R v Belonogoff

[1996] QCA 459

[1996] QCA 459

COURT OF APPEAL

PINCUS JA
DERRINGTON J
AMBROSE J

CA No 354 of 1996

THE QUEEN

v.

PYTON FYDOROVICH BELONOGOFF Applicant

BRISBANE

...DATE 25/10/96

JUDGMENT

PINCUS JA:  Mr Justice Ambrose will deliver the first judgment.

AMBROSE J:  This is an application for leave to appeal against a head sentence of six years imposed upon a plea of guilty to a charge of armed robbery in company.  The sentence with respect to that offence was imposed at the same time as sentences for three unlawful use of a motor vehicle and a wilful and unlawful damage to property.  The unlawful use offences each attracted a penalty of 18 months imprisonment and the wilful and unlawful damage offence attracted a penalty of four months.

The essence of the complaint by the applicant is that the sentence was at the top of the range which was conceded to be between four years and six years for the robbery offence, and it was contended that it was therefore manifestly excessive and that it ought be reduced to four years.  It was contended also that the recommendation for parole after 15 months was much too long in the period recommended and that there should have been a recommendation that the applicant be eligible after serving either six months or 12 months.

The robbery was a serious offence.  The applicant and his co-offender wearing balaclavas and gloves went into a suburban bank.  The applicant's co-offender threatened the staff with a replica pistol while the applicant actually took $6,890 into a bag.  The pair of them then departed. 

It is the applicant's case that it was his co-offender who had instructed him how to carry out the robbery.  The applicant said that he received personally from the robbery about $2,000 which he spent on alcohol and drugs.

The applicant's criminal history commenced in 1993 when he was convicted of stealing.  He was released then on probation.  A series of other offences were committed and he was dealt with for those offences in 1993, 1994 and 1995.  In 1995 he was again convicted of stealing and was given probation again.  Subsequently he was convicted of other less serious offences and he was still on probation and indeed on bail for certain offences when he committed the armed robbery offence.

He pleaded guilty and four of the five counts to which he  pleaded guilty were ex officio indictments.  The learned sentencing Judge said on the material, although the applicant had not been the person instigating the robbery or managing it, nevertheless he took a very active part in it and there was little to distinguish his activity in the course of the robbery from that of his co-offender, except, of course, that it was the co-offender who threatened the staff of the bank with the replica pistol.

At the time of the commission of the offences, the applicant was 18 years of age.  The learned sentencing Judge took into account the remorse of the applicant and his willingness to assist the police officers when he was ultimately apprehended.  His Honour dealt with the offences and imposed concurrent sentences, having regard to the totality of the criminality of the applicant.

In my view it could not be said that a sentence of six years imprisonment for the applicant with his previous criminal history, keeping in mind that at the time he committed the offence he was on probation and indeed on bail with respect to other offences, and indeed that that was the second occasion on which he had been granted probation, was manifestly excessive.  The type of offence is a very serious one and having regard to the criminal history of the applicant, in my view it could not be said that a sentence of six years was manifestly excessive.

The real complaint or a significant complaint advanced on behalf of the applicant was that he ought to have been made eligible for parole at a much earlier time as I have indicated, and the suggestion was it should have been six months or at the latest 12 months.  In my view to interfere with the recommendation to reduce the period from 15 months to 12 months would clearly amount to a mere tinkering with the sentence and I do not think that could be justified on any basis. 

With respect to the contention that  the period to be served before eligibility arrived ought be reduced from 15 months to six months, it is my view that the period in fact fixed for eligibility at 15 months is significantly less than half the time that the statute provides for eligibility, and to recommend he be eligible after six months, in my view, would so detract from the penalty as to make it incommensurate with the serious nature of the offence for which he was sentenced.

In my view the order made by the sentencing Judge was within his sentencing discretion and I would refuse the application for leave to appeal.

PINCUS JA:  I agree with what Mr Justice Ambrose has said and would merely add that, if anything, the sentence of six years is towards the high end as was argued by Mrs Richards.  I am satisfied however that we would not be justified in interfering with the exercise of discretion of the sentencing Judge.  I too would dismiss the application.

DERRINGTON J:  I agree with my both my learned brothers.

PINCUS JA:  The application is refused. 

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