R v Woods [2001] QCA 474

Judgment (96 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McPHERSON JA: I agree with the reasons of Mullins J for dismissing this appeal against conviction and for refusing leave to appeal against sentence.

[3]

[2] JONES J: I agree with the reasons of Mullins J and with the orders proposed.

[4]

[3] MULLINS J: The appellant was convicted on 31 October 2000 of 1 count of armed robbery, 2 counts of deprivation of liberty and 1 count of break and enter with intent ("the robbery charges") arising out of the armed robbery of the Junction Hotel at Annerley on 30 April 1990 in which the sum of $34,692.55 was stolen. The primary grounds of appeal in the notice of appeal are that the decision of the jury was unreasonable or cannot be supported, having regard to the evidence, and was unsafe and unsatisfactory. Another ground of appeal put in issue the fairness of the trial due to the conduct of the learned trial judge. The appellant's written submissions sought to impugn the fairness of the trial due to the alleged failure of the appellant's solicitor to carry out the appellant's instructions.

[5]

[4] The appellant was unrepresented in connection with all aspects of this appeal.

[6]

[5] The appellant delivered a number of documents to the court in support of his appeal including a document which was described as being his affidavit which was filed on 12 June 2001, but which is a statement setting out the history of his representation by solicitor James Coburn and Legal Aid Queensland legal officer Mr David Law. The appellant also submitted an affidavit sworn by his wife Mrs Ronnie-Lee Woods on 29 May 2001 dealing with matters relating to the legal representation of the appellant at the trial. The respondent filed affidavits in response on 9 August 2001 from Mr Coburn, Mr Law and Ms Wooldridge.

[7]

[6] In order to put a number of the appellant's arguments in context, it is useful to set out a chronology of some of the events to which he made reference. At the time of the robbery Gerrard Heuston Ruys ("Ruys") was employed at the Junction Hotel doing general work and was a friend of the appellant. At the time of the robbery the appellant was conducting a joinery business with Ms Lucille Younger at Lawnton which was called "Kitchens 2000". The appellant was also in a personal relationship with Ms Younger at that time.

[8]

[7] The appellant was charged in 1996 with arson of a motor vehicle. The appellant was a witness in Family Court proceedings in 1996 involving the custody of the two children of his wife Mrs Ronnie-Lee Woods (whom the appellant had married in April 1996) against her former husband Mr Peter Bakens. The appellant was convicted by a magistrate of assault occasioning bodily harm in respect of an incident involving Mr Bakens at the Family Court in January 1996. The appellant successfully appealed against that conviction to the Court of Appeal.

[9]

[8] In 1996 Ms Younger made the allegation to the police about the appellant's being involved in the robbery of the Junction Hotel. Ruys spoke to the police on 30 April and 20 May 1997 and on the latter occasion he confessed his role and implicated the appellant in the robbery that had occurred on 30 April 1990.

[10]

[9] The appellant was charged with the robbery charges in about May 1997 together with 1 count of false pretences relating to an insurance claim in respect of a Holden Commodore motor vehicle which was committed on 19 April 1988.

[11]

[10] Before the committal for the robbery charges, Mr Coburn took instructions from the appellant that he would plead guilty to the charges in connection with the Junction Hotel robbery and the false pretences charge. Mr Coburn then negotiated with the Crown on the basis that if the appellant pleaded guilty to these charges, the arson charge would be discontinued. It appears that the arson charge was no longer pursued at that time against the appellant.

[12]

[11] The appellant pleaded guilty at the committal hearing to the robbery charges and the false pretences charge.

[13]

[12] On 11 September 1998 the appellant obtained an order in the District Court that the plea of guilty entered at the committal be vacated and, in lieu, a plea of not guilty be entered. The indictment was stayed, pending the outcome of fresh committal proceedings. The appellant was then committed on the charges. The arson charge was then revived against the appellant.

[14]

[13] Mr Ruys pleaded guilty to like offences arising out of the robbery of the Junction Hotel and was sentenced on 8 February 1999 to a term of imprisonment of 5 years that was wholly suspended for an operational period of 5 years.

[15]

[14] On 2 July 1999 the appellant suffered an electric shock when attempting to use an automated vacuum cleaner at a petrol station. He was discharged after spending one day in the Caboolture Hospital. He claims to have suffered a brain injury, as a result of the electric shock.

[16]

[15] A trial in relation to the robbery charges commenced on 19 June 2000. That trial was aborted due to contact between one of the witnesses, Ms Younger, and a juror.

[17]

[16] The second trial of the robbery charges commenced on 28 August 2000, but this trial was aborted due to a non-responsive answer from Ruys.

[18]

[17] The third trial which resulted in the verdicts commenced on 24 October 2000.

[19]

[18] The prosecution relied on direct evidence and also a circumstantial case against the appellant. The evidence against the appellant in the direct case was given principally by the accomplice Ruys. He could recall being at Ms Younger's house at Brighton when a conversation took place between Ruys and the appellant at which Mr Tyrone Younger (Ms Younger's son) was present for at least part of the conversation. Ruys stated that the appellant started asking him questions about his work at the Junction Hotel and said "I want to rob the hotel". Ruys stated that the appellant drew an outline of the hotel and started asking questions, such as where was the office and the alarm system and what areas were alarmed. Mr Ruys filled in details on the outline that the appellant had done.

[20]

[19] On Sunday 29 April 1990 Ruys had worked at the hotel. It closed at 6pm. After work he stated that he had gone to the appellant's home at Heal Street at New Farm and had quite a few drinks with the appellant. Ruys recalled that he eventually went to bed at the appellant's place and could remember being woken up and the appellant saying to him "Let's go and get in the car and go for a drive". Ruys stated that the appellant drove to a spot near McDonald's not far from the Junction Hotel, got out of the car, got a bag out of the boot of the car and told Ruys not to move and to stay there. Ruys stated that it was just on dawn, he saw the appellant walk up the hill in the direction of the Junction Hotel and he then fell asleep.

[21]

[20] The next thing that Ruys remembered was the appellant's banging on the passenger window waking him up. He stated that the appellant got into the car, was puffing and said something to the effect "Gee, that fucking bag's heavy" and they drove off.

[22]

[21] Later that day or the next day when Ruys visited the appellant at his business premises at Lawnton, Ruys stated that the appellant was "skiting" how easy the robbery was and told him about how he had put the female employee into the strong room under the stairs where the male employee was already bound and gagged. Ruys stated that it was at that point in time that the appellant told him that he had used the keys of the male employee to let himself in and threw them on the floor near a pot plant in the foyer area so that no-one would know that the appellant had Ruys' keys.

[23]

[22] Ruys stated that a couple of times he asked the appellant about the money and the appellant said "I'm going to give you some but I can't trust you with it because you will just go and stick it in your bank account or spend it and I will invest it for you". Ruys stated that at no time did the appellant give him any of the proceeds from the robbery.

[24]

[23] The appellant's counsel cross-examined Ruys rigorously on the three different statements which Ruys had given to the police and his credibility was attacked on the basis that he had done a deal with the police to wrongly implicate the appellant, so as to gain a lower sentence.

[25]

[24] Ms Younger gave evidence that the joinery business was failing by early 1990, because of lack of capital.

[26]

[25] Ms Younger also gave evidence about an incident at the joinery, when there was a man present who told the appellant in front of Ms Younger that the appellant's cheque had bounced which he had given in payment of the man's car, a Valiant. The appellant's bank statements showed that the cheque was last dishonoured on 30 April 1990. Ms Younger stated that the appellant said "Oh, don't worry about that. I have got the cash in the joinery." and that Ms Younger and the man went with the appellant to the ute and paid the man the sum of $2,000 in cash. Mr Donald Bacon was the vendor of the Valiant and his evidence confirmed that of Ms Younger about this occasion, except that Mr Bacon stated that the appellant gave him $200 in cash additional to the sum of $2,000 to compensate him for the hassles with the bounced cheque.

[27]

[26] Ms Younger stated that the appellant on this occasion showed her a green tool tin or a bag (as she was not sure which) in which he had notes and coins and that the appellant said to her "I don't want you to have it - I don't want you to take it home. It's is too dangerous but that's your $33,000".

[28]

[27] Ms Younger also stated that when she learnt a couple of days later that the place where Ruys had worked had been robbed, she questioned the appellant about the money and the appellant told her that he did not do the robbery and that he got the money from selling his house in Canberra.

[29]

[28] The joinery business was operated by a company named Desertcourt Pty Ltd which had been a company associated with Ms Younger and her former husband. Ms Younger identified the bank statements of the account of Desertcourt Pty Ltd for the period 9 November 1989 to 3 May 1990. By 12 April 1990 the account was overdrawn to approximately $40,000 and on 17 April 1990 Ms Younger deposited $50,000 which came from the sale of the house which had been owned by Desertcourt Pty Ltd.

[30]

[29] An analysis of the transactions in the account of Desertcourt Pty Ltd and the appellant's bank account showed that between 30 April and 4 May 1990 cash deposits or other transactions involving cash were undertaken totalling $15,013.50.

[31]

[30] Ms Younger was also rigorously challenged in cross-examination. It is quite apparent from the record that she bore great ill will toward the appellant. It was no doubt obvious to the jury, but was also a matter commented on by the learned trial judge in the summing-up. Ms Younger admitted to making the allegation to the police about the involvement of the appellant in the robbery of the Junction Hotel. As a result of the failure of the joinery business, Ms Younger was made bankrupt.

[32]

[31] Tyrone Younger gave evidence supporting that of Ruys as to the conversation which had taken place at the Brighton house involving the appellant and Ruys at which Tyrone was present relating to the planning of the robbery. Mr Younger stated that the appellant asked him to be the getaway driver which Mr Younger declined to do.

[33]

[32] Mr Younger stated that several months later he became aware that the Junction Hotel had been robbed and that he had a conversation with the appellant in which the appellant said "You should have helped us out. You could have had a cut of this" and at the same time held up about $1,000 in cash.

[34]

[33] Mr Younger was also rigorously cross-examined about his motives in giving evidence against the appellant. Mr Younger admitted that his 15 year addiction to marijuana had "slowed" his brain.

[35]

[34] Ms Deborah Fairlie had a relationship with Ruys for a short time about 1990 and gave evidence about a conversation which she had involving the appellant and Ruys, when she and Ruys were watching an armed robbery or hold up in a bank on television and she commented "That must have been awful for that to happen" and that Ruys responded "Well, I've done it. I've done it before". Ms Fairlie stated that Ruys kept saying things like "Yes, it is. It is. Ask Mark" and that when Mark returned to the lounge room, Ruys spoke to him and then the appellant said "It's true. Gerry was the brains and I was the brawn. We've done it once and we'd do it again if we had to".

[36]

[35] When the appellant was interviewed by police on 21 May 1997, the interview was video and audio recorded and those tapes were played during the course of the trial.

[37]

[36] The two counts of deprivation of liberty related respectively to two employees at the Junction Hotel, Mr Robert Smith and Ms Roberta Neil.

[38]

[37] On 30 April 1990 Mr Smith was the live-in caretaker and bottle shop attendant at the hotel. He started work on 30 April 1990 just after 5am. Mr Smith was walking across a laneway which was inside the hotel area to open up the door to go to the lounge area, when he noticed some movement and saw a man walk towards him who was wearing a pair of dark jeans, footwear, a jacket, gloves and a balaclava. Mr Smith stated that he believed the man was carrying a rifle or gun and he was pointing it at him and told him not to look at him or he would shoot him. Mr Smith stated that he then opened up doors followed by the man who was behind him with the gun in his back. Mr Smith described the man as follows:

[39]

"... he was a fairly solid man. I believe he would have been taller than me because the laneway sloped away from me and he was around about my height when I first saw him. I'm about 5'10" I guess, so as he walked closer to me, he would have been slightly taller than me, but that was about the last time that I saw him."

[40]

[38] Mr Smith stated that the man taped his hands behind his back and taped his eyes while he was kneeling on the floor in the office and took his keys off him. There were two safes - the main safe and the change safe. Mr Smith stated that he then heard the man open the change safe which was built in under the stairs and he heard money being moved about. He stated that the man then pulled him back up again and put him in the change safe and locked the door. Mr Smith did not have the combination for the main safe. He told the man that the next person was not coming in until about 7.45am.

[41]

[39] Mr Smith stated that he heard when the assistant manager, Ms Neil, arrived at the office door and heard the man say to her "Just open the safe". Mr Smith heard Ms Neil open the main safe and then the man pushed her into the change safe. They were eventually rescued by another staff member about 8.45am. Mr Smith had been locked up in the change safe for about 3 ½ hours and Ms Neil for about an hour.

[42]

[40] In cross-examination, Mr Smith gave the following evidence in relation to the height and build of the robber:

[43]

"Now, this gunman was between about 5 foot 10 inches and six foot tall?-- He would have to be but I think he was taller than myself and I think I am around about 5 foot 10.

[44]

Right. You were of the impression he was about the same height as yourself?-- Or higher - or taller because he was on a bit of an angle went (sic) I first saw him. He was around about the same height then.

[45]

Can I just examine that for a moment? Can I suggest to you that back in 1990 you described him to the police as being 5 foot 10 inches to 6 feet tall?"

[46]

And that he was about your build, but perhaps a fraction bigger?-- I believe he was bigger than myself, but he was wearing a coat. It was still cool.

[47]

I appreciate that this is ten years ago, so we have to search one's memory here, but can I suggest you said at page 46 line 55, 'Fairly solid build. I'd say about my build, maybe a fraction bigger than me, but appeared to be of solid build anyway. He had some sort of jumper on.' All right?-- Yes.

[48]

You were about 80 to 84 kilograms at the time; is that right?-- I would have been, yes. Closer to 80. Yeah, around about 80, 82, I'd say.

[49]

Mr Smith did not notice the colour of the robber's eyes. Mr Smith who knew Ruys stated that Ruys was not the robber.

[50]

[41] Ms Neil had given evidence at the trial in June 2000. As she was on holidays overseas, the parties agreed that her sworn evidence on the prior occasion would be read to the jury. Her evidence was that when she arrived at the hotel on 30 April 1990 and was walking toward the office, she saw somebody standing there with a gun. She described the person as follows:

[51]

"This person, could you just describe about how tall?-- Well, I'd say fairly tall, nearly 6 foot. He was really heavy set, thick clothing on.

[52]

What colour clothing?-- I'm pretty sure it was a dark green jumper, and it was - I'm really not sure of the pants. I'm pretty sure they were dark with a boot like shoe on. He had a balaclava and gloves.

[53]

Balaclava - what sort of colour was that?-- It was a fawny colour. It was a light colour.

[54]

All right. What sort of apertures were in the balaclava?-- He just had his eyes - all I could see were the eyes.

[55]

Now, how close did you get to the person?-- He was standing probably 10 feet away from me.

[56]

Right. Could you see the colour of his eyes?-- They were brown. I thought they were a light brown.

[57]

Okay. Now, pants, can you remember -----?-- I'm not clear, but I'm pretty sure they were dark pants.

[58]

Now, you said he had a gun What sort of a gun?-- It looked like a long barrelled rifle."

[59]

[42] In cross-examination Mr Ruys had agreed that the appellant has blue-green eyes and that he would have been well over 100 kgs back in 1990. One of the investigating police officers, Detective Trezise, gave evidence that he had measured the appellant in business shoes and his height was 189 cms - approximately 6 feet 2 ½ inches.

[60]

[43] There were other witnesses called by the prosecution who gave evidence relevant to the explanations given by the appellant in his recorded interview about the cash transactions for the business between 30 April and 4 May 1990.

[61]

[44] The appellant did not call or give evidence at the trial.

[62]

[45] The learned trial judge directed the jury in appropriate terms on direct evidence, circumstantial evidence, an accomplice's evidence, the effect of prior inconsistent evidence, reliability of witnesses with particular reference to partial witnesses and witnesses with memory defects and identification/description evidence. There is no significant attack made by the appellant on the summing-up and, in fact, no errors can be discerned in the summing-up.

[63]

[46] The appellant in his outline of submissions has identified a number of aspects of the police investigation into the robbery which he considers were lacking. That does not translate to an attack on the evidence which was placed before the jury. The appellant has also identified various pieces of peripheral evidence which he relies on to support the submission that the verdicts were unsafe and unsatisfactory.

[64]

[47] The primary submission made by the appellant was that the identification evidence of Mr Smith and Ms Neil did not accord with the appellant's height, build and eye colour. There were discrepancies in that Ms Neil's observation that the appellant's eyes were light brown was clearly wrong and at greater than 100 kgs, the appellant was clearly more than "a fraction bigger" than Mr Smith who was about 80 kgs at the time. Mr Smith also described the robber as being of solid build and Ms Neil described him as "really heavy set". The discrepancies in the height evidence (where the robber was described as 6 feet and the appellant is 6 feet 2 ½ inches) were not as significant as the appellant attempted to make out in argument. Each of Mr Smith and Ms Neil had a short time in a stressful situation to make observations of the height of the robber. In any case, the identification evidence was only part of the evidence which linked the appellant to the robbery.

[65]

[48] As is apparent from the recitation of the evidence, the prosecution had a strong case. There were many different paths for the jury to follow, in order to reach the verdicts of guilty. The jury could have accepted the evidence of Ruys and convicted on that alone. There was also a significant circumstantial case whether with or without the support of the evidence of Ruys, Mr Younger, Ms Fairlie, Mr Smith or Ms Neil. A consideration of the whole of the evidence leaves no doubt that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The appellant's attacks on the police investigation, peripheral evidence and the identification evidence, even collectively, cannot show that the convictions were unsafe and unsatisfactory.

[66]

[49] The appellant states that Legal Aid was instructed to locate potential witnesses Kevin and Kay Stiller, Ron and Jan Dodd and John and Diane Mahoney. Mr Stiller, Mr Dodd and Mr Ford (previously Mahoney) were located by the Crown and gave evidence at the trial. Statements of those witnesses had been provided to the appellant's solicitor prior to the trial. Those witnesses were relevant to the explanations which had been given by the appellant in the recorded interview. These witnesses were cross-examined by the appellant's counsel. No doubt the appellant would have preferred for his solicitor to have proofed these witnesses, before the Crown, but clearly no miscarriage of justice has been caused by those particular witnesses being proofed by the Crown.

[67]

[50] The appellant complains about Ms Neil's evidence from the first trial being read at the trial. Mr Law deposes to his opinion and that of counsel that the evidence was in the appellant's favour and that they advised the appellant to consent to this course. The appellant's written instructions incorporating that consent are exhibited to Mr Law's affidavit.

[68]

[51] The appellant now complains that Mr Ford should not have been permitted to give his evidence by telephone. After Mr Ford had given evidence at the trial, the appellant's counsel applied for an adjournment to enable his instructor to speak to Mr Ford, with a view to recalling him, because Mr Ford was not called at the committal. A voir dire with Mr Ford being examined further by telephone link was then conducted with a view to establishing that Mr Ford was in fact Mr Mahoney who had been identified by the appellant as a potential witness and whether there was any police officer present when Mr Ford had been giving evidence. As a result of the evidence of Mr Ford on the voir dire, no further application was pursued on behalf of the appellant at the trial in relation to Mr Ford.

[69]

[52] The evidence in the trial was put before the jury between Tuesday 24 October until it was completed at approximately 3.30pm on Thursday 26 October 2000. The addresses to the jury were given on the morning of Friday 27 October 2000. The learned trial judge then summed up to the jury on that day from 11.50am until 1.30pm. The trial then adjourned. The learned trial judge had another trial listed to proceed on Monday 30 October 2000, so that the appellant's trial was adjourned until Tuesday 31 October 2000. When the trial resumed on 31 October 2000 the learned trial judge resumed summing up from 9.45am until 11.05am. A substantial part of the summing-up therefore occurred on the morning before the jury then retired. The appellant now complains about that break between 1.30pm on Friday 27 October 2000 until 9.45am on Tuesday 31 October 2000. The week-end break was normal. There was an additional break of 1 ½ days. There was no complaint made on the appellant's behalf at the time when these arrangements were put into place. The redirections which were sought by the jury do not indicate that the jury had any difficulty in carrying out its task, because of the delay. In the circumstances, it is difficult to see how the delay of 1 ½ days added to the week-end could have contributed to any miscarriage of justice.

[70]

[53] The appellant seeks to rely on statements made by the learned trial judge as showing "prejudicial conduct during the trial". All statements which the appellant relies on were made in the absence of the jury. After the verdicts were brought in, the trial judge made statements to the jurors which gave them some background to the delays in bringing the matters to trial which did not reflect well on the appellant, but these comments were made after the jurors had performed their task.

[71]

[54] When Ruys was being cross-examined about where the car had been parked near McDonald's on the day of the robbery the learned trial judge produced a photocopy of the relevant page from a street directory which the appellant's counsel then used for asking further questions of Ruys and then tendered it. The street directory was an aid to the giving of clear evidence which was adopted by the appellant's counsel. That cannot be described as prejudicial conduct on the part of the learned trial judge.

[72]

[55] The appellant also claims that evidence given by Ms Younger and Ms Fairlie was false. The appellant claimed in the course of submissions that he was the subject of a vendetta that had been conducted against him by Ms Younger and Mr Bakens. At trial the appellant's counsel thoroughly cross-examined all persons whom the appellant claims lied at the trial and raised the vendetta motive. The appellant merely makes allegations of perjury and false evidence to support his appeal. The credibility of these witnesses was clearly raised before the jury and was a matter for the jury to decide.

[73]

[56] There are also allegations about Mr Coburn's firm's acting for Ruys in addition to the appellant. That was not an odd circumstance when the appellant's instructions before the initial committal for the robbery charges were that he was pleading guilty. There are many other complaints made against Mr Law about peripheral matters. There is nothing in the lengthy submissions and documentary material provided by the appellant for the purpose of the appeal which goes anyway towards showing that there has been any misconduct on behalf of those who acted for the appellant at any stage of the proceedings up to and including the trial. There is an allegation by the appellant that one of the jurors was asleep for 2 days and that he asked Mr Law to have her woken up which Mr Law refused to do. There is no affidavit, however, from any person about observing a juror to be asleep or dealing with what period that juror was asleep.

[74]

[57] Notwithstanding the breadth of the allegations and submissions now made by the appellant to support his claim that the trial was unfair, that was clearly not the case.

[75]

[58] At the commencement of the hearing of the appeal, the appellant sought to rely on a medical report which was obtained in connection with his pursuit of a personal injuries action arising out of the electric shock sustained on 2 July 1999 to claim that he was not in a fit mental state at the time of the trial. That was not a ground of appeal and was only faintly argued, but, in any case, is unsupported by the material that was available on the appeal.

[76]

[59] There is no basis for the appellant to attack the convictions in respect of the robbery charges. His appeal should be dismissed.

[77]

[60] The appellant also applies for leave to appeal against the sentences imposed by the learned trial judge for the robbery charges and the one count of false pretences. After being convicted on the robbery charges, the appellant pleaded guilty to the one count of false pretences. The appellant was sentenced on 8 December 2000. On the count of armed robbery, a sentence of 8 years' imprisonment was imposed. On each of the other three counts arising from the robbery and the one count of false pretences a sentence of 2 years' imprisonment was imposed concurrent with each other and the sentence imposed for the armed robbery. A declaration was made deeming time to have been served under the sentence in respect of the 43 days of pre-sentence custody.

[78]

[61] The false pretences count involved a false claim on an insurance company in relation to a motor vehicle owned by Ruys. The brother of Ruys had been driving the vehicle when it was involved in a traffic accident which caused substantial damage. At the appellant's suggestion, the car was dumped in water and reported stolen and a claim made against the insurance company which paid out the sum of $5,305.

[79]

[62] The application for leave to appeal against sentence was filed, before the sentencing had occurred. The appellant was anticipating the approach of the learned trial judge to the sentencing process. The Crown does not concede that the application for leave to appeal against sentence has been properly commenced. It is academic to dwell on this point, as the application has been prepared by both parties on the basis that it would be heard at the same time as the appeal against conviction. It is expeditious to proceed simply to deal with the merits of the application for leave to appeal against the sentences.

[80]

[63] The appellant's submissions on sentence raise two issues:

[81]

(a) whether the sentencing remarks show complete bias against the appellant on behalf of the learned trial judge; and

[82]

(b) whether proper consideration was given to the circumstances and antecedents of the appellant.

[83]

[64] The appellant was born on 3 January 1957. He was 43 years old at sentence and between 31 and 33 years old at the time of the offences.

[84]

[65] The appellant had a prior criminal history for offences committed between April 1975 and May 1981. These included convictions for stealing and break enter and steal. In addition, the appellant had been convicted on 15 November 1979 for conspiracy to steal with actual violence whilst armed with a dangerous weapon whilst in company which related to a plan to use a sawn off shot gun and sawn off rifle to rob the Browns Plains Hotel.

[85]

[66] Whilst the appellant was imprisoned in the early 1980's, he studied externally for a Bachelor of Applied Science, specialising in building. After his release from prison, the appellant worked consistently in the construction industry including as construction manager for a contractor employed to work on Parliament House in Canberra. In November 1990 the appellant sustained a serious spinal injury and since February 1995 had been on a disability support pension. The appellant has suffered from angina since 1986.

[86]

[67] The learned trial judge viewed a video showing a news item which reported on the appellant's rescuing a truck driver from a truck which had caught on fire.

[87]

[68] The learned trial judge took into account that the appellant had shown no remorse and had gone to considerable lengths to delay the trial and had regard to the appellant's conduct before, during and after the trial which the learned trial judge considered had done him no credit. The learned trial judge took into account the significant criminal history, but that the appellant had been out of trouble for quite a while since the subject offences were committed in 1988 and 1990. The learned trial judge referred to the appellant's reasonable work record and his army service for about 2 ½ years until 1975. The learned trial judge made some allowance for the appellant's poor health and personal circumstances and the references tendered on his behalf from his wife, father-in-law and neighbour and an allowance for the appellant's rescuing the person from the burning vehicle.

[88]

[69] The learned trial judge referred to alternative approaches to the sentencing. One approach was to give an appropriate sentence for the armed robbery and associated offences and make a shorter cumulative term for the insurance fraud. The other alternative was to decide a global head sentence for all the offences and impose that for the armed robbery offence and impose the proper sentence for the insurance fraud, but to make it concurrent. If the learned trial judge had followed the first approach he would have sentenced the appellant to 7 years' imprisonment for the armed robbery and a cumulative sentence of 1 year for the insurance fraud. The learned trial judge chose the second approach and imposed the term of 8 years for the armed robbery and the concurrent sentence of 2 years for the insurance fraud.

[89]

[70] The appellant had changed solicitors and counsel between conviction and sentence. The appellant's counsel on sentence made submissions that the range for the armed robbery was between 6 years and 8 years and that the sentence for the insurance fraud should be concurrent. The appellant's counsel conceded that the appropriate sentence for the insurance fraud was 2 years. The submission for the Crown was that the sentence range for the armed robbery was between 7 and 9 years with a cumulative term for the insurance fraud.

[90]

[71] The appellant's allegation of judicial bias against the appellant appears to be directed at showing that the sentencing process miscarried. The sentencing remarks of the learned trial judge are lengthy, but are explicable by reference to the lengthy history of the proceedings and, in particular, the application made by the appellant to change his plea to the robbery charges from guilty to not guilty which involved many adjournments and attendant delay. The observations which the learned trial judge made about the appellant's conduct reflect the events which are part of the record. No issue can be taken with the observations which the learned trial judge made of the appellant, because of the appellant's behaviour during the course of the trial.

[91]

[72] The approach taken by the learned trial judge to impose a term of 8 years' imprisonment for the significant charge of armed robbery with concurrent sentences for the other offences cannot be impugned. The sentence of 8 years is within range for the offence, having regard to the approach of determining a global head sentence and the circumstances of the robbery, even in the light of those ameliorating factors on which the appellant relies. Compare R v Jones [2000] QCA 84; (CA No 393 of 1999).

[92]

[73] The appellant also complains about the lack of parity with Ruys' sentence. Ruys' circumstances are distinguishable. Ruys did not play an equivalent role to the appellant in the robbery and Ruys cooperated with the authorities and pleaded guilty at an early stage.

[93]

[74] There is no basis for an appeal against the sentence based on the attitude and approach of the learned trial judge to the sentencing process.

[94]

[75] The other ground on which the appellant relied to attack the sentence was based on matters which were put before the District Court in relation to the sentencing of the appellant on 28 June 2001 on the arson charge in respect of the motor vehicle and a related charge of false pretences. Those matters primarily arose after the conviction of the appellant on the robbery charges and the one count of false pretences which was on the same indictment. The appellant has been given credit for those matters in the sentencing which proceeded on 28 June 2001. It is neither necessary nor appropriate for those matters to be now raised in connection with an appeal against the sentence for the robbery charges and the false pretence charge.

[95]

[76] The application for leave to appeal against sentence should therefore be dismissed.

[96]

Appeal against conviction be dismissed.
Application for leave to appeal against sentence be dismissed.

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Judgment (96 paragraphs)

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