R v Ryan[2003] QCA 9

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant seeks to re-open an application for leave to appeal against his sentence in 1992 before this Court under s 188 Penalties and Sentences Act 1992 (Qld).  See R v Ryan [1992] QCA 186, unreported, delivered 10th of September 1992.  The applicant contends in his application that he "was wrongly sentenced as the armed offender in an armed robbery due to judicial error" and that this was a clear factual error of substance under s 188(1)(c) Penalties and Sentences Act 1992 (Qld). 

The applicant pleaded guilty to armed robbery in company in the District Court at Brisbane on 22 May 1992.  He was initially sentenced to eight years imprisonment with a recommendation for parole after 20 months.  This sentence was increased to 12 years imprisonment with a recommendation for parole after four years by the Court of Appeal on an Attorney-General's appeal.  The applicant claims that, although he has been aware for some time that he was wrongly sentenced on the basis that he was the person carrying a firearm during the robbery, he was unaware of the provisions of s 188 Penalties and Sentences Act 1992 (Qld) until recently.

The applicant's primary complaint is that when he was sentenced for this offence of armed robbery in company and another 48 count indictment for offences of dishonesty, which included another armed robbery in company, the learned primary Judge stated in his reasons for sentence, "You were one of the men who went into the bank armed with a gun."  This he contends demonstrates that the learned primary Judge sentenced him on the basis that he himself was armed in the bank.  In fact his accomplice inside the bank was armed whilst he took the money; another accomplice Jeffers was driving the getaway car and was also armed and threatened bystanders in the course of the offences.

The Crown's submissions at sentence were relevantly "Ryan was obviously in company, he was one of the more active participants.  By a process of reasoning he must have been one of the two men inside the bank.  There was $4,500-odd taken in the robbery.  It involved the presentation of dangerous weapons to customers and innocent passers-by."  The prosecutor at sentence did not contend that the applicant was himself holding a gun. 

The applicant's barrister at sentence did not make the submission that the applicant whilst in the bank was not carrying a weapon, understandably wishing to say as little about the damning facts as possible and to instead concentrate on the applicant's heroin addiction and youth, to explain his involvement in this and so many other serious offences.

It is common ground that two people entered the bank.  Whilst one interpretation of his Honour's observations in sentencing could be that the applicant went into the bank armed with a gun, there is nothing in his Honour's sentencing remarks to suggest that the fact that the applicant was carrying a gun, and was not unarmed but in company with a co-offender carrying a gun, was an aggravating feature warranting a heavier sentence.

Similarly the Court of Appeal in its reasons for judgment noted, "Two entered the bank with firearms with which they threatened customers and staff and passers-by."  The respondent concedes the Court of Appeal judgment contains two errors, namely that the applicant was not 20 years at the time of the offence but 19, and that only one of the men inside the bank was armed, not both.  But again neither error affected the sentence imposed.  It does not seem that the submission was made on the appeal in 1992 that this applicant was not carrying a firearm, but again the reasons for judgment of the Court of Appeal do not suggest that any mistaken belief that the applicant was himself armed, rather than accompanying another person who was armed, was an aggravating factor responsible for any increase in sentence.  The factors that were responsible for the applicant's increase in sentence were his involvement in this serious offence during which firearms were used to threaten customers, staff and potential witnesses; the applicant's extensive criminal history which included another offence of armed robbery committed only six months earlier and a number of breaches of probation the most recent of which had resulted in a prison sentence; that he was a prison escapee at the time of the commission of the offence; that the robbery was well planned; the emotional trauma to the victims and others present during the commission of such an offence and the need to deter the applicant and others who might commit such armed robberies.  The applicant's youth and early plea of guilty were reflected in this Court's recommendation for eligibility for parole after serving four years.

The applicant has not satisfied me that the sentence at first instance or as increased on appeal was imposed on a clear factual error of substance on this basis. 

The applicant's alternative submission seems to be that the present system pertaining to parole means that he could never have been released after serving four years as recommended by the Court of Appeal and that this constitutes a ground for re-opening under s 188 Penalties and Sentences Act 1992 (Qld).

A difficulty for the applicant in this argument is that the clear factual error must exist at the time of sentence.  Despite his submissions, there is no evidence before this Court to demonstrate that at the time of sentence this applicant was then unable to be released four years hence.  Compare R v McKenzie [2000] QCA 324 [27] and R v D [1999] QCA 486 [3].

Finally the applicant contends that the Court did not take into account that he has been in protective custody because of his assistance to the authorities and this has made the serving of his sentence much more onerous and indeed prohibits placement in medium or low security correctional centres, something ordinarily necessary to progress towards parole.  His material however does not establish that this was the position at sentence or on the appeal in 1992.  It does not seem that this was a factor mentioned at sentence or on appeal.  The difficulty for the applicant is his material simply does not establish that his sentence was decided on a clear factual error of substance when he was sentenced either by the District Court or on appeal to this Court.

Indeed the applicant's own material suggests that the reason he was not considered for parole earlier was because of his attitude and behaviour in prison immediately after his sentence in 1992 and that his current position is the result of his failure to keep all conditions of his release to work program.  The Court of Appeal merely made a recommendation, which, apparently for good reason, the parole board and community correction authorities chose not to act on immediately four years after the sentence.  Compare R v Cassar ex parte Attorney-General [2001] 1 QdR 386.

Other material placed before this Court by the applicant suggests that his real concern is with his failure to secure his release from custody in accordance with the recommendation made by his Court and that his work release program has been cancelled because of breaches by him.  He has tendered a number of favourable reports which seem to support the fact of his rehabilitation, but this is not a matter about which this Court, in this application to re-open a sentence, can assist him.  I would refuse the application to re-open the sentence.

WILLIAMS JA:  In my view the applicant has not established a basis for re-opening the sentence pursuant to s 188 of the Penalties and Sentences Act 1992 (Qld) and I agree with the order proposed.

CULLINANE J:  I also agree.

THE PRESIDENT:  That is the order of the Court.