SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Chesterman J and I agree with all that he has said therein and with the orders he has proposed.

[2]  JONES J: I agree with the reasons expressed by Chesterman J and with the orders he proposes.

[3]  CHESTERMAN J:  On 26 February 1988 the applicant was convicted of manslaughter and sentenced to 14 years’ imprisonment.  He was released on parole on 24 February 1995, having served half the sentence.  Between 6 March 1995 and 13 May 1995 the applicant committed a number of criminal offences to which he later pleaded guilty.  They were:

• Possessing an instrument with intent to commit an indictable offence
• Stealing
• Unlawful use of a motor vehicle for the purpose of facilitating the commission of an indictable offence
• Attempted armed robbery
• Five counts of breaking and entering with intent
• Arson
• Wilfully damaging property
• Three counts of breaking, entering and stealing
• Three counts of attempted arson
• Two counts of attempted breaking and entering with intent.

[4] For these offences the applicant was sentenced to varying terms of imprisonment on 26 March 1996 in the District Court.  The count of arson and the three counts of attempted arson were the most serious offences.  For these the applicant was sentenced to a term of seven years’ imprisonment.  For the other offences he was sentenced to periods of imprisonment between six months and four years.  All of the sentences were ordered to be served concurrently, and concurrently with the balance of the term of 14 years’ imprisonment imposed for manslaughter.  The applicant’s parole, of course, had been cancelled by reason of his convictions in the District Court.  The sentencing judge recommended that the applicant be eligible for release on parole on 26 March 1998.  He had been arrested on 15 May 1995 and returned to custody.

[5] The Attorney-General appealed against the order making the sentences imposed concurrent with the sentence imposed for manslaughter.  On 21 June 1996 this Court allowed the appeal on the ground that it ‘was plainly a case in which a cumulative sentence should have been imposed to ensure that the respondent received, and is seen to have received, an additional sentence for these offences.’  The Court said it:

‘would not disturb the learned sentencing Judge’s declaration that 315 days … served in custody be imprisonment already served under the present sentences.  This would have the effect of adding to the … full time release date a term of approximately 6 years 1½ months.

The mid point of the total term of imprisonment which … [the applicant] would now be required to serve, would be a little over ten years from 26 February 1988; that is about March 1998.’

The Court therefore expressly refused to interfere with the recommendation made by the District Court judge that the applicant be eligible for parole on 26 March 1998.

[6] The applicant was not released in accordance with the recommendation.  On 25 June 2002 he was given parole on the condition that he attend and reside at the Salvation Army’s drug rehabilitation centre at Moonyah in Red Hill.  The applicant did so and successfully completed stages 1, 2 and 3 of the course.  He had hoped to remain at Moonyah for a further six months to complete stage 4 which apparently involved greater freedom and a requirement that the applicant exercise more personal responsibility for his behaviour.  His request to remain at Moonyah to complete stage 4 was rejected by the Community Corrections Board.  Instead on 4 February 2003 he was transferred to a release to work program.  This meant that he left Moonyah and took up residence at Western Brisbane Community Correction Centre, secure accommodation which had been a former prison building, at Wacol.  He was released each work day morning but had to return to the accommodation in the evening and he stayed there on weekends.  He had enjoyed more freedom at Moonyah where he had part time employment and was given weekend leave to join his family.  He had no such privilege on the release to work program.  That lasted, however, only until 19 May 2003 when he was released on home detention.  On 4 September 2003 he was released on parole.

[7] Unhappily the applicant re-offended.  On 23 and 25 January 2004 the applicant committed three armed robberies.  The first was a robbery of a florist at Greenslopes.  A 27 year old shop assistant was confronted by the applicant who pointed a pistol at her face and demanded money.  He rejected the first amount offered and insisted that he be given a larger sum.  He left with about $250, having compelled the shop assistant to disable the telephone.

[8] A few hours later the applicant robbed a discount retail store at Woolloongabba.  Again he pointed a pistol at the face of the woman shop assistant and demanded that she open the till.  He left with about $400.

[9] Two days later the applicant robbed a convenience store at Highgate Hill.  Again he was armed with a pistol which he appeared to cock before pointing it at the male shop assistant’s head.  He abused the shop assistant, made him lie on the floor and made off with about $600.

[10]  The applicant was apprehended not long after the third robbery.  He co-operated fully with the police and made full admissions.  Indeed he confessed to the first two robberies of which he was not suspected.  The applicant explained that the weapon he had used was a replica gun although it was not found.

[11]  The applicant was returned to custody on 26 January 2004.  His parole was cancelled with effect from 4 December 2003.  On 9 July 2004 he pleaded guilty in the District Court to three counts of armed robbery and was sentenced on each to a term of seven years’ imprisonment to be served concurrently with each other but cumulatively on the term of imprisonment he was then serving.  The end result is that the applicant’s full time release date will be 19 December 2013, by which time he will have spent about 26 years in prison.  He was born on 14 August 1967 and is now 37.

[12]  In passing sentence the learned judge said:

‘[The robberies] must have been terrifying … for [the shop assistants] … . …You were on parole at the time … which compounds the difficulty in imposing sentence here.  You have a serious criminal history … . …

…

I accept that your rehabilitation faced some setback because you were moved from the Moonyah Rehabilitation Centre back into a secure environment but … you again became involved with heroin and, as you later told the police, your heroin addiction was the cause of these offences.  …  [Y]our previous history of breaches of parole would seem to indicate that you have little chance of achieving parole in the future. 

… [A]ny sentence I impose today must be imposed cumulatively on your present sentences. …  I accept from the material … from the Salvation Army that there is some prospect of rehabilitation in your case … . … Any sentence … should not have a crushing impact upon you. 

An additional factor that needs to be taken into account is your co-operation … . …[Y]ou volunteered your involvement in the two earlier armed robberies.  …  You should be given additional recognition in relation to that.  You have also pleaded guilty by way of an ex officio indictment.

Considering the nature of the armed robberies and the comparable sentences placed before me and your history, and particularly noting that these offences occurred whilst you were on parole, I am of the view that a head sentence in the vicinity of 10 years is appro-        riate … .  … I intend to reduce that sentence to recognise the factors … in your favour.   … 

… [T]he declaration [that the offences were serious violent offences] becomes a matter for my discretion.  In the circumstances, I am not persuaded that it is appropriate to make the declaration.  …  [T]hat is an additional recognition to you which … is … significant … .’

[13]  The learned judge’s analysis of the circumstances of the offences, the circumstances personal to the applicant and the applicable principles of sentencing were all correct.  The sentences imposed had to be cumulative on the earlier sentences:  s 156A(2) of the Penalties and Sentences Act 1992 (Qld).

[14]  The applicant takes issue with the sentences of seven years and submitted that the imprisonment imposed should have been between four and a half years and six years.  I will examine the basis for that submission shortly but it should be said that the sentences imposed cannot be criticised, given the nature and seriousness of the offences, and the circumstances described by the sentencing judge.  The comparable cases to which we were referred show that the sentences of seven years were appropriate.

[15]  The applicant had two complaints.  The first is that his criminal history, a copy of which became Exhibit 1, shows that he was sentenced to eight months imprisonment, to be served cumulatively on the 14 years imposed in February 1988, for taking part in a prison riot at Rockhampton on 2 December 1987.  The applicant points out that he has never been incarcerated in Rockhampton and that he has no such conviction.  The Crown accepts that the entry is wrong though it contends that the applicant was convicted of a similar offence on the same day in Brisbane and sentenced to four months’ imprisonment.  The applicant disputes this and informed the Court that though he was charged with that offence he was not convicted of it.  The charge was either withdrawn or the conviction was overturned on appeal.  He points out that the calculation of his full time release dates is inconsistent with his having been sentenced to terms of either eight months or four months cumulatively on the earlier sentence.

[16]  The applicant’s point is that this conviction was referred to by the learned sentencing judge when rehearsing the applicant’s criminal history.

[17]  I am prepared to accept the applicant’s contention and to find that he was not convicted of taking part in a jail riot.  The point, however, has no consequence.  It is apparent from the remarks of the sentencing judge that this offence did not affect the overall imposition of penalty.  It was not given particular significance but mentioned only as part of the applicant’s criminal history.

[18]  The applicant’s major complaint was levelled at the Community Corrections Board which decided that he should leave Moonyah and return to the Western Brisbane Community Correctional Centre from which he went to work.  He complains that the decision took him from the supportive and friendly environment of Moonyah where he was progressing well on the path to rehabilitation and returned him to the company of criminals and a dispiriting atmosphere of criminality and doubt.  The applicant described the situation in his written outline:

‘I was excelling at the rehabilitation centre and had already completed the first three phases of their programme and had signed on to do the fourth and final 6 month stage of the programme where I was offered a job within the very confines of that therapeutic environment and could continue to build my support networks and deal with my ongoing issues … .  … [I]nexplicably the parole board … without my knowledge … decided to send me to the same environment which I had asked to … avoid … placing me in a counterproductive environment … where I was not only ostracised and belittled by other inmates … but … removed … from all my supports and strategies that were being implemented to keep me abstinent from substances.  This placed a great deal of stress upon me and my young family and stopped me from accessing the supports that were helping me to remain abstinent.’

The submission concludes:

‘I believe the range should have been from 5 to 8 years before making a significant reduction for my co-operation and early ex-officio plea resulting in a sentence between 4½ years to 6 years to be served after completing previous sentence or even 5 years suspended after 3 or 4 years to ensure I can get back to Moonyah.’

[19]  There is some support in the material for the applicant’s complaint.  The Salvation Army officers responsible for the rehabilitation programs at Moonyah recommended that the applicant complete stage 4 of the program and suggested to the Community Corrections Board that the applicant should remain at Moonyah.  Captain Davies warned that placing the applicant ‘in a release to work program would be counterproductive to the opportunities available to him here at the Salvation Army.’  The Board was also given references indicating that the applicant’s rehabilitation had made substantial progress during the earlier stages of the program.

[20]  Whether the applicant’s sense of grievance against the decision of the Community Corrections Board is legitimate is not for this Court to say.  The appeal is not from the decision of the Board which has not, of course, explained its reasons for the decision.  The other point to make is that the applicant did successfully complete the release to work program and successfully negotiated his period of home detention.  He was given parole on 4 September 2003 and did not offend till late in January 2004, almost a year after he left Moonyah.  On and from 4 September 2003 he was living with his fiancée and their children.  He was not without support in his struggle to overcome addiction to heroin and he appears to have resisted it at least for a year.  Moreover it must be said from the applicant’s history that his prospects of rehabilitation are fragile and even had he remained at Moonyah rather than being transferred to secure accommodation he may still have relapsed.

[21]  Despite the very long time the applicant is required to spend in jail it cannot be said that the sentences imposed for the armed robberies are excessive.  Nevertheless one hopes that the applicant would not have to spend a further nine years in prison.  He will be eligible for parole on 9 January 2009, that being the midway point of the period of imprisonment which commences 26 January 2004 and ends 19 December 2013.  The sentencing judge did not make a recommendation for parole, no doubt because his Honour thought, as he said, that, given the applicant’s history, there is no prospect he would again be released prior to the completion of his sentences.  His Honour was not obliged to make a recommendation because the earlier recommendation made on 26 March 1996, for release on 26 March 1998, had expired and the parole which the applicant had enjoyed had been cancelled by reason of his convictions in July this year (s 151 of the Corrective Services Act 2000 (Qld)).  This appears to be the consequence of the decision in R v McCormick [1999] QCA 354.

[22]  Notwithstanding these considerations the applicant should be given some prospect of an early release to encourage him to pursue rehabilitation and to avoid a lifetime of recidivism when he is eventually released.  No doubt he will need appropriate supervision and encouragement when he is released.  Accordingly I would give leave to appeal and allow the appeal only to the extent of adding a recommendation that the applicant be considered for a post-prison community based release order on 9 January 2009.