R v Ankers[2003] QCA 211

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant pleaded guilty in the District Court of Southport to three counts of unlawful use of a motor vehicle with a circumstance of aggravation, four counts of armed robbery in company and one count of wilful damage.  On 27 November 2002 the applicant was sentenced to an overall sentence of 10 years' imprisonment.  The sentence was reopened on 16 January 2003 to allow the learned primary Judge to impose individual sentences on each count.  Her Honour re-sentenced the applicant to 10 years' imprisonment in respect of the armed robbery offences and to lesser terms of imprisonment in respect of each of the four remaining offences and declared 266 days spent in custody to be time already served under the sentence.

The applicant seeks leave to appeal against that sentence on the following grounds.  First, he contends his legal representatives did not follow his written instructions during sentencing.  Second, he says he pleaded guilty by ex officio indictment on the understanding that the prosecution would present facts in a certain way and they reneged on this just before the sentencing commenced.  Third, he contends the prosecution lied about some facts in the sentencing process which he could have shown to be lies, given time, and that the Judge was led to believe the offences were worse than they actually were.  Fourth, he contends that his barrister did not represent him and put forward the mitigating factors to the best of his ability.

The facts put forward at sentence are as follows.  The applicant was involved in the unlawful use of a motor vehicle taken from a Surfers Paradise street for use in the robbery of the ANZ Bank at Nerang the next day.  At about 9.30 a.m. a male shouted at one teller to "get on the floor".  She saw two males, both wearing balaclavas.  One was armed with a large knife about 30 centimetres long and the other with an axe.  The teller moved away to hide but the person in the white balaclava yelled, "Come back here or I'll chop your hand off."  She returned to her teller station and money was demanded.  She gave the male person all the money in the drawer - about $3,500.  Another teller saw a machete being waved around and heard yelling.  Customers were told to get on to the floor and they heard loud aggressive yelling directed at the tellers.  One customer was kicked in the left-hand side of the stomach whilst she was on the ground.  This was not a hard kick but an intimidating one.  The customer was very frightened and concerned and heard one offender say, "We'll be back to come get you."  The total amount of money obtained during the offence was $7,000.  The robbery occurred only over a short space of time of about a couple of minutes.  The applicant was jointly charged with a co-offender, Nankivell, the driver of the getaway vehicle, in respect of these two offences.  Nankivell gave an interview to police claiming that he only became involved late in the planning stage and that he received a small share of the proceeds.

The applicant took a red Ford Laser motor vehicle on 4 April 2002 which was later recovered with $300 damage to it.  This vehicle was used as the getaway vehicle in the following offence.  The applicant and another person entered the Mermaid Beach Post Office demanding money whilst armed with machetes.  A customer was told to lie on the floor.  The applicant went behind the counter and took one of the owners to the safe and eventually $17,000 was obtained.  The offenders said, "If you don't pay up we're going to cut your hands off."  During the robbery the co-offender demanded a customer's backpack and struck her with the machete, fortunately without physical injury.  This constituted the third count of armed robbery with violence and $750 cash was stolen from a customer together with the backpack and purse.  A concerned citizen followed the robbers in his car and attempted to block their exit.  The applicant got out of the car and, whilst armed with the machete, struck the citizen's car causing $400 damage to the windscreen and other areas.  This was a terrifying experience as the driver of the getaway vehicle was, at the same time, pushing the citizen's car back on to the Gold Coast Highway.  The offenders drove off and escaped.

On 25 April 2002, the applicant took another red Ford Laser from Pacific Fair and $300 damage was done to it.  It was used in the following offence.  At about 7.15 p.m. that night, the applicant and another male ran into a pharmacy armed with a machete and a hammer.  The offenders demanded money and drugs.  Customers in the shop were made to get down on the floor.  The boyfriend of one customer was out outside the pharmacy and was concerned for his girlfriend's welfare.  One of the offenders yelled at him to go away.  There were threats of hands being cut off.  The offenders did not obtain drugs but left with $400.

Victim impact statements confirmed what is now well-recognised:  offences like this have an enormous deleterious effect on victims well beyond the duration of the actual offence.  Some victims have needed psychiatric and psychological counselling and at least one suffered post traumatic stress disorder, depression, anxiety disorder and panic attacks.

The total amount stolen by the applicant in these offences was $31,550 and damage of $1400 was done, including the theft of the backpack. 

The applicant participated in an interview with police on 27 April 2002 after surrendering himself.  He initially presented to one police station where he attempted to surrender for these serious offences and, almost unbelievably, was sent to a different police station where he, again voluntarily, attended and where his surrender was, this time, accepted.  He made full and damning admissions to police which demonstrated that there was a degree of preparation in the commission of these serious offences. 

The co-offender on the first two offences, Nankivell, had some relatively minor drug-related convictions and his addiction to heroin was the cause of his involvement in these offences.  He pleaded guilty at a particularly early stage and cooperated fully with police.  He had made efforts at rehabilitation and intended, when released from prison, to become an outpatient at Mirikai Rehabilitation Centre and to attend Narcotics Anonymous.  Nankivell, who had spent 211 days in presentence custody, was sentenced to four years' imprisonment suspended after 12 months with an operational period of five years.

There is no suggestion that there is a lack of parity between the sentence imposed on Nankivell, who was involved only as the driver of the car in the first robbery and had a very minor criminal history, and the sentence imposed on this applicant.

The applicant has a very serious criminal history.  He has convictions in Queensland for drug-related offences for which he had been placed on probation in 1991 and fined in 1993, 1994 and 2000.  Of much more concern are his interstate convictions.  In 1993, when only 16 years old, he was convicted of manslaughter and sentenced to a minimum term of three years' imprisonment.  In 1995 he was convicted of aggravated assault and sentenced to a minimum term of two years six months' imprisonment.  In 1997 he was convicted of malicious wounding and sentenced to two years' imprisonment.

His personal circumstances were placed before the Court in a psychological report prepared by Mr Ronald Frey.  That report disclosed the following.  The applicant was 24 at sentence.  He had an extremely traumatic, violent and difficult childhood and adolescence.  His Norwegian father and Samoan mother were involved in the criminal underworld and when he was just three years old he was sent to Australia to live with his mother's sister.  His father died in prison when the applicant was eight years old.  He was not happy in his aunt's household and his uncle was a violent alcoholic.  He was also beaten by his older cousins.  His care has changed throughout his childhood and it seems he was pushed from pillar to post.  His mother was a heavy drug user and this affected her ability to care for him.  His mother worked as a stripper and prostitute to pay for her addiction and sexually and physically abused the applicant.  The applicant was also sexually abused as an adolescent by a family friend.  Although he has had few educational opportunities because of his dysfunctional background, the applicant appears to be of high intelligence and has considerable insight about the impact of his traumatic childhood on his offending behaviour.  The manslaughter offence was committed in a rage, when a man sexually propositioned him in New South Wales.  He served eight years in detention, initially as a juvenile and then later in an adult prison.  He committed further violent offences in gaol and reacted badly to antidepressant medication given to him there.  He was finally released from prison in New South Wales in August 2001.  He was able to successfully complete his parole and benefited from the regular counselling.  Unfortunately, he formed a relationship with a former heroin addict on a methadone program.  His partner's child was removed from her and stringent conditions placed upon her in order to have the child returned.  It was in these stressful circumstances that he became involved in the commission of this series of offences, which were motivated by a desire to assist his partner and her child.

The applicant's counsel emphasised to the Court the favourable material in the psychological report and contended a sentence of eight to nine years was appropriate.  The prosecution contended a sentence of between 12 to 14 years was appropriate.

The learned primary Judge in sentencing the applicant accepted that he had a tragic background which had fostered a tendency to violence.  He had committed four very serious sophisticated violent robberies.  Her Honour took into account the fact that the applicant surrendered himself, his admissions, his early plea of guilty and his dedicated efforts at rehabilitation and sentenced the applicant to 10 years' imprisonment, which automatically invoked a declaration that he was convicted of a serious violent offence.  A declaration was also made that the time spent in custody was time served under the sentence.  The applicant then questioned the learned sentencing Judge on how such a sentence could rehabilitate him. 

On 16 January 2003, when the sentence was reopened so that the Judge could impose individual sentences on each count, the learned primary Judge rightly refused to reopen the merits of the sentence.

In his written and oral submissions today, the applicant articulately emphasises that he told his barrister to ensure the learned primary Judge was aware of his dedicated attempts at rehabilitation and his genuine remorse towards the victims of the crimes and to inform the Judge of all the courses he had undertaken and completed, demonstrating his attempts to address his offending behaviour.

The applicant's counsel at sentence placed a large number of reports and certificates before the Judge, indicating that he had completed an Anger Management Program, a Positive Lifestyle Program, a Certificate 3 in Office Administration Legal Office through TAFE, various Speechmasters' certificates, that he had achieved a negative result to prohibited drug screenings on 10 June, 10 July and 4 October 2002, had completed the six week Intensive Drug Offender Intervention and Treatment Program with the Alcohol and Drug Foundation of Queensland, an Occupational Health and Safety module, 101A Workplace Safety Certificate of Competency, a Narcotics Anonymous course and Drug Free Unit program and a Cognitive Skills Program.

The applicant's barrister appears to have placed a great deal of information before the learned primary Judge as to the applicant's personal circumstances and his efforts at rehabilitation.  This complaint is without substance.

The applicant contends that he wanted to write letters to the Judge and victims expressing his regret but was advised not to do so by his counsel.  There was, of course, nothing to stop him from doing this if he truly wished.  I note that he was not shy in speaking directly to the Judge after his sentence, and he has certainly made forceful submissions before this Court today.  In any case, even had he written such letters, which may have caused further concern to the victims, it is unlikely this would have had any effect on the ultimate sentence imposed because of the grave nature of the robbery offences.

The applicant contends that he gave instructions to his barrister that he would only plead guilty by way of ex officio indictment if the Prosecution presented the facts of his crime in a certain light.  The applicant was present at the sentence and although not shy in speaking to the Judge after the sentence was imposed, made no complaint about the facts which were placed before the learned primary Judge in his presence.  He has not established that there is any substance in this complaint on the material before this Court.

The applicant next contends that wrong allegations were made by the Prosecution as to the facts of the case.  He complains that the Prosecutor said an axe was used in the ANZ bank robbery when in fact it was a tomahawk.  It is self evident that a tomahawk is a type of axe and nothing turns on this.

He contends that the Prosecution claimed that threats were made to cut off victims' hands in three robberies when the threats were only made in one robbery.  I have set out the basis on which the Prosecution facts were put forward.  As I have stated, the applicant did not contest those facts put forward in his presence at sentence, but in any case, the complaint made by the applicant simply highlights the serious nature of the applicant's conduct in all these offences.  This   contention is also without merit.

There is no doubt that the applicant's conduct was extremely violent and terrifying in respect of all robbery offences and the submissions he now makes demonstrate a degree of lack of insight into the seriousness of his offending and its consequences on the victims. 

His contention that the learned primary Judge misunderstood the facts is likewise baseless.

The applicant contends the sentence imposed should have been between seven to nine years and that the Prosecutor had agreed with defence counsel that she would seek such a sentence; a different Prosecutor appeared on the day of sentence and presented a different view of the appropriate penalty to the Court.  Ultimately, whatever the view of the Prosecutor, the sentence was a matter for the primary Judge, not the prosecutor.  The only issue is whether it was manifestly excessive.  The applicant has placed a number of comparable sentences before us.  None of these sentences, many of which are old matters predating the significant amendments to the Penalties and Sentences Act (1992) Qld, demonstrates that the sentence imposed here was manifestly excessive.

The applicant had a shocking record for violence and had committed a large number of serious and violent offences which terrified his victims.  In some instances, there was actual physical contact with the victims whilst the offenders were armed with dangerous weapons.

The applicant of course had a number of factors in his favour.  He was cooperative with the authorities, he surrendered himself and pleaded guilty at an early stage by way of ex officio indictment.  He has had a most unfortunate background and has made genuine efforts to rehabilitate himself which are extremely commendable.

The learned primary Judge took all these factors into account.  Nevertheless the applicant was involved in a series of extremely concerning offences and has a bad history for offences of violence.  The sentence imposed of 10 years' imprisonment was as lenient as it could be in all the circumstances.  Compare, for example, R v Senior [2002] QCA 104; CA No 334 of 2001, 20 March 2002 and R v McDonald [2001] QCA 238; CA No 46 of 2001 of 22 June 2001.

The applicant has not demonstrated that his sentence proceeded in any way unfairly or that the Judge acted on any wrong basis and it is not manifestly excessive.  The application for leave to appeal against sentence should be dismissed.

WILLIAMS JA:  Effectively this is an application for leave to appeal against a sentence of 10 years' imprisonment imposed on each of four counts of armed robbery in company.

Though the applicant is still a young man, he is now aged only 25, he has a bad history of violence, which includes convictions for manslaughter in 1993, aggravated sex assault in 1995 and malicious wounding in 1997.

In all the circumstances, any sentence less than 10 years would have been inadequate.

The application should be refused.

WHITE J:  The applicant has a sense of grievance at perceived mis-statement of the facts by the Prosecutor before the sentencing Judge below.

If it is so, it demonstrates the need for counsel to be particularly careful in stating the details of the offences.  If the facts had been put to the Court as the applicant contends they should have been, in my view the sentence imposed would still have been given, because these were serious violent crimes for the reasons the learned presiding Judge has articulated and I agree that the application should be refused.

THE PRESIDENT:  That is the order of the Court.