R v Rose[2002] QCA 134

COURT OF APPEAL

WILLIAMS JA

FRYBERG J

HELMAN J

CA No 354 of 2001

THE QUEEN

v.

MICHAEL STANLEY ROSE

BRISBANE

DATE 09/04/2002

JUDGMENT

FRYBERG J:  The applicant pleaded guilty in the District Court on 9 November 2001 to eight counts of armed robbery, one of armed robbery with personal violence, one of attempted armed robbery, one of robbery, and nine other lesser counts.

A week later Judge Trafford-Walker sentenced him to a range of imprisonment.  He imposed 10 years' imprisonment in respect of the armed robbery with personal violence and in respect of one of the armed robberies (the target was a bank), nine years' imprisonment in respect of the other counts involving armed robbery and lesser periods of imprisonment in respect of the other counts.

All sentences were ordered to be served concurrently but cumulative upon a sentence or sentences then being served. Precisely what sentence or sentences were then being served it is a little difficult to discern, but that does not now matter.

The applicant seeks leave to appeal against the ten sentences relating to armed robbery.  The focus of his argument is upon the two sentences upon which he was sentenced to imprisonment for 10 years.

The offences were all committed in the period between 17 October and 21 December 2000.  All but two involved the use of a syringe in which, the applicant told his victims, was AIDS-infected blood.  On one occasion he used a knife. On the last occasion a syringe of his blood was found in a vehicle belonging to his girlfriend.  Apparently he forgot to take the syringe with him.

His targets were retail liquor establishments, a supermarket, a fast food store, a bank, and a railway station.

For the first two robberies he wore a disguise but he was not disguised thereafter.  He was caught on 21 December as he attempted to make his getaway from the bank by an off- duty policeman and a bystander.

When he was arrested the applicant made admissions in relation to the bank robbery but refused to take part in a record of interview.  Some of the proceeds of his robberies were recovered but, counting a burglary, he stole $26,000 which was not recovered and caused more than $6,000 worth of damage.

The offences were committed while he was on parole but his parole was not cancelled until 2 February 2001.  In the meantime he was held in custody on remand.

The applicant is aged 41 and has an extensive criminal history in three States.  After numerous motor vehicle offences he was convicted in Victoria of theft in 1981.  Numerous charges of theft and burglary followed over the next five years.  After two years free of offences - he was in gaol - he went to New South Wales and branched out into drug dealing.  In 1989 he was sentenced there to one to six years' imprisonment with a non-parole period of three years.  After his release he came to Queensland and resumed his career in drugs. 

His convictions here have been numerous, 13 up until 1998. It is something of a wonder that he was able to commit so many offences because most of his time since 1992 has been spent in gaol.  The longest sentence was six years for armed robbery in company which was imposed and commenced in January 1995.  Since then imprisonment imposed has included two cumulative sentences of eight months and nine months respectively.

His prospects in January 2001 therefore were bleak.  He claims that in mid-January, after having had "a good hard think about things" he decided it was time he took responsibility for his actions. 

He then volunteered after taking legal advice to assist authorities.  He participated in interviews with police and made full admissions of all the offences.  Without these admissions he would not have been charged with the first two robberies, the ones where he wore a disguise.  He also claimed that the syringe which he used had contained red cordial.

In addition to these admissions he gave a statement to police implicating fellow inmates in the killing of a prisoner in 1995.  However, the deceased prisoner had been the subject of an inquest which, in 1997, had concluded that he had committed suicide.  There is no evidence to corroborate his statement and police are not taking any further proceedings against the inmates named.

In June 2001 he made a further statement to police implicating another inmate in armed robbery which involved the attempted murder of a policeman.  He alleged that the inmate had admitted guilt to him.  The applicant was one of a number of persons including current and former inmates who had made that allegation.  Police investigations revealed that the inmate concerned had made admissions of involvement in the offence but had asserted to police that he was simply big-noting himself.  Despite extensive inquiries no corroborative evidence had been found and it was not envisaged that charges would be preferred against the man at that time.

The applicant notified his intention to plead guilty at an early date and consented to the presentation of an ex officio indictment.

Judge Trafford-Walker took his cooperation and his pleas of guilty into account and had regard to the fact that without his cooperation there would have been no evidence against him in respect of some offences.

He accepted the applicant's assertion in his interviews with police that the syringe contained a red cordial despite the fact that the applicant gave no evidence before him.  In this respect he was generous in his fact-finding. In the absence of evidence from the accused I would have inferred from the fact of the blood-filled syringe that this statement was a lie.

The judge took into account the impact of the offences on the various victims which, in some cases, was severe.  He said that had the matter gone to trial the sentence would have been one of 12 years' imprisonment but because of the cooperation and the pleas of guilty that was reduced to 10 years.

An application was made to him under section 13A of the Penalties and Sentences Act.  He heard that application in closed Court but held that the section did not apply in the circumstances of the case.  It is now conceded by the applicant that this ruling was correct.

The matters relied upon by the applicant were, first, that the applicant's cooperation with the authorities in implicating two men in serious offences had not been properly reflected in the sentences imposed. 

Second, his cooperation fell to be considered in light of the fact that the applicant must have known at the time he cooperated that he was facing a lengthy prison sentence in possible proximity to the offenders nominated by him. 

Third, whilst the authorities decided not to act upon the information provided by him the fact that any further time that he spends in custody will be fraught with danger ought to result in a reduction in the appropriate sentence.

Fourth, his cooperation is also evidence of a quantum shift in his attitude and a manifestation of improved prospects for rehabilitation.

Finally, it did not necessarily follow that a sentence of less than 10 years should attract a declaration that the applicant was convicted of a serious violent offence.

The last matter relied upon had reference to the fact that the learned sentencing judge had indicated in his sentencing remarks that even had he imposed a lesser sentence than that which he did impose, that is 10 years, he would have made the declaration.

Interestingly the judge said in the course of his remarks, having imposed the sentences of 10 years' imprisonment: "That means, of course, that there is no requirement upon me to make a declaration that you are a serious violent offender."  With great respect, it seems to me that in that regard the judge was in error. 

Section 161B of the Penalties and Sentences Act 1992 requires the sentencing judge to make such a declaration if an offender is convicted of a serious violent offence under section 161A(a).  That includes the situation which faced the sentencing judge.  The declaration should have been made but no consequence follows from its omission.

It seems to me that any cooperation which had occurred up until the time of the sentence was properly reflected in the judge's sentence.  He expressly stated that he took cooperation into account and it does not seem to me that he has given too little weight to that cooperation.

I would reject the submission that the applicant is in any danger in the prison system.  I would suppose that most of the occupants of his current place of residence would be watching with some interest to see what the outcome of the appeal is.

The application has several hallmarks which suggest that it is not one which would place the applicant in any danger at all.

I would also reject the invitation on his behalf for this Court to draw the inference that his cooperation evidences a quantum shift in his attitude.  He said that it did but it is far more likely that having had legal advice and considered his position for the month after he was caught he decided to take advantage of the likely reduction in sentence resulting from section 13 of the Penalties and Sentences Act and changed his attitude accordingly:  compare R v. Jones [2000] QCA 84 at p.5.

The cases to which we were referred by the applicant's counsel were The Queen v. Matthewson [2001] QCA 4 and

The Queen v. Keating [2002] QCA 19.  Of those cases Matthewson is the one which most closely resembles the present case.  Matthewson was sentenced on an ex officio indictment in respect of eight offences of armed robbery, two of which were aggravated, and for these offences he was sentenced to 10 years' imprisonment.

There were also nine offences of burglary and cognate offences, an offence of stealing and various other lesser offences.

Property stolen was in excess of $30,000 and the cost of - and other damage was almost $4,000.  The robberies were committed over a period of about a month on small retail outlets.

The argument on behalf of the applicant in that case was that the application of The Queen v. Bojevic No 4 of 1997 required the selection of a head sentence at the bottom end of the appropriate range. 

It was submitted that the sentence given by the sentencing Judge was not at the bottom end of the range.  That submission, however, did not find favour with the Court of Appeal.

After referring to various other of the facts of the case, including the fact that rehabilitation would likely be difficult because of the offender's drug involvement (a factor which has some commonality with the present case), the Court noted that some offences were committed whilst he was on bail or within a short time of his release and concluded that the sentences of 10 years were not manifestly excessive.  The Court noted that the authorities supported a view that 10 years was not out of the range.  Consequently the appeal was dismissed.

In Keating sentences of eight years' imprisonment were imposed.  Justice Thomas noted the sentences and the making of the declaration that the offender was a serious violent offender and after referring to the fairly lengthy criminal history (consistent with heroin addiction) said that he did not think that armed robbery cases fell into any special category for the exercise of the discretion conferred by Part 9A of the Penalties and Sentences Act.

It was true, he said, that examples may readily be found of convictions for armed robbery where it was considered that there was no adequate basis on which to exercise the discretion but he continued:

"Generally speaking a serious violent offender declaration may be appropriate where a need is perceived to protect the community and where circumstances of the commission of the offence, and particularly the violence accompanying its commission, may make such a declaration appropriate. 

A single isolated act of violence may sometimes be thought to be less likely to attract a declaration than a case involving repeated commission of offences or a case where an offender's criminal history is one that tends to show the offence in a serious light so that a need is perceived to protect the community."

His Honour concluded that the appropriate range of sentences in that case was at least eight to 10 years, noting that some cases might suggest a higher sentence to be possible.  He referred to Matthewson and other cases.  I see nothing in the circumstances of that case which would suggest that the sentence imposed here was inappropriate.

It seems to me to align in a number of respects with the decision in Matthewson.

I note, without making any decision, the possibility that in any event if the sentence had been less than 10 years it may have been necessary to calculate the total period of imprisonment pursuant to section 161C of the Penalties and Sentences Act by having regard to the imprisonment which was currently being served.  No argument has been addressed on this and I express no view upon the matter.

In my judgment the matters relied upon by the applicant do not demonstrate that the sentence imposed below was manifestly excessive.  I would therefore refuse the application.

WILLIAMS JA:  Once it was conceded, as it was by counsel for the applicant, that this case did not give rise to a situation to which section 13A of the Penalties and Sentences Act 1992 strictly applied, the credit given by the learned sentencing Judge for the applicant's cooperation with authorities was, in my view, adequate.  Once one takes into account that factor and the applicant's criminal history I am not persuaded that the sentence in fact imposed was manifestly excessive.  I therefore agree that the application should be dismissed.

HELMAN J:  I agree with the reasons of the learned presiding Judge and those of Justice Fryberg, and I agree that the application should be refused.

WILLIAMS JA:  The order of the Court is application dismissed.