R v Cole[2016] QCA 307

SUPREME COURT OF QUEENSLAND

1. HOLMES CJ:  I agree with the reasons of Peter Lyons J and the orders he proposes.
2. PHILIPPIDES JA:  I have had the advantage of reading the reasons for judgment of Peter Lyons J.  I agree with those reasons and the orders proposed by his Honour.
3. PETER LYONS J:  On 3 December 2015 the applicant was sentenced to a term of imprisonment of nine years, consequent on his conviction by a jury on a count of armed robbery, committed on 8 January 2015.  The applicant’s parole eligibility date was fixed at 21 December 2020.  This application commenced as an application for an extension of time within which to apply for leave to appeal against sentence.  At the hearing of the application, an extension of time was granted, and directions were made for the provision of further submissions and authorities in relation to the applicant’s application for leave to appeal against the sentence.

The offending conduct

4. The applicant entered a bank, while in possession of a replica or toy gun, though no one saw this in the course of the robbery.^[1]  He demanded money from a young teller, and managed to take nearly $10,000.  He made a threat to shoot someone, though the person to whom this threat was directed was unclear.^[2]  However, the teller fainted, and was traumatised.
5. The applicant had taken measures to hide his identity, wearing gloves, a cap, big glasses, and clothing to hide his tattoos.  After the robbery he disposed of the glasses and shoes.  He also, as the sentencing Judge described it, attempted to launder the money.  Much of it was not recovered.^[3]

Antecedents and criminal history

6. The applicant was born on 5 October 1981.  He was 33 years of age at the time of the offence; and 34 when sentenced.
7. The unchallenged sentencing remarks record that the applicant had suffered a “disadvantaged and tragic early life” and that, as a child, he began living on the streets.  He also had a diagnosis of post-traumatic stress disorder; and drug addictions that trace back to his early difficulties.  He had developed an amphetamine habit.
8. The applicant has an extensive criminal history in New South Wales and Queensland.  It dates back to about 1993, when the applicant was about 11 years of age.  At the sentence below, the prosecutor calculated that the applicant had been before the criminal courts in New South Wales some 35 times, and had been sentenced to imprisonment on numerous occasions.  Many of the offences might be described as property offences.  However they include some assaults.  In February 1999, the applicant committed an offence of robbery while armed with a dangerous weapon, in New South Wales, for which he was, after an appeal, sentenced to some 16 months of community service.  As I read the applicant’s criminal history from that State, it would appear that a wholly suspended term of imprisonment of nine months was imposed in November 2000, for offences including a stealing offence committed in 1998.  The applicant was again taken into custody on 13 July 2005, and, on 26 September 2005, was sentenced for a number of offences.  Terms of imprisonment were imposed, the longest being 18 months, from the date when he was taken into custody.  In November 2006, he was sentenced to nine months’ imprisonment for driving whilst disqualified (this term commenced in March of 2006).  At the same time, he was sentenced to a term of imprisonment of four years, with a non-parole period of two years, for breaking and entering a building and stealing property with a value less than $15,000.  In March 2008, he was sentenced to a term of imprisonment of six months (commencing 1 December 2008) for escaping from custody; and to a term of three months (to commence in May 2009) for an offence of breaking and entering a house, and stealing property with a value less than $15,000.  In July 2010, he was sentenced to a term of imprisonment of 18 months (commencing on 30 August 2009) for stalking, harassing or intimidating a law officer.  These sentences suggest that the applicant was in custody in New South Wales for much of the time between July 2005 and the end of 2009.  His property offences, over the years, at times involved amounts and property of not insignificant value.
9. The applicant also had a criminal history in Queensland, with numerous offences.  In 2001 he was sentenced to a term of 24 months imprisonment, to be suspended after 12 months.  In 2002 he was sentenced to a six month term of imprisonment to be served concurrently with the 2001 sentence.  In 2004 he was sentenced to a term of imprisonment of three years.  Again, much of his offending might be described as property offending.
10. Of some significance in this application is a conviction for a robbery committed on 25 September 2011 in Queensland.  The applicant was sentenced for this offence on 15 August 2012, to a term of imprisonment of four years and six months, with a declaration that a period of 178 days in pre-sentence custody be declared as time already served.  His parole eligibility date was 20 August 2013.
11. It is at this point convenient to give an account of the applicant’s time in custody from 2012.

Applicant’s time in custody

12. The applicant was taken into custody on 20 February 2012 for the robbery committed in September 2011.  He was released on parole on 5 November 2014.^[4]  The applicant was returned to custody on 13 January 2015, some five days after the present offence.  His parole was suspended on that day for a period of 28 days, and it was suspended indefinitely on 28 January 2015.^[5]  The applicant has remained in custody since that time.  It will be apparent that the applicant has been in custody continuously since 20 February 2012, save for a period of a little over two months around the time of the present offence.

Sentencing proceedings

13. After the jury’s verdict, the applicant’s Counsel informed the Court that he had only recently received the sentencing remarks from the sentence imposed in August 2012, and a letter from Prison Mental Health, recording that the applicant had a diagnosis of post-traumatic stress disorder and depression.  He also drew attention to a statement in the August 2012 sentencing remarks that the applicant had “significant mental health issues”.^[6]  He sought some time before the sentence proceeded.
14. The sentence was stood down for about an hour.  No application was then made for an adjournment.  The prosecutor tendered the applicant’s criminal history for Queensland and for New South Wales, together with sentencing remarks from 2004, and from the sentence in August 2012.  The prosecutor also tendered a pre-sentence custody certificate, submitting that the applicant had been held in pre-sentence custody from 13 January 2015, for a period of 10 months and 20 days.  The sentencing Judge appears to have regarded this time as time which was subject to the provisions of s 159A of the Penalties and Sentences Act 1992 (Qld) (PSA).^[7]  The prosecutor also tendered a victim impact statement, and referred to a number of authorities.
15. The applicant’s Counsel pointed to some features said to distinguish the present case from others referred to.  He also referred to the applicant’s “fairly tragic upbringing” and limited education.  He tendered the report from Prison Mental Health of 1 December 2015, which recorded the diagnosis of post-traumatic stress disorder and depression; and that the applicant was undergoing counselling.
16. At that point, the sentencing Judge raised a question, as follows^[8]:-

“… my question is the application of the calculation of ten years’ imprisonment for serious violent offence under section 161C.  Even – and my question is does a sentence imposed today, even if not made cumulative on the other, effectively it would be cumulative on a large proportion of the previous – the pre-existing sentence because it’s almost finished, whether the term of – the period of imprisonment for section – subsection (2) of section 161C is simply the sentence imposed today or the sentence imposed today together with the pre-existing sentence, that is, the continuous period of imprisonment.”

17. The question plainly related to the August 2012 sentence.  The applicant’s Counsel was unable to respond.  He then referred to the applicant having completed a number of programmes whilst in prison.  He said that in 2006, the applicant suffered a “speed-induced heart attack”, resulting in him overcoming his drug addiction, though he again lapsed into drug use prior to the current offence.  He also submitted that the applicant had attempted suicide on a couple of occasions at a young age, and had engaged in self-harm.  He submitted that a head sentence of “something like seven or eight years” would be warranted;^[9] and that the applicant should not be declared to be a serious violent offender.
18. The sentencing Judge was not referred to s 156A of the PSA, which required the sentence which she would impose to be cumulative on the sentence imposed in August 2012.
19. In her sentencing remarks, the sentencing Judge referred to the fact that the applicant had not co-operated with the administration of justice, beyond admissions which shortened the trial by perhaps a day or two; nor had he shown remorse.  She referred to his disadvantaged and tragic early life; his age; and his long criminal history.  She noted that previous Courts had considered the issue of the applicant’s mental health, referring to his depression and post-traumatic stress disorder.  She noted that no claim had been made that he was mentally impaired at the time of the current offence, though he had commenced treatment for these conditions a month after his arrest.  She described the offence as “a single, but serious robbery”.  She described it as showing “nothing of the disorganisation commonly demonstrated by offenders who are intoxicated or psychotic”.  She referred to the effects on bank staff, the need for condemnation of the offending, and for protection of the community, as well as for deterrence.  She accepted that no one saw the gun in the robbery, but recorded that the applicant had threatened to shoot someone before fleeing.  She also referred to the applicant’s attempt to launder the money.  She stated that a sentence of up to 10 years’ imprisonment might be appropriate, but considered it relevant that the applicant had spent “almost 11 months on remand”.^[10]  She considered this period to be “not just referrable to the robbery, but also attributable to the board’s suspension of (the applicant’s) parole for the pre-existing sentence”.  She concluded that that period could not be declared to be time served under the sentence, but considered that it, and the fact that another year remained of the sentence imposed in August 2012, were matters to which she should have regard.
20. The sentencing Judge continued, “It is for that reason I am fixing your sentence today at nine years imprisonment.  It will run from today.  … you are sentenced to nine years imprisonment.”  She fixed the parole eligibility date as 21 December 2020.
21. The sentencing Judge also stated, “In combination with the pre-existing sentence, the total period of imprisonment is now 13 and a half years for the two robberies.”  She also observed, “Considerations of totality are moderated by your release on parole and commission of the last robbery during the head sentence”.^[11]  In subsequent discussion, her Honour said of the parole eligibility date, “… it adds four years and four months on to the discharge date.”^[12]
22. As a consequence of the sentence imposed, the minimum period for which the applicant will be in prison from his return to custody on 13 January 2015 is about five years and eleven months.  If then released, he will have been in custody for eight years and 10 months, continuously save for about two months around the time of the robbery in January 2015.  If the sentence imposed at first instance commenced on 3 December 2015, he could (if parole is not granted) be in prison continuously for a period of almost nine years and eleven months; and for a period of 12 years and nine and a half months from February 2012, save for the period of two months, just mentioned.  These periods would, obviously, be longer by about nine and a half months, if the sentence commenced on the completion of the sentence imposed in August 2012.

Contentions on application for leave

23. At the hearing, the applicant referred to his Counsel having asked for “time for an adjournment to prepare for sentencing” but it was said that only an hour was allowed, which was insufficient.^[13]  He contended that his sentence was excessive, the comparable cases referred to by the prosecution not being very similar, and submitted that there were comparable sentences for more serious offending.  The fact that he did not have those cases available on that occasion led to the directions previously referred to.
24. As a consequence of those directions, the applicant provided an analysis of a number of cases.  They were R v Richardson;^[14] R v Coglan;^[15] R v Jamieson;^[16] R v Woods;^[17] R v Abraham;^[18] R v Dawson;^[19] R v Fulton;^[20] R v Kapitano;^[21] R v Lemmo;^[22] R v Lotoaniui^[23] and R v Gwilliams and Fish.^[24]
25. In written submissions provided prior to the hearing, the respondent contended that the sentence was consistent with R v Irving.^[25]  Subsequently, in support of the sentence, the respondent relied on R v Brown;^[26] R v Coleman;^[27] and R v Kengike.^[28]

Was the sentence in accordance with s 156A of the PSA?

26. The effect of this section is that, if a sentence of nine years’ imprisonment were imposed for the current offence, it would commence after the completion of the sentence imposed on 15 August 2012.  In view of the time spent in pre-sentence custody, that sentence expired on 20 August 2016.  A sentence of nine years for the present offence would then expire on 20 August 2025.
27. The respondent has provided a document described as “sentence calculation sheets” obtained on 17 June 2016 from Capricornia Correctional Centre.^[29]  The document records the applicant’s sentence as 13 years and six months, said to have been commenced on 15 August 2012, with a full time release date of 17 September 2025.  It records a sentence of 18 months imprisonment imposed on the applicant on 7 April 2016 “for an offence committed whilst on Parole”.  The parole eligibility date remained unchanged.^[30]  The full time release date appears to result from the (incorrect)^[31] premise that the period when the applicant was at large on parole was not time served under the sentence imposed in August 2012.^[32]  Otherwise it reflects a view that the sentence imposed at first instance was cumulative on the sentence imposed in August 2012.
28. There are inconsistencies in the sentencing Judge’s description of the sentence which she imposed.  On the one hand, she twice described it as a period of nine years’ imprisonment running from the date of the sentence.^[33]  On the other, she referred to a total period of imprisonment of 13 and a half years, a result of the nine year term commencing on the expiry of the sentence imposed in August 2012.  The contrast which her Honour drew between the calculation of the parole eligibility date, from the expiry of the sentence imposed in August 2012, and the sentence which her Honour imposed in December 2015, supports the view that her Honour intended the term of nine years to commence on the day when she imposed the sentence.^[34]  No reference was made to s 156A of the PSA.  Her Honour’s question in the course of the sentencing submissions suggests that she considered that it was not necessary to impose a sentence which was cumulative on the sentence imposed in August 2012.^[35]
29. Notwithstanding the reference by the sentencing Judge to a total period of imprisonment of 13 and a half years, it seems to me that her Honour intended to impose a term of imprisonment which would expire nine years from the date on which she sentenced the applicant.  Her Honour made clear statements to that effect.  She intended to make some allowance for the period of approximately 11 months during which the applicant had been in custody prior to that sentence.  She also intended to give effect to the principle of totality.
30. To give effect to the intention of the learned sentencing Judge, and to comply with s 156A of the PSA, the sentence imposed should have been for a term less than nine years, cumulative on the sentence imposed in August 2015.  However the sentence which the learned sentencing Judge imposed, being a sentence of nine years commencing on the date of sentence, was not consistent with the requirements of s 156A of the PSA, and accordingly was not imposed according to law.

The adjournment question

31. When the sentencing proceeding was stood down, the applicant’s Counsel had the opportunity to take instructions from the applicant about the offence the subject of the August 2012 sentence.  He also had the opportunity to consider matters relating to the applicant’s mental health.  In the course of the sentence, the applicant’s Counsel tendered the letter from Prison Mental Health.  He made no application for an adjournment.  In those circumstances, there is no basis for contending that some error occurred in the course of the sentencing proceedings, because they were not adjourned.

Other sentences

32. Irving involved a sentence of nine years for armed robbery of a bank.  The defendant held a sawn-off semi-automatic rifle which was used to menace two tellers and a customer.  The gun was pointed at several people in the course of the robbery.  The gun was not loaded.  One of the tellers was very distressed by the experience, and a customer suffered a traumatic reaction.  The amount of money stolen was $2,700, which had not been returned.  The offence involved a degree of planning.  The defendant pleaded guilty to the offence.  He was 38 years of age, and a long term heroin addict.  He co-operated extensively with the administration of justice.  The defendant had an extensive criminal history, and the robbery was committed while he was on parole for a similar offence of which he was convicted in November 1997.  On that occasion he was sentenced to a term of imprisonment of six years.  He had been released on parole on 9 July 1999, about 18 months before the later robbery.  He had an almost continuous history of offences since 1974 and had served many prison sentences of varying lengths.  The sentence of nine years was cumulative on the balance of the sentence imposed in November 1997, of which about four years had been served by the time of the sentence.  Thus the total time which the defendant faced in prison from the time of sentence was approximately 11 years; and of the November 1997 sentence, the defendant would appear to have spent two years in custody, and 18 months at large on parole, before committing the later robbery.  The sentence of nine years was held not to be manifestly excessive, though the Court accepted that the sentence might have been moderated.  While the judgment was otherwise silent about parole eligibility, it made clear that this defendant’s offending was not to be regarded as a serious violent offence.  He was thus eligible for parole after serving 50 per cent of the total of the terms imposed;^[36] that is, in May 2005, which was about four years after his most recent return to custody.
33. In Brown, a sentence of six years was imposed on the defendant on his plea of guilty to the offence of armed robbery with personal violence.  The robbery occurred at a post office.  The defendant had covered his face, and was holding a toy plastic gun, when he demanded money from the employees.  There was a struggle, resulting in the defendant fleeing the scene.  The defendant was 39 years of age at the time of the offence and had a long history of offending, including 11 or more armed robberies.  However, before the current offence he had been substantially free of offending for 10 years, evidence of an effort to rehabilitate himself, with some success.  He was regarded as showing real remorse, and had favourable references.  McPherson JA considered that, notwithstanding the mitigating factors, the sentence was “at the lower, if not the lowest, level of the range …” which had been referred to by the defendant’s Counsel; and his Honour described the sentence as “well within the range”.  Thomas JA would have imposed a lesser sentence, but did not consider that the sentence was manifestly excessive.
34. In Kengike the defendant had pleaded guilty on 3 September 2012 to one count of armed robbery in company with personal violence.  He had entered a 7-Eleven store in company with another male.  Having grabbed the relatively small store attendant by the shirt with one hand, he held a pair of scissors, with the blade open, with the other.  He then demanded that the attendant open the cash register.  He stole a sum of $200.  He was 27 years of age at the time of this offence.  The offence had breached the terms of a suspended sentence of six months for the unlawful use of a motor vehicle.  This defendant was said to have a bad criminal history, commencing in 1998.  He had been sentenced in November 2006 for two robberies with actual violence when armed and in company.  The effective sentence on that occasion was about two years and seven months, and the defendant was released on parole on the day of sentence.  In October 2007, he had been sentenced to four years’ imprisonment for another robbery with actual violence when armed and in company.  He committed further offences whilst in custody.  The current offence was committed on 10 December 2011, 12 days after he had been released on parole, with the result that he was required to serve the balance of the then current sentences, a period of about 14 months.  The term imposed for the current robbery was cumulative on those sentences.  A sentence of six and a half years, with a parole eligibility date about two years and five months after sentence, was described as “quite high” but not held to be manifestly excessive.  In the result, the defendant’s total term of imprisonment from 2007 was 10 and a half years; with a parole eligibility date some seven and a half years into this period; and 12 days at large before then, at the time when the offence was committed.
35. The defendant in Coleman had pleaded guilty to one count of armed robbery, committed while he was on parole for an armed robbery committed some four years previously.  For the earlier offence he had been sentenced to a period of six years’ imprisonment, with a parole eligibility date a little under two years from the commencement of the sentence.  The later offence involved a robbery at a Dan Murphy’s liquor store, the applicant claiming to have a gun.  He stole a sum of $460.  The defendant had a lengthy criminal history which included some periods of imprisonment.  He suffered from a bipolar disorder.  He had been raped at the Arthur Gorrie Correctional Centre.  He had a history of amphetamine and heroin use.  He was 50 years of age at the time of the offending.  It was held that the totality principle should be applied.  The result of the offending was that the defendant would serve all but one year, seven months and 21 days of the 2011 sentence, as well as the sentence for the second robbery.  There having been an error in the sentencing process, the Court resentenced him, to a term of three years and six months cumulative on the earlier sentence; with a parole eligibility date after about five years and nine months of the total period in prison had been completed.  Before that, he had been at large for an unknown period, but no longer than about 19 months.
36. In Richardson, the defendant had been found guilty by a jury of one count of robbery whilst pretending to be armed with a firearm, and in company, committed on 20 September 2007.  He was sentenced in March 2010 for that offence, and for another offence of armed robbery committed on 31 December 2007, to which he pleaded guilty.  A term of imprisonment of four years was then imposed for the December 2007 robbery; and a term of five years, to be served cumulatively, for the September 2007 robbery.  The robbery committed in September 2007 was declared to be a serious violent offence.  That had the consequence that the defendant was not eligible to apply for parole until serving six years of the total period of nine years in prison.  The defendant was also sentenced to lesser, concurrent terms of imprisonment for other offences.
37. The defendant was 28 years of age at the time of the 2007 robberies.  He was on parole at the time of each of these offences, and was returned to custody (it would seem for about a month) until the earlier sentences were completed on 8 February 2008.  From July 2001, he had been in and out of custody, the most recent period in custody prior to these robberies being from September 2006 to August 2007.  His criminal history included like offences in the past.  In the course of the September 2007 robbery, the defendant had held something in a plastic bag to the side of the head of a staff member, yelling, “Get the fuck down. I’m going to blow your fucken head off.”  He had committed an earlier robbery offence; as well an offence of aggravated stealing from the person and inflicting actual bodily harm, the latter attracting a sentence of four and a half years.  The defendant had pleaded guilty to the December 2007 offence, on an ex officio indictment.
38. On appeal, the defendant was resentenced, effectively^[37] to terms of eight years’ and seven years’ imprisonment for the two robberies, to be served concurrently.  These sentences took into account a period of pre-sentence custody of about six months, which could not be declared.  The defendant became eligible for parole after four years in custody, effectively from the commencement of the sentences.  White JA (with whom the other members of the Court agreed), said,^[38]

“The authorities to which I have referred would suggest a head sentence of eight to nine years without a serious violent offence declaration for two robberies without gratuitous violence by an offender with a significant criminal history, where there was the added aggravation of bail and parole breaches and the positive factor of an early plea”.

39. The defendant in Woods was convicted by a jury of the armed robbery of a hotel, stealing an amount of a little under $35,000; as well as two counts of deprivation of liberty; and one count of break and enter with intent.  The offending included pointing a gun with a threat to shoot.  He had earlier been convicted for the offence of conspiracy to steal with actual violence whilst armed with a dangerous weapon (the plan was to use a sawn-off shot gun and sawn-off rifle to rob a hotel), and had committed some other offences, but his criminal history was less extensive than the present applicant’s.  Mr Woods was sentenced for an unrelated offence of false pretences, to which he had pleaded guilty, when sentenced for the offence relating to the robbery.  He was 31 and 33 years of age at the time of this offending.  The sentence of eight years reflected the defendant’s overall criminality in relation to the offences at the hotel, as well as the false pretences offence.  The sentence was held to be within range for the offence, taking into account all of the defendant’s offending conduct.
40. An application for leave to appeal against sentence in Coglan was unsuccessful.  The defendant had been convicted of armed robbery in company with violence.  He was sentenced to a term of imprisonment of three years.  However he was 19 years of age at the time of the offence, had a mental condition, and was not the actual perpetrator of the violence.  The offence involved robbing a convenience store and stealing $415 in cash.  The applicant was on probation at the time.
41. The defendant in Jamieson had been convicted by a jury of an offence of armed robbery in company, and of the unlawful use of a motor vehicle with a circumstance of aggravation.  The offence involved entering a bank and menacing a customer and bank staff while armed with a gun.  The defendant and his accomplice stole more than $13,000.  They then drove away in a motor vehicle which they had previously stolen.  The defendant was sentenced on 28 March 2006 to a term of seven years’ imprisonment for the robbery, and a concurrent term of three years for the offence involving the motor vehicle.  He was said to have been on remand for 10 months before sentence.  Since this period also related to a drug offence, it would appear that it was not deemed time served under the sentence; but it is not clear that it was taken into account in relation to the robbery offence.  The defendant had been 32 years of age at the time of the offence.  He had a conviction in 1992 for armed robbery, for which he had also been sentenced to a term of seven years’ imprisonment, and had spent other time in custody.  The sentence was held not to be manifestly excessive.
42. For the purpose of a comparison with the present case, it is relevant to note that in Jamieson’s case, of the period of approximately 14 years prior to the sentence, that defendant had been in custody for nine years.  In particular, he had been in custody for about five years continuously prior to the sentence, much of it being time he was required to serve for the 1992 offence.  No parole eligibility date was fixed, so that he became eligible for parole three years and six months after the sentence, or eight years and six months after the commencement of his most recent period of imprisonment.  The offending which gave rise to the sentences which led to these periods of imprisonment were the armed robbery for which he had been sentenced in February 1992, an escape from lawful custody in September 1993 which led to a sentence of 18 months imprisonment; and a drug offence which led to the cancellation of his parole in 1998, though he remained at large for another three years.  From 1992, he would therefore have been required to spend at least 12 and a half years in custody before he became eligible for parole, and from his most recent return to custody, a period of eight and a half years.
43. In Kapitano, the defendant had been sentenced to an effective term of imprisonment of 13 years, with the result that he was deemed to have been convicted of a serious violent offence, and so required to serve 80 per cent of the sentence before he became eligible for parole.  The offending included 10 counts of armed robbery, two counts of attempted armed robbery, two counts of armed robbery in company, and one count of dangerous operation of a motor vehicle with a circumstance of aggravation, committed in a period of about five weeks.  The defendant used a replica pistol, and threatened his victims.  On two occasions he was accompanied by a person who, on one occasion, had a knife, and, on the other occasion, an iron bar.  The proceeds from the robberies amounted to $25,749.  The defendant was captured shortly after the last offence.  He then co-operated extensively with the administration of justice.  The defendant had a lengthy criminal history, with sentences including imprisonment on two occasions.  The offending had had traumatic and long term effects on staff at the places that the robberies occurred.  The Court considered that the applicable sentence before any discount for mitigating factors was about 15 years’ imprisonment, but because of the mitigating factors a sentence of 11 years was appropriate, the offences being declared to be serious violent offences.
44. Dawson was an application for leave to appeal against a number of concurrent sentences of imprisonment, the longest of which was for a term of eight and a half years, accompanied by a declaration that the defendant had been convicted of serious violent offences.  The offences included seven offences of burglary and stealing, five offences of armed robbery, one offence of armed robbery with personal violence, and two offences of attempted armed robbery.  When carrying out the burglaries, the defendant stole property with a value of $38,434; and from the robberies, the defendant obtained an additional amount of approximately $3,000.  In the course of the robberies, the defendant’s usual practice was to produce a knife and demand money.  They were carried out at convenience stores and the like, and, when successful would result in the defendant getting an amount of some hundreds of dollars.  There was no prospect of recovering the stolen property.  The robberies were committed while the defendant was on bail for the burglary offences; and all of the offences were committed during the operational period of a suspended sentence.  Although there were no victim impact statements, the Court considered that the robbery offences were likely to have caused terror to the staff of the businesses.  The defendant was 29 years of age at the time of the offending, and was opioid dependant.  He had an extensive prior criminal history with a prior sentence of imprisonment wholly suspended, and sentences of imprisonment on separate occasions for terms of four years with a parole recommendation after 15 months, and three years suspended after nine months.  The defendant had co-operated with authorities, was remorseful, and had pleaded early to the indictment, one at least of which was an ex officio indictment.  The sentences were held not to be manifestly excessive.
45. The utility of the decision in Gwilliams and Fish for the present application may be seen sufficiently from matters relevant to the sentence imposed on Mr Fish.  He pleaded guilty to a series of offences including one count of armed robbery and two counts of armed robbery in company, committed over a period of about 14 months.  He was 34 and 35 years of age at the time of the offending.  He had a lengthy criminal history, and had previously been sentenced to a term of four years’ imprisonment for an assault and a large number of property offences.  He was placed on an intensive drug rehabilitation order in 2009, and was then sentenced to a term of three years’ imprisonment wholly suspended under the Drug Court Act 2000 (Qld) for various property offences.  The offences the subject of the application were committed during the period of the drug rehabilitation order.  He was sentenced to concurrent terms of imprisonment, the longest being eight years for the robbery offences; and the offences of armed robbery in company were declared to be serious violent offences.  Like that of his co-offender, his criminal history was said to be “appalling”; and both offenders were drug addicts.  In a number of the offences, including the robberies, he used a replica hand gun to threaten staff.  In one of the robberies, Mr Fish carried a replica pistol, and Ms Gwilliams carried a long knife, with which she approached a female staff member who was eight months pregnant.  This woman provided a victim impact statement which referred to the gravely detrimental impact the offence had had on her life.  The proceeds of this robbery amounted to $30,000.  Both defendants pleaded guilty to the offences, and had co-operated with the administration of justice by participating in records of interview.  Mr Fish had spent 203 days in pre-sentence custody, which could not be declared as time already served.
46. The Court held that the sentence of eight years’ imprisonment, reflecting the large number and great variety of the offending, was within range, even taking into account mitigating features.  These were the pleas of guilty, co-operation with the administration of justice, admissions in records of interview, difficulties in Mr Fish’s early life, and his drug addiction.
47. In Abraham, the defendant had, in effect, been sentenced to concurrent terms of imprisonment of eight years on four counts of armed robbery, with a fixed parole eligibility date.  There were other terms of imprisonment for lesser offences.  He had pleaded guilty to some of these offences on an earlier occasion; and to the armed robbery counts and the remainder of the offences when a retrial was about to commence.  These offences were committed in breach of an earlier suspended sentence.  The sentences which I have mentioned were to be served cumulatively on the twelve months’ suspended sentence.  There being about three years and nine months of pre-sentence custody, the parole eligibility date was some five years and 10 months into the total period of nine years’ imprisonment resulting from the sentences.  On the occasion of two of the armed robberies, an accomplice of the applicant was armed with a revolver.  On each occasion, the applicant and his accomplice threatened serious personal harm to staff and customers of the premises which they robbed.  The applicant was said to have a very lengthy criminal history for all kinds of dishonesty, drug use and some violence.
48. The defendant in Lotoaniui had pleaded guilty on 20 September 2012 to a total of 23 counts on two indictments.  Amongst them were a count of armed robbery in company with personal violence, two counts of armed robbery in company, and eight counts of armed robbery, for which he was sentenced at first instance to terms of 10 years’ imprisonment.  He was sentenced to lesser, concurrent terms for other offences.  The offences were committed in a period of approximately three weeks, and some six weeks after the applicant had been released on parole.  That occurred as the result of the imposition of a sentence of three years’ imprisonment for an assortment of property offences, with an order for his release on parole two months into that term.  The sentences imposed were thus cumulative on the earlier sentence.  That had the consequence that the defendant would serve almost 12 years after his arrest on 20 September 2011 before their completion; and he was eligible to apply for parole after almost eight years and four months in custody.  The defendant was 27 years of age at the time of the robberies.  He had an extensive criminal history in Queensland and New South Wales, with a number of sentences including terms of imprisonment.  The robberies were generally of convenience stores and other small business, involving threats with a knife.  Not all were successful, and the amounts stolen were generally moderate, the largest being $1,780.  The defendant was a heroin addict.  On appeal, the sentences were varied, resulting in a sentence of eight and a half years’ imprisonment cumulative on the earlier sentence.  This was said to have the effect that the defendant’s fulltime discharge date would be reached some 10 and a half years after his arrest on the current charges, and a period of seven years after his arrest would pass before he would be eligible for parole, all of the armed robbery offences being declared to be serious violent offences.  The judgment included a review of several decisions involving sentences for armed robbery.
49. The defendant who applied for leave to appeal against sentence in Lemmo had pleaded guilty to offences committed between 20 May and 16 July 2009.  These included seven counts of armed robbery, three counts of armed robbery with personal violence, one count of armed robbery with wounding, and one count of attempted armed robbery.  He had also pleaded guilty to a further seven counts of armed robbery committed between 10 June and 2 August 2011.  Shortly after the first period of offending, he was held in custody for 513 days, and then released on bail.  The second period of offending thus occurred whilst he was on bail.  In each case the offence involved the use of a weapon, generally a knife, and most commonly a Stanley knife.  The offences were committed in smaller retail outlets, with the proceeds usually being some hundreds of dollars.  The total proceeds amounted to $12,625.  For the offences in the latter period, there were victim impact statements, said to indicate the “personally catastrophic consequences for at least some of the people involved as victims …”.  Although the offender had a prior criminal history that included a conviction in 1998 for robbery with actual violence, resulting in a sentence of two years’ imprisonment with a recommendation for parole after six months, his criminal history was much less serious than that of a number of offenders whose sentences have been referred to.  For each of the armed robbery offences, the defendant was sentenced to a term of 12 years’ imprisonment, the terms to be served concurrently, and these offences were declared to be serious violent offences.  The sentencing Judge recorded that the defendant had been affected by drugs and had a gambling addiction at the time of the offending.  His timely pleas of guilty were taken into account as a mitigating factor.  The approach of the sentencing Judge was to determine as a starting point, a term of 15 years’ imprisonment, reduced to 14 years by reason of mitigating factors; and then to 12 years (perhaps generously) to reflect the period in custody between the two periods of offending, and which could not be declared as time already served.  The sentences were held not to have been manifestly excessive.
50. Fulton is a sentence imposed in the District Court.  In view of the number of cases where sentences were considered at appellate level, it seems to me unnecessary to consider it.

Discussion

51. Since the sentence imposed was not according to law, it is necessary for this Court to re-exercise the sentencing discretion.^[39]
52. The sentence to be imposed must, pursuant to s 156A of the PSA, be cumulative on the sentence imposed in August 2012.  For that reason, and particularly in view of the fact that the applicant will have spent all but about two months of the term then imposed in prison, considerations of totality are to be taken into account.  It is necessary, therefore, to consider whether the totality of the sentences imposed is excessive, when compared to the applicant’s overall criminality.^[40]  Since “reasonable consistency” in sentencing is to be achieved,^[41] in the sense explained in Hili v The Queen,^[42] the sentence is to be determined bearing in mind other sentences imposed in similar circumstances, which provide a “yardstick” against which a proposed sentence is to be considered.^[43]  Although the correct starting point might be said to be the statutory statement of principles found in the PSA,^[44] it has not been suggested that the other sentences referred to do not appropriately reflect the application of those principles, and it is therefore unnecessary to make specific reference to them.
53. At the outset, I would point out that Coglan is of little use in the present case, because of that defendant’s age and other mitigating circumstances.
54. Nor do I find Woods of great assistance, the robbery considered in isolation being more significant, and the sentence reflecting a range of other criminal conduct, including an offence committed on a separate occasion.  No question of totality arose; though, even absent that consideration, this case would suggest that a sentence of eight years in the present case would be too high.
55. There are also difficulties in drawing assistance from Jamieson, in view of the length of time between the earlier armed robbery and the current offence, and the intervening offending.  Since a gun was used to menace people at the bank, this offending would appear to be more serious than the present applicant’s.  While questions of totality were involved, it is difficult to see how a sentence longer than seven years in the present case could be reconciled with the sentence imposed in Jamieson.
56. The sentence in Lemmo might be regarded as one of 15 years, before mitigating factors were taken into account.  Since the offending included 14 counts of armed robbery, three counts of armed robbery with personal violence, and one count of armed robbery with wounding; and since the offences in each case involved the use of a weapon, it is difficult to draw much from it of present assistance.
57. The decision which appears to me to be of greatest assistance is Richardson.  It involved the re-exercise of the sentencing discretion by this Court after reviewing a number of authorities.  In both that case and the present case, the defendant pleaded guilty to one offence of armed robbery, and was convicted of another after a trial.  The conduct of Mr Richardson during the offending might be regarded as more serious than that of the present applicant, since he held something to the side of the head of an employee, and threatened to blow her head off.  This case would suggest that a sentence of no more than nine years should be imposed in respect of the two armed robberies committed by the present applicant.
58. It seems to me that the sentences imposed in Dawson and Fish are generally consistent with the sentences imposed in Richardson.  The same might be said of Abraham, though there were four armed robberies in that case, and on two occasions an accomplice was armed with a revolver.  Mr Abraham had the benefit of a plea to the armed robbery counts, but that came at the commencement of a retrial; and he was sentenced at the same time for other offences.
59. Lotoaniui would also suggest a total time in prison of less than 10 and a half years.  Lotoaniui involved 11 armed robberies, of which one was committed in company with personal violence, and two were committed in company.  The total time to be served in prison also reflected a period attributable to earlier offending.
60. Brown did not raise totality considerations.  The use of a replica gun made the offending more significant than in the present case, but there were mitigating factors.
61. The relevant offending in Kengike involved some four armed robberies, on one occasion committed in company with personal violence, on two occasions committed when armed and in company with actual violence, and on three occasions armed and in company with actual violence.  While the total time in prison amounted to 10 and a half years, that was a consequence of these and other offences.  It would support a sentence of a total term of imprisonment somewhat less than 10 and a half years in the present case.
62. The remaining sentence to be considered is Irving.  In my view, it is inconsistent with the general trend of more recent authorities.  In particular, the type of offending which would justify a total time in prison of 15 years (prior to taking into account mitigating factors) is demonstrated by Kapitano and Lemmo, far worse cases than Irving.  By reference to the sentences imposed, it would appear that the earlier robbery in Irving was worse than in the present case.  Moreover, in Irving, the defendant had been at liberty for about two years before he was sentenced the second robbery, and it would appear that his parole eligibility date occurred after 18 months of the second nine year sentence, compared, for example, to the present applicant’s current parole eligibility date which would be reached more than five years into the second sentence.
63. Weighing these things up, it seems to me that an appropriate sentence to impose for the current offence is a term of imprisonment of four and a half years, cumulative on the sentence imposed in August 2012.  I would, however, fix the parole eligibility date 18 months into that term, to some extent consistent with Richardson, and to reflect the fact that the current offence occurred very shortly after the applicant was released on parole.

Conclusion

64. I would make the following orders:-
    1. The application for leave to appeal is granted;
    2. The appeal is allowed;
    3. The sentence imposed on the applicant on 3 December 2015 is set aside;
    4. For the offence of armed robbery committed on 8 January 2015, the applicant is to be imprisoned for a term of four years and six months, cumulative on the sentence imposed on the applicant on 15 August 2012;
    5. The applicant’s parole eligibility date is 20 February 2018.