R v Lewis [2006] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION: R v Lewis [2006] QCA 121

PARTIES: R v LEWIS, Russell Stanley (applicant)

FILE NO/S: CA No 325 of 2005 / DC No 3 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Sentence)

ORIGINATING COURT: District Court at Maryborough

DELIVERED ON: 21 April 2006

DELIVERED AT: Brisbane

HEARING DATE: 17 March 2006

JUDGES: McMurdo P, Fryberg and Douglas JJ / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application dismissed

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SENTENCE – where applicant seeks extension of time for leave to appeal against sentence – where applicant out of time – where no satisfactory reason adduced for delay – whether refusing application would result in a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – where applicant breached probation order by committing armed robbery – where applicant gave an early plea of guilty – where applicant resentenced to nine months’ imprisonment in respect of earlier offences and six years’ imprisonment for subsequent offence to be served concurrently – where serious violent offender declaration not made – whether declaration could have been made at first instance – whether not making a serious violent offender declaration is adequate recognition of early guilty plea – whether serious violent offender declaration is part of a two-step or integrated sentencing process / R v Cowie [2005] QCA 223; CA No 42 of 2005, 24 June 2005, followed / R v Eveleigh [2002] QCA 219; [2003] 1 Qd R 398, followed / R v Lund [2000] QCA 85; CA No 386 of 1999, 17 March 2000, considered

COUNSEL: The applicant appeared on his own behalf / T A Fuller for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The applicant applies for an extension of time to apply for leave to appeal against sentence. Fryberg J has fully set out the facts so that my reasons can be briefly stated.

2. The applicant pleaded guilty in the Maryborough District Court on 2 February 2004 to one count of armed robbery on 9 September 2003. That conviction meant that he had breached his probation order imposed on 14 May 2002 in the Maryborough District Court for the offences of arson, attempting to dishonestly obtain property from another and demanding property with threats for which he was sentenced to six months imprisonment and 30 months probation. The primary judge sentenced him to six years imprisonment for the offence of armed robbery and, after discharging the orders made on 14 May 2002, ordered that he serve nine months concurrent imprisonment in respect of the earlier offences. The applicant now wishes to have an extension of time to contend that the sentences imposed on 2 February 2004 were manifestly excessive.

3. The applicant has given no satisfactory explanation for the delay in bringing this application which is now over one year out of time. He filed within time on 18 February 2004 an application to apply for leave to appeal against his sentence but abandoned it on 30 April 2004, apparently after receiving legal advice that his prospects of success were poor. He has given no satisfactory explanation for the lengthy delay. I would not, however, refuse his application to extend time were he to demonstrate that to refuse it would result in a miscarriage of justice.

4. The sentence imposed at first instance appears to be within the appropriate range for the following reasons. The applicant was a mature man, 41 years old at the time of the offence and 42 at sentence. He had a significant criminal history commencing in 1985 when he was convicted in the Southport Magistrates Court of stealing. Between 1985 and 2002 he was convicted of a wide assortment of relatively minor offences for dishonesty, violence, drugs and street offences for which he was sentenced to fines or short periods of imprisonment. His convictions in May 2002 in the Maryborough District Court have already been noted and mean he was on probation at the time of the armed robbery. The maximum penalty for the armed robbery offence was life imprisonment. The applicant’s actions, which involved a firearm, have had considerable detrimental impact on the lives of Mrs Tsakisiris and her son.

5. In sentencing, the learned primary judge noted that until committing this offence the applicant had responded well to probation and that he accepted the applicant’s offending was driven by desperation because he was troubled by the disappearance of his partner with their young sons; he pleaded guilty and was remorseful. The primary judge accepted he was remorseful and indicated that he was ameliorating the sentence by imposing a concurrent sentence for the 2002 offences and by not declaring that the offence of armed robbery was a serious violent offence under Part 9A (Qld). This meant that the applicant would be eligible to apply for post-prison community based release after serving three years imprisonment.

(a) the unsophisticated planning and execution of the offence, it being inevitable that he would be apprehended;

(b) demonstrated remorse, in that he made full and open admissions to the police; he rang the police and informed them of the whereabouts of the weapon and that he was unarmed and not a danger to the community;

(c) the personal circumstances and mental state of the applicant at the time of the offence, his father having recently passed away and his wife and children having disappeared, causing him considerable mental anguish;

(d) the absence of actual violence in the commission of the crime;

(e) the fact that this was the applicant's first offence of armed robbery;

(f) “The prosecution accepted that Justice McPherson had previously stated in an appeal court matter that ‘the range for first offences of this kind, he said, was three to five years’”;¹

(g) “The learned Judge acknowledged that until ‘you were driven by desperation’ ‘You appear to have responded to that probation order.’ … Indicating that it was not mere criminality that motivated the commission of the crime but desperation and an unbalanced mental state.”

(h) “the applicants’ [sic] early plea of guilty and demonstrated remorse.”

19. As regards these matters:

I do not regard the applicant’s incompetence in executing his plan as a mitigating factor. The unsophisticated nature of the offence is relevant in assessing its seriousness, but does not make six years outside the range appropriate for the offence.

I would accept that the applicant was remorseful, although I doubt if that is demonstrated by his telephone call to the police.

His personal anguish at his wife’s and children's disappearance is part of the surrounding circumstances of the offence, but is not a mitigating circumstance. Its relevance is that it tends to demonstrate that his conduct was a response to an emergent situation rather than a reflection of a career choice.

The seriousness of the offence is affected by the absence of actual violence and by the fact that the weapon was incapable of being fired. Again these are not mitigating factors.

The fact that this was the applicant's first offence of armed robbery is relevant to assessing the seriousness of the offending.

At the sentencing hearing, the prosecutor did not accept that McPherson JA had made the statement quoted above in relation to offences similar to that committed by the applicant. She distinguished his Honour's statement on the basis that it related to offences committed by young people without the use of a gun.

The early plea of guilty demonstrated a willingness to cooperate in the administration of justice.

20. The applicant was 41 years of age at the time of the offence and had a substantial criminal history. It dated back to 1978, when he was 16 years of age. It consisted largely of offences of dishonesty, drug offences and stealing, and a couple of minor assaults. He was sentenced to a series of cumulative terms of imprisonment totalling ten months in 1992 and six months, suspended after serving 77 days in 1999. The sentence described above² was imposed in 2002. His subsequent history of offending notwithstanding these sentences suggests that he needed to be taught a powerful lesson to act as a personal deterrent.

21. The robbery had severe repercussions for Mr Bradley Tsakisiris, the shop owner's son. He suffered a breakdown three days after the event and was still receiving counselling at the time of sentencing. Consequently his studies were severely disrupted. He continued to have nightmares and tremors. Delay in completing his university course was financially costly.

22. The applicant submitted that the head sentence of six years was manifestly excessive and that his plea of guilty ought to have been recognised by a recommendation for early post-prison community based release.

23. Two cases cited by him are relevant to the question of the head sentence. In R v Moodie³ a sentence of imprisonment for five years for armed robbery with a declaration that the offence was a serious violent offence was varied on appeal by deleting the declaration. That case does not suggest that the sentence of six years ‘imprisonment was excessive for this robbery. Moodie did not use a gun, not even a disabled one, he used a knife; the threatened violence was so mild that he was disarmed by a 72 year old man who seized the knife by the blade and broke it; he did not wear a mask or stocking; and he was heavily drugged at the time of the offence. In R v Shipman⁴ the applicant's role was to keep watch and drive the getaway vehicle; his co-accused used not a gun, but a tyre lever; and most significantly, the Court held that a head sentence of six years was “in no way manifestly excessive”.⁵

24. The applicant also relied upon R v Moss.⁶ This case is distinguished from that one by the vital factor of the offender's age. Moss was a teenager. He used a knife, not a gun, in the course of the robbery. Moreover, I doubt whether sentences imposed for offences committed in 1998 or earlier remain a useful guide in cases involving actual or threatened violence of any seriousness.

“In terms of actual violence and seriousness, this offence was really no worse than most others of its type. In my respectful opinion, exercise of the declaration-making power under section 161B(3) should, in general, be reserved for cases of robbery possessing some special feature that mark them off from others and calls for the additional punishment that is involved in these cases.”⁸

28. That dictum received no support from the other members of the Court in Lund. It reflects the two-step approach to sentencing in cases of serious violent offences which I described in R v Eveleigh.⁹ That approach is to be distinguished from the integrated sentence approach, which treats the declaration simply as “an additional sentencing tool”.¹⁰ Despite a personal preference for the former approach, I expressed the view that the latter had prevailed in the decisions of this Court. I remain of that view. It is reinforced by more recent decisions. A submission based on the dictum in Lund was rejected unanimously in R v Bradforth.¹¹ The integrated sentence approach referred to in Eveleigh was applied by the majority in R v BAW,¹² the President concurring in the order on different grounds. In R v Cowie¹³ a unanimous Court, which included McPherson JA, referred to the two approaches and said:

“In a case such as this, we accept that the inevitable declaration is relevant in the consideration of what sentence is ‘just in all the circumstances’ in order to fulfil the purpose of sentencing which is prescribed by s 9(1), consistently with what was said in Shillingsworth and Herford.”¹⁴

That is the correct approach in the present case, although this is not one where a declaration was mandatory.

29. In my judgment it was open to his Honour in the circumstances of this case, including the applicant’s limited history of offences of violence, to have included a declaration as part of the sentence which he was imposing. To have done so would have been to have imposed a high sentence, but not one which was manifestly excessive.

30. The applicant next submitted that the sentencing judge was wrong in stating that a cumulative sentence would be imposed “in ordinary circumstances”. He submitted that the ordinary practice of the courts is to impose concurrent sentences, and referred to s 154 of the Penalties and Sentences Act 1992. It is however perfectly clear that his Honour was not referring to the position at large when he used the quoted phrase. He was referring to what would ordinarily happen when he was required to resentence for a serious and discrete earlier offence at the same time as he was sentencing for the current offence. What he said was correct.

31. Did his Honour adequately recognise the plea of guilty? Had he not mitigated the penalty as he did, the applicant would have become eligible for post-prison community based release after serving 80 percent of a period of imprisonment of six years and nine months; in other words after serving a little under five years and five months. Under the sentence actually imposed the applicant will be eligible after serving three years. His Honour's order not only reduced the head sentence by nine months; it also advanced the eligibility date for post-prison community based release by nearly two years and five months, or almost 37 percent of the notional head sentence of six years and nine months. In my judgment that was adequate recognition of the plea.

32. It follows that there is no point in extending time for bringing an application for leave to appeal. Any such application would fail.

33. I would dismiss the application.

34. DOUGLAS J: I have had the advantage of reading the reasons for judgment of the President and Fryberg J. I agree with their Honours that the learned sentencing judge adequately recognised the plea of guilty by not imposing a cumulative sentence and by not making a declaration that the offence was a serious violent offence. In those circumstances the absence of a recommendation for post-prison community based release earlier than the ordinary entitlement did not make the sentence manifestly excessive. Accordingly I agree that the application for an extension of time to apply for leave to appeal against the sentence should be refused.

Footnotes

1. The reference was to R v Moss [1999] QCA 426, CA no 270 of 1999, 8 October 1999. ↩

2. At [12]. ↩

3. [1999] QCA 125, CA 439 of 1998, 14 April 1999. ↩

4. [2004] QCA 171, CA No 37 of 2004, 20 May 2004. ↩

5. Ibid, at p 7. ↩

6. [1999] QCA 426, CA no 270 of 1999, 8 October 1999. ↩

7. [2000] QCA 85, CA No 386 of 1999, 17 March 2000. ↩

8. Ibid., at pp 8-9. ↩

9. [2002] QCA 219 at [100] and [108] – [109], [2003] 1 Qd R 398 at pp 427 and 429-30. ↩

10. Ibid, at [101], p 428. ↩

11. [2003] QCA 183, CA No 423 of 2002, 9 May 2003, at [20]-[22]. ↩

12. [2005] QCA 334, CA No 116 of 2005, 9 September 2005. ↩

13. [2005] QCA 223, CA No 42 of 2005, 24 June 2005. ↩