SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The applicant, S, pleaded guilty in the District Court at Brisbane on 15 May 2009 to seven counts of armed robbery, four counts of unlawful use of a motor vehicle with a circumstance of aggravation, two counts of stealing, one count of breaking and entering premises and one count of arson.

[2] He was sentenced to 11 years imprisonment on each of the armed robbery offences and to lesser concurrent terms of imprisonment on the remaining counts.  He has applied for leave to appeal against his sentence, contending that it is manifestly excessive.  He represented himself in this Court.

The sentencing proceedings

[3] He was 21 at the time of his offending and 22 at sentence.  He had one previous conviction in Queensland for possessing dangerous drugs for which he was fined $350.  He also had a criminal history in New South Wales, principally in the Children's Court.  Most significantly, he was dealt with for two offences of robbery when he was 16 years old.  These robbery offences were unknown to the prosecution at sentence and, unusually, S instructed his experienced counsel to disclose them.

[4] The circumstances of the present offences were set out in a schedule of facts.[1]  On Tuesday, 4 September 2007, a black 2005 BMW two door coupe was stolen.  It had been left with its key in the ignition.  The vehicle was used in an armed robbery of the Lucky Star Tavern, Sunnybank Hills, on 13 September 2007.  Police later located the abandoned vehicle, inside which were a hand gun, a sawn off shot gun and a crow bar, all used in the robbery. 

[5] S subsequently admitted that, with the encouragement of co-offender, M, he stole the black BMW and that he, M and others later used it in the commission of seven robbery offences at various hotels over a four month period.  Each offence was committed in company.  The offenders were either armed with guns or offensive weapons.  The guns were unloaded and inoperable.[2]  S routinely armed himself with a pistol and entered the hotels first.  In total, over $200,000 cash was stolen.  Sometimes the offenders yelled and swore whilst lunging at patrons with tomahawks. 

[6] On two occasions, S and others stole vehicle licence plates. 

[7] On 27 December 2007, S and others stole a red BMW sedan.  This vehicle was used in a second robbery of the Lucky Star Tavern on 16 January 2008 and in the robbery of the MiHi Tavern on 24 January 2008.  It was later found destroyed by fire.

[8] S and others also stole a Nissan Skyline sedan and a white Mitsubishi Evolution GI sedan, new high performance, turbo charged, all wheel drive cars which had not been fitted with registration plates.  The Nissan was subsequently used by S and others in an armed robbery of the Stones Corner Hotel.  It was recovered in November 2007 at a unit complex in Carrara.  The Mitsubishi Evolution, which has not been recovered, was used by S and others in three armed robberies: the Forest Lake Tavern on 22 October 2007; the Dog and Parrot Hotel, Robina on 2 November 2007 and the Burleigh Town Tavern on 13 December 2007. 

[9] A tendered victim impact statement detailed the dramatic and long term personal effect on one victim as a result of S's offending: she was still suffering from post traumatic stress disorder at the time of S's sentence. 

[10] The prosecutor emphasised the high level of sophistication in the commission of these offences and their meticulous planning.  S was a leading member of the gang, always entering the premises first and controlling the commission of the offences.  He obtained tomahawks and machetes for his co-offenders to use.  The offenders used carefully planned techniques to avoid forensic identification, including cleaning the stolen car, removing hairs and fibres with lint rollers, and purchasing and disposing of clothing.  The arson was committed to destroy links between the offences and the offenders.  Stolen cars and stolen licence plates were used to frustrate identification.  The vehicles were parked in visitor carparks at suburban townhouses hidden from view.  The premises were targeted at times when their tills were likely to be full.  The getaway vehicles were parked outside the range of security cameras and getaway routes were carefully planned.  For these reasons, the armed robbery offences were in the worst category of such offences.

[11] The prosecutor also made the following submissions.  When S was injured in the arson offence, he stopped offending and the sophistication levels of the robbery operations diminished.  He was not addicted to drugs but spent his share of the proceeds on luxury items.  He was arrested on some offences after his co-offenders implicated him.  He declined to be interviewed by police.  He had a contested committal hearing at which some victims gave evidence.  Only when implicated in a co-offender's statement did he cooperate with the authorities.  He then agreed to be interviewed, made admissions and provided a s 13A statement.  His co-offender, M, was sentenced to nine years imprisonment with parole eligibility after four and a half years.  The prosecutor ultimately submitted that, taking into account all mitigating features, including the s 13A cooperation, the appropriate effective sentence to reflect all S's offending was 10 years imprisonment with a declaration that the robbery offences were serious violent offences.

[12] S's counsel at sentence made the following submissions.  She emphasised his youth and the solid grounding provided by his mother, a traditional native title owner of Budi Budi Island, Torres Strait, and a qualified teacher working full-time in New South Wales.  After completing year 9, he undertook several TAFE courses before leaving school in grade 10.  He has had issues with drugs since first using cannabis at age 13.  He used heroin and alcohol from 14 years of age.  He had ceased using drugs when he was released from custody in 2008.  For about 12 months, he worked for a consulting structural engineer who provided an excellent reference.  He had formed a positive relationship with a young woman.

[13] Defence counsel tendered excellent references provided on S's behalf from the general manager and an employee of 98.9FM radio, offering him support and training when he is released from prison.  Whilst in custody, S completed a training program in broadcasting (radio) and an Indigenous pre-employment program.  She ultimately submitted that, taking into account all mitigating features, including the s 13A cooperation, a global sentence should be imposed of eight years imprisonment for the robbery offences without a declaration that they were serious violent offences.

[14] In sentencing, the judge noted the very serious aspects of S's offending and the terrible impact on his victims.  Her Honour observed that, in sentencing S, the court must protect the community and bring home to him that his deliberate decision to embark on the life of an armed robber for the prospect of big money and excitement was not worth that calculated risk.  He had volunteered his prior robbery offences as a juvenile.  He clearly had great potential.  He came from a loving home and had the support of a hard working mother.  He was well thought of by others in the community.  His age and his prospects of rehabilitation were relevant but he was 21 years old when he committed these offences.  The sustained and systemic nature of the organised violent large-scale armed robberies overwhelmed the mitigating features.  S had cooperated with the authorities and pleaded guilty, but his full cooperation did not come until he was shown to be implicated in a statement from a co-offender. 

[15] The judge referred to R v PX[3] and R v Brown,[4] where head sentences of 11 years and nine years imprisonment were imposed for a series of robbery offences.  Although the offenders in those cases were older than S and had extensive criminal histories, their offending was not on the scale of S's.  Taking into account the mitigating features and adopting a global approach to all S's offending, the judge determined that a head sentence of 11 years imprisonment was appropriate for the seven offences of armed robbery with lesser concurrent sentences on the remaining offences.

The submissions in this application

[16] The applicant was unrepresented and the Court invited Mr M J Copley SC, who appeared for the respondent, to make his submissions first.  Mr Copley frankly and fairly conceded that the 11 year sentence was manifestly excessive, taking into account M's sentence and S's co-operation.

[17] The applicant emphasised his remorse and his determination to rehabilitate.

Conclusion

[18] The effect of the 11 year sentence is that S, who was 21 when he committed these offences with M over a four month period, must spend 8.8 years in prison before becoming eligible for parole.  His co-offender, M, is a much older man who committed an even greater number of more serious offences over a much longer eight year period, and whose conduct in the offences committed with S was even more reprehensible than S's.  But M will become eligible for parole after serving less than five years in custody, even taking into account M's five months pre-sentence custody which could not be declared as time served under his sentence.  The particulars of M's offending are set out in more detail in the related case of R v HAY.[5]

[19] M's cooperation with the authorities was undoubtedly of greater significance and utility than that of S.  But as Mr Copley SC pointed out, S's cooperation with the authorities, including his s 13A cooperation, was still extensive and appears to be ongoing.  Whilst S made full admissions only after he was implicated by co-offenders, he has since cooperated under s 13A.  Mr Copley informed this Court that S has given evidence for the prosecution at committal hearings in respect of three alleged offenders and may be required to give further evidence in the future.  As this Court observed in HAY,[6] R v SBI,[7] R v Thompson,[8] R v D and Attorney-General of Queensland,[9] R v Gladkowski[10] and R v PX,[11] where, as in S's case, offenders have implicated others and agreed to give evidence, thereby putting themselves at risk of violent retribution whilst incarcerated, a substantial discount to their sentences is required.  The legislature has given recognition to that principle in enacting s 13A. 

[20] Nonetheless, the sentence imposed must reflect the seriousness of the offending conduct.  S's armed robbery in company offences were grave examples of one of the most serious offences against Queensland's criminal laws.  Those offences are likely to have long term detrimental consequences on at least some of the many victims.  As the primary judge recognised, protection of the community and personal and general deterrence are important factors.  But there were mitigating circumstances.  S was a young man with promising prospects of rehabilitation after serving a significant term of imprisonment.  He pleaded guilty and cooperated with the authorities.  Whilst his cooperation under s 13A was not as significant as M's, it was of real worth.  S has given evidence against co-offenders and may be required to give evidence in the future.  He clearly remains at real risk of violent retribution whilst serving the remainder of his sentence.  The 11 year term of imprisonment imposed by the primary judge, a heavier penalty than the 10 years requested by the prosecutor, was manifestly excessive in these circumstances.  This is further evident when S's sentence is compared to the sentence imposed on his co-offender M, whose criminal conduct in these and other offences over an eight year period was even more reprehensible than S's offending over a four month period.

[21] It follows that the application for leave to appeal against sentence must be granted, the appeal allowed and the sentence imposed on the two counts of armed robbery in company with personal violence (counts 3 and 8) and the five counts of armed robbery in company (counts 9, 10, 11, 13 and 14) must be set aside. This court must now re-sentence him, giving proper recognition to all relevant factors, including his s 13A co-operation.  I would impose a sentence of nine and a half years imprisonment, recognising the totality of all his offending.  This is effectively the head sentence imposed on M who served five months pre-sentence custody which was unable to be declared as part of his sentence.  If S is to succeed in his rehabilitation, he will need the benefit of a lengthy period of supervision.  That factor, together with the other mitigating factors including his s 13A cooperation, warrants the setting of a parole eligibility date after he has served about three and a half years imprisonment.  Taking into account his pre-sentence custody, that date should be 1 December 2011.

ORDERS:

1.The application for leave to appeal against sentence is granted.

2.The appeal allowed and the sentences in respect of counts 3, 8, 9, 10, 11, 13 and 14 are set aside. 

3.Instead, a sentence on each of those counts of nine and a half years imprisonment is imposed. 

4.The date at which S is eligible for release on parole is set at 1 December 2011. 

5.The sentence imposed at first instance is otherwise confirmed.

[22] HOLMES JA: I agree with the reasons of McMurdo P and the orders she proposes.

[23] MUIR JA: I agree with the orders proposed by McMurdo P and her reasons.