Brian Leslie Underwood v The Queen

[2013] HCASL 178

BRIAN LESLIE UNDERWOOD

v

THE QUEEN

[2013] HCASL 178
M49/2013

1. The applicant pleaded guilty in the County Court of Victoria (Judge Parsons) to incitement to commit armed robbery, seven counts of theft, two counts of burglary and one count of unlicensed driving.  The majority of the offences related to the planned armed robbery of a bank in Geelong.  The applicant was sentenced to an effective sentence of five years' imprisonment with a non-parole period of four years.

2. The applicant appealed against the severity of the sentences to the Court of Appeal of the Supreme Court of Victoria.  On 17 August 2011, the Court of Appeal (Bongiorno JA and Whelan AJA) dismissed the appeal.  The only ground of appeal pressed at the hearing was that the sentencing judge erred in fixing the non-parole period.  In an exchange during the sentencing hearing Judge Parsons had remarked that a long parole period "does seem appropriate".  His Honour did not, in his remarks on sentence, explain in terms the reason for the structure of the sentence.

3. The Court of Appeal noted that the applicant was aged 38 years at the date of the offences and that he has an extensive criminal history, including a prior conviction for armed robbery and many convictions for theft.  He had served many sentences of imprisonment.  These offences were committed within five months of the expiration of the applicant's last parole order.

4. The Court of Appeal concluded that the total effective sentence was a merciful one, reflecting Judge Parsons' favourable finding of the applicant's reduced moral culpability[1].  The Court considered that the non-parole period of four years to be the minimum period that justice requires that he serve in custody in all the circumstances of the offences. 

   [1]Underwood v The Queen [2011] VSCA 270 at [12], citing R v Verdins (2007) 16 VR 269.

5. The applicant seeks special leave to appeal contending that the sentence is manifestly excessive.  The application is out of time, but the applicant is unrepresented and has provided a satisfactory explanation for the delay.  Compliance with the time for filing the application should be dispensed with. 

6. The applicant puts his argument in two ways.  First, in light of Judge Parsons' intimation that a long parole period was appropriate, the imposition of a non-parole period representing 80% of the sentence without further notice was a denial of procedural fairness.  Secondly, Judge Parsons failed to give sufficient weight to his mental condition consistently with the statement of principles in R v Verdins[2]. 

   [2](2007) 16 VR 269.

7. The applicant was represented by counsel at the hearing before Judge Parsons.  There is no reason to conclude that counsel did not have the opportunity to fully present the applicant's case respecting the structure of the sentence.  There is no substance to the procedural fairness challenge.  Nor is there any reason to doubt the conclusion of the Court of Appeal that the sentence reflected a generous view of the extent to which the applicant's mental condition mitigated his offending. 

8. If special leave to appeal were granted the appeal would have insufficient prospects of success.

9. The application is dismissed.

10. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

V.M. Bell
3 December 2013 S.J. Gageler