R v Orchard [2005] QCA 141

Judgment (45 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McPHERSON JA: I have read the reasons of Jerrard JA and Helman J on this application for leave to appeal against sentence.

[3]

[2] The question now before the Court is, as I see it, whether his Honour was justified, as part of the sentence imposed on count 5, in adding under s 161B(3) of the Penalties and Sentences Act 1992 a declaration that the applicant was convicted of a serious violent offence. The offence in count 5, to which the applicant pleaded guilty was one of armed robbery in company with violence, in respect of which the applicant was sentenced to imprisonment for nine years.

[4]

[3] The offence was committed at a hotel at Woolloongabba on the evening of 23 April 2003. An amount of more than $34,000 was taken after menacing employees with a sawn-off .22 rifle, which was not loaded. The police were called and the applicant and his co-offender were arrested before they could escape with the money. The person in company with the applicant, his co-offender in the robbery, was a 28 year old woman, who was his girlfriend. For the same offence she was sentenced to imprisonment for five years to be suspended after 20 months for five years, with no declaration that she was convicted of a serious violent offence.

[5]

[4] Except that the applicant was carrying the gun and made a threat to kill an employee, it is not altogether clear why there should have been such a marked disparity in the sentences imposed for the same offence. One of the two offenders struck a female employee a blow on the shoulder that has continued to cause her considerable pain. It seems to have been accepted at the sentencing that it was unclear which of them in fact struck the blow. They were, however, both parties to it and other elements of the offence, and legally speaking there was little factual basis for distinguishing between them in that respect.

[6]

[5] The fundamental difference between the two offenders lay in their prior criminal records. The applicant, who is or at the time was aged 31, has an extensive history of offences involving violence, including a previous conviction for robbery in company with personal violence in 1992. In contrast to his co-offender, he has had an unfortunate upbringing. He does not know who his father was, and he seems to have been abandoned by his mother during his adolescence, becoming a street kid and a heroin addict. That addiction and the brutal ways of his suppliers have been and are the source of many of his problems.

[7]

[6] I proceed on the assumption that the decisions in R v Collins [2000] 1 Qd R 45 and R v Bojovic [1999] QCA 206; [2000] 2 Qd R 183 continue to state the primary principles on which the discretion to make a declaration under s 161B(3) ought to be exercised. In the present case, I think it is clear that the decisive consideration at this point in his Honour's sentencing remarks was the applicant's record of violent crime in the past. For my part, I am by no means persuaded that, in declaring the applicant's conviction under count 5 to be of a serious violent crime, his past record in that regard was relevant. A power to declare an offender "to be convicted of a serious violent offence" does not seem to me readily to lend itself to saying that his past offences make it so if, apart from particular features of the offence or perhaps offences under consideration, the addition of such a declaration would not be justified. The structure of s 161B(3) appears to be directed to the particular offence being so declared, with the declaration being made (as the statutory provision expresses it), "as part of the sentence" imposed for that offence, and not for other offences for which he had been sentenced on earlier occasions: cf R v Powderham [2001] QCA 429; [2002] 2 Qd R 417, 421.

[8]

[7] Even if this is not correct, it nevertheless, I consider, remains the case that the offender's prior record of violent offences, if relevant, should not be allowed decisive weight in deciding to make such a declaration. The statutory list in the schedule to the relevant Part of the Act includes some offences that would not naturally otherwise attract the description "violent". But the offence in question must, one would think, ordinarily fit the description of being serious and violent before it is capable of being so declared. The robbery in the present case satisfied that description but a declaration to that effect is not to be made for that reason alone. The offence here was not one, like for example the robbery in R v Collins, which involved the spilling of petrol on the floor of an estate agent's office and on the persons of employees working there in the presence of customers, and threatening to set it on fire with a cigarette lighter. The potential for disaster and the need for deterrence in that case was obvious. By contrast the robbery in the present case, although it involved the threat to use a firearm and a blow struck against one of the employees, resembles many other such offences that commonly come before the courts with regrettable frequency. Something more than that is ordinarily required to merit an additional sentencing order of the kind made here.

[9]

[8] That is not to say that the offence in this case was incapable of attracting a declaration here under s 161B(3). But in the circumstances as they are related in the reasons of Jerrard JA, I am not persuaded that it was appropriate to make the declaration in this instance, and that doing so has made the sentence on count 5 excessive. I agree with Jerrard JA that the application and appeal should be allowed and the sentence varied by deleting the declaration on count 5 that the applicant was convicted of a serious violent offence.

[10]

[9] JERRARD JA: On 13 January 2005 Gabriel Orchard pleaded guilty to one count of robbery while armed with a dangerous weapon when in company and in which personal violence was used; one count of unlawfully using a motor vehicle with the circumstance of aggravation of using it to facilitate the commission of an indictable offence; one count of entering premises with intent to commit an indictable offence; and two counts of unlawfully depriving another of personal liberty. He was sentenced to nine years imprisonment for the offence of armed robbery in company with personal violence (count 5), to three years imprisonment for each of the offences of unlawfully using a motor vehicle and entering premises with intent, and two years imprisonment on each count of unlawfully depriving another of liberty. Those sentences were ordered to be served concurrently and the learned sentencing judge declared, in relation to count 5, that Mr Orchard was a serious violent offender. Strictly speaking, in accordance with the provisions of s 161B of the Penalties and Sentences Act 1992, the learned judge should have declared that the conviction on count 5 was a conviction of a serious violent offence.[1] The learned sentencing judge also activated in full two partially suspended sentences, ordering those to be served concurrently with each other and with the nine year term imposed. The judge declared that 456 days of pre-sentence custody, namely from 24 April 2003 until 22 July 2004, to be imprisonment already served under the sentences then being imposed. Mr Orchard seeks leave to appeal against that nine year head sentence with the declaration, arguing that it is manifestly excessive.

[11]

[10] Mr Orchard was 29 years old at the time those offences were committed, and 31 when sentenced. He was unemployed on both dates, and has an extensive criminal history. He committed the offences with his de facto partner as his accomplice. All were committed on 23 April 2003.

[12]

[11] The circumstances of those were that Mr Orchard and his partner stole a white Ford sedan from outside the owner's home in a street in Oxley between 9.30 pm and 10.00 pm. A witness actually saw Mr Orchard pushing the car along the street. He succeeded in starting it and drove it away. It was stolen to be used as the get-away car in the robbery which immediately followed. At about 10.50 pm an employee at the Australian National Hotel in Woolloongabba counted the night's TAB takings after the bar had been cleared and the customers left, and took those to the Manager's office. As she opened the door, one or other of the two offenders struck that employee on her right shoulder, and Mr Orchard then appeared and threatened that if she moved he would blow her head off, and the Manager's. Mr Orchard was holding a sawn off .22 rifle, which was in fact unloaded. Unknown to either offender there was a third person in the building, who hid under the bar and contacted the police. The robbery continued with Mr Orchard giving his co-accused the rifle, and instructions that if the Manager moved an inch, his co-accused was to "shoot him in the fucking head." Mr Orchard took $34,524.05 from the safe and put it into a plastic bag. At about that time the police arrived, to find the stolen car in the car-park with its lights on, doors open, and engine running, and it was obvious that the car had been hot wired to start it. The police entered the building, forcing their way into the room where the robbery was occurring, and ordered Mr Orchard to drop his weapon. In an ensuing scuffle Mr Orchard was struck on the head with a torch.

[13]

[12] Mr Orchard has a record for prior convictions as an adult dating back to 3 September 1990, when he was placed on probation for 12 months for an offence of assault occasioning bodily harm. On 27 May 1993 he was sentenced to four years imprisonment for burglary, and robbery in company with personal violence. That offence was committed when Mr Orchard and one of his then co-accused, a man Andrew Washband, gained entry into the home of a man named Morris, and then bashed and robbed him. The judgment of this Court, to which Mr Orchard appealed ([1993] QCA 338; CA No 183 of 1993), records that it is plain the jury convicted him on the fact that he initially assaulted Mr Morris, causing him to fall to the ground, whereupon Mr Washband kicked Mr Morris in the face; and Mr Orchard also hit Mr Morris, apparently on numerous occasions. They then stole clothing and a portable TV.

[14]

[13] The learned sentencing judge in January 2005 apparently accepted as accurate at least some of the information that Mr Orchard gave to a Psychiatrist, Dr Colls, in an assessment made on 4 December 2004. Dr Coll's report reads:

[15]

"In terms of his current charges, he said 'I'd only been out of jail a few weeks - there's this old crew I used to look up to - they're the ones that got me onto the i.v. drugs in the first place - they'd given me speed and heroin to sell and I used it myself - I never have, and I never would sell it - in 1993 they gave me a flogging with baseball bats, broke my arm and smashed my face in - in 1996, they broke my jaw, said I owed them money - last year, they said that, with interest, now I owed them $20,000 - I didn't want to do anything to get the money and I didn't worry about them threatening me but they hit Fiona - so we said we'd do it and we got back onto the junk - I think the flogging they gave me left me a bit fuzzy for the next few weeks, until the crimes - I had my head more or less kicked in, lots of face and hand fractures - I was in hospital for a few days - the .22 rifle that I had wasn't even loaded and I'd only got it for my protection'".

[16]

[14] The learned sentencing judge stated in the sentencing remarks that:

[17]

"The male accused was the victim of an attack of some violence apparently by his drug dealers about a month before the functional armed robbery. The female accused said the debt was $30,000, the male accused said it was $20,000, when one reads the reports. About a month after such incident the two of you planned and participated in this robbery, with, as I said, the male accused being the protagonist."

[18]

[15] As those two sets of observations suggest, the learned sentencing judge had been informed by the psychiatric report that Mr Orchard has a history of serious drug abuse, having abused alcohol from about the age of 13, then cannabis, and then more serious intravenous heroin and amphetamine drugs since aged about 17. He told Dr Colls that he had been trying to go straight since 2000. He has spent the majority of his adult life in custody. His de facto partner, who is the female co-accused in his most recent offending, is the only significant relationship in his adult life. He described himself to Dr Colls as horrified to have involved her in his offending, but assertedly agreed with her to commit those offences to protect her from threats of immediate physical harm.

[19]

[16] The learned sentencing judge accepted the description that Mr Orchard was attacked by others prior to the April 2003 offences. While that explanation, and the further details of other such attacks given to Dr Colls, helps to explain Mr Orchard's past violent and dishonest acts, what Mr Orchard has to grasp is that it is only when he goes to the police to enforce criminal sanctions on those threatening him with violence that he will escape from the circumstances in which he has existed for longer than a decade, and which face him for almost the whole of another one.

[20]

[17] After Mr Orchard was released from the four year sentence imposed in May 1993, he next appeared in court in March 1997, then again in August 1997, and in October 1997 he was returned to prison for offences of stealing, entering a dwelling with intent to offend, and for breaching the Bail Act. He was also dealt with that same month for offences involving drugs, including failing to take precautions while in possession of a hypodermic syringe, and for a weapons offence.

[21]

[18] He was sentenced in May 1998 for offences of dangerous driving, entering premises with intent, and possessing tainted property. Concurrent and cumulative terms of imprisonment were imposed, totalling two and a half years. The next relevant sentencing date was 5 December 2001, when he was dealt with for offences of stealing, possessing instruments with intent to commit indictable offences, receiving stolen property and attempted unlawful use of a motor vehicle, those offences being committed in September and October 2000. He was sentenced to one year's imprisonment, suspended for three years after serving 143 days. One hundred and thirty six days of pre-sentence custody was declared time already served. The learned sentencing judge noted that Mr Orchard's history of offending was explicable by his drug addiction, and that Mr Orchard had expressed a desire finally to take appropriate steps to deal with that by saying that he intended to be admitted to the Moonya Program.

[22]

[19] Mr Orchard would have been released one week after that sentence was imposed, and on 19 September 2002 he was sentenced in the District Court for an offence of entering premises with intent to commit an indictable offence, assault occasioning bodily harm, and doing grievous bodily harm, those offences all being committed on 2 April 2001, after Mr Orchard had committed the offences for which he was sentenced on 5 December 2001 but while he was on bail for those. The sentencing remarks from September 2002 reveal that Mr Orchard was caught with the tools of trade of a housebreaker, and was in the process of committing an offence of burglary (and was actually in the home owner's motor vehicle) when he was disturbed. That resulted in his unlawfully assaulting both a 68 year old man whose arm he bit, and his also causing grievous bodily harm to that man's son. Mr Orchard knew at all relevant times that he himself suffered from Hepatitis C when biting that elderly man's arm. Mr Orchard received some injuries himself at the hands of those two complainants.

[23]

[20] The judge imposing sentence in September 2002 was, as it happened, the same judge who imposed the sentences in January 2005. In September 2002 that learned judge had remarked that Mr Orchard certainly had a sad history, and that Mr Orchard's teenage years would arouse sympathy, while observing further that there was an obvious risk that Mr Orchard might become institutionalised. The judge also noted that Mr Orchard had been on bail for serious offences when he committed those of April 2001, and for the most serious of those offences sentenced Mr Orchard to four years imprisonment suspended after the 529 days that Mr Orchard had spent in pre-sentence custody. He imposed shorter imprisonment terms for the other offences, likewise suspended after 529 days. The operative period imposed was four years. Those orders entitled Mr Orchard to immediate release.

[24]

[21] On 23 July 2004 Mr Orchard was sentenced to six months imprisonment in the Inala Magistrates Court for an offence of possessing a prohibited article committed on 6 January 2004 when in custody, Mr Orchard having been denied bail since his arrest on 23 April 2003. The offences committed in April 2003 had occurred only seven months after the partly suspended four year term was imposed on 19 September 2002, and during the currency of the partly suspended sentences imposed on 5 December 2001.

[25]

[22] The learned judge activated in full both sets of suspended sentences, the terms remaining being two years and 201 days in respect of the sentences imposed on 19 September 2002, and 222 days in total in respect of the sentences imposed on 5 December 2001. The fact that those were ordered to be served concurrently with each other and all other sentences plainly shows that the nine years imposed for the offence of armed robbery in company with personal violence was intended as an overall head sentence. The judge then declared "you to be a serious violent offender", after referring to Mr Orchard's history of offences involving violence, beginning in January 1990 and continuing thereafter until the offence in custody on 6 January 2004 for possession of a "shiv", a sharpened implement which could be used as a weapon.

[26]

[23] The nine year sentence with a serious violent offence declaration is a heavy one. The learned judge remarked, when ordering that the activated suspended sentence period of about 31 months run concurrently with the nine year sentence, that doing that was as an appropriate means of acknowledging matters in mitigation in Mr Orchard's favour. The Director's written submission concedes that the learned sentencing judge therefore appeared to have commenced with a notional head sentence of about 11 years and seven months; which counsel for the respondent Director submitted was high, but defended as nevertheless appropriate.

[27]

[24] That is a high commencing sentence, even with Mr Orchard's appalling criminal history. The comparable sentence matters to which counsel for the Director referred to the Court support the submission that even so, it is not excessive.

[28]

[25] The first was a matter of R v Keating [2002] QCA 19. That applicant had been convicted on his own pleas of seven counts of armed robbery, two of attempted armed robbery, one of unlawful use of a motor vehicle with the circumstance of aggravation, one of common assault, one of fraud, and one of fraud to the value of $5,000 or more. Those offences, except the last, were committed over a nine day period in May and June of 2000. He was sentenced to eight years imprisonment, with a declaration that he was "a serious violent offender", and although this Court would have upheld that eight year sentence it reduced it by six months to give appropriate consideration to eight months of pre-sentence custody that applicant had served. This Court also made declarations that various of the offences were serious violent offences.

[29]

[26] That offender was addicted to heroin, with a fairly lengthy criminal history consistent with that addiction, and who had been armed with a syringe apparently filled with blood when committing his offences. He too had used threatening words, such as "It's not worth dying over," and "Open the till and give me all your money", which were reasonably understood as menacing statements. This Court noted in its judgment that a serious violent offence declaration can be appropriate when a need is perceived to protect the community, and where the circumstances of the commission of the offence and particularly the violence accompanying its commission may make such a declaration appropriate. Likewise an offender's criminal history may tend to show the offence for which the sentence is being imposed in a serious light, so that a need is perceived to protect the community. That applicant's eight year term with a SVO for multiple armed robberies, after a plea, suggests that the appropriate sentence for Mr Orchard's serious offences committed on 23 April 2003 would have been around the seven year mark. Then, of course, the suspended sentences have to be considered; they are both a crucial part of his history of prior offending and also matters which, on their breach, called for some actual further punishment.

[30]

[27] The next matter is R v Brennan [2001] QCA 253. That applicant was convicted after a trial of committing an armed robbery of similar nature to Mr Orchard's, in that he held up a TAB agency at Highgate Hill while holding a gun and partially disguised. His robbery was poorly organised, in that, for example, he used a hired vehicle as his get-away car. He was 36 with a substantial criminal history, although he had not committed any further offences since 1992. His sentence of 12 years imprisonment was reduced to one of eight years with a serious violent offence declaration. That sentence for a less well organised robbery without the offences of deprivation of liberty, but imposed after a trial, and with no other recent offending, suggests that a sentence of eight years for the offences committed in April 2003 was the highest available for those.

[31]

[28] Then there is a matter of R v Woods [2001] QCA 474, where that offender was convicted after a trial of an armed robbery, two counts of deprivation of liberty, and one count of break and enter with intent, all committed at a hotel in which a sum of $34,692.55 was stolen. The offender had carried a rifle or gun, and in the course of the robbery had locked two employees in a change safe for a number of hours.

[32]

[29] That applicant's offending behaviour and offences committed were strikingly similar to Mr Orchard's, and that offender was also dealt with for another offence of false pretences, separately committed. He was sentenced to a total of eight years imprisonment, with no SVO declaration. His criminal history recorded offending behaviour from 1975 till mid-1981, and none thereafter. That makes his position different from Mr Orchard's. The other distinguishing feature is that his offences were committed in 1990, although his trial was in 2000. He had not been charged until May 1997, and the proceedings took a long time to come on. Allowing for the lapse in time, and the much lesser prior history, the sentences imposed on him after a trial make those imposed on Mr Orchard after a plea high, but not manifestly excessive, when account is taken of the activated suspended sentences and the conduct reflected in those.

[33]

[30] Mr Orchard referred the court to a number of other sentences, all of which suggest that his is high, or excessive. In Lund [2000] QCA 85, that applicant too had a serious criminal history including for a number of armed robberies, and the armed robbery involved in his application had been carefully planned for some time. Nevertheless, he was sentenced on his plea of guilty to six years imprisonment, and a declaration that that was a serious violent offence was removed by this Court. His co-offender had a pair of scissors with which the co-offender menaced the intended victims (the judgment on the appeal does not record if those were in fact brandished), and Mr Lund did not have any weapon himself. His role was that of look-out, and he procured and counselled his co-offender into carrying out the actual robbery.

[34]

[31] McPherson JA opined on that appeal that that exercise of the declaration making power under s 161B(3) should in general be reserved for cases of robbery possessing some special feature that mark those off from others, and which feature calls for the additional punishment that is involved in such cases. His Honour concluded that neither the nature of the particular offence or Mr Lund's conduct in the hold up of that particular fish shop, or Mr Lund's earlier offending, sufficiently justified the declaration. Davies JA agreed, and Pincus JA agreed too, with some reservation. That robbery was a less violent one than Mr Orchard's offence, and Mr Lund's co-offender, who co-operated with the police, received only a four year sentence suspended after one year. That co-offender had a very minor record.

[35]

[32] Mr Orchard referred the court to R v W Brown [2000] QCA 402, where that applicant had pleaded guilty to the armed robbery with personal violence of the Mermaid Beach Post Office. That applicant had entered the Post Office with his face covered and holding a toy plastic pistol. In the course of the robbery Mr Brown dropped the money and was seized by one of the employees, and then fled the scene pursued by a number of people. This Court remarked on his unsuccessful appeal on a six year term of imprisonment that his offence did not induce fear in those who were its targets. He had an extensive criminal history including some 11 prior convictions for armed robbery, as well as an equal number of offences for breaking and entering and other offences of dishonestly. However, he had not offended for 10 years prior to the robbery offence under appeal, and had demonstrated real remorse. He was thought to have a serious alcohol problem, and had attempted to rehabilitate himself. He had returned to crime when experiencing serious financial problems. Mr Orchard's robbery included conduct calculated to induce considerable fear in the staff member and the manager who were confronted with the sawn off rifle. The latter's life was specifically threatened. Mr Orchard's offending was accordingly worse than Mr Brown's, as by far was Mr Orchard's history of more recent criminal conduct.

[36]

[33] Those are the only relevant judgments of this Court to which Mr Orchard referred, the other matter he relied on being examples of people convicted of multiple offences of robbery. The sentences in those ranged from nine to 12 years (R v D Brown [2003] QCA 372; R v Senior [2002] QCA 104, and R v Maka Satui [2002] QCA 323). Sentencing serial robbery offenders involves other considerations, and those sentences do not assist Mr Orchard. The other decision he relied on, R v Moore [2002] QCA 116, involved a cumulative sentence on an already substantial term of imprisonment, and does not assist.

[37]

[34] The sentences referred to herein suggest that a court sentencing Mr Orchard for only the April 2003 offences would appropriately impose a sentence in the region of seven to eight years imprisonment, with the plain option of declaring the armed robbery to be a serious violent offence, particularly because of the use of a sawn off .22 rifle and Mr Orchard actually making threats to kill; and his lengthy record of prior offences where violence was used.

[38]

[35] Then remains the question of the SVO declaration attached to a nine year sentence. Mr Orchard's most recent offences, and possibly his 1993 violent offence, were committed after threats to him. The Psychiatrist wrote:

[39]

"However, by the history he has given, it would seem that much could be done to minimise ... recidivism if he could be engaged in some meaningful treatment of his chronic substance use, both whilst he is in custody and upon his release. It would also seem that, if he could be engaged in some supportive program prior to the time of his release, rather than leaving him to his own (deficient) devices, he may be able to achieve some social stability before he is at risk of again using illicit drugs. He has virtually no experience of coping in the outside world as an adult, and has no real role models on which to rely. If the court considered it possible, I would suggest as early a release from custody as possible, on condition of co-operative engagement by Mr Orchard in appropriate and available substance-use and other socially supportive rehabilitation options. Without these opportunities, it was likely that he will be again at risk of relapse and recidivism."

[40]

[36] Mr Orchard had also told the Psychiatrist that the police had basically caught him and his partner red-handed, that he was sorry he got her into trouble, that he never had any chance when he had got out of jail, had "no family or other supports", and "I want to have another go at life before I'm 40". In those circumstances the serious violent offender declaration on the nine year sentence will have the effect of obstructing any possible chance of rehabilitation.

[41]

[37] I respectfully consider that the overall sentence imposed results in a manifestly excessive outcome when the matters described in the psychiatric report are considered. The learned sentencing judge might justifiably have imposed a seven year sentence for the armed robbery offence, declaring it to be a serious violent offence, ordering concurrent sentences for the other offences committed in April 2003; and also ordering that portion of the previously suspended sentences be served cumulatively, but with no SVO declaration attaching to those. However, in R v Gander [2005] QCA 45 this Court approved the remarks in R v Chard; ex parte A-G (Qld) [2004] QCA 372 where Williams JA suggested that where an activated suspended sentence was to be ordered to be served cumulatively with another term or terms of imprisonment being imposed, the order should require the offender to serve the whole (or the activated part) of the suspended sentence first, to be then followed by service of the sentence imposed for the offence or offences which constituted the breach of the suspended sentence. It might then be ordered that the later sentence(s) be served concurrently or cumulatively upon the part of the suspended sentence ordered to be served.

[42]

[38] The difficulty in imposing a sentence so worded in Mr Orchard's matter is that ordering a cumulative seven year term for the armed robbery offence, with a declaration that it is a serious violent offence, would result in an even longer non-parole period than that resulting from the sentence now imposed.

[43]

[39] In the circumstances I consider that an appropriate order would have been one activating two years of the previously suspended portion of the sentences imposed in September 2002, and ordering that a sentence of seven years be served for the offence of armed robbery in company with personal violence, that sentence to be cumulative, and with a recommendation that Mr Orchard be eligible for post-prison community based release after serving one half of that total period of nine years imprisonment. There seemed no point in taking that step as opposed to that which I propose instead, which is simply deleting the declaration made that Mr Orchard's nine year sentence was of a serious violent offence. It is appropriate to make no recommendation for parole, and to recommend instead to the relevant community corrections board that Mr Orchard only be considered for post-prison community based release after he demonstrates that he is co-operating as suggested in paragraph [18] herein.

[44]

[40] HELMAN J: While agreeing with Jerrard J.A.'s analyses of the facts of this case and of the comparable cases, I find myself in respectful disagreement with his Honour as to the proper outcome of the application. As his Honour has observed, the comparable cases suggest that for only the offences committed in April 2003 a range of head sentence of imprisonment for seven years to imprisonment for eight years with the option of a declaration that the conviction of armed robbery was of a serious violent offence would be appropriate. The applicant's history of offending and the violence of the attack on the hotel employees would in my view warrant imposition of a sentence at the higher end of that range, with the declaration. But then there is the question of the suspended sentences. Adding imprisonment for one year to the eight years is, I think, a reasonable response to that feature of the case. Accordingly, giving full consideration to Dr Colls's opinion, I am not persuaded that the sentences imposed on the applicant were manifestly excessive.

[45]

[1] McPherson JA and Thomas JA discussed the appropriate form of such an order in R v Keating [2002] QCA 19; CA No 251 of 2001

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