA 429. In the event, however, that there is any doubt about that question, I would dismiss the application, but at the same time declare that s 161C has no relevant application to any sentence or sentences of imprisonment that the applicant is now serving or is liable to serve.

10. AMBROSE J:  I agree with the reasons of McPherson JA.

11. CULLINANE J: I have had the opportunity to read the reasons of McPherson JA and agree with those and the orders proposed.