R v Bartz and Attorney-General of Queensland

[1995] QCA 79

IN THE COURT OF APPEAL	[1995] QCA 079
SUPREME COURT OF QUEENSLAND

C.A. No. 501 of 1994.

Brisbane

[Attorney-General v. Bartz]

T H E Q U E E N

v.

WADE ANTHONY BARTZ

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

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Pincus J.A. Thomas J. White J.

___________________________________________________________________

Judgment delivered 21/03/1995

Judgment of the Court

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APPEAL ALLOWED. SENTENCES IMPOSED VARIED IN THAT IT IS ORDERED
THAT:
1.ALL 10 SENTENCES BE MADE CONCURRENT.

2.EACH OF TWO SENTENCES IMPOSED OF 10 YEARS AND 12 YEARS

FOR ARMED ROBBERY BE REDUCED TO 9 YEARS.

3.ALL SENTENCES BE MADE CUMULATIVE UPON THE SENTENCES

IMPOSED ON 21 MAY 1993.

4.THE RESPONDENT BE ELIGIBLE FOR PAROLE, IN RESPECT OF THE SENTENCES IMPOSED ON 21 MAY 1993 AND THE SENTENCES THE SUBJECT OF THIS APPEAL, AFTER HAVING SERVED 7 YEARS FROM THE DATE THE EARLIER SENTENCES BECAME EFFECTIVE - I.E. ON 4 APRIL 2000.
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CATCHWORDS:CRIMINAL LAW - Attorney-General appeal against sentence - escape from lawful custody, three armed robberies and other offences - bad criminal history - persistent tendency to commit violence - totality principle - pleas of guilty - co- operation with police - concurrent sentences - cumulative.

Mill (1988) 166 C.L.R. 59; Larsen (1989) 44 A.Crim.R. 121;

Clements (1993) 68 A.Crim.R. 167; Iselin and McLean (Court of Criminal Appeal,

19/9/1988, unreported).

Counsel:Mr M Byrne Q.C. for the appellant.

Mr S Herbert Q.C. for the respondent.

Solicitors:Director of Prosecutions for the appellant.

Terry Fischer for the respondent.

Hearing date:24/02/1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/03/1995

This is an appeal against sentence by the Attorney-General. The respondent was on 3 November 1994 convicted in the District Court of 10 offences of which one was committed in April 1993 and the remainder about the end of May 1994. He pleaded guilty to all the charges. The most serious offences were three armed robberies for which sentences of 10, 9 and 12 years were imposed. The rest of the sentences ranged up to two years and one of those two year sentences, for escaping from lawful custody, was made cumulative on all the other sentences. The judge recommended that the respondent be eligible for parole on 31 December 1998.

The result, as to head sentences, was that the respondent was sentenced to a total of 14 years imprisonment, but the whole of that was made concurrent with sentences totalling 9 years imprisonment which had been imposed in May 1993.

The respondent is 21 years of age; he was 20 when he committed the 9 offences at the end of May 1994. To commit them he escaped from custody. At the time of his escape the respondent was serving the terms of imprisonment imposed in May 1993. The escape, which was effected in company with three other inmates, was from Borallon Correctional Centre. It involved some degree of violence and the escapees got away in a vehicle, evading pursuers by travelling at a very high speed.

Of the three robberies, two involved the theft of money. The first was committed on 30 May 1994, a week after the escape. The respondent, armed with a loaded shotgun, entered a post office and by threatening one of the staff with the gun induced him to put money in a bag. There was an accomplice, apparently standing guard outside, armed with a cross-bow. The amount stolen was a little under $900. Shortly after the post office robbery the respondent and his accomplice committed another robbery, taking a vehicle which was parked in a driveway from a woman who was then in charge of it. It has to be said that the offenders, at the victim's request, left with her her handbag and pet dog, both of which had been in the car.

The third robbery was committed a week later, at a bank, and the amount taken was nearly $12,000, of which the respondent's share was $8,000. The respondent was armed with a pistol which he pointed at people in order to threaten them; he demanded that a bag be filled with money. Two customers were made to lie on the floor. The pistol was loaded and, again, the respondent had an accomplice. It is worthy of note that the respondent was the principal offender in each of these robberies, and in each instance he used a loaded weapon. The respondent gave as a reason for the commission of the robberies that he wished to "party".

It has been mentioned that one of the robberies involved the theft of a car. The same car was the subject of a charge of unlawful use with a circumstance of aggravation, namely that it was used to facilitate the commission of an indictable offence. There were two other convictions of unlawful use of a motor vehicle with the same circumstance of aggravation; the circumstances of these offences do not require any elaboration except that the first had associated with it an offence of breaking and entering and stealing. The owner of the car had his house broken into to obtain the car keys and some other property, being a stereo unit, a video recorder and a television set were also stolen.

These were the offences committed about the end of May 1994. In addition, the respondent was on the same occasion sentenced for a 1993 offence, a relatively minor offence of arson in relation to a motor vehicle.

The respondent has a bad criminal history. At the age of 17 he was convicted of assault occasioning bodily harm, which produced a sentence of community service. Shortly after that he committed a similar offence, receiving 2 months imprisonment and 2 years probation. Then a few months later there were four more convictions of assault occasioning bodily harm, a conviction of simple assault and one of assault occasioning bodily harm whilst armed with an offensive weapon. There are two other assault offences in the record; so that there is a persistent tendency to commit violence. In addition to these offences there are a number of what are commonly called police offences and a relatively minor drug offence, in the criminal history.

Further, there were, prior to April 1993 an offence of breaking and entering, an attempted breaking and entering, and offences of wilful and unlawful damage. In May 1993 the respondent was sentenced to a total of 9 years imprisonment for offences committed in April 1993, the principal one of which was an armed robbery in company. According to the criminal history these sentences were made to be operative from 4 February 1993, but that is seen, on examination of the record of proceedings, to be a slip, either on the judge's part or on that of the transcriber. The judge's clear intention was to make the 1993 sentences begin on 4 April 1993. It is noted that there was a recommendation for parole after serving 3 years, and again reference to the record of proceedings shows that the sentencing judge intended the three-year recommendation for parole to relate to the total sentence, which was 9 years.

The primary judge referred to some unfortunate incidents in the respondent's life. The main one seems to have been that, when a youth, he had an affair with his employer's wife. His Honour said that the respondent had developed an addiction to heroin while in prison and after mentioning the nature of the offences, he referred to the respondent's bad criminal history. His Honour also set out some ameliorating factors: the respondent's youth, his co-operation with the police and with the prosecuting authorities and that the respondent was said to have kept away from heroin recently.

The principal complaint made is that the new sentences were, except for the escape, made concurrent. The Crown says in effect that shorter sentences should have been imposed, cumulatively. The reason for the suggestion of shorter sentences is the totality principle, dealt with in Mill (1988) 166 C.L.R. 59 by the High Court. The principle of Mill is not confined to cases in which sentences are imposed in different jurisdictions: Todd (1982) 2 N.S.W.L.R. 517 (referred to in Mill at p. 64), Larsen (1989) 44 A.Crim.R. 121 at 126, Clements (1993) 68 A.Crim.R. 167 at 171, 172 per Macrossan C.J. and de Jersey J.

Under the 1993 sentences the respondent was, subject to parole and remissions, to be imprisoned until 4 April 2002; the effect of the sentences imposed below is that the ultimate release date becomes 3 November 2008; the sentences are equivalent to a cumulative sentence of 6 years and 7 months.

As has been mentioned, the new parole date fixed is 31 December 1998. That was done on the basis of an agreement between counsel below that the eligibility date under the 1993 sentence was 4 October 1996. The agreement was in error, since the record of the 1993 proceedings shows that the eligibility date was 3 years from 4 April 1993 - i.e. 4 April 1996.

In this sense the parole date fixed in the subject sentence was less favourable to the respondent than the primary judge believed; on the date given below, 4 October 1996, eligibility for parole was thought to have been deferred by about 2 years and 3 months, whereas in fact it was deferred by about 2 years and 9 months.

To summarise, the effect of the sentences imposed was to defer ultimate entitlement to release by 6 years and 7 months and defer the parole date by 2 years and 9 months. Considering the respondent's criminal record and the fact that he has been convicted of armed robberies committed as an escapee while under sentence of imprisonment for a previous armed robbery, it seems difficult to justify such sentences.

In Cougan (Court of Criminal Appeal, 7 February 1991, unreported) there was an application for leave to appeal by a man of about the same age, but with what seems to have been a slightly worse criminal history than the present respondent. When he came to be sentenced for an escape from custody and two robberies committed, together with associated offences, in August 1990, he had already been sentenced to 15½ years imprisonment for past offences, all committed in the same year, 1990. The August 1990 offences seem to have been rather less serious than those with which we are concerned, in that a replica revolver was used, not as in the present case a weapon loaded with live ammunition.

The primary judge imposed a further 12 years imprisonment, cumulatively upon the 15½ years, making a total of 27½ years. That appears to be a remarkably high aggregate sentence, having regard to the totality principle, for such a young man; one must question whether it should be followed today when that principle is perhaps better established. There was a recommendation for parole, however, which had the result of deferring eligibility for parole by only 2 years and some months. The factor which appears, at first sight, to make the longer sentence an unusual one is the proportion between the (very long) head sentence and the non-parole period. We were also referred to Iselin and McLean (Court of Criminal Appeal, 19 September 1988, unreported), where McLean, only 21 years of age, committed two armed robberies of a description which appears to make his culpability comparable with that of the respondent here. He was sentenced to 12 years imprisonment, but by way of interference with the view of the primary judge, the Court declared that he be eligible for parole after having served 4 years.

The case has some importance because the non-parole period was fixed by the Court of Criminal Appeal. It makes the non-parole period in the present case appear to be rather too short, when it is considered that the respondent, unlike McLean, committed the subject robberies when an escapee from prison where he was serving a term for another armed robbery.

To summarise, the judge in the present case had to decide the proper sentence for a young man with a bad criminal record, including a previous armed robbery which produced a sentence of 8 years imprisonment, and a number of other offences involving violence, who has, while an escapee, committed three armed robberies and some other offences. His Honour has imposed concurrent head sentences totalling 14 years, but the circumstances are such as to justify, indeed require, the imposition of a cumulative sentence, of substantial length. One must consider, in favour of the respondent, the totality principle and also have regard to his pleas of guilty and the extent of his co-operation with the police when apprehended. The proper course is to impose a cumulative sentence of 9 years and to defer eligibility for parole by four years. The appeal will be allowed and the sentences imposed varied in that it is ordered

1. That all 10 sentences be made concurrent with one another.

2. That each of two sentences imposed of 10 years and 12 years for armed

robbery be reduced to 9 years.

3. That all the sentences be made cumulative upon the sentences imposed on

21 May 1993.

4. That the respondent be eligible for parole, in respect of the sentences imposed on 21 May 1993 and the sentences the subject of this appeal, after having served 7 years from the date the earlier sentences became effective - i.e. on 4 April 2000.