Court of Appeal (Qld)|2006-04-21|Before: McMurdo P, Fryberg and Douglas JJSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
McMurdo P, Fryberg and Douglas JJSeparate reasons, for judgment of each member of the Court, each concurring as to the order, made
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
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – SENTENCE– where applicant seeks extension of time for leaveto appeal againstsentence – where applicant out of time – where no satisfactoryreason adduced for delay – whetherrefusing application would result in amiscarriage of justiceCRIMINAL LAW – APPEAL AND NEW TRIAL ANDINQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINSTSENTENCE– APPEAL BY CONVICTED PERSONS – APPLICATION TO REDUCESENTENCE – WHEN REFUSED – where applicant breachedprobation orderby committing armed robbery – where applicant gave an early plea of guilty– where applicant resentencedto nine months’ imprisonment inrespect of earlier offences and six years’ imprisonment for subsequentoffence to beserved concurrently – where serious violent offenderdeclaration not made – whether declaration could have been madeat 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
processR 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
Judgment (55 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[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.
[3]
[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.
[4]
[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.
[5]
[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.
[6]
[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 Penalties and Sentences Act 1992 (Qld). This meant that the applicant would be eligible to apply for post-prison community based release after serving three years imprisonment.
[7]
[6] In those circumstances, the fact that the judge made no recommendation for eligibility for post-prison community based release earlier than the statutory entitlement did not make the sentence manifestly excessive. The sentence was significantly moderated by imposing a concurrent sentence on the earlier quite separate offences. The six year sentence without a declaration encompassing both episodes of offending was, even in the light of the mitigating factors, well within the appropriate range.
[8]
[7] The applicant claimed in his oral submissions that even a recommendation from this Court that he be eligible for parole at the statutory halfway point of his sentence would be helpful to his pending application for parole. That submission does not provide this Court with any reason to grant his application.
[9]
[8] It follows that the applicant's application for leave to appeal against sentence has no significant prospects of success; he has not demonstrated that his application for an extension of time is necessary to avoid a miscarriage of justice. I would refuse the application for an extension of time to apply for leave to appeal against sentence.
[10]
[9] I observe, however, that under his present sentence he is eligible to apply for post-prison community based release after three years.
[11]
[10] FRYBERG J: There are two applications in this matter. One is an application for leave to appeal against sentence; the other an application for an extension of time within which to make the first application. The applicant was unrepresented, but his written submissions were prepared by a lawyer and state his case fully.
[12]
[11] On 2 February 2004, the applicant pleaded guilty to one count of armed robbery. Botting DCJ sentenced him to imprisonment for six years for that offence. No serious violent offence declaration was made. His Honour declared 94 days presentence custody as time served under that sentence.
[13]
[12] At the time the offence was committed the applicant was on probation. That was imposed on 14 May 2002 when he pleaded guilty to one count of arson, one count of attempted fraud and one of demanding property with threats. The arson and attempted fraud involved an attempt to deceive an insurance company by burning a motor car. The applicant had spent a little over six months in custody prior to that sentence. The judge ordered that he spend a further six months in custody and be admitted to probation thereafter for 30 months. The armed robbery occurred in September 2003. For that reason, when the matter came before him on 2 February 2004, Botting DCJ discharged the probation order and resentenced the applicant to imprisonment for nine months. He ordered that this imprisonment be served concurrently with the term imposed for the robbery, saying that while ordinarily he would order that it be served cumulatively, the applicant's early plea persuaded him that he should not do so. He further stated that he would not make a serious violent offence declaration. This was to reflect the plea and the matters which counsel had raised on the applicant's behalf.
[14]
[13] The applicant first applied for leave to appeal against the sentence of six years' imprisonment for armed robbery by an application filed on 18 February 2004. He signed that application form personally five days earlier. He did not have legal aid. For unexplained reasons, he filed a notice of abandonment of that appeal on 30 April 2004. The present applications were filed on 7 December 2005. The only evidence in support of the application for an extension of time is an affidavit sworn by the applicant in which he deposes, "I was confused by the whole process and at the time of my sentence my literacy skills were at a minimum. Unfortunately, legal aid for my appeal was refused."
[15]
[14] On that evidence I would dismiss the application for an extension of time. It is, however, necessary to consider whether the applicant should be allowed further time within which to file additional evidence. There would be no point in allowing such time if the application for leave to appeal must fail in any event. I therefore turn to the merits of that application.
[16]
[15] The robbery was committed at the hospital cafe of Maryborough Hospital. At around 2:15 pm on 9 September 2003 the applicant entered the cafe with a stocking over his face. He was carrying a gun which he pointed at the operator of the shop, Mrs Tsakisiris, and demanded money. She thought the gun a replica or a toy and said that he was not getting anything. She pushed the gun away and ran out of the store to a neighbouring business to call the police. The applicant then pointed the gun at her son who gave him $320 from the till. He ran from the cafe with the money, and was chased by the son. The latter noted part of the registration number of the vehicle which the applicant entered. While running down the street he was recognised by his sister's neighbour. Police went to his sister's address where the car was located with a stocking in it. The applicant threw the gun away in a tree at the sister's house. It was found a few days later when it fell out of the tree. It had been rendered inoperable by filling the barrel.
[17]
[16] The applicant himself was nowhere to be found - he had fled. He was not located by police until 1 November 2003, whereupon he was arrested. The circumstances of his arrest were not disclosed in the evidence. It is unclear whether he participated in an interview with police. Presumably there was no committal proceeding, for the indictment upon which he pleaded guilty was presented ex officio. Inferentially there was an early notification of his intention to plead guilty. While he was on the run he telephoned police and told them where to find the gun, having heard news reports about the matter and being concerned that the police should know that he would not harm anyone else and was unarmed.
[18]
[17] His counsel told the judge that the robbery was committed because of his desperate need to obtain funds to employ a private investigator to track down his de facto wife of 12 years and their children. She had left him the previous May, seven weeks after the death of his father. He had been refused Legal Aid for this purpose.
[19]
[18] The applicant submitted that a sentence of six years' imprisonment was manifestly excessive. He acknowledged that six years was within an appropriate range of sentences for his offence, but submitted that insufficient weight was given to mitigating factors. Those factors were:
[20]
(a) the unsophisticated planning and execution of the offence, it being inevitable that he would be apprehended;
[21]
(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;
[22]
(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;
[23]
(d) the absence of actual violence in the commission of the crime;
[24]
(e) the fact that this was the applicant's first offence of armed robbery;
[25]
(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]
[26]
(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."
[27]
(h) "the applicants' [sic] early plea of guilty and demonstrated remorse."
[28]
•
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.
[29]
[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 above[2] 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.
[30]
[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.
[31]
[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.
[32]
[23] Two cases cited by him are relevant to the question of the head sentence. In R v Moodie[3] 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 Shipman[4] 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]
[33]
[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.
[34]
[25] It is well settled that a recommendation for early post-prison community based release is an appropriate way of recognising an early plea of guilty. It is, however, not the only way of doing so. As noted above, the sentencing judge said that he was recognising the plea of guilty by not making a declaration that the offence was a serious violent offence and by imposing concurrent imprisonment in resentencing for the earlier offence. The applicant submitted that he had not received a genuine discount for the early plea. He submitted that no question of declaring the offence a serious violent offence had arisen at the hearing and that consequently, he was denied the opportunity to make submissions on the question whether such a declaration was within the sentencing discretion in the circumstances of the case. (He did not suggest that had he been given the opportunity, he might have called evidence on the point). He submitted that a declaration would not have been within that discretion, so that not making it could not constitute recognition of his plea of guilty.
[35]
[26] I agree that the judge ought to have given the applicant's counsel the opportunity to make such submissions. It is implicit in his Honour's remarks that he regarded making a declaration as being within the sentencing range open to him and that, but for the early plea of guilty, he would have made a declaration. That was a significant matter which, when it was not raised by the prosecution or the judge during submissions, the applicant's representatives were entitled to ignore. This error in procedural justice has now been cured and the applicant has made submissions to this Court on the issue. In the absence of any suggestion that there was further evidence which might have been placed before the court, no question of remitting the matter for resentencing arises. Moodie supports this course.
[36]
[27] The applicant submitted that given the circumstances of the offence and the fact that he had a minimal history of offences of violence, a declaration was unwarranted. There was no special feature about the offence which would support such a declaration. He submitted that such a feature was generally necessary, relying upon a dictum of McPherson JA in R v Lund:[7]
[37]
"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]
[38]
[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 Cowie[13] a unanimous Court, which included McPherson JA, referred to the two approaches and said:
[39]
"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]
[40]
That is the correct approach in the present case, although this is not one where a declaration was mandatory.
[41]
[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.
[42]
[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.
[43]
[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.
[44]
[32] It follows that there is no point in extending time for bringing an application for leave to appeal. Any such application would fail.
[45]
[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.
[46]
[1] The reference was to R v Moss[1999] QCA 426, CA no 270 of 1999, 8 October 1999.