R v Jamieson

[1999] QCA 331

99.331

COURT OF APPEAL
McPHERSON JA
THOMAS JA

DERRINGTON J

CA No 202 of 1999
THE QUEEN
v.

WARREN CHARLES JAMIESON Applicant

BRISBANE

..DATE 18/08/99

JUDGMENT
180899 T18/SJ/SA2 M/T COA196/99

McPHERSON JA: The applicant in this case is Warren Jamieson who is well known, by reason of his previous appearances before the Court, as a person who commits armed robberies. He was eventually released on parole. Unfortunately he re- offended for various reasons and he re-offended in what has to be said is a significant respect or series of respects.

He was convicted on his own plea before Judge Robin in the District Court of a count of stealing, a count of forgery, of uttering, of six counts of armed robbery, one count of

armed robbery in company, one count of armed robbery with
personal violence, a count of deprivation of liberty and a
count of attempted armed robbery. His Honour imposed, in
respect of the forgery, uttering, stealing and deprivation
of liberty charges, a sentence of imprisonment for three
years. In respect of all the other counts he imposed a
sentence of nine years and four months imprisonment.

There is a slight difficulty in respect of the charge of attempted armed robbery in that, having regard to s.411 and s.536 of the Criminal Code, the maximum for that offence was seven years, and the sentence of nine years and four months to which I have referred obviously exceeds that.

The application for leave to appeal will therefore be allowed in respect of the sentence imposed for that offence by reducing it from nine years and four months to seven years, to be served concurrently with the other sentences imposed on this occasion.

2   JUDGMENT

180899 T18/SJ/SA2 M/T COA196/99

There is really nothing further we can do for Mr Jamieson -

he is facing a very long period in prison - but since he

persists in committing armed robberies to the great distress
of the victims, he leaves us with no option but to sentence
him and confirm the sentences in respect of him which have
that result.

The sentences imposed in the present case were certainly not excessive - indeed, possibly, the contrary - and for my part I can see no reason for intervening to alter them in any

respect except the particular to which I have already
referred.

THOMAS JA: The applicant pleaded guilty on 20 May 1999 to 13 offences committed over a 10 week period towards the end of 1998. Eight of the offences involved armed robbery. One was an attempted armed robbery, one was unlawful detention and three were offences of dishonesty.

The applicant was at the time 40 years old. He was at that time on parole which had commenced in April 1998. The unserved period of previous sentences still remaining to be served if he breached his parole was very lengthy. This was the result of breaches of parole with respect to previous sentences, followed by further release on parole, followed in turn by further breaches.

3   JUDGMENT

180899 T19/SE25 M/T COA196/99

In the end, the combined effect of his persistent offending and of surprisingly generous parole releases was that at the time of his release, he was subject to a total sentence of imprisonment of a little over 35 years starting from 1977. There is some uncertainty as to the precise calculations but we were informed by the appellant's counsel that he was released in 1998 when his full time discharge date was 31 May 2012.

As might be suspected, the criminal history of this applicant can only be described as dreadful. The sentences which have been mentioned by Mr Justice McPherson were effectively 9 years and 4 months imprisonment on the offences relating to armed robbery. A period was declared to be time already served unless such days were credited to sentences he was already serving.

It was common ground that under section 156A of the Penalties and Sentences Act, the armed robbery offences were required to be ordered to be served cumulatively. The relevant sentences were less than 10 years and therefore fell under section 161B rather than under 161A. The learned sentencing Judge did not expressly declare the conviction to be one of a serious violent offence, but it would seem to follow that in respect of those sentences the applicant is not eligible for consideration of parole until he has served 80 percent of the term imposed with respect to those serious violent offences. (See section 161B(2), 161C(b)(1) of the

4   JUDGMENT

180899 T19/SE25 M/T COA196/99

Penalties and Sentences Act and section 166(1)(c) of the
Corrective Services Act.

It is not known and it is not yet capable of being known how much of the preceding sentences he will actually serve. His earliest discharge date is said to be October 2005 and his

full time discharge date somewhere between 31 May 2012 and
23 February 2013.

The circumstances of the offences are these. Upon his release in April 1998 he went to Innisfail. About four months later he was charged with supplying teenage girls with marijuana. He left the area without notifying his parole officer and failed to appear on the supply charge. He claims to have done well on parole but to have left Innisfail because of rumours and of police harassment.

He then proceeded to commit the 13 offences the subject of the present indictment. An extensive report written by Dr Paul Wilson was submitted on his behalf. It expresses

concern over his early difficulties and the problems he has treated but there is no satisfactory evidence that he was or

had with authority thereafter. The suggestion that after
his release in April 1998 he was the victim of police
harassment is not established and, in my view, it should be
regarded as a limited explanation of his state of mind.

5   JUDGMENT

180899 T19/SE25 M/T COA196/99

that his spate of criminal activity can be blamed upon

persons other than himself.

The report concludes with the following comments:

"Years of incarceration, institutional neglect and possible

brutalisation forced him to revert to behaviours that
he had used in the past, namely heavy drinking,
association with criminal peers and eventually armed
robbery. The fact that the armed robberies were
committed in an almost suicidal manner point strongly
to a disintegration of the personality that was self-
destructive in nature."

The latter comment brings to mind the statement of one of his victims, "I was terrorised by a madman with a gun."

The first sentence that says that he was forced to revert to crime is an overstatement which overlooks personal responsibility for his own actions. Whilst accepting that he would be particularly vulnerable and sensitive to attention from authorities with such an extensive period of parole hanging over him, this hardly takes away from his own responsibility for reversion to crime.

It was submitted on his behalf that having regard to the effects of the present sentences, a sentence in the range of two and a half to four years' imprisonment would have been more appropriate.

The points urged on his behalf are that he co-operated with authorities by implicating himself and others, that he pleaded guilty to an ex officio indictment and that he provided information that could be used against others, such

6   JUDGMENT

180899 T19/SE25 M/T COA196/99

evidence being received under section 13A of the Penalties
and Sentences Act and requiring the Judge to indicate in
closed Court what sentence he would otherwise have imposed
but for these actions. However, the applicant was not used
as a witness by the authorities, no doubt because of his
general lack of credit. In my opinion a substantially
higher sentence would have been justifiable but for these
features. I have examined the section 13A procedure and
consider that the learned sentencing Judge gave the
applicant proper credit for his co-operation.

The circumstances of the offences involved his use of a replica firearm which terrified a number of female victims.

Only one was prepared to give a victim impact statement and

she regards her life as being largely blighted by this
incident.

Sadly, the applicant is a long term recidivist. He was granted parole in respect of his 1997 conviction of rape and breached that parole by committing an armed robbery in company with personal violence. In December 1988 he escaped from custody and committed seven armed robbery offences. In August 1990 he again escaped and committed two armed robbery offences two days later. In the instant case, having been granted parole in April 1998, he commenced the current series of armed robbery four months later.

7   JUDGMENT

180899 T20/TE13 M/T COA196/99

In the context of this case it would be a mistake to focus unduly upon the allegedly crushing nature of the sentence. The overall effect of the sentences is partly the result of

legislation which is a response to community aspirations for
protection from violent offenders. It is also the result
not only of the instant sentences, which are not
particularly severe, but of a totality of criminal conduct
involving sequential cumulative sentences over a lengthy
period.

In these circumstances, in accordance with the principles stated in Booth, it would be an error to reduce the sentences in order to temper any perceived harshness from factors such as the cumulative nature of the order or the 80 per cent non parole period.

It is, in any event, difficult to find merit in the applicant's concern that parole seems far distant when one takes into account his history and the circumstances of the present offences. There is, however, one respect in which a correction needs to be made. Count 11, attempted armed robbery, was charged under sections 409 and 411 of the Code.

The maximum penalty under section 536, subsection 1 was

seven years imprisonment. The other armed robbery offences were charged under section 412 which allows a maximum of 14 years imprisonment. It therefore seems necessary to reduce the sentence in respect of armed robbery, count 11, to seven
years. I would grant leave to appeal and to enable this

8   JUDGMENT

180899 T20/TE13 M/T COA196/99

correction to be made but would otherwise dismiss the appeal and order that the sentence in respect of count 11 be varied as I have indicated.

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

McPHERSON JA: The order is that in respect of count 11, the application and appeal are allowed by reducing the sentence on that charge and that count to seven years. Otherwise the application for leave to appeal is dismissed.

-----

9   JUDGMENT