R v Rose - [2002] QCA 134

[2002] QCA 134

COURT OF APPEAL

WILLIAMS JA
FRYBERG J
HELMAN J

CA No 354 of 2001

THE QUEEN

MICHAEL STANLEY ROSE

BRISBANE

..DATE 09/04/2002

JUDGMENT

FRYBERG J: The applicant pleaded guilty in the District Court on 9 November 2001 to eight counts of armed robbery, one of armed robbery with personal violence, one of attempted armed robbery, one of robbery, and nine other lesser counts.

A week later Judge Trafford-Walker sentenced him to a range of imprisonment. He imposed 10 years' imprisonment in respect of the armed robbery with personal violence and in respect of one of the armed robberies (the target was a bank), nine years' imprisonment in respect of the other counts involving armed robbery and lesser periods of imprisonment in respect of the other counts.

All sentences were ordered to be served concurrently but cumulative upon a sentence or sentences then being served. Precisely what sentence or sentences were then being served it is a little difficult to discern, but that does not now matter.

The applicant seeks leave to appeal against the ten sentences relating to armed robbery. The focus of his argument is upon the two sentences upon which he was sentenced to imprisonment for 10 years.

The offences were all committed in the period between 17 October and 21 December 2000. All but two involved the use of a syringe in which, the applicant told his victims, was AIDS-infected blood. On one occasion he used a knife. On the last occasion a syringe of his blood was found in a vehicle belonging to his girlfriend. Apparently he forgot to take the syringe with him.

His targets were retail liquor establishments, a supermarket, a fast food store, a bank, and a railway station.

For the first two robberies he wore a disguise but he was not disguised thereafter. He was caught on 21 December as he attempted to make his getaway from the bank by an off- duty policeman and a bystander.

When he was arrested the applicant made admissions in relation to the bank robbery but refused to take part in a record of interview. Some of the proceeds of his robberies were recovered but, counting a burglary, he stole $26,000 which was not recovered and caused more than $6,000 worth of damage.

The offences were committed while he was on parole but his parole was not cancelled until 2 February 2001. In the meantime he was held in custody on remand.

The applicant is aged 41 and has an extensive criminal history in three States. After numerous motor vehicle offences he was convicted in Victoria of theft in 1981. Numerous charges of theft and burglary followed over the next five years. After two years free of offences - he was in gaol - he went to New South Wales and branched out into drug dealing. In 1989 he was sentenced there to one to six years' imprisonment with a non-parole period of three years. After his release he came to Queensland…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rose

Details

AGLC: R v Rose [2002] QCA 134
Case: [2002] QCA 134
Decision Date: 09/04/2002

CaseChat Overview and Summary

In this case, the applicant, Michael Stanley Rose, appealed against sentences imposed on him by the District Court for various counts of armed robbery and other related offences. The appeal focused on the sentences of 10 years' imprisonment for two counts of armed robbery, one of which involved personal violence. The Court of Appeal was required to determine whether the sentences were manifestly excessive, taking into account the applicant's cooperation with authorities and his criminal history. The applicant argued that his cooperation with authorities in implicating other offenders in serious crimes had not been adequately reflected in the sentences imposed, and that his cooperation evidenced a shift in attitude and improved prospects for rehabilitation.

The Court of Appeal considered the applicant's arguments and concluded that the sentences imposed were not manifestly excessive. The Court found that the sentencing judge had adequately taken into account the applicant's cooperation with authorities and that the sentences were within the appropriate range for such offences. The Court also rejected the argument that the applicant's cooperation evidenced a shift in attitude and improved prospects for rehabilitation, noting that the applicant had likely changed his attitude to take advantage of potential sentence reductions. The Court found the case to be similar to previous cases where the Court of Appeal had dismissed similar appeals against sentences for armed robbery. The Court of Appeal ultimately dismissed the applicant's appeal against sentence.

Orders