R v Senior - [2002] QCA 104

[2002] QCA 104

COURT OF APPEAL

McMURDO P
BYRNE J
PHILIPPIDES J

CA No 334 of 2001

THE QUEEN

MARK LESLIE SENIOR

BRISBANE

..DATE 20/03/2002

JUDGMENT

PHILIPPIDES J: This is an application for leave to appeal against sentence imposed on the applicant upon his plea of guilty to three counts of armed robbery, on 16 March, 27 March and 5 April 2001 and to one count of attempted armed robbery on 23 April 2001. The sentence imposed was one of 12 years' imprisonment for each of the offences to be served concurrently.

The circumstances of the offences are that the applicant committed the three armed robberies on financial institutions over a 20 day period. It appears that on all three occasions the applicant entered the premises of a bank or credit union wearing long dark clothing and a balaclava.

On the first occasion, the applicant entered a credit union. He was carrying a carrybag and a sawn off .22 calibre rifle which he pointed in the direction of the staff. He said words to the effect of "No-one here wants to get hurt, give me the money, put it in the bag." He made further demands for money which were complied with.

On the second occasion, the applicant entered a bank, again wearing a balaclava and carrying a bag and sawn-off rifle. He pointed the rifle at one of the five employees present. There was also one customer present. He made verbal demands which were complied with.

On the third occasion, the applicant returned to the credit union the subject of the first armed robbery and pointed the rifle towards a customer of the bank, telling the customer to turn around. The effects of the applicant's offence on one of the staff members was outlined in a victim impact statement.

The proceeds of the first armed robbery were $6120, the proceeds of the second were $7280 and the proceeds of the third were $6320.

The circumstances of the offence of attempted armed robbery are that the police commenced surveillance of the applicant, following him to a shopping centre where there was a bank nearby. On that occasion, the applicant left his vehicle carrying a black carrybag that was intercepted by the police, who found in the bag a pair of gloves, a balaclava and a shortened rifle which contained live ammunition.

Upon his arrest the applicant admitted the offences. It appears that the applicant suffers from a heroin addiction and the offences were committed to support his addiction. The proceeds of the successful robberies were in the vicinity of some $19,000 and were spent on drugs.

The applicant is 40 years of age. He has a prior criminal history commencing in 1981. Of particular relevance are three previous convictions of armed robbery. On 23 March 1994, he was sentenced to four and a half years' imprisonment with a recommendation for parole after nine months for one such offence.

On 7 October 1994 he was sentenced to seven years' imprisonment…

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 Senior

Details

AGLC: R v Senior [2002] QCA 104
Case: [2002] QCA 104
Decision Date: 20/03/2002

CaseChat Overview and Summary

In the matter of R v Senior, the Court of Appeal was asked to review the sentence imposed on Mark Leslie Senior, who had pleaded guilty to three counts of armed robbery and one count of attempted armed robbery. The robberies, which took place over a brief period in 2001, involved the offender entering various financial institutions while wearing a balaclava and carrying a sawn-off rifle, demanding money from staff and customers. The applicant had a history of armed robbery and had committed these offences to support a heroin addiction. The trial judge sentenced the applicant to 12 years' imprisonment for each offence, to be served concurrently, and the applicant appealed against the severity of the sentence.

The primary issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The applicant argued that the sentence was too harsh and that the trial judge failed to adequately discount the sentence for his early guilty plea and cooperation with police. The Crown, on the other hand, submitted that the sentence was within the appropriate range and that the trial judge had been generous in reducing the sentence from the head sentence of 14 years or more.

The Court of Appeal found that the trial judge's discretion had miscarried in that there had been insufficient discount for the applicant's early guilty plea and cooperation with police. As such, the sentence imposed was considered to be manifestly excessive. The Court of Appeal exercised its discretion to substitute the sentence, considering the mitigating factors and the applicant's early guilty plea and cooperation with police, and determined an appropriate sentence of 10 and a half years' imprisonment.

The Court of Appeal granted the application for leave to appeal, allowing the appeal to the limited extent of substituting the sentence of 12 years' imprisonment with one of 10 and a half years' imprisonment. The Court otherwise confirmed the sentence imposed at first instance.

Orders