R v Gopurenko[2014] QCA 255

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Fraser JA and the order he proposes.

[2] FRASER JA:  On 29 April 2014 the applicant was sentenced to concurrent terms of imprisonment of two years for each of two fraud offences, six years imprisonment for each of three armed robbery offences, and six years imprisonment for a common assault committed in the course of the second armed robbery.  Pre-sentence custody of 403 days between 21 March 2013 and 28 April 2014 was declared to be time served under the sentence.  The sentencing judge fixed a parole eligibility date at 21 March 2015, when (taking into account the pre-sentence custody) the applicant will have served two years imprisonment under those sentences.

[3] The applicant has applied for leave to appeal against sentence on the ground that it is manifestly excessive given issues of totality arising out of a Victorian sentence.  The Victorian sentence was imposed on 23 October 2009.  The applicant was then sentenced to a total period of imprisonment of five years and 11 months, with a minimum non-parole period of four years, for offences of armed robbery, theft, and four counts of obtaining property by deception.  There were 204 days of declared pre-sentence custody.  On 21 March 2013, shortly after the expiry of the non-parole period, the applicant was released on bail.  The fulltime discharge date under the Victorian sentence is 19 February 2015.  The period the applicant was on parole under the Victorian sentence was counted as part of the time served for the Queensland sentences.  The practical effect of the Queensland sentence was to extend the fulltime discharge date under the Victorian sentence by four years to about ten years imprisonment and to extend the minimum custodial period by about two years to about six years imprisonment.

Circumstances of the Victorian offences

[4] The applicant committed the Victorian offences of dishonesty during 2008.  The applicant set up an eBay account.  On 28 separate occasions he listed for sale 28 power tools which did not exist.  One complainant paid him $800 and another complainant paid him $390.  In  a third offence of dishonesty, the applicant hired and took delivery of tools by giving the supplier a false name and falsely stating that he was employed by a named shop fitting business.  The tools, valued at $1,600, were returned but the hirer lost about $2,000 in hire fees.  In a police interview on 6 June 2008 the applicant made full admissions.  He stated that he had no work, had fallen into drug use, and needed the money.

[5] In November 2008 the applicant committed offences of theft and obtaining property by deception.  After his employment with a shop fitter was terminated, he took with him the employer’s purchase order book.  He used it to buy items totalling a little over $2,500.  None of the items were recovered.  The applicant declined to comment to police about these matters.

[6] Shortly after the applicant committed those offences, he moved to Queensland.  He returned to Victoria after committing the Queensland offences. The applicant then, on 19 March 2009, committed the armed robbery offence at a bank branch in Victoria.  No customers were present.  The applicant approached a female teller and pointed a replica 45 calibre handgun at her through a gap in the safety glass on the counter.  Whilst pointing the handgun at the teller the applicant cocked the firearm, pushed a shopping bag along the counter towards the teller, and told her to put money in the bag.  The teller put banknotes totalling $2,820 into the bag.  The applicant pointed the firearm at two other female bank employees in an office behind him and ordered them to stay where they were.  With his back to the teller he told her to put the money in the bag if she wanted to go home that night.  The applicant complained and swore when the teller replied that she had put in all the money she had.  He was arrested four days later.  He declined to comment about this offence at the police interview.

Circumstances of the Queensland offences

[7] The first Queensland count of fraud concerned 15 occasions between late December 2008 and early January 2009 when the applicant used the same purchase order book he had used in Victoria to obtain various items from different Queensland stores.  The total value of those items exceeded $14,000.  The second count of fraud concerned 17 separate occasions between late December 2008 and 23 February 2009 when the applicant borrowed a little over $3,000 by pledging the items at different pawn broker shops.  Police recovered the majority of the pawned items but they were not in their original packages or state.

[8] The applicant committed the three Queensland armed robberies in 2009 on 19 February, 23 February and 4 March at branches of the same bank which the applicant subsequently robbed in Victoria.  He obtained a total of $23,462 from the three Queensland robberies.  In the first and third robberies, the applicant adopted much the same method as that which he used in his subsequent armed robbery in Victoria; he approached a female bank teller, produced a replica handgun, pointed it at the teller, and demanded money.  The second armed robbery followed much the same course except that it was not alleged that the applicant pointed the replica firearm at the teller. In the course of that robbery the applicant pushed a male customer in the back to move him out of the queue and pointed the replica firearm in the direction of that customer (the common assault).  In the first armed robbery, the applicant pointed the replica firearm at the area of the complainant’s throat from a distance of about one metre.  After the applicant left the store the complainant fell to the floor in shock.  She prepared a victim impact statement in which she referred to very serious emotional effects, financial cost, and other adverse consequences of the offence.

[9] The applicant declined to participate in a police interview about his frauds and armed robberies.

The applicant’s personal circumstances

[10] The applicant was 31 years old when he committed the Queensland offences and he was 36 years old when he was sentenced with those offences.  He had a criminal history in Queensland and in Victoria.  Apart from summary offences for which the applicant was fined in 2002, his Queensland criminal history concerned offences committed between 1994 and 1998.  The relevant offences were assault occasioning bodily harm, serious assault or assault with intent to resist arrests, burglary, breaking and entering and stealing, receiving, and false pretences.  Some 35 offences and two separate court appearances, one in the Magistrates Court and the other in the District Court, fell within those categories.  The applicant’s appearance in the district court on 18 February 1998 related to numerous offences he had committed between 1993 and 1997. The applicant was then given concurrent terms of imprisonment, the most severe of which was three years with a recommendation for parole after serving ten months.

[11] The applicant’s Victorian criminal history also included offences of false imprisonment and recklessly causing serious injury in 2000, and burglary and dishonesty offences, for which he was sentenced between 2001 and 2005.  He was given various punishments, including imprisonment, wholly suspended imprisonment and fines.

[12] Psychological reports and other material tendered at the sentence hearing and submissions made for the applicant established that the applicant had a very unfortunate upbringing.  He was sexually abused and become addicted to drugs.  His offences were associated with his drug addiction.  He was diagnosed as having a “post trauma profile” including aspects of a “post-traumatic stress disorder”.  Those diagnoses were submitted to be relevant as explanations of how the applicant became a drug addict.  A letter from the applicant’s mother expressed her belief that the applicant had changed and was remorseful for his actions.  The applicant made substantial efforts at rehabilitation whilst he was incarcerated in Victoria, including by the undertaking of various courses.  Importantly, he tested negative for drug use.

Sentencing remarks

[13] The sentencing judge referred to the seriousness of the armed robbery offences involving the use of a handgun to threaten and frighten staff, the disturbing nature of the offences for the victims, the likely impact upon victims as illustrated in relation to the bank teller who had given a victim impact statement, the total amount obtained by the applicant’s offences, and the applicant’s significant criminal history for property offences and some assaults.  The sentencing judge referred also to the similarity between the Queensland offending and earlier offending in Victoria for which the applicant was sentenced on 12 October 2009.  The sentencing judge accepted that it was necessary to take into account the totality of the punishment imposed by the Victorian and Queensland sentences, but observed that the Queensland offending added very substantially to the applicant’s criminality and the appropriate punishment.  The sentence, including the parole eligibility date, was required to reflect the seriousness of the additional Queensland offences and achieve the necessary deterrent effect.

[14] The sentencing judge referred to the applicant’s efforts at rehabilitation whilst he was incarcerated in Victoria and regarded the applicant’s clear drug screening test results as a “significant circumstance”.  The sentencing judge also referred to the mitigating features that, although the applicant had declined to be interviewed by police, he had sought to have the Victorian sentence transferred to Queensland before he was released on parole so that the Queensland offences could be dealt with more expeditiously, and he entered a timely plea of guilty after he was extradited.

[15] In assessing the totality of the applicant’s offending and his sentences the sentencing judge observed that, acknowledging that it was artificial to consider a notional sentence on the basis of the applicant being sentenced in Queensland for all of the offences as though they were committed in Queensland, upon that basis an appropriate penalty probably would have involved a sentence of not less than ten years imprisonment for the robbery offences alone.  Under such a sentence the applicant would have been required to serve 80 per cent of the term,[1] or at least eight years, in custody before becoming eligible for parole.  The sentencing judge added that this was not a necessary incident of the applicant’s actual situation and that a more flexible approach to fixing the parole eligibility date could be adopted to take into account the significance of the applicant’s efforts in gaining parole in Victoria and to recognise his pleas of guilty to the offences.

Consideration

[16] The sentencing methodology adopted by the sentencing judge reflected the methodology approved in R v Edwards.[2]  An offender with a substantial criminal history, including armed robbery and breaking and entering offences for which he had been sentenced to five years imprisonment, pleaded guilty to two counts of armed robbery.  He robbed a video store and bank whilst armed with a replica pistol, taking a total amount of $10,700.  The prosecution conceded that it would have been difficult to obtain a conviction on the first offence without the offender’s confession.  About three months after committing those offences, the offender robbed a bank in South Australia.  For that robbery he was sentenced in South Australia to imprisonment for five years and four months with a non-parole period of three and a half years.  The offender was subsequently extradited to Queensland.  The sentence imposed in Queensland for the two counts of robbery is not stated, but the reasons indicate that it included a parole eligibility date after three years (making a total of six and a half years before eligibility for release on parole) and that the sentencing judge considered that, if he had been dealing with the offender for all of the matters, he would have sentenced him to something like 12 years imprisonment.  The application for leave to appeal was refused.  Even taking into account the significance of that offender’s prior conviction for armed robbery, Edwards makes it difficult to contend that the applicant’s effective total sentence of ten years imprisonment with a minimum custodial period of six years imprisonment is manifestly excessive for his four armed robbery offences and all of his offences of dishonesty.

[17] The applicant, who appeared for himself in this application, relied upon submissions made by his counsel at sentence which referred in particular to the applicant’s unfortunate upbringing and drug addiction, reports and other material showing that the applicant had made substantial efforts towards rehabilitation from his drug addiction and his offending, the reference written by the applicant’s mother, and also a letter which the applicant had written to the sentencing judge.  All of those relevant matters were taken into account by the sentencing judge.  In particular, the information about the applicant’s progress in rehabilitating himself was taken into account in compliance with the principles discussed in R v L; ex parte Attorney-General,[3] to which the applicant referred.

[18] The applicant contended that, taking into account that he had been in custody and serving his sentence for the Queensland offences since 21 March 2013, the appropriate sentence was five years imprisonment with immediate parole eligibility.  He argued that his sentence was shown to be excessive by comparison with the sentence in R v Brown[4] of nine years imprisonment for eight armed robberies which netted more than $37,000 and in four of which the offender showed the employee a firearm.  That offender had an extensive criminal history over about 21 years.  The case is not comparable, however, because the offender was given credit, not only for his cooperation with police, pleas of guilty to an ex-officio indictment and remorse, but also for assisting in the prosecution of a man who was recruiting people to go on sex tours to Thailand.  Williams JA noted that the sentencing judge had recognised that the offences could attract a serious violent offence declaration but, because of the offender’s personal factors, had concluded that should be as lenient as could be.  The issue on appeal appears to have been merely whether or not the Court should add a recommendation that the application be released after serving three years.  Williams JA observed that to add such a recommendation would make the sentence too lenient.

[19] After referring to the cases in which sentences of 12 years imprisonment had been upheld for the commission of “a number of armed robberies” Williams JA observed that the range was probably “from nine years, the very bottom of the range, to at least 12 years”, and that any sentence of ten years or more would carry with it an automatic declaration that the offence was a serious violent one.  Contrary to what may have been an assumption underlying much of the applicant’s argument about the cited sentencing decisions, those remarks were expressed in terms which exclude any notion that the suggested range of nine to 12 years should be scaled down in other cases in proportion with decreases in the number of armed robberies.

[20] It must also be borne in mind that the sentencing judge was obliged to take into account the two fraud offences (which, as the applicant’s counsel had acknowledged, might attract sentences of up to two years imprisonment) as well as the applicant’s other Victorian offences.  Contrary to a submission made for the applicant at the sentence hearing, it was open to the sentencing judge to include in the head sentence for the armed robberies[5] a cumulative component for the Queensland fraud offences, which were quite different in character than, and separated by a substantial period of time from, the armed robberies.  Brown does not support the applicant’s argument that his sentence is manifestly excessive.

[21] In R v Senior[6] the offender pleaded guilty to three counts of armed robbery, in which the circumstances were similar to the circumstances of the applicant’s four armed robbery offences, and one attempted armed robbery offence.  In the attempt the offender was intercepted by police after he left his car carrying a shortened rifle such as the one he had used in the three armed robbery offences.  That offender had a worse prior criminal history in that on three previous occasions he had been sentenced to imprisonment for armed robbery offences.  His circumstances were otherwise more favourable than the applicant’s in so far as he admitted the offences upon his arrest and cooperated with police.  The sentencing judge accepted that the offences were committed to support a heroin addiction.  This Court set aside an effective sentence of 12 years imprisonment and imposed instead an effective sentence of ten and a half years imprisonment.  Here, the applicant’s effective total sentence of ten years imprisonment, with parole eligibility effectively after about six years (as opposed to about eight years if the effective total sentence had attracted a serious violent offence declaration) reflected all of his offences.  Senior does not indicate that the applicant’s total sentence for four armed robbery offences and other offences is excessive.

[22] The applicant also referred to R v Kapitano,[7] R v Ankers,[8] and R v Herbert.[9]  The essence of the applicant’s argument was that in each case the offender was given either a similar or less severe sentence to that imposed upon the applicant even though the offender had committed more armed robbery offences and had a worse criminal record.  Kapitano does not assist the applicant.  The President with whose reasons McPherson and Davies JJA agreed, held that the offender’s large number of armed robberies, including eight bank robberies, merited a sentence (before taking into account mitigating factors) of about 15 years imprisonment, but the appropriate sentence was 11 years after taking into account the mitigating factors “especially the early plea and the applicant’s very significant cooperation with the authorities…”; The effective term of 13 years imprisonment imposed by the sentencing judge “did not sufficiently give adequate recognition to that cooperation…”.  The reasons also referred to the relevance of s 13A of the Penalties and Sentences Act 1992 (Qld) and to the necessity to close the Court to deal with a separate matter.  So far as can be gleaned from the reasons, a substantial discount was given for that offender’s cooperation with the authorities in matters other than his own role in the offence.  There is no similar mitigating factor in this case.

[23] The offender in Ankers was sentenced to ten years imprisonment for four counts of armed robbery in company and he was given lesser concurrent terms of imprisonment for offences of unlawful use of a motor vehicle with a circumstance of aggravation and wilful damage.  The seriousness of those armed robberies was aggravated by the circumstance that the offender was in company with another man, both were wearing balaclavas, and both were armed (with a large knife in one case and a tomahawk axe in the other case).  That offender’s criminal record, which included many serious and violent offences, was much worse than the applicant’s record.  The applicant is right in submitting that his aggregate sentence appears high in comparison, but the disparity is reduced somewhat by the need to take into account the applicant’s offences of dishonesty and the circumstance that the applicant’s sentence was not affected by a serious violent offence declaration.  More importantly, the decision in Ankers was merely that the sentence was not manifestly excessive.  Furthermore, the President observed that the sentence “was as lenient as it could be in all the circumstances” and compared the more severe sentences imposed in other decisions, including Senior.  The decision in Ankers does not suggest that the applicant’s sentence was manifestly excessive.

[24] In Herbert the offender was sentenced to nine years imprisonment for one armed robbery.  He was not armed with a replica firearm, but with a machete, which he brandished at the manager of a liquor store.  Only $600 in cash and some alcohol and cigarettes were taken.  The offender committed that offence whilst he was at large after having failed to comply with a residential condition of parole granted to him in New South Wales.  In part the explanation for the severity of the sentence lies in that circumstance and in the offender’s criminal record, which included 13 previous convictions for armed robbery.  At the time of sentence the offender was liable to serve a further period of about four years and ten months in New South Wales out of a total sentence which exceeded 15 years imprisonment.  Only “fairly minimal weight”[10] was attributed to the circumstance that the applicant probably would have to serve that outstanding sentence.  This court held that there was no error in that approach in circumstances in which the offender had absconded whilst on parole, was a violent recidivist, and had only meagre prospects of rehabilitation.  Nevertheless, the decision that, for one armed robbery, the sentence of nine years imprisonment in the context of the outstanding New South Wales sentence was not manifestly excessive, supplies no support for the contention that the applicant’s sentence for his three Queensland armed robberies and other offences was manifestly excessive.

[25] The applicant expressed his belief that he would probably be required to serve the whole of the term of the Queensland sentence because he was unlikely to obtain parole.  There is no evidence to support that belief and the applicant does have the benefit of the material which demonstrates the extent of his rehabilitation after he had served the custodial part of the Victorian sentence.  However, whether or not the applicant will be granted parole is a matter which this Court cannot reliably predict.  That is a matter for the parole authorities.

[26] Giving full weight to the applicant’s mitigating circumstances and to the totality of the applicant’s imprisonment, the number and seriousness of his armed robberies and other offending Queensland dictates the conclusion that the sentence is not manifestly excessive.

[27] The applicant informed the Court that he had been unable to obtain confirmation from the Victorian parole authorities that the time he had served under the Queensland sentence would count toward service of the outstanding balance of his Victorian sentence which he was serving on parole.  It therefore should be made clear that the Queensland sentence was imposed upon the basis that time served under the Queensland sentence would amount to time served under the Victorian sentence.  There was no challenge to that proposition at the sentence hearing.  This Court has no evidence which suggest that it is not correct.  Accordingly, the Court necessarily proceeds on the same basis.

Proposed order

[28] The application for leave to appeal against sentence should be refused.

[29] MORRISON JA:  I have read the reasons of Fraser JA and agree with those reasons and the order his Honour proposes.