R v Sanderson

[2003] QCA 436

[2003] QCA 436

COURT OF APPEAL

DAVIES JA
JONES J
HOLMES J

CA No 160 of 2003

THE QUEEN

v.

JOHN CYRIL MICHAEL SANDERSON  (Applicant)

BRISBANE

..DATE 07/10/2003

JUDGMENT

DAVIES JA:  I will ask Justice Holmes to deliver her reasons first.

HOLMES J:  The applicant seeks leave to appeal against a sentence imposed in respect of five counts of armed robbery and two counts of deprivation of liberty.  He had pleaded guilty to those offences and was originally sentenced on the 1st of February 1999.

At that stage, he was sentenced to 10 years' imprisonment in respect of each of the armed robbery offences, and two years' imprisonment for each of the deprivation of liberty offences.

At the time he committed those offences, the applicant was on parole from a sentence of 15 years for armed robbery, imposed on 13 December 1991.

He had been released from custody on the 5th of December 1997.  I should say that his criminal history shows that earlier sentence as being one of 10 years, but it was accepted by the Crown and the applicant on sentencing for the later offences, that that was an error.

His full-time release date on that sentence, was 16 June 2007.  The sentences imposed in February 1999, were ordered to be served concurrently with each other and with the earlier 15 year sentence.  The net effect was to postpone the applicant's full-time release date by some 20 months.

The learned sentencing Judge made a declaration that the armed robbery offences were serious violent offences and recommended eligibility for parole on the 1st of February 2007, at 80 per cent of the sentence.

That order contravened Section 156A(1) of the Penalties and Sentences Act 1992, which requires a sentence for an offence committed while on parole to be made cumulative with the existing term.

In 2002, the applicant filed an application for an extension of time, to appeal against the 1999 sentences.  When that was heard in this Court in February 2003, the mistake was realised and the respondent undertook to re-open the sentence.

On the 22nd of April 2003, the original sentencing Judge heard the re-opening.  He re-cast the sentence, with the intention of achieving the same result as the 1999 sentence, but so as to comply with Section 156A.

The applicant was sentenced to 20 months' imprisonment in respect of each of the armed robbery offences and six months for each of the deprivation of liberty offences.  These sentences were to be served concurrently with each other, but cumulatively upon the 1991 sentence that the applicant was already serving. No declaration of a serious violent offence was made and the learned sentencing Judge ordered that the applicant be eligible for post prison community based release on the 1st of February 2007. 

The offences in question were all committed over a period of six days from the 2nd of June to the 8th of June 1998.  On each occasion, the applicant entered commercial premises, produced a pocket knife and demanded money. On two occasions, the applicant tied up a person inside the premises before leaving.  The motive for all of these offences was drug related.  The applicant wanted money to buy heroin.

At the time of the commission of the offences, the applicant was 31 years old.  He had a fairly extensive criminal history.  On half a dozen occasions, between 1984 and 1991, he was dealt with for offences of dishonesty, break and enter, stealing, false pretences, unlawful use of a motor vehicle, his longest sentence being nine months' imprisonment. He also had a number of convictions in that period for dangerous and disqualified driving.  In 1991, he was convicted on multiple dishonesty offences, including the five charges of armed robbery and armed robbery in company, on which he received a 15 year sentence.

The applicant does not complain of the head sentence imposed by the learned sentencing Judge on the re-opening; what he contends is that there should have been a much earlier recommendation for post prison community based release.

When the learned sentencing Judge was sentencing the applicant in 1999, there were a number of factors he had to and did take into account.  The offences were serious; the victims of the robberies, particularly those left tied up, were no doubt left traumatised. There were the exacerbating features of the applicant's criminal history and the fact that these offences were committed not long after he had been paroled for like offences.

On the other hand, there was the fact of his heroin addiction, his pleas of guilty, his cooperation in circumstances where, but for his confession, there would have been no evidence to link him to all but one of the offences.

The sentencing Judge determined that 10 years was an appropriate head sentence and that the armed robbery offences warranted serious violent offence declarations. Both of those conclusions seem to me perfectly accurate. 

The exercise then was to balance the need for that very substantial sentence against the fact that the applicant was a relatively young man, and it was important to avoid an utterly crushing sentence. The learned Judge achieved that in the first instance by making it concurrent. When it was apparent, by reason of Section 156A, that it had to be re-opened in 2003, he did so on the basis that the result remained appropriate, but that adjustment was necessary to achieve it.  For that reason, he imposed a short sentence and made no declaration, but the net result and the considerations behind it, remained the same.

As I have said, the real complaint of the applicant is that there was not an earlier post prison community based release date given.  The effect of both sentences, the initial sentence and the sentence after re-opening, was to extend that date from the 5th of June 2002 to the 1st of February 2007, a period of roughly four years and eight months.

That seems to me entirely reasonable, when one takes into account all the circumstances, including the fact that this was a sentence which warranted a serious violent offence declaration; in other words, that the applicant could be required to serve 80 per cent of the term.

The net result, as it seems to me, was, in the first instance and after adjustment to comply with Section 156A, a proper one, taking into account all the factors I have identified and the totality principle.

I would not interfere with it and would dismiss the application for leave.

DAVIES JA:  I agree.

JONES J:  I agree.

DAVIES JA:  The application is dismissed.

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