R v Main [1999] QCA 327

Court of Appeal (Qld)|1999-08-17|Before: Murdo P, Derrington J, MacKenzie J

THE PRESIDENT: The applicant pleaded not guilty to one count of armed robbery which occurred on 2 December 1995. She was convicted on 6 December 1996 in the District Court at Brisbane and was sentenced on 17 December 1996 to six years imprisonment with a declaration that a period of 58 days be deemed to be imprisonment already served under the sentence.

The applicant now applies for an extension of time within which to apply for leave to appeal against sentence. The applicant's notice for an extension of time was filed on

1 July 1999 and therefore was about 18 months out of time. The explanation she gives for this very great delay was that although she appealed against her conviction, she was not aware that she had a right to apply for leave to appeal against sentence. She thought she had to choose one or the other.

The applicant appealed against her conviction and this Court refused that appeal on 6 March 1997. See R v. Main, CA No 569 of 1996, 6 March 1997. She also petitioned the Governor for a pardon and that matter was referred to this Court by the Attorney-General pursuant to section 672A of the Criminal Code. Her appeal against conviction in this manner was also dismissed. See R v. Main, CA No 387 of 1998,

The applicant's explanation for the extensive delay in filing this application is unconvincing. She signed the

notice of appeal against conviction, a form which, of its very nature, makes the signatory aware of the right of application for leave to appeal against sentence.

It is far more likely that the reason why there was no application for leave to appeal against sentence lodged in time is because the applicant was advised and accepted that there was no substance in such a claim. The applicant was represented at trial and on her appeal by an experienced counsel.

The applicant claims the sentence imposed was manifestly excessive. She is particularly concerned about her inability whilst incarcerated to assist her son, now aged 15, who is living on the streets and has, at least for a time, become addicted to drugs.

It is impossible not to feel sympathy for the applicant's predicament. She clearly loves her son and seems genuinely concerned for him. From what she says it seems she is unlikely to be paroled because of her prior history which includes a conviction for escaping from lawful custody and an assault upon a prison officer. She believes she will be eligible for release with remissions on 19 March 2001.

The offence was a serious one in that the applicant entered a pharmacy armed with a knife and as a result obtained $120 and five bottles of Methadone. The applicant has an appalling criminal history commencing in 1980 with traffic offences, progressing to drug offences in 1982 and more significantly to offences of stealing in 1989 together with drug offences for which she was placed on 18 months probation.

That probation order was breached in late 1989 and the applicant was sentenced to a term of imprisonment. Further terms of imprisonment for stealing and failing to pay for meals and accommodation followed in February 1990.

The applicant's criminal history continued in 1990. Significantly on 31 May 1991 she was sentenced to three years imprisonment with a recommendation for parole eligibility after seven months for offences of bringing stolen goods in Queensland, forgery and stealing.

She was sentenced to further terms of imprisonment during 1991 for other counts of stealing, breach of probation, escaping legal custody and assault with intent whilst armed with a knife. On 8 May 1992 she was sentenced to a cumulative term of imprisonment for break, enter and steal, stealing, assault occasioning bodily harm, two counts of unlawful assault and two counts of unlawful damage to property. She has explained the circumstances of some of these offences to us but there is still a serious element to them.

She was convicted of further drug offences in 1993 and in 1994 was sentenced to nine months concurrent imprisonment for a charge of false pretences.

She was convicted of further drug offences in 1995 and on 23 May 1996 was sentenced to three months on charges of stealing, receiving, attempted false pretences and false pretences.

In September 1996 she was sentenced to four months imprisonment for offence of receiving and stealing and false pretences.

The applicant was 34 years old at the time of sentence and did not have the benefit of youth as a mitigating factor nor did she have the mitigating factor of remorse shown by a plea of guilty.

The sentencing Judge was aware of her drug addiction and that she had a 12 year old son and an unfortunate upbringing. Substantial submissions were made on this point by the applicant's counsel at the sentence.

"... in offences of this nature one cannot help but have sympathy for a person who is addicted to drugs and it would be callous to adopt an attitude that because it is self-inflicted the addict is not worthy of sympathy or concern. Having said that, it unfortunately remains a fact of life that all too many armed hold-ups are these days committed by persons who in one way or another are dependent upon drugs and are seeking either money or drugs to meet that dependency.

Despite the cravings caused by the addictions and despite irrationality that is so often a consequence of the addiction, the majority of drug addicted persons still retain in varying degrees the ability to distinguish between right and wrong and the ability to comprehend that the consequence of armed robbery will be a lengthy term of imprisonment.

To give a way out of sympathy and concern by imposing lesser terms of imprisonment than would otherwise be imposed might appear to be an act of humanity, but it will do nothing to stamp out the drug trade and worse, it may even give some indirect encouragement to would-be offenders."

His Honour's comments are indeed apposite. The serious aspect of the offence was that it involved the armed robbery of a chemist shop at about 5.10 p.m. with a 12 inch knife with a three to four inch width blade. The applicant brandished the knife and threatened the pharmacist with it.

It is important that sentences imposed for offences of this type act as a deterrent not only to the offender but also generally.

The applicant's extensive prior criminal history, her age and lack of remorse demonstrate that the sentence appears to be well within the acceptable range. Indeed the applicant's counsel at sentence conceded that a sentence of six to seven years was within range. The comparable sentences handed up by the applicant and by the respondent do not suggest that on the facts of this case that concession was wrongly made. See, for example, R v. Thallas, CA No 169 of 1991, 4 October 1991.

The applicant has failed to demonstrate any good reason for delay in bringing the application for leave to appeal against sentence nor has she demonstrated any substantial prospects of success were her application for an extension of time to be granted. I would refuse the application.

DERRINGTON J: I agree. It is unfortunate and much to be regretted that the applicant's son is in moral danger because of her absence in prison. However that is nothing we can do anything about, except to encourage her to ensure that she gets out of prison as quickly as possible by being absolutely sure that her behaviour is impeccable, so that she attracts as much remissions as possible.

She should also, by her continued behaviour after her release, be a good example to her son to try to rehabilitate him.

THE PRESIDENT: The order is the application is refused.

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