R v Kouvas

[2002] QCA 406

[2002] QCA 406

COURT OF APPEAL

McPHERSON JA
HELMAN J
JONES J

CA No 109 of 2002

THE QUEEN

v.

ANTHONY KOUVAS  (Applicant)

BRISBANE

..DATE 02/10/2002

JUDGMENT

APPLICANT conducted his own case

MR P D KELLY (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

McPHERSON JA:  This is an application to extend the time for applying for leave to appeal against a sentence imposed on the 8th of June 1999; that is, over three years ago.  That was the date on which the applicant pleaded guilty and was sentenced in respect of two counts of unlawful use of a motor vehicle, one with circumstances of aggravation, four counts of possession of tainted property, one of fraud, and one of armed robbery in company.

The effective sentence imposed was imprisonment for 10 years on the armed robbery charge, with lesser concurrent sentences in respect of the other offences. The sentence of 10 years attracted the automatic deferred parole regime which is introduced by section 161K of the Penalties and Sentences Act because robbery is declared in the schedule to be a serious violent offence.

The robbery offence in this particular instance was a serious example of its kind involving, as the sentencing Judge said, "a very high level of planning and skilful execution".  On the night before the offence was committed, the applicant and his companion climbed on to the roof of a suburban bank and made a hole in the metal roof sheeting, through which they entered into the space above the ceiling. 

Next morning as the bank opened for work, they dropped through the ceiling and into the bank, where they menaced the staff with a firearm, while one of them broke open the safe from which a sum of $230,000 was taken. 

A total of some $95,000 was ultimately recovered, but only after the proceeds had been traced into a house in which the money had been invested.  It was only after that property was sold and the proceeds were made the subject of a confiscation order that the sum of $95,000 was recovered.

An offence of the kind with which we are concerned in this case might in itself very well have attracted a sentence of the duration of 10 years or so, but the applicant, who was 33 years old at the time, already had a bad criminal record.  He was convicted of armed robbery first in 1985 and sentenced then to eight years imprisonment.  He was convicted and sentenced for another robbery in 1990, and a further instance of the same offence in March 1994.

At the time of the offences now before us, or the first of them, the applicant was only five weeks into parole under which he had been released from prison in New South Wales, and he was, at least in respect of the first of the offences mentioned, also on bail.  His underlying problem seems to be, or may be, the use of drugs, but that of course is not a mitigating factor or an excuse for his repetitive criminal conduct.

In the light of those circumstances the sentence imposed in June 1999 cannot be regarded as excessive.  Indeed the applicant in his submissions before us today said at one stage that he did not himself regard a sentence of 10 years as excessive. 

His real complaint is, when it is examined, that the Penaltiesand Sentences Act imposes the automatic consequence of deferring parole until 80 per cent of the sentence has been served in any case of a serious violent offence, which by statute includes a robbery of this kind.

The other aspect of the case that has to be considered on an application of this kind is the explanation, if any, for the delay in pursuing the appeal.  The applicant says he was originally misled by Legal Aid into thinking that he could not himself present an application for leave to appeal.  The fact is, however, that an application for leave to appeal against the sentence was made by, or on his behalf, soon after the sentence was imposed, but it was abandoned by the applicant in November 1999.

The record book with which the Court has been provided on this occasion is in fact the one that was prepared at the instance of Legal Aid for the hearing on that occasion.  I would therefore place no reliance on the unsworn explanation of the applicant for his delay in making this application. 

It seems much more likely that he has now realised the seriousness of the sentencing regime that applies to his case under section 161K of the Penalties and Sentences Act, and perhaps also the more severe regime that has now been imposed by Parliament in respect of remissions for good conduct.  Recent statutory amendments in that way have abolished or attenuated the remissions that are available to persons who are imprisoned in these circumstances. 

Both of those matters, however - that is to say, section 161K and the non-availability of remissions - are the consequence of Parliamentary enactment over which we, as a Court, and of course the sentencing Judge himself, have no control.

The result is, in my opinion, that the applicant has failed to demonstrate either that his sentence was manifestly excessive, or that there is any good reason for the delay of three years or more in making this application, or indeed why he withdrew the previous application that was made in time.

For all these reasons the application for leave to appeal against sentence, if it were permitted to be pursued, has no prospect of success and there is no reason why this application should be granted.  I would therefore dismiss it.

HELMAN J:  I agree.

JONES J:  I agree.

McPHERSON JA:  The application to extend time within which to obtain leave to appeal against sentence is dismissed.

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