R v Bourke[2014] QCA 38

SUPREME COURT OF QUEENSLAND

[1] MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by Morrison JA.

[2] FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

[3] MORRISON JA:  This is an application for leave to appeal against a sentence imposed on 23 April 2013.  The applicant was convicted of armed robbery in company, whilst armed with an offensive weapon.  On the applicant’s plea of guilty he was sentenced to four years and six months imprisonment, with a parole eligibility date set at 11 September 2014.  That date took into account 43 days declared as pre-sentence custody.

[4] The applicant seeks to agitate two matters on the proposed appeal.  The first is that his counsel did not accede to his request, on the day of his court hearing, for a short adjournment.  The contention is that some further unspecified documentation could have been produced in support of the applicant on the question of sentence.  As it was, the only document tendered on his behalf was a medical report from his general practitioner.

[5] The second seeks to explain the background to his drug addiction.  In essence he seeks to show that at some unspecified time in the past he was the subject of a violent attack causing physical injury and mental trauma.  The applicant wishes to show that the attack led to his abuse of opiates and subsequent criminal behaviour in funding a spiralling drug habit.

[6] In a more formal sense the application for leave to appeal raises the question of whether the sentence was manifestly excessive in all the circumstances.

Circumstances

[7] An agreed schedule of facts was handed to the learned sentencing judge.  They reveal the nature of the offending, at a level of detail greater than that which follows.

[8] On the day of the robbery a pharmacist and two employees were working at a pharmacy at Bundilla.  At about 9.45 am the pharmacy received a delivery of controlled drugs and other pharmaceuticals, which were immediately placed in the drug safe.  At around 11.40 am the employees were working at the end of the sales counter, unpacking a stock order.  The pharmacist was working in the dispensary located behind and above the store’s service counter.  At that point the applicant and his co-offenders entered the pharmacy.

[9] The offenders ran up the centre aisle, went around the service counter and entered the dispensary.  The applicant wore a black hoodie, with a plain black bandana over his face, and dark sunglasses.  The co-offender had a t-shirt over his face, a dark coloured hoodie and sunglasses.  The applicant held a knife and duffle bag, and the co-offender had an eight inch knife in one hand and a sports bag in the other.

[10] The co-offender directed the pharmacist to open the drug safe, which he did.  The co-offender scooped out the stock in the drug safe, which consisted of morphine based drugs including MS Contin and Oxycontin, into his bag.  The offenders then ran through the storeroom and out the back door.

[11] The wholesale value of the drugs taken was something over $2,000.

[12] In the escape some drugs were dropped at a fence.  The applicant’s fingerprints were found on two packages of those drugs.  That resulted in a search warrant being executed on his residence where various drugs were seized.  On the applicant’s telephone were outgoing text messages from the day of the robbery which revealed a conversation between the applicant and his co-offender, determining when the pharmacy would be clear of customers so that they could enter and conduct the robbery.

[13] Two victim impact statements were provided to the sentencing judge.  The employees suffered a substantial psychological trauma which the sentencing judge rightly characterised as “probably amounting to post-traumatic stress disorder”.[1]  Each of them referred to being distressed and being left anxious and upset.

[14] As for the pharmacist, it was revealed to the sentencing judge that this was the second time that he had been the victim, and he had ceased employment at the Bundilla pharmacy as a result.

[15] The applicant was 39 when he committed this offence.  He had an extensive criminal history which commenced when he was about 18 with a charge of unlawful use of a motor vehicle and stealing.  He had various convictions for drug related offences commencing in 1991 and continuing at regular intervals since that time.  The drug related offences included supplying dangerous drugs and possession of dangerous drugs.  He has also been convicted of other offences including breaking and entering with intent to commit an indictable offence, unauthorised dealing in shop goods, possession of house breaking implements and tainted property, and receiving stolen property.  Such offences continued at regular intervals starting in about 2002.

[16] The learned sentencing judge was provided with the sentencing comments that were made on previous occasions, including 1997, 1999, 2002 and in 2003.  From as early as 1997 the sentencing comments recognised that the applicant was addicted to drugs and that even as a young man he had a history of drug dependence.[2]  In 2002 the comments made by the learned sentencing judge, when he was then dealing with the applicant, included the following:

“… you are of an age now where you really have to choose between complete destruction of your life and your lifestyle, and loss of your liberty and a life without heroin.

…

You have got a lot of responsibilities but you have also got a lot of support.  It is a very unusual scenario to have someone with a serious drug habit who is committing serious property offending not only having the support of obviously [a] very responsible caring woman but also your parents.

…

This is the first significant bout of property offending.  Your criminal history is typical of someone with a drug habit.”[3]

[17] Part of the material provided to the learned sentencing judge included a synopsis of the offences in 2002.  That included several statements that the offences were committed in order to raise money to buy drugs.[4]

[18] On the applicant’s behalf a report from his medical practitioner was tendered to the sentencing judge.  It revealed that the applicant has a chronic back injury related to his past employment.  Due to a combination of back pain and early use of narcotic analgesia, the applicant had developed a high level dependency on Fentanyl patches.  He had a treatment order, with the Drugs of Dependency Unit, to receive that medication regularly.  It also revealed that he was a user of Diazepam for pain due to muscle spasm, and Amitriptyline (an anti-depressant) as a pain modulator.  The report also recorded that the applicant used a very high dose of Fentanyl which would cause sedation and cognitive slowing.[5]

[19] In his sentencing remarks the primary judge accurately detailed the nature of the offending.  He rightly described it as “an audacious armed robbery on a pharmacy at a time when you knew that there would be controlled drugs on the premises”.[6]  His Honour specifically recorded the applicant’s addiction to prescription drugs, the workplace injury sustained some years ago, and the fact that the applicant had become addicted to opioids such as Fentanyl.[7]

[20] The early guilty plea was expressly taken into account as a mitigating factor.  However, what weighed on the sentencing judge was the fact that he could not “overlook the fact that this was a serious example of an armed robbery committed in broad daylight in a public place against a soft target which has caused severe trauma to [the] victims”.[8]

[21] The competing contentions as to the appropriate sentence were not far apart.  On behalf of the prosecutor, it was contended that the appropriate sentence was four and a half to five years imprisonment with a parole eligibility date after approximately one-third of that sentence.  The applicant’s submission, based on an analysis of comparable cases, was that the appropriate sentence was four years with a parole eligibility date set at one-third.

Discussion

[22] In R v Moss[9] this Court considered a sentence of six years imprisonment, with a recommendation for parole after two years, imposed in respect of an armed robbery.  The offender used a knife to threaten an employee working alone late at night.  No disguise was used and the offender was aged about 18.  However, he had a considerable criminal history, most of the offences having been committed when he was a juvenile.  McPherson JA noted the offender’s unfortunate background as part of considering his antecedents.  He went on:

“The problem is, however, that the offence here is a serious one.  It carries a maximum of life imprisonment and comparable sentences to which we have been referred, or to which we have access, suggest a range for a first offence of this kind that is ordinarily between about three and five years.”[10]

[23] The court reduced the sentence in that case to five years, rather than the six imposed.  That reflected the seriousness of the robbery and the fact that it had an adverse affect on the victim, who was serving the community in a vulnerable position.  However, that also reflected the fact that in Moss there was neither use of a disguise nor any evidence of planning.

[24] The applicant’s case is more serious.  The pharmacist and two employees were traumatised, the offence involved planning, a co-offender, and use of disguises.

[25] In R v Apps[11] the offender entered a pharmacy wearing a disguise and carrying a knife.  A variety of drugs was stolen.  The offender was addicted to medication as a consequence of having injured his back in a car accident some years previously.  The applicant had a very extensive criminal history beginning when he was 19.  He was 38 when these latest offences were committed.  Having reviewed a number of comparable cases, including Moss, this Court concluded that a sentence of five years was within range.

[26] One of the comparable cases considered in Apps was that of R v Maxfield.[12]  In that case the sentence was five years with a recommendation for parole after two years.  It involved the robbery of a pharmacy in which the applicant demanded $160, the price of drugs he wished to buy from a dealer.  A weapon was used, but it was an unloaded air pistol.  The applicant was 35 years old, and pleaded guilty and co‑operated with police.  He had a lengthy criminal history but no prior convictions for robbery.  Having reviewed a number of comparable decisions, this Court[13] upheld the sentence as appropriate.

[27] There are a deal of similarities between the applicant’s circumstances and those in Apps, Moss and Maxfield.  This case is somewhat more serious than Moss, and closer in terms of comparability to Apps and Maxfield.  A close consideration of all three decisions demonstrates that the sentence imposed by the learned sentencing judge was not excessive.

[28] The matters that the applicant would seek to raise in the proposed appeal do not persuade me to a different view.  There is no identification of what the extra documentation would be, nor why it would have meant any different outcome was warranted.  Nor is there any satisfactory explanation of why it could not have been produced in time for the hearing.  In oral submissions the applicant also referred to documentation held by his family but he did not produce it.  It seems that it may be references which post-date the sentence, and would therefore be irrelevant on the proposed appeal.

[29] As to the applicant’s second ground, relating to his desire to explain how his drug addiction commenced, I do not consider that it has any particular merit.  In oral submissions the applicant explained the nature of the attack upon him but there are at least two difficulties which confront the submission.  First, there was and is no evidence to prove the facts, and we cannot assume that they would be accepted as true.  Secondly, all they do is give a reason for the applicant’s drug addiction.  The more material fact is the one which the learned sentencing judge took into account, namely that the applicant did have a drug addiction of long standing, and that the addiction was probably the main reason the offence was committed.

[30] The learned sentencing judge was only too well aware of the applicant’s long standing drug addiction and that it was partly sourced in a previous physical injury related to an accident at work.  I do not consider that evidence showing it was related to an attack would materially affect the outcome.

[31] The applicant’s oral submissions also canvassed matters (without proof of the facts or acceptance of them) to do with: his personal history; upheavals in his family, such as his daughter running away; his loss of time and involvement with his family as a result of being incarcerated; his remorse for the offence; speculation as to why he committed the offence (as he contends that he cannot remember the offence or why he committed it); that he has undertaken or is undertaking courses whilst in custody; and plans for when he is released.

[32] None of the matters raised by the applicant affect the outcome of this application.  Many post-date the sentence (such as the remorse and completed courses), others are merely speculation (as to why the offence was committed and what he might have done had the facts been otherwise), and others merely go to explain what the learned sentencing judge already knew and took into account, namely that the applicant’s addiction was the reason behind the offence.  The applicant’s inability to participate fully in family life is simply a product of his incarceration; there is no suggestion that he has been deprived of normal access.

Conclusion

[33] I do not consider that it can be demonstrated that the sentence imposed was manifestly excessive in the circumstances.  Moreover, I do not consider that the points which the applicant seeks to raise have merit in the sense that they would likely result in the sentence being set aside.  Therefore I would refuse the application for leave to appeal.