R v Bealing

[2003] QCA 323

SUPREME COURT OF QUEENSLAND

CITATION:	R v Bealing [2003] QCA 323
PARTIES:	R v BEALING, Darren James (applicant)
FILE NO/S:	CA No 59 of 2003 DC No 514 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Beenleigh
DELIVERED EX	25 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2003
JUDGES:	Davies and Williams JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – CIRCUMSTANCES OF OFFENDER – where applicant convicted on armed robbery offences committed whilst on community release – where sentenced to eight years imprisonment cumulative on other current sentence – where applicant had significant criminal history – whether disparity with sentence of co-offender – whether cumulative nature of sentence has consequence of the totality of the sentence being oppressive or unreasonable – whether sentence imposed manifestly excessive
COUNSEL:	The applicant appeared on his own behalf R J Pointing for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: The applicant pleaded guilty on the 19th of February 2003 to one count of armed robbery in company, one count of attempted armed robbery in company, one count of armed robbery and a final count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence. The effective head sentence imposed was 8 years imprisonment cumulative on the other current sentence.

The circumstances in which those offences came to be committed are of material relevance to the issue of sentence which is in issue in this application. The applicant had been convicted

on the 16th of March 1999 of the offence of dangerous
operation of a vehicle whilst adversely affected causing
death. He was then sentenced to six years imprisonment.

Whilst serving that term of imprisonment, he was temporarily released into the community; it appears that pursuant to a work scheme he was given leave of absence. In effect he escaped because he did not return to prison as required by the terms of his temporary release.

He says in his statement to the Court that he became aware that a female friend was likely to be evicted from her residence because of some financial difficulty. He said it was because of that he failed to return to prison as required. It was against that background that, on the 16th of October 2000, the offences in question were committed.

Counts 1 and 2, that of armed robbery in company and attempted armed robbery in company, involved the applicant and a male friend entering a pizza shop at Springwood at about 9.00 p.m. on that date. The applicant was armed with a sawn-off .22 rifle. Both men had balaclavas or items of clothing over their heads masking their faces. There was a female and a young male present in the pizza shop. The applicant demanded money. It was handed over. An attempt was made to take money from the young male person's bum bag and his wallet, but they were found to be empty. The female handed over her purse and money was taken from it. In the course of the robbery, the applicant told the other male to grab a knife which was on the premises, but shortly thereafter, both male persons fled with the money that they had obtained.

It was shortly thereafter on the same day that count 3 occurred; that was the robbery of the Red Rooster store at Kingston. The complainant in that case was standing near the computer when he heard a demand for money. He saw a gun which was pointed at him. The cash drawer was opened and some money was taken. It seems clear from the material that was placed before the Judge who sentenced the applicant's associate, which material is before this Court in affidavit form, that the other person ran away when the applicant entered the Red Rooster store and did not participate in that robbery.

Count 4 on the indictment relates to the unlawful use of a motor vehicle to facilitate the commission of those offences. In those circumstances counsel for the prosecution at first instance submitted that a head sentence of eight years imprisonment was appropriate and it was clear to all, given the provisions of the Penalties and Sentences Act, that that sentence had to be cumulative on the other sentence which the applicant was serving.

The experienced lawyer who appeared for the applicant at first instance informed the sentencing Judge that he didn't wish to make any submissions about the head sentence proposed by the prosecution. He urged on the sentencing Judge that the head sentence be moderated because it was a timely plea, a matter conceded by the Crown.

Also of significance, when it came to the issue of sentence, was the applicant's criminal history. In the Children's Court in 1989 he had pleaded guilty to 14 charges of break, enter and steal and other offences of dishonesty. In the District Court in 1991 he had pleaded guilty to 17 charges of breaking, entering and stealing and other offences of dishonesty. Then, in the Magistrates Court at Beenleigh in June 1991, he pleaded guilty to a further count of break and enter with intent. It should be said that latter offence occurred shortly after he had been placed on probation for the 17 charges that I previously referred to. In consequence, he was sentenced to imprisonment for six months for the June 1991 offence.

There was a further charge of break and enter a dwelling house offences involving low-level violence and a number of offences for breaching bail. He also had an earlier conviction for escaping from legal custody in 1993.

with intent which was dealt with in the District Court in
October 1996 and he was sentenced to imprisonment for a period
of 12 months.

In those circumstances, it could not be said, in my view, that a sentence of eight years imprisonment as a head sentence with respect to the four counts to which he pleaded guilty on the

16th of October was manifestly excessive.

The applicant, in his written material placed before this Court, raises an issue of disparity with the sentence imposed on his co-offender with respect to counts 1 and 2, to which his co-offender pleaded guilty. But as I have said the co- offender was not the principal offender. He did run away when the second armed robbery, that of the Red Rooster was committed, and he had a less serious criminal history.

In those circumstances it was understandable that the sentence imposed on him for his part in the criminal escapade was significantly less than the sentence which had to be imposed on the present applicant.

The other issue raised by the present applicant relates to the fact that, by virtue of the provisions of the Penalties and Sentences Act, the sentence had to be made cumulative and he submits that, in the absence of any recommendation, the totality of the sentence is oppressive and unreasonable. But, in my view, when it is borne in mind that the offences, committed whilst he was technically an escapee, have the consequence that the sentences imposed must be cumulative, it is only the conduct of the applicant which has produced that result. The offences were serious. They did involve, as I have said, the use of a sawn-off .22 rifle. Although, there is no evidence whether it was loaded at the time, that is largely an irrelevant consideration.

In my view, the sentences imposed were not, in all the circumstances, manifestly excessive and I would refuse the application.

DAVIES JA: I agree.

MACKENZIE J: I agree.

DAVIES JA: The application is dismissed.

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