R v Quinn[2003] QCA 336

SUPREME COURT OF QUEENSLAND

HOLMES J:  This is an application for leave to appeal against a sentence of nine years' imprisonment for armed robbery in company with violence on the ground that it is manifestly excessive.

The applicant pleaded guilty to the count on the 13th of December 2002.  The sentence was ordered, as section 156A of the Penalties and Sentences Act required, to be served cumulatively upon an existing sentence for armed robbery.

That was a sentence of six years' and six months' imprisonment of which the applicant had served a period, taking into account nine months prior to his sentencing and 11 months on parole in the community, of about five years and four months. 

At the time of the sentence which is under consideration by this Court, he had some 13 months remaining on the prior sentence.

In respect of the sentence presently being considered, 578 days presentence custody was declared as time already served.  This sentence was reopened on the 30th of May 2003 because the learned sentencing Judge had omitted to make a fresh recommendation for parole and also because there was some question about a cumulative sentence in relation to a drug offence which, it seems clear, was in fact not in issue.  That time must have already been served.

The learned sentencing Judge, at any rate, ordered that the applicant serve four and a half years' imprisonment from the expiration of the deprivation of liberty for all previous convictions.  In fact, it is only the single armed robbery conviction which is of relevance.

Five hundred and seventy-eight days presentence custody remains declared as time already served under that sentence and it is clear that the applicant is entitled to credit for it.

To give some detail as to the offence in question before this Court, on the 14th of May 2001 the applicant and a co-offender, Darren Bryzac, also known as "Capitano", held up a suburban credit union branch in business hours. Bryzac was wearing a baseball cap and was armed with a toy pistol, which looked like a handgun, and the applicant was wearing a balaclava and had a 30 centimetre knife.

Bryzac pointed the pistol at the teller and demanded money.  The applicant pushed a female customer out of the way and pointed the knife at her.  Nine thousand dollars was stolen. 

The applicant and Bryzac attempted to escape on a motorbike.  The bike crashed.  Bryzac was captured near the scene and the money recovered.  The applicant was found at his house.  He did not take part in any record of interview with the police.

The applicant was 42 years of age when sentenced.  He had a history of heroin addiction reflected in a criminal history which included two previous sentences for armed robbery; a six year sentence imposed in 1982 and the other I have already referred to. 

This offence, now before the Court for consideration, was committed while he was on parole for that earlier armed robbery.  According to a psychologist's report tendered on the applicant's behalf at sentence, this offence occurred during a relapse into addiction under the pressure of a threat of deportation.  The applicant had, prior to that, been through a period of abstinence during which he had the care of this three children, all under the age of 10, who had previously been fostered.

The plea of guilty was a timely one and followed a full hand-up committal.  The learned sentencing Judge took into account the early plea of guilty, that the robbery was committed while the applicant was on parole for an earlier robbery, the applicant's extensive criminal history which included similar offences, his history of heroin addiction, the stress of the attempts to deport him and the need for deterrence.

The co-offender, Bryzac, was sentenced to 13 years' imprisonment, reduced on appeal to 11 years, for 13 robberies and 16 property offences.  The applicant says that his sentence, by comparison with that of Bryzac, is excessive.

However, Bryzac was not on parole at the time he committed the offences.  They  seem to have occurred as a five week spree of offending.  He had no previous criminal history for serious offences of violence and he had supplied information to police.  It is also to be noted that the 11 year sentence meant that he was a serious violent offender, so that he had 80 per cent of it to serve before eligibility for parole.

A number of features of this case are strikingly similar to those in The Queen v. Irving [2001] QCA 472.  It involved an armed robbery committed on parole by a long-term heroin addict who was under particular stress at the time who pleaded guilty.  The applicant there was likewise sentenced to nine years' imprisonment which, when added to the balance to be served of his earlier sentence, would produce a head term of about 11 years.  The Court concluded that the sentence was nevertheless not excessive.

Similarly, the sentence in this case seems to me within the range for such a serious offence committed, as it was, on parole and in the context of prior like offences.  I would dismiss the application for leave to appeal.

THE PRESIDENT:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The application for leave to appeal is dismissed.