SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I have had the advantage of reading a draft of reasons for judgment prepared by Jones J.  I agree with his Honour's reasons and the order proposed by his Honour.

[2]  JONES J: The Applicant seeks leave to appeal against sentences of imprisonment imposed for various offences as follows:-

Robbery whilst armed and in company (count 7) 9 years imprisonment

Burglary and stealing (counts 1, 2, 4, 5, 9-19, 22, 23)5 years imprisonment

Burglary (counts 20 and 24)5 years imprisonment

Attempted burglary (count 8)1 year imprisonment

Unlawful use and attempted unlawful use of

a motor vehicle (counts 3, 6)1 year imprisonment

[3] The applicant was sentenced on 8 May 2008 having failed to appear on the three previous occasions on which the matter had been listed for sentence.  The applicant, or his advisors, had indicated as early as 27 June 2007 that he would plead guilty to the offences and he was arraigned on an ex officio indictment.  The sentencing proceeded on the basis of an early plea.

[4] Behind the plea are factors favourable and unfavourable to the applicant.  He has an appalling criminal history commencing when he was 17 years of age.  The subject offences were committed when he was aged between 26-29 years.  His criminal history details many convictions for offences of dishonesty – stealing, breaking and entering, unauthorised dealing with shop goods, possession of tainted property, unlawful use of motor vehicles.  For these offences he has been punished by probation orders, varying terms of imprisonment, some initially suspended but then activated.  He has also been convicted of offences of assault and serious assault.  The most significant of these, as referred to by the learned primary judge, concerned a struggle with a police officer during which, the applicant removed the officer’s gun from its holster and aimed it at the officer and threatened to kill him.  For this offending the applicant was sentenced on 26 May 2000 to four years imprisonment.  At that same time he had cleared up a number of outstanding charges against him – two other counts of serious assault, two counts of stealing, two counts of entering premises with intent and breaches of suspended sentence.  All the penalties imposed were served concurrently with the four year term of imprisonment for the serious assault.

[5] Between late 2003 and March 2004 the applicant committed another batch of offences – three counts of unlawful use of a motor vehicle, two counts of unlawful entry of a motor vehicle, one count of stealing, one count of unauthorised dealing with shop goods, one count of unlawful damage, two counts of common assault and one count of obstructing a police officer.  For all of these offences he was sentenced to 12 months imprisonment to be served by way of an Intensive Correction Order.  The report of his compliance with that order was exhibit 2 at the primary hearing.[1]  The author of the report was not aware that some 16 of the offences to which this application relates were committed during the currency of that Intensive Correction Order.  The first of these occurred on 23 November 2004 – six days after the making of the order.  The others, including the offence of armed robbery on 23 January 2005, occurred at regular intervals thereafter.

[6] I should refer to the circumstances whereby this large number of subject offences came to be dealt with on the one indictment, with the consequential imposition of concurrent terms of imprisonment.  On 5 March 2006 police officers intercepted a red Ford Fairmont sedan in which the applicant was travelling.  That vehicle had been associated with a house breaking and stealing offence committed on the previous day.  The applicant admitted that he was the person who committed the offence (count 22).  The value of the property stolen on that occasion was $12,160.  He was arrested and placed on bail.

[7] On 19 April 2006 police officers questioned the applicant about a burglary and stealing carried out on 16 April 2006 during which a safe was carried out of a house and the applicant being one of the two male persons who unsuccessfully attempted to carry the safe away and who then left the area in the same red vehicle (count 23).

[8] He was next spoken to by police officers on the evening of 24 April 2006 when, having been apprehended at a Redcliffe address, he agreed to take part in a drive around, electronically recorded interview with police officers.  He identified various residences in which he had committed the offences detailed in counts 4, 11, 12, 16, 17 and 20.  His bail was continued in respect of those offences. 

[9] Notwithstanding this level of police attention in the previous month, on 23 May 2006 the applicant in company with another person broke and entered a residence at Bracken Ridge setting off a security alarm.  That residence is not far from the address where the applicant was then living.  Police attended his residence at 3.20 that afternoon and he agreed to be interviewed at the police station.  He said he wished to clear up outstanding matters and agreed to take part in another drive around electronic interview directing police to various residences where he had committed offences, those he identified on this occasion were the 11 offences the subject of counts 2, 5, 8, 9, 10, 13, 14, 15, 18, 19 and 21.

[10]  Next, on 7 March 2007 police received advice that the DNA found on a hat left at the scene of an armed robbery on 3 January 2005 matched that of the applicant.  He agreed to accompany police officers to the Boondall Police Station and in a recorded interview admitted his part in the armed robbery (count 7) and the unlawful use of the motor vehicle used in connection with it (count 6).

[11]  Finally, on 2 September 2007 police officers again contacted the applicant, having now realised that his DNA matched a sample taken from the vehicle which he had attempted to steal on 17 August 2004 (count 3).  The applicant had not revealed earlier his involvement in this offence, even though he was injured in his effort to steal the vehicle and still bears a scar.

[12]  At the primary hearing the prosecution contended for a head sentence in the range of 7-9 years imprisonment.  Counsel then appearing for the applicant did not demur with that submission.[2]  The cases referred as supporting this conclusion were R v Shipman[3] and R v Jayasuria[4].  Each of these cases had differing features to those relevant to the applicant’s case.  It could not be expected that cases could be found which would entirely match all relevant features.  To take account of the applicant’s plea of guilty and his cooperation with the police, an eligibility for parole date was fixed at three years, some one and a half years earlier than would otherwise be the case.

[13]  Before this Court the applicant submits that the sentences were manifestly excessive because no allowance was made by the learned primary judge for –

(i) The applicant’s plea to an ex officio indictment;

(ii) The applicant’s extensive cooperation in making admissions; and

(iii) The fact that all but three of the offences would not have been proven but for the admission.

[14]  The applicant also submits that his Honour sentenced on an incorrect factual version about one aspect of the armed robbery offence and did not give the defence the opportunity to make submissions on the version adopted.

[15]  I should deal immediately with this latter point.  The applicant fell to be sentenced on an agreed statement of facts (ex 3) which described the offence of armed robbery (count 7) as having occurred on the evening of Sunday, 23 January 2005.  The applicant and his two co-offenders were approached by a disgruntled employee of Sandgate Fisherman’s Co-op who suggested that they rob the outlet.  This was a retail business which had traded over the weekend and it was expected therefore that the money would not have been banked.  The employee explained the layout of the store and gave the applicant a map to show where to find the safe.  The plan was to rob the outlet after it closed but before the premises were locked up so that the safe would still be unlocked.  The applicant and his associates drove in a stolen motor vehicle to the premises and disguised themselves by wrapping shirts around their heads.  The applicant carried a tyre lever and his co-offenders carried other weapons including a baseball bat.  One of the co-offenders asked one of the shop assistants to open the till, when this was not done it was smashed with a baseball bat.  Another shop assistant was at the back of the premises and on seeing the intrusion of the applicant and his co-offenders collected her mobile phone and retreated to a cubicle in the female toilets where she locked herself in and made an emergency call to the police.  In regard to this development the defendant stated that “when he could not force the door to the toilet open to get the female out, he went to the safe and took a bag of money that consisted of coins and $5 notes”.  He then left the store.[5]

[16]  The complaint made by the female shop assistant, which is included in the agreed statement of facts, was that “while she was locked inside the toilet, the defendant attempted to open the toilet door using the tyre lever, however he was unable to open it”.  At the sentence hearing the learned Crown Prosecutor made a statement which appears to have been sourced from the Victim Impact Statement of this complainant.  He said, “the prisoner attempted to gain entry to that toilet by using a tyre lever to wrench open the door and was squashing the complainant but he was unable to force her out”.[6]  The text of the complainant’s remarks spoke of her experience of  “having the robber pry open the door with a crowbar, pushing on the door, squashing me between the door and the wall, while trying to get in to me and then trying to hit me with the crow bar by putting his arm in and waving it around”.[7]

[17]  Neither counsel below made any particular reference to the circumstances of the threat to the complainant.  The prosecutor simply asserted that the applicant had, “sought to threaten and harass an innocent victim who was hiding in the toilets”.  The additional remarks made by his Honour referred to the complainant’s claim that, “she received injuries to her ribs and significant emotional consequences”.

[18]  Counsel for the applicant referred to the obiter dicta remarks of Fryberg J in R v Singh[8] who cautioned reliance upon Victim Impact Statements, “if they contain material damaging to the accused which is neither self evidently correct nor known to the accused to be correct”.[9]  The remarks state an obvious proposition but commonly sentencing judges make reference to the impact the defendant’s offending has had on complainants and properly do so in the absence of any challenge from the defendant.  In this instance no challenge was raised to the minor factual variation as to whether the applicant succeeded in releasing the door from its lock by the use of the tyre lever as opposed to opening it fully to have access to the complainant.  His Honour’s remarks were not such a departure from the agreed facts as to distort the basis upon which the sentence for this offence proceeded.

[19]  Coming then to the question of whether sufficient allowance was made for the matters favourable to the applicant.  The most significant claim for reduction in penalty relates to the applicant’s cooperation in admitting his involvement in crime for which the police had no evidence of his involvement.  In this regard the applicant relies particularly on the statement of Hayne J in AB v The Queen[10] who said (at para [113]):-

“An offender who confesses to a crime is generally to be treated more leniently than the offender who does not. And an offender who brings to the notice of the authorities criminal conduct that was not previously known, and confesses to that conduct, is generally to be treated more leniently than the offender who pleads guilty to offences that were known. Leniency is extended to both offenders for various reasons. By confessing, an offender may exhibit remorse or contrition. An offender who pleads guilty saves the community the costs of a trial.”

[20]  The extent to which the applicant’s conduct shows remorse on his part may be open to question.  On the first drive by confession on 24 April 2006 when he was clearly implicated in a burglary committed shortly before that date he confessed to five other offences,  but significantly not the armed robbery which occurred in January 2005.  This concession did not indicate a change in his ways because in the next month he committed the further offence which led to the second drive by interview on 23 May 2006.  Again, there was no reference to the armed robbery.  His connection with that most serious offence was not established by his admission but by the presence of his DNA at the crime scene.  That applies also to the offence of attempting to steal a motor vehicle on 17 August 2004.  Whilst some concession of course must be made for his plea of guilty to the offence of armed robbery and particularly as it was on an ex officio indictment, this is not a case where the higher claim for leniency needs to be considered.  The applicant is well experienced in the ways of the criminal justice system and the likelihood of the imposition of concurrent sentences.  He has, in the past, and again in the subject sentencing received an extraordinary advantage from this practice.  It is a relevant consideration for a sentencing judge to consider the number of offences where the penalties imposed will not involve extra time in prison.

[21]  The applicant, additionally to the cases placed before the learned primary judge and mentioned above, relied upon the decision of R v Perry[11].  This was also a case of armed robbery in company coupled with a number of other offences set out in three separate indictments.  The other offences included six counts of burglary, four counts of stealing, five counts of fraud or attempted fraud.  The sentence imposed for armed robbery was five and a half years with parole eligibility after two years and this sentence was not altered by the Court of Appeal.  The other penalties did not result in extra time being served.  The circumstances of the robbery involved the offender and his wife visiting the wife’s former boyfriend to claim $400 said to be owing to the wife.  The offender was armed with a piece of hard plastic piping.  He stole a small stereo which he returned a few days later but when he also exchanged a smaller TV for a large one.  The context of this offending relating to a marital break-up bears no comparison with the criminality of the applicant’s offending with which this Court is concerned.

[22]  In R v Shipman[12] the offender pleaded guilty to eight offences including one count of armed robbery.  For this offence and for one count of dangerous operation of a motor vehicle he was sentenced to six year imprisonment with eligibility for parole after two years.  The sentence had to be varied in respect of the motor vehicle offence but was not disturbed in respect of the armed robbery.  Though the offender was of a similar age to the applicant but with a lesser criminal record which was largely attributed to his alcoholism.  The robbery was the hold up of an attendant at a convenience store where the co-offender was armed with a tyre lever.  The applicant’s role was as a look-out.  The case is of limited guidance to the penalty which the applicant’s offending merited.

[23]  In R v Jayasuria[13] the offender aged 22-23 years committed a spate of offences including two counts of armed robbery one count of attempted armed robbery, robbery with personal violence and a series of burglaries and motor vehicle offences.  He pleaded guilty.  He had previously had the benefit of a suspended sentence in respect of some burglary offences.  As a result of the new offending the suspended sentence was activated and cumulative terms of three years was imposed for the armed robbery and a further cumulative six year term imposed for the robbery with violence.  The overall effect of the sentence was therefore for nine years and nine months.  The prosecution had contended for a range of nine years to 11 years.  The offender had a deprived upbringing, was a drug addict and had a significant prior criminal history.  The sentence was not disturbed on appeal. 

[24]  Having regard to the applicant’s past criminal offending, the fact that he has consistently offended whilst having the benefit of an Intensive Correction Order and whilst on bail and even whilst being interviewed by police in respect of earlier offences I have grave concerns whether the applicant has any prospects of rehabilitation.  A sentence which provided for significant personal deterrence was therefore called for as well as one which provided some protection for the community.  The learned primary judge properly identified five purposes for imposing the sentence he did.  Foremost among these in my view was the protection of the community.  By fixing a parole eligibility date one and a half years earlier than normal and by allowing such a number of penalties to be served concurrently makes adequate allowance for his pleas of guilty and the cooperation which he has shown to the police.  The long period on parole was appropriate for the protection of the community.  It has not been shown that the sentence was manifestly excessive.

[25]  I would dismiss the application.

[26]  ATKINSON J: I agree that the application for leave to appeal against sentence should be refused for the reasons given by Jones J.