R v X[2001] QCA 498

COURT OF APPEAL

McMURDO P

McPHERSON JA

MACKENZIE J

CA No 187 of 2001

THE QUEEN

v.

X Appellant

BRISBANE

DATE 09/11/2001

JUDGMENT

THE PRESIDENT:  In the District Court at Brisbane the applicant pleaded guilty to four counts of armed robbery and two counts of attempted armed robbery.  The offences occurred between January and July 1998. 

He was later sentenced to eight years' imprisonment for the armed robbery offences and seven years' imprisonment for the attempted armed robbery offences.

The applicant, who represents himself on this appeal, claims the sentences were manifestly excessive.  He emphasises that insufficient weight was given to his co-operation with the authorities and to the effect of the death of his mother which, he says, triggered his fall back into drug use and committing these offences whilst on parole.

He was 31 or 32 years old at the time of the offences and is now 35 years old.  He had a significant prior criminal history which included a conviction for breaking and entering a dwelling house in 1984 for which he was sentenced to 18 months' probation.  He was next convicted and fined $100.00 for unlawful use of a motor vehicle in 1985.

More significantly, later in 1985, he was convicted of armed robbery in company, unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence and other less serious offences, and was sentenced to an effective term of six years' imprisonment with a recommendation for parole after 16 months.

In 1989 he was convicted of a further count of breaking and entering a dwelling house with intent and was sentenced to six months' imprisonment.  Later that year he was convicted of receiving and false pretences and was sentenced to a short period of community service.

In 1991, he was convicted of receiving, stealing and a breach of the Bail Act and was sentenced to an effective term of four months' imprisonment.  Later that year his community service order was breached and he was sentenced to one month's imprisonment.  Of even more significance is his conviction in 1991 on two counts of robbery and breaking and entering a dwelling house with intent for which he was sentenced to seven and a half years' imprisonment with a recommendation for parole after two and a half years.

In 1993 he was convicted and sentenced to three months' imprisonment for unlawful assault of a prisoner.  In 1995 he was convicted and sentenced to three months' cumulative imprisonment for being unlawfully at large.

The offences, for this Court's consideration which I have already noted, were committed whilst he was on parole are as follows.

On 14 January 1998 at 5.15 p.m. he robbed a female shop assistant at a Coorparoo food store whilst armed with a hand gun, taking $1,000.00 cash and a packet of cigarettes.  He was effectively disguised by a cap, sunglasses and a bandanna covering his mouth and nose.  He volunteered his involvement in this offence on 22 November 2000 in a police interview.  He said he was driven to the store by a man, who gave him the replica hand gun, and agreed to commit the offence because he was in debt to the man for drugs the man had supplied to him.

In January 1998, at about 2.00 p.m., he pointed an 8 to 10 inch gun at a female, working alone in the Moorooka T.A.B.  He covered his face with fabric.  The woman pushed the alarm pad and locked herself in a back room.  The applicant pointed a gun at a customer saying, "Don't get involved.  Stay out of it." and fled.

On 21 January 1998, at about 12.50 p.m., he approached a female teller at the Queensland Credit Union in Edward Street in the city.  He covered his mouth with a handkerchief.  He was agitated and demanded money, pointing a 30 centimetre pistol at the teller's chest.  She gave him money from her cash drawer.  He then approached another female teller who had already activated a hold-up alarm.  He demanded and was provided with more money from her cash drawer.  He left the premises carrying $6,472.00 in a white shopping bag.

On 14 July 1998, at about 5.20 p.m., he and another person with their faces disguised, approached the female owner of the Camp Hill Newsagency.  He was carrying a black gun about one foot long and said -

"This is a hold-up.  I'm not joking.  Hurry up.  Come on, hurry up.  I'm not fucking joking.  Give us the money.  I'll count to five and then I'll shoot you."

And he began to count to five.  The woman handed some money to the applicant who pulled the remaining $20.00 notes from the till.  After unsuccessfully demanding more money the applicant and his accomplice, who had stolen some cigarettes and Scratch-it tickets, left the store.  Eight hundred and thirty-eight dollars was taken, together with cigarettes to the value of $30.00 and Scratch-it tickets to the value of $40.00. 

On 17 July 1998, at about 12.30 p.m., he entered the Commonwealth Bank, Annerley, wearing a balaclava.  He approached a male teller brandishing a 15 to 20 centimetre long black revolver, pointed the gun at the teller and demanded 100s and 50s.  Security screens were activated and the applicant fled.

On 2 August 1998 the applicant approached a female employee in a video shop at Woolloongabba and demanded money.  He pulled his jumper up to his nose and produced a gun about six inches long, saying -

"Give me the fucking money now.  I haven't got fucking time for this."

and pulled the hammer back on the gun.  The employee put some notes in a video case and after unsuccessfully demanding more the applicant left the store - $150.00 was taken.

The applicant stresses in his submissions today that he only used a replica gun but this, of course, was no comfort to the unfortunate complainants or the customers in the shop when these offences occurred. 

The reason for the delay between the applicant's plea of guilty and his sentence was to allow the parties to obtain information as to the extent of the applicant's cooperation with authorities and to sort out the extent, if any, of the contested facts on sentence.  In the end, no facts were contested on sentence.

Material presented to the sentencing Court in camera under Section 13A Penalties and Sentences Act 1992, Queensland, by the applicant's counsel indicated he was willing to give evidence against others involved with him in the armed robberies.

In addition, he gave a statement to police indicating his willingness to give evidence of gaol confessions allegedly made to him by two inmates charged with separate very serious offences.

The applicant told the learned sentencing Judge that he had been exposed within the prison system as an informer and his life was in daily danger.  His movements in prison are extremely limited making his life far more stressful than for the average prisoner.  He has repeated that submission to us today.

The learned and experienced sentencing Judge indicated the sentences that he would have imposed but for the matters placed before him in camera, under Section 13A of the Penalties and Sentences Act 1992.  As noted, the sentence in fact imposed was eight years' imprisonment and seven years' imprisonment respectively.  A declaration was made as to the 447 days pre-sentence custody and the applicant was declared a serious violent offender.  Bearing in mind the applicant's prior criminal history and the nature of these offences that declaration was plainly appropriate.

Victim impact statements reveal the very considerable inconvenience and in some cases enormous trauma suffered by the victims of these offences as a result of the applicant's criminal behaviour.

A psychological report tendered on the applicant's behalf stated that he had a dysfunctional background and after being placed on parole reverted to drug use following the unexpected death of his mother to whom he was very close.

Further support for this was provided by a reference from a community drug and alcohol counsellor and the applicant has made similar submissions to us today.  Psychiatrist, Dr Kingswell, in May 1999, was of the opinion that the applicant had an eight month history of significant depressive symptoms amounting to a major depressive episode and diagnosed an adjustment disorder with depressed mood on a background of borderline personality disorder, complicated by poly-substance dependence and perhaps an amphetamine-induced psychotic disorder with delusions.  Since his incarceration any psychotic disorder has remitted, due to enforced abstinence and he has apparently responded to treatment with anti-depressant and anti-psychotic medication.

The applicant's main contention is that insufficient discount was given for his extensive co-operation with the authorities.  He stressed that a 40 per cent discount and a further 33 and a third per cent discount was given for co-operation in the case of R v. Thompson (1994) 76 A. Crim R. 15, and submitted that he should receive a similar discount.

Thompson gave information which was described as "highly valuable", whereas, in this case, the applicant's assistance with the authorities, whilst commendable, appears to have been of more limited use.

The appropriate discount for co-operation in any case will always vary according to the circumstances.  Thompson is not authority for any rigid formula that must be applied. 

The applicant referred us to some comparative sentences and submitted that because of parole recommendations, these offenders were dealt with more leniently than he.  The difficulty for the applicant in that submission is that those sentences pre-dated the introduction of Part 9A, Penalties and Sentences Act 1992 (Qld), and the recommendations for parole which were made at that time are no longer made in serious violent offences like these offences.

The applicant emphasises that he should have been given two discounts, not only a discount for his co-operation as to these offences but also a further discount for his co-operation in the other significant cases but there is no reason why that should be done.  The real question is whether the sentence that was imposed was appropriate and proper in all the circumstances.

The offences to which the applicant pleaded guilty were most serious and have had the expected deleterious effect on the unfortunate complainants.  The applicant has a shocking criminal history for similar offences and committed these offences whilst on parole.  Before his sentence on these offences he was sentenced to a head sentence of seven and a half years' imprisonment for similar offences.  In the applicant's favour, of course, is his plea of guilty and his considerable assistance with the authorities. 

The sentence imposed by the learned sentencing Judge adequately recognised the matters in the applicant's favour.  It is by no means manifestly excessive. 

I would refuse the application for leave to appeal.

McPHERSON JA:  I agree.  Specifically, I agree that there is no fixed formula or method for calculating a percentage or other rate on account of either a plea of guilty or co-operation with the police.

MACKENZIE J:  Yes.  I also agree and would only say that where valuable information is given the discount should be substantial but without attempting to fix it at any specific level.

THE PRESIDENT:  The order is the application for leave to appeal is refused. 

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