R v Gipters

[1995] QCA 201

IN THE COURT OF APPEAL	[1995] QCA 201
SUPREME COURT OF QUEENSLAND

C.A. No. 25 of 1995.

Brisbane

[R v. Gipters]

T H E Q U E E N

v.

ERIC FRANCIS GIPTERS

Appellant

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Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 30/05/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS:	CRIMINAL LAW - conviction - whether unsafe and unsatisfactory - sentence - whether excessive - effect of r. 166(1)(b) Corrective Services Act 1988.
Counsel:	Mr A J Rafter for the appellant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Public Prosecutions for the respondent.
Hearing date:	28/02/1995.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 30/05/1995

The appellant was convicted in the District Court on 16 December 1994 on two charges of armed robbery.

He appeals against conviction and also seeks leave to appeal against sentence. The principal basis on which the appeal against conviction was founded was that, so it was said, the convictions were unsafe and unsatisfactory. Each of the offences was committed in the evening of 22 June 1992 at a pharmacy, and the only question for the jury was whether it was established that it was the appellant who committed them. The offender, using a balaclava for concealment, held up the pharmacist with a gun, under threat of which she opened a safe. The offender demanded that everything in the safe be placed in a bag he had with him and the pharmacist put drugs from the safe in that bag. Those drugs included ampoules of pethidine and a small bottle containing morphine. The robber also obtained cash, credit card vouchers and cheques from the till, together with a bag of coins. The second robbery was committed on one Downes, a customer at the pharmacy who was forced to give up his wallet.

At the time when the offences were committed the appellant should have been, but was not at the Kennigo Community Corrections Centre, where he was residing on "work release". His leave from that centre expired at 6 pm, but he did not get back until 10.45 pm. In the meantime, at about 6.45 pm, the robbery was committed at the Royal Brisbane Place Medical Centre Pharmacy.

When the appellant returned to the Corrections Centre he was with a woman called Tracey Rose and he appeared, according to one D J Morris a supervisor at the Centre, to be "affected by something" - behaving abnormally; however, there was no smell of alcohol. A detective came to the Centre shortly after midnight and took the appellant to the city watch-house where he was searched; he turned out to have pethidine capsules with him and on being questioned about that, claimed to have got them under a prescription from a doctor. Because of evidence which need not be explained in detail, the jury was practically bound to find that the story about the prescription was untrue.

A search on arrival at the watch-house did not turn up any morphine, but about 2.15 am on the same morning, police searched the cell in which the appellant had been housed, their doing so being prompted by the fact that the appellant was noticed to have a sock tied around his upper right arm just above the elbow. On this second search there were found to be "some glass on the floor and on the bed...a syringe...a little brown bottle, and at least one pethidine capsule". In the bottle there was a sum of $285 "tightly pressed in" and the bottle was proved to contain morphine. The glass fragments showed evidence of the presence of pethidine. Faeces appeared to be on the brown bottle and also in the sink, the obvious inference being that the bottle had been concealed in the appellant's rectum.

Apart from the fact that pethidine and morphine were among the drugs stolen from the pharmacy, there were other circumstances connecting the drugs found at the watch-house with those stolen. Batch numbers of the pethidine ampoules matched the batch numbers of the stolen pethidine, although the weight of this evidence was somewhat reduced by the absence of evidence to show the precise probability of this being a coincidence; but - another possible coincidence - the batch number of the morphine bottle matched the pharmacy's stock.

There was evidence, as has been mentioned, that when the appellant, some four hours after the robbery was committed on 22 June 1992, came back to the Corrections Centre, he was in company with a woman called Tracey Rose. It appears that she is also known as Tracey Taylor and that she was residing at the time at the Atcherley Hotel. There was evidence connecting this woman with the robbery, which was, in summary, that the manager of the hotel had his attention drawn to a sound of argument in the woman's room, about 10.30 pm to 10.45 pm on the night of the robbery. On going to the room the manager found there Tracey Taylor and a man whose description roughly matched that of the appellant. On the following day the assistant manager found in the room a number of items which appeared to have been the product of the robbery on 22 June; they included Mr Downes' wallet and cards. Two days later the police found at the rear of the hotel a nylon carry bag bearing the name "Rick", that being a name by which the appellant was known. It contained clothing and firearms and was said to be quite like the bag used by the robber.

Apart from the evidence which has been mentioned there was identification evidence which was of some assistance to the Crown, although as was argued on behalf of the appellant, the witnesses called on the identification issue were by no means consistent with one another. However, the other evidence was enough to give rise to a solid inference that it was the appellant who had committed the robbery and, particularly as there was no evidence called to rebut that inference, the suggestion that the verdict was unsafe has no substance.

The only other point taken was that certain of the evidence should have been the subject of a "Shepherd direction": see Shepherd (1990) 170 C.L.R. 573. Specifically it was argued, although the argument was not we think strongly pressed, that certain facts had to be proved beyond reasonable doubt. An example will suffice: it was argued that the Crown had to prove beyond reasonable doubt that it was the appellant who was with Tracey Rose (otherwise known as Tracey Taylor) in that woman's room at the Atcherley Hotel on the night of the robbery. The Crown evidence on that point was insufficient to enable the jury to make such a finding, if one considers the matter in isolation. But the presence of a man in that room whose description was rather like that of the appellant was a factor which the jury was entitled to consider. The case was not one in which inability on the part of the Crown to prove that it was the appellant rather than someone else who was in the woman's room was destructive of the Crown case. More generally, counsel for the appellant was right not to press the suggestion that the judge should have given directions of the kind discussed in Shepherd at p. 579.

One may be perhaps pardoned for noticing that, at a time when Legal Aid funds are alleged to be short, a considerable amount of public money has been spent on a week-long trial, despite the strength of the Crown case and the absence of any explanation whatever of incriminating circumstances which called out for an explanation from the appellant; perhaps this expenditure was thought to be dictated by Dietrich (1992) 177 C.L.R. 292.

The appeal against conviction has no substance and must be dismissed.

On the application for leave to appeal against sentence, it was said that the sentence which should have been imposed was 8 years imprisonment; that which was in fact imposed was 10 years and 6 months imprisonment in respect of each offence, expressed to be concurrent and to date from the date of sentence, 23 December 1994. The appellant is 37 years of age.

On 5 December 1986 the appellant had been sentenced to 11 years imprisonment for armed robbery in company and 4 years concurrently for an associated offence; that sentence would conclude on 5 December 1997. On 14 August 1992 the appellant was convicted of having been unlawfully at large, on the occasion on which he committed these robberies, and was sentenced to 3 months imprisonment cumulatively, which took the date on which he was entitled to be released, apart from the sentence in question in these proceedings, to 5 March 1998. The additional 10 years and 6 months from 23 December 1994 takes the ultimate termination of the sentences to 23 June 2005, adding about 7 years and 3 months to the head sentences the appellant was already serving. It seems impossible to take seriously the suggestion that an addition of 7 years and 3 months to the sentences already being served was an excessive penalty for these armed robberies, committed by a person who had a bad criminal record and was at the relevant time serving a sentence for a previous armed robbery. It should be mentioned that the judge thought the offences really merited 12 year sentences; he subtracted 18 months on account of the authorities' delay in bringing the matter to court.

Counsel for the appellant argued before us that if the head sentence were not to be altered there should at least be some relief in respect of the parole date. According to the submissions made by the appellant's counsel, he would be considered for parole 5 years and 3 months from 23 December 1994 - i.e. half-way through the additional 10 years and 6 month sentence.

Under s. 166(1)(b) of the Corrective Services Act 1988, subject to certain provisions which do not require mention, a prisoner serving a term of imprisonment other than life imprisonment is not eligible for release on parole "until the prisoner has served at least half of the term of imprisonment to which the prisoner was sentenced". The definition of "term of imprisonment" in s. 10 includes the following:

"(b) the unbroken period of imprisonment a person is liable to serve by virtue of a number of sentences, whether ordered to be served concurrently or cumulatively and whether imposed at the same time or at different times..." .

As has been mentioned, the appellant was not in a prison for the whole of the time from 5 December 1986 until he was sentenced for these offences, on 23 December 1994, because he was for a short period in 1992 an inmate at the Kennigo Community Corrections Centre; but his concurrent and cumulative sentences imposed from 1986 on created a "term of imprisonment" within the meaning of the part of the definition we have quoted. This is so because there was an unbroken period of imprisonment which the appellant was liable to serve by virtue of those sentences, beginning in 1986 and ending in 2005. The result is that to calculate the new parole date one does not, under s. 166(1) of the Corrective Services Act 1988, halve the period of the latest sentence, imposed in 1994; one must halve the whole period from 5 December 1986 to 23 June 2005 (6775 days), the result being that the appellant will be eligible for release on parole on 14 March 1996, only about 15 months after the latest sentences were imposed.

It may be that the effect of the definition of "term of imprisonment" on the parole date was not fully appreciated and that if it had been, the sentencing judge would have taken a different course. But it is evident that the new date of eligibility for parole cannot possibly be complained of by the appellant; there is no appeal by the Crown. We would add that one must hope that the parole authorities would be cautious in their consideration of an application for parole by this appellant, in view of his having committed armed robberies while on release to work.

The orders will be appeal against conviction dismissed and application for leave to appeal against sentence refused.