R v White[2012] QCA 115

 SUPREME COURT OF QUEENSLAND

MUIR JA:  The applicant was sentenced, after pleading guilty to robbery with personal violence, to five years imprisonment with a parole eligibility fixed at 22 August 2012; a date 20 months from the expiry of a sentence upon which the five year term was made cumulative.  111 days spent in pre-sentence custody between 21 December 2010 and 10 April 2011 were declared time already served under the sentence.

The applicant was 46 years of age at the time of the commission of the offence.  A psychologist's report dated 7 April 2011, obtained for the purposes of sentencing, recorded that testing performed by the psychologist "reveals a rather low IQ and a poor capacity to deal with and learn new material".  The psychologist recorded also that he was informed by the applicant that he suffered recurring severe depression, he had Down syndrome and had suffered two serious head injuries.  There was no medical evidence to support any of these assertions.

The sentencing judge expressed scepticism about the Down syndrome claim, drawing attention to the applicant's employment history.  The applicant's counsel accepted that the applicant was "an unreliable historian" and did not contradict the sentencing judge's assertion that "there was absolutely no basis" for the applicant's claim to have Down syndrome.

The applicant had an extensive criminal history which included convictions for similar offences.  It is sufficient for present purposes to refer to three instances of the applicant's offending.  He was sentenced to two years and six months imprisonment on 4 February 1993 for two offences of attempted armed robbery, one with actual violence, assault occasioning bodily harm and two counts of wilful damage in connection with his attempt to rob two elderly priests of money and a diary.  In the course of the offending, he had assaulted both men, knocking them to the ground.

On 7 December 1995, the applicant was convicted of stealing with actual violence and sentenced to four years imprisonment in respect of an incident in which he assaulted an elderly man in the toilet of a city hotel and stole his wallet.  The complainant sustained injuries to both arms which required suturing, as well as injuries to both legs.

On 2 October 2002, the applicant was sentenced to five years and six months imprisonment for robbery with actual violence.  He punched the complainant, who was a passenger in his car, stole his wallet and left him by the roadside.  At the same time, the applicant was sentenced to five and a half year terms of imprisonment for assaulting a caretaker of the hostel and assaulting a 52 year old man by kicking him, grabbing his neck and forcing his head into a wall.

The offence the subject of this application occurred within two and a half months of the applicant's release from custody and while he was subject to parole in respect of an offence of common assault of which he was convicted on 21 May 2010.

The complainant was a 71 year old man who suffered from Parkinson's disease.  Walking home from a hotel at night, he was approached by the applicant who had met him at a TAB that day.  The applicant pushed the complainant to the ground, demanded his wallet, extracted it from the complainant's pants pocket and fled.

The applicant pleaded guilty on 17 February 2011 and the sentence was adjourned to enable a psychologist's report to be obtained.  The applicant was sentenced on 11 April 2011.  A notice of application for leave to appeal against sentence was filed on the applicant's behalf on 13 April 2011.  A notice of abandonment of the application was filed on 27 July 2011.  On 26 August 2011, the applicant signed a notice of application for extension of time within which to appeal against sentence, but it was not filed until 20 March 2012.

Under rule 69 of the Criminal Practice Rules 1999, the Court may set aside an abandonment of an application for leave to appeal if it considers it necessary in the interests of justice.

The authorities to which this Court was referred by counsel for the respondent, R v Mallon [1997] QCA 58, R v Mickelo [1995] QCA 468 and R v Blake [2010] QCA 272, suggest that, notwithstanding the applicant's criminal history, a sentence of five years imprisonment for an offence of robbery with personal violence, where the actual violence was minimal and the value of the property taken was very small, is high.  However, the applicant re-offended when on parole in respect of a conviction for assault and his past conduct demonstrated a need for a sentence which would achieve the ends of personal deterrence and community protection.

The applicant provided a précis of a number of sentences imposed in respect of common assaults, an offence for which the maximum penalty is three years imprisonment.  The maximum penalty for the subject offence is life imprisonment.  Those sentences, therefore, offered little guidance as to the sentence which was appropriate for the subject offence.

The applicant has not provided any explanation of, let alone justification for, his delay in making his application for leave to appeal.  Nor has he explained the circumstances of the abandonment of the earlier application.

His outline of argument indicates that on the hearing of his appeal he intends to rely on matters which are unsubstantiated by any sworn or credible evidence: his psychiatric state; his remorse; his depressive condition; judicial bias; and lack of suitable medical or psychiatric treatment in prison.

If an application for an extension of time is to be made later by the applicant with a view to relying on such matters, it would be necessary for him to put evidence before the Court in relation to those matters in an appropriate form.

In the circumstances, the applicant has not shown that it would be in the interests of justice to set aside the abandonment or to grant the application for an extension of time within which to appeal against sentence.  I would order, therefore, that the application be refused.

FRYBERG J:  I agree.  I would add only that, at the time of the offence, the applicant was not only on parole but also was on probation.

MARTIN J:  I agree.