Court of Appeal (Qld)|2006-02-10|Before: McMurdo P, Jerrard JA and Muir JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, proposed
McMurdo P, Jerrard JA and Muir JSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, proposed
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED
PERSONS –
APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY - where
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AGAINST SENTENCE – APPEAL BY CONVICTEDPERSONS –APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – GENERALLY - whereappellant pleaded guilty to one countof robbery, two counts of robbery withpersonal violence, one count of wilful damage and two summary offences ofobstructing andassaulting a police officer – where offences committedduring operational period of a suspended sentence imposed for previousrobberyoffences – where appellant ordered to serve balance of suspended sentence(18 months) and sentenced to an effectiveterm of four years' imprisonment to beserved cumulatively with activated suspended sentence – where appellantordered to beconsidered eligible for post-prison community-based release afterserving 30 months – where 270 days in pre-sentence custodywas declaredtime already served – where appellant claims that sentence was manifestly
excessive – where appellant is
ineligible to apply for parole in respect
of the 18 months' imprisonment because period of imprisonment must be more than
two years
under s 134(1) Corrective Services Act 2000 (Qld) – where
appellant also ineligible to apply for parole under s 135(2)(e) Corrective
Services Act after serving half of the four-year term because of sentencing
judge's order in accordance with s 157 Penalties and Sentences Act 1992
(Qld) that appellant serve 30 months of term – whether judge intended
deliberately to delay appellant's eligibility for parole
until after statutory
halfway point of his sentenceCorrective Services Act 2000 (Qld), s
134, s 135
Penalties and Sentences Act 1992 (Qld), s 157, s 161R v
Griinke [1992] 1 Qd R 196, citedR v Hundric [2005] QCA 324
CA No
152 of 2005, 30 August 2005, cited
R v Russell [2005] QCA 392
CA No 194 of 2005, 24 October 2005,
cited
Judgment (24 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
THE PRESIDENT: The applicant pleaded guilty on 28 October 2005 to one count of robbery and two counts of robbery in company with personal violence, all committed on 17 January 2005. He also pleaded guilty on 28 October 2005 to one count of wilful damage which occurred on 31 January 2005 and to two summary offences (obstructing and assaulting a police officer) dealt with under s 651 Criminal Code 1899 (Qld). The offences were committed during the operational period of a suspended sentence imposed in the Brisbane District Court on 26 February 2004 for two counts of robbery when the applicant was sentenced to 27 months' imprisonment suspended after nine months with an operational period of three years. The applicant was ordered to serve the balance of that sentence, 18 months' imprisonment. On the January 2005 offences he was sentenced to an effective term of four years' imprisonment which was imposed on the two counts of robbery in company with personal violence and lesser concurrent sentences on the remaining offences. This sentence was ordered to be served cumulatively on the activated suspended sentence. The learned primary judge recommended that the applicant be considered eligible for post-prison community-based release (parole) after serving 30 months and declared that 270 days pre-sentence custody was time already served under the sentence.
[3]
The applicant contends that the sentence is manifestly excessive. His complaint is not with the head sentences imposed but with the recommendation for eligibility for release.
[4]
It is common ground between counsel that s 134(1) Corrective Services Act 2000 (Qld) ("the CSA") has the effect that the applicant was not eligible to apply for parole, other than an exceptional circumstances parole order, in respect of the 18 months period of imprisonment because it is not a sentence of more than two years. It is also uncontentious that under s 135(2)(e) CSA he would ordinarily have been entitled to apply for post-prison community-based release after serving one half of the four year term of imprisonment imposed for the January offences. Section 135(2) CSA is, however, subject to s 157 Penalties and Sentences Act1992 (Qld) ("the PSA") which allows a court when imposing a term of imprisonment of more than two years to recommend that the offender be eligible for parole after serving a specified part of that term. Both counsel contend that the effect of his Honour's sentence was that the applicant will not be eligible for parole until 30 months after he commences to serve the four year sentence, that is, 31 January 2009. They contend that the effect of the sentence is not that he is eligible for parole 30 months from his date of sentence less the time served in prison subject to the declaration under s 161 PSA, that is, on 31 July 2007.
[5]
It is unnecessary to determine whether counsel's interpretation of the Acts is correct for reasons which will shortly become clear. The Corrective Services Offender Management has come to a different conclusion from counsel as to the effect of his Honour's sentence. Their present understanding is that he would be eligible to apply for post-prison community-based release on the alternative basis set out earlier, that is on 31 July 2007.
[6]
I turn now to the relevant facts and circumstances of the applicant and the offences he committed. He was only 20 when he committed his most recent spate of offences and was still 20 at his sentence. He had a very concerning criminal history for like offences. In 2002 he was placed on four months' probation for obstructing and assaulting a police officer. The next month he was placed on 12 months' probation for breach of bail. Of more significance, in October 2002 he was convicted of robbery with actual violence in company and sentenced to 18 months' probation. He was also sentenced to three months to be served by way of an immediate release order on multiple counts of common assault, robbery and two counts of assault occasioning bodily harm. In June 2003 he was ordered to serve two months' imprisonment which had been earlier suspended and was also sentenced to seven months' imprisonment to be served by way of an intensive correctional order for breaching a probation and community service order. In October 2003 he was convicted and sentenced to an effective term of three months' imprisonment for an assortment of offences including assault, entering or being in premises and committing an indictable offence, obstructing a police officer, possession of dangerous drugs and other street offences. In February 2004 he was sentenced to 200 days' imprisonment for breaching an intensive correction order and, as earlier noted, was sentenced to 27 months' imprisonment to be suspended after nine months with an operational period of three years for one offence of robbery with a circumstance of aggravation and another offence of robbery with actual violence. In July 2004 he was convicted of possessing prohibited articles and sentenced to 14 days' cumulative imprisonment. On 8 October 2004 he was convicted of entering or being in premises and committing an indictable offence and robbery with actual violence in company, fraud, two counts of entering a dwelling and committing an indictable offence and breach of a suspended sentence. He was sentenced to two months' imprisonment to be followed by two years' probation.
[7]
It follows that the offences of concern to this Court were not only committed during the operational period of a suspended sentence but were also a breach of probation.
[8]
The January 2005 offences occurred in this way. The applicant approached his 15-year-old male victim at 1.20 p.m. at the Wynnum North train station. He demanded money but the young man refused. He threatened to bash the complainant if he did not give him money and pulled tight on a chain around the young man's neck until the chain broke and fell to the ground. A co-offender picked up the chain and demanded money in exchange for it. The young man agreed and his friend gave the applicant's co-offender $20. The complainant suffered red marks on his neck which was sore for a few days.
[9]
The second robbery count occurred when the complainant, Ms Colson, and the complainant in the third count, Mr Banks (both 17 years old), were at the Lytton train station at about 9.20 a.m. The applicant and his co-offender approached from behind and asked for a cigarette. Mr Banks said they did not smoke. The applicant aggressively asked for his mobile phone. Mr Banks refused. The applicant threw punches at his head while the co-accused grabbed Ms Colson's hand and her handbag. The applicant punched Mr Banks in the face until he fell to the ground when he tried to kick him on the head but Mr Banks successfully defended the kick with his hands. The applicant wrenched Mr Banks' mobile phone from him. Mr Banks got up and punched the applicant in the face causing him to fall. Meanwhile, after a struggle, the co-offender took Ms Colson's bag and fled.
[10]
The train arrived and Mr Banks retrieved his mobile phone. Mr Banks called out for help. Four bystanders caught the applicant and kicked and hit him apparently with a baseball bat. He returned to the station later, accompanied by his mother. Mr Banks and Ms Colson were still there waiting for police to arrive. The applicant accused Mr Banks of hitting him and he and his mother were aggressive towards the complainants. The applicant and his mother left before the police arrived. The incident was recorded on a video. The applicant declined an interview with police when he was apprehended later that month. Ms Colson suffered bruising to her arms, back and left leg, a graze to her knee and her left arm and shoulder were swollen. Mr Banks suffered a broken nose, swollen eyelid and facial bruising.
[11]
The summary offences occurred when the applicant resisted the police who attended at his home on 31 January. He kicked a policeman in the chest and kicked and shattered the police car window.
[12]
The applicant was also dealt with for breaching probation. The probation report showed that he had been uninterested in addressing his problems, particularly his alcohol problem, and that he was unsuitable for community-based orders.
[13]
The Prosecutor at sentence submitted that the 18 months of the unserved suspended sentence should be activated in full and that a concurrent sentence of about four years' imprisonment should be imposed for the robbery offences.
[14]
Defence counsel emphasised the applicant's youth, unfortunate upbringing and drug and alcohol problem as being instrumental in his poor criminal history. He conceded the 18 month unserved balance of the suspended sentence should be activated and submitted that an effective sentence of three and a-half to four years' imprisonment was appropriate to reflect the totality of the offending. He stressed that the applicant had been in custody since his arrest on 31 January 2005.
[15]
The learned primary judge was rightly concerned with the applicant's appalling criminal history for like offences. He was also concerned at the serious injuries suffered by the complainants, in particular Mr Banks. There can be no doubt that the offences in all the circumstances warranted a condign deterrent penalty.
[16]
There is nothing in the learned judge's sentencing remarks or in his discussion with counsel during the sentence hearing to suggest that his Honour was deliberately delaying the applicant's eligibility for parole after the statutory half-way point of the sentence although both counsel submit that is the effect of his Honour's orders. Such an order is not usually made by sentencing judges in this State unless there are particular identifiable reasons for so doing: see R v Griinke[1992] 1 Qd R 196 at 197, R v Russell[2005] QCA 392, CA No 194 of 2005, 24 October 2005 and R v Hundric[2005] QCA 324; CA No 152 of 2005, 30 August 2005.
[17]
Having perused the record, in the circumstances of this case I think it likely that his Honour assumed that, for the purposes of calculating the eligibility date for parole, the 18 month term of imprisonment and the cumulative four year term of imprisonment would be added together, so that ordinarily the applicant would have been eligible for parole after 33 months from the date of sentence, less any period of custody declared to be time served under s 161 PSA. I think it likely that his Honour intended to recommend that the applicant be released slightly earlier than at this half-way point, that is, at 30 months from the date of sentence less the 270 days of pre-sentence custody, that is, on about 31 July 2007. In fact, that is the way the sentence has presently been calculated by Corrective Services Offender Management.
[18]
The applicant contends that in any case he should have been eligible for parole slightly earlier than this to recommend the mitigating factors, especially his plea of guilty and his youth and prospects of rehabilitation. The applicant submits that the parole recommendation should have been at about the end of April 2007.
[19]
The sentence that I believe his Honour intended to impose, that is, with a recommendation for parole eligibility on 31 July 2007, was well within range. It gave appropriate effect to the relevant mitigating factors and was not manifestly excessive. Because there is some doubt in interpreting the effect of his Honour's sentence in the light of the provisions of the CSA it would be better if this is clarified. It is usually wise when sentencing judges are imposing cumulative sentences and making recommendations for parole to give a specific date for the recommendation for eligibility for parole so that uncertainty such as has arisen in this case can be avoided.
[20]
I would grant the application for leave to appeal against sentence and allow the appeal only to the limited extent of giving clear effect to what I understand was the learned sentencing judge's real intention by deleting the recommendation for post-prison community-based release and instead recommending that the applicant be eligible for post-prison community-based release on 31 July 2007.
[21]
JERRARD JA: I agree with the order proposed by the learned President and that that sentence in the circumstances is not manifestly excessive. The applicant was only 20 years old when he was sentenced and the sentence imposed was a severe one for a person of his age but he has been committing robberies with violence since 4 November 2000 and up and until 31 January 2005 when he was taken into custody. He has also been committing other offences throughout that period.
[22]
When he was sentenced in October 2005 for the three offences of armed robbery or robbery with violence that he committed in January 2005 that was the fourth time he had appeared before a sentencing Court to be sentenced for offences of robbery and those were his sixth, seventh and eighth offences for robbery with violence. All of those offences which he had committed, as it happened, all of this century were offences where he attacked other people at train stations, hit them and took their mobile phones or their money or both.
[23]
He had appeared in total 16 times between November 2000 and October 2005 in sentencing courts to be sentenced for offences, some of which included robbery with violence and he had previously had the benefit of a variety of probation orders, intensive correction orders and suspended sentences. It is a hard sentence but the time has come in which the community is entitled to be protected from his attacks on others and he has to demonstrate to a Community Corrections Board that it is appropriate and safe for him to be released into the community and he must show that at the earliest after serving imprisonment until mid 2007.
[24]
MUIR J: I agree with the reasons of the President and of Justice Jerrard and with the order proposed.