R v Robinson

[1997] QCA 367

COURT OF APPEAL

[1997] QCA 367

DAVIES JA
MOYNIHAN J

AMBROSE J

CA No 305 of 1997
THE QUEEN
v.

KENNETH GEOFFREY ROBINSON Applicant

BRISBANE
..DATE 23/09/97
230997 T9/JB M/T COA213/97
DAVIES JA: The applicant in this matter committed a spate of
five armed robbery offences in August, September and November
1994. Three of these were committed in northern New South
Wales. They involved an armed robbery of NRMA at Tweed Heads
on 18 August 1994, one of Metway Bank at Tweed Heads on
25 August 1994 and one of Tweed Heads Credit Union on
29 August 1994.

The Queensland offences were an armed robbery in company of the Bank of Queensland at Nerang together with an associated unlawful use of a motor vehicle offence on 30 September 1994 and an armed robbery of the Metway Bank at Mudgeeraba together with two associated unlawful use offences on 1 November 1994. He pleaded guilty to all offences but, for some unexplained reason, although he was sentenced for the New South Wales offences in the New South Wales District Court on 29 August 1995, he was not dealt with for the Queensland offences in Queensland until 25 July 1997 when the sentences the subject of the present application were imposed. He has been in custody continuously since 2 November 1994, that is the day after the commission of the second of the Queensland offences.

On the hearing of the sentence the subject of the present
application the Prosecutor and counsel for the applicant
agreed that the appropriate sentence was 10 years'
imprisonment from 2 November 1994. This agreement was based
on acceptance on both sides of the application of the totality
principle. If that sentence were otherwise an appropriate
sentence for the Queensland offences, having regard to the New
South Wales offences, then the applicant was entitled in
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addition to some diminution in that sentence because of his
pleas of guilty and, as will appear from what I say a little
later, he has demonstrated attempts at rehabilitation since he
has been in prison and before His Honour imposed the sentences
which he did impose. However, the learned sentencing Judge
imposed sentences of nine years' imprisonment running from the
date of his sentence in respect of each of the armed robbery
offences and two years' imprisonment in respect of the
unlawful use offences and recommended that the applicant be
eligible for parole on 1 April 1999. As the applicant has
pointed out in his written submissions before this Court, this
sentence amounted effectively to a sentence of 11 years and
nine months from November 1994 with a recommendation for
eligibility four years and five months from that date.
Under a different sentencing regime, the applicant had been
sentenced by the New South Wales District Court in respect of
the three New South Wales offences to a minimum term of three
years and two months imprisonment commencing on 2 November
1994 with an additional term of 16 months specified to
commence at the end of the minimum term. The earliest date on
which he was to be eligible for parole under that sentence was
1 January 1998. It was stated that the additional term
expired on 1 May 1999. Because of the different sentencing
regime in New South Wales it is impossible to compare the
sentence imposed there with what would have been an
appropriate sentence under the Queensland sentencing regime in
respect of those offences. Nor is it necessary or even
desirable to attempt to do that. In my view counsel were
correct in their agreement below. The question was what would
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have been an appropriate sentence under the Queensland regime
for the totality of the offences committed by the applicant in
August, September and November 1994 had he been sentenced for
them in Queensland by the imposition of a sentence commencing
in November 1994. The sentence imposed in this case should
not exceed that.

The applicant contends in this Court that the effective sentence imposed by the learned sentencing Judge does exceed that effective sentence and also contends that there is disparity between that sentence and the sentence imposed on Malouf, one of the applicant's co-offenders in a number of the offences.

The applicant is 41 years of age, having been born on
14 September 1956. He was 38 at the time of commission of
these offences. Prior to the commission of these offences, he
had only a very minor criminal history and had not previously
been sent to prison. He had been convicted of receiving in
1991, for which he had been fined $250. He had been convicted
of possession of stolen property in 1992 and placed on a
recognisance of three years and he had been convicted of
possession of a prohibited drug in 1994 for which he had been
fined $400. The armed robbery offences appear to be drug
related in the sense that he was plainly addicted to heroin
and his share of the proceeds of the robberies was used to pay

drug debts and to purchase heroin.

In the first of the Queensland offences the applicant was the
driver of the getaway car. His two co-offenders, Athan and
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Malouf, entered the bank with stockings over their heads, one
of them armed with a sawn-off gun. Threats were made and the
gun was held at the head of the manager. Nearly $22,000 was
stolen.
The applicant committed the second Queensland robbery on his
own. He entered Metway Bank at Mudgeeraba wearing a balaclava
and armed with a sawn-off 22 rifle fitted with a silencer.
There was a large number of people in the bank. He directed
staff to lie on the floor and waved his gun around pointing at
various staff and customers. He eventually ran from the bank
with about $2,300. In both cases stolen cars were used.

Hence the other offences.

The applicant was apprehended on the following day, 2 November
1994. Heroin was found in his possession and in his house.
During the course of interviews with police he admitted his
involvement in the offences and he has, as I have already

said, been in gaol since that date.

The applicant's co-offender, Malouf, for what appears to have
been similar criminality, two armed robbery offences in
Queensland and the same three with the applicant in New South
Wales, appears to have been sentenced to a total term of nine
years' imprisonment with a parole eligibility after four years
and six months from October 1994 when his custody commenced.
As the applicant has pointed out in his written submissions,
Malouf also had a more serious criminal history than the
applicant, having received a previous sentence of five years'
imprisonment for possession of a dangerous drug, namely heroin
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for a specified purpose. He had also been sentenced to three
months' imprisonment in May 1995 although this was for
possession of a weapon whilst unlicensed in October 1994, in
other words during the relevant period in which this spate of
offences was committed. There is some basis for saying that
the applicant here should receive a sentence less onerous than
that imposed on Malouf.

Some comparable authorities were cited, although none was sufficiently close to the facts of this case to justify a mention here.

In my view, having regard to the applicant's minor criminality
prior to the commission of this spate of offences in late
1994, counsel were correct in their submissions below that the
appropriate head sentence was one of 10 years to take effect
from the commencement of his period of custody in 1994. In
addition it was, in my view, necessary to make some allowance
for the applicant's pleas of guilty and his conduct in prison
over the period since November 1994. As to the latter, there
was evidence placed before the Court that the applicant had
undergone a number of courses and had generally made genuine
efforts towards rehabilitation. Plainly, having regard to his
minor previous criminal history, if he can overcome his heroin
addiction, he must have reasonable prospects of
rehabilitation. Having regard to those factors I think it
would have been appropriate to fix an eligibility date at
three and a half years from 2 November 1994.
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It follows, in my opinion, that the sentence which the learned
sentencing Judge imposed was, having regard to the factors I
have mentioned, manifestly excessive. An appropriate sentence
in the circumstances would have been one of seven years and
three months (that is 10 years from 2 November 1994) with a
recommendation that the applicant be eligible for parole on
2 May 1998 (that is three and a half years from 2 November
1994).

I would therefore grant the application, allow the appeal, set aside the sentence imposed below and substitute one of seven years and three months with a recommendation that the applicant be eligible for parole on 2 May 1998.

MOYNIHAN J: I agree.

AMBROSE J: I agree.

DAVIES JA: The orders are as I have indicated.

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