R v Abbott

[1999] QCA 425

99.425

COURT OF APPEAL
de JERSEY CJ
DAVIES JA

JONES J

CA No 223 of 1999
THE QUEEN
v.

BRENDAN JAMES ABBOTT Applicant

BRISBANE
..DATE 07/10/99
071099 D.1 T02/MV16 M/T COA242/99
DAVIES J: The applicant was convicted after a trial on
17 April last on one count of unlawful use of a motor
vehicle with a circumstance of aggravation and one of armed
robbery in company. On 29 June he was sentenced to six
years imprisonment on the first of those counts and seven
years imprisonment on the second, the sentences to be
concurrent with one another but cumulative upon sentences
which the applicant was then serving. The applicant was
also declared by the learned sentencing Judge to be a
serious violent offender.

The applicant seeks leave to appeal against the effective sentence of seven years imprisonment cumulative upon his present sentences. No complaint is made about the declaration, nor could it be. It is hard to imagine anyone of whom the term serious violent offender would be a more accurate description.

The applicant is 37 years of age and has an appalling history of serious violent offences, including no less than four of armed robbery, three of them in company. His most serious convictions and sentences were as follows. In 1983 he was convicted of stealing and sentenced to four years imprisonment. In 1988 he was convicted of breaking and entering with intent and sentenced to three years imprisonment, to receiving and sentenced to 12 months imprisonment and to robbery whilst armed and in company and sentenced to 10 years imprisonment cumulative upon the other sentences.

071099 D.1 T02/MV16 M/T COA242/99

Again in 1988 he was convicted on six charges of deprivation of liberty and sentenced to six years imprisonment. In 1989 he escaped from Fremantle Prison and apparently remained at large for many years. Finally in 1996 he was apprehended and charged with armed robbery in company, for which he was sentenced to nine years imprisonment. In 1997 he was convicted and sentenced on two other offences committed whilst he had been at large, one of armed robbery for which he was sentenced to nine years imprisonment and one of armed robbery in company for which he was sentenced to 10 years imprisonment. Again he escaped from prison here, for which he was convicted and sentenced in 1998 to a term of six years imprisonment cumulative upon his earlier sentences.

The offences and sentences the subject of the present appeal were committed whilst he was at large after that escape which occurred in November 1997. These offences also occurred in November 1997. The most serious of them by far was, of course, the armed robbery in company, which was a bank robbery. The applicant entered a bank armed with a large hand gun. Nixon entered armed with an axe. The applicant leapt the bank counter and said to members of the staff, "I will blow your fucking head off, don't try anything or you're dead." It is unsurprising that a number of people present were severely psychologically affected by those events. At least one of them is likely to have lifelong problems.

071099 D.1 T02/MV16 M/T COA242/99
It could not be disputed that, having regard to the
seriousness of this offence and the applicant's prior
criminal history, the learned sentencing judge's statement
that, in isolation, a term of 12 years imprisonment would be
justified, was correct. Indeed the contrary was not
suggested.

The contention on the applicant's behalf is that, having regard to sentences already imposed on the applicant still to be served, an additional term of seven years rendered the totality of his period of servitude too much to reflect the totality of criminality involved.

It was pointed out that, under sentences which he was already required to serve in Queensland his full time discharge date was not until October 2013 and he would not be eligible for parole until 2010. It was also noted that he had the balance of a quite substantial term to serve in Western Australia.

I agree that, when imposing a cumulative sentence, a sentencing judge must have regard to the totality of criminality involved and the total sentence must reflect that totality. But I do not think the learned sentencing judge erred here in giving effect to that principle. Having said, rightly, that a 12 year term would have been appropriate, in my view it would have been quite lenient. His Honour reduced that to seven years. That, in my view, caused the totality of the term which the applicant is now 071099 D.1 T02/MV16 M/T COA242/99

required to serve to reflect the totality of his

criminality. I therefore refuse the application.

THE CHIEF JUSTICE: So would I.

JONES J: And I also agree.

THE CHIEF JUSTICE: The application is refused.

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