R v Speedy and Attorney-General of Queensland

[1996] QCA 166

IN THE COURT OF APPEAL	[1996] QCA 166
SUPREME COURT OF QUEENSLAND

C.A. No. 78 of 1996

Brisbane

[A-G v. Speedy]

THE QUEEN
v.
ROBERT GEORGE SPEEDY

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Pincus J.A. Davies J.A. McPherson J.A.

Judgment delivered 31/05/1996

Judgment of the Court.

APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL - Attorney-General's appeal - against sentence - armed robbery - unlawful use of a motor vehicle with circumstances of aggravation - offences committed over a two year period - cumulative sentences: Clements (1993) 68 A.Crim.R. 167, Coss C.A. No. 262 of 1994, Bartz C.A. No. 501 of 1994 considered - mitigating factors - heroin addiction - drug rehabilitation.
Counsel:	Mrs. L. Clare for the appellant Ms. D. Richards for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Legal Aid Office for the respondent
Hearing Date:	17 May 1996
REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 31st day of May 1996

This is an appeal by the Attorney-General against sentences imposed on the respondent in the District Court on 19 February last. On that day he pleaded guilty to nine offences of armed robbery, one of attempted armed robbery and seven of unlawful use of a motor vehicle with the circumstance of aggravation that the motor vehicles in each case were used in armed robberies. On 22 September 1995 he had pleaded guilty to five offences of armed robbery. He was sentenced in respect of all of those offences on 19 February. In respect of each of the offences of armed robbery he was sentenced to 12 years imprisonment. He was sentenced to five years imprisonment for the attempted armed robbery and seven years imprisonment for each of the seven counts of unlawful use of a motor vehicle. All of those sentences were to be served concurrently but to be cumulative upon the sentence which the respondent was then serving which was also one for armed robbery imposed on 20 March 1991. The learned sentencing Judge recommended that the respondent be eligible for parole on 26 November 2000.

The Attorney does not challenge the head sentence imposed but submits that the recommendation for parole eligibility makes this sentence manifestly inadequate. He submits that the recommendation should have been for parole eligibility after 31 August 2003. In consequence of the sentence imposed on the respondent on 20 March 1991 the respondent was eligible for full time discharge on 31 August 2000. The Attorney points out that the effect of the recommendation in the sentences now imposed will be to require him to serve just three months in addition to the full term of imprisonment imposed in March 1991. He submits that that is manifestly inadequate when one has regard to the number and seriousness of the offences for which the respondent was sentenced on this occasion.

The offences for which the respondent was sentenced on this occasion were committed over two periods separated by several years. The armed robberies to which he pleaded guilty in September 1995, five in all, were committed between September 1993 and June 1994. Of the nine armed robberies of which he was convicted in February this year two were committed in 1990 prior to the offence of armed robbery for which the respondent was sentenced on 20 March 1991 and the other seven were committed in the period referred to above. All of the 1990 offences, including that for which he was sentenced in 1991, were committed whilst the respondent was an escapee from custody in respect of a six year sentence for numerous offences of breaking, entering and stealing. The offences in 1993 were committed whilst the respondent was on a work release scheme and those in 1994 were committed after he had absconded from home detention.

Six of the armed robberies were upon banks, two on hotels and two on stores. Of the others, one was committed on a security service, one on a TAB agency and two at a bowls club. The total money stolen exceeded $200,000. The weapons used included rifles, sawn-off rifles, pistols with a silencer and a knife. They were performed with some expertise and many showed considerable pre-planning. Gloves, balaclavas, wigs and long clothes were used to conceal identify, stolen cars were used for get-aways, and on many occasions it appeared that the robbers had knowledge of the movements and habits of their victims, of the layout of the premises they were robbing and of the alarm systems in those premises. They struck at times when their victims were most vulnerable and had the most cash.

Except for the facts that no guns were discharged and no victims were seriously physically injured there is nothing that can be said in the respondent's favour in respect of the circumstances of these robberies. Explicit death threats were made to at least 30 different people, in some cases with a gun held against a person's head or chest. A shop proprietor was hit on the head with the butt of a rifle. Whether that was by the respondent or by his co-offender matters little.

There is also little that can be said in the respondent's favour generally. He is 30 years of age having been born on 2 April 1966 and has a criminal record dating from when he was a child in 1982. He has been in gaol for most of his adult life serving sentences mostly for breaking, entering and stealing and similar property offences. His conviction on 20 March 1991 was his first for armed robbery. This criminal record and the fact that he committed these offences when he was an escapee from custody, on work release or on home detention indicate that the prison system has so far done nothing to rehabilitate him.

Two factors which the learned sentencing Judge took into account in the respondent's favour in imposing the sentences which he did were his pleas of guilty and his prospect of rehabilitation. In respect of the five offences to which he pleaded guilty in September 1995 he had initially pleaded not guilty. An application for a voire dire was not in the end proceeded with. It was, in part, based on an allegation which the learned sentencing Judge described as groundless that an interrogating police officer induced the respondent to make a confession by promising to supply drugs. His Honour described that as a despicable allegation. However, his Honour said, the trial of those offences would have taken three weeks with about 40 witnesses. Moreover the other offences, had they proceeded to trial, would have involved over 200 witnesses and might have taken as long as three months. This substantial saving in cost and time and the relief to the victims of the respondent's crimes from the anxiety of reliving the horror of those crimes, in consequence of the guilty pleas, were matters which weighed heavily with his Honour in making the parole recommendation which he did. In addition there were difficulties in identifying the respondent as the offender in a number of cases.

As to rehabilitation, his Honour was influenced by the report of Dr. Curtis, a psychiatrist who examined the respondent. The respondent is heroin dependant and a good deal of his criminal activity was related to his need to feed his heroin habit. His attitude to his own rehabilitation including overcoming his heroin dependence and receiving regular counselling are relevant factors and appear to have influenced the learned sentencing Judge. Dr. Curtis, whilst understandably not over-optimistic, thought that there was some prospects of rehabilitation of this man because he appears genuine in his wish for help to overcome his problems. Based on Dr. Curtis' recommendation the learned sentencing Judge recommended that the respondent be given counselling and that regard be had to Dr. Curtis' report in carrying out that recommendation.

Before these sentences were imposed on 19 February, the respondent's full time discharge date was 31 August 2000. And he would have been eligible for parole on 26 November 1994 in consequence of a recommendation made in the course of sentencing him for being unlawfully at large on 28 August 1994. His full time release date is now 31 August 2012 and, as we have previously mentioned, the learned sentencing judge recommended that he be eligible for parole on 26 November 2000. It is not clear when, in the absence of such recommendation, the respondent would have been eligible for parole after the February 1996 sentence. That would have depended on whether, notwithstanding that he committed the 1993 offences whilst on work release and the 1994 offences whilst an escapee from home detention (for which he was punished by an extra six months imprisonment), he would have retained or earned some eligibility for parole or remission in respect of that part of the total term which he was required to serve before the cumulative sentence commenced.

The respondent's counsel points out that, had he been sentenced for all of the 1990 offences in 1991, that is the one for which he was then sentenced and the two for which he was sentenced in the sentence under appeal, although the sentence then imposed would have been greater than it was, it would not have been substantially greater. Moreover the sentences now imposed for two of those offences are cumulative upon that imposed for the other of them whereas, it is submitted, if they had all been imposed in 1991 they would have been concurrent. Those are considerations which highlight the need to look at the effect which the sentences imposed here will have on the total time which the respondent will now be required to serve: see Clements (1993) 68 A.Crim.R. 167; Coss, C.A. No. 262 of 1994, judgment delivered 15 March 1995; Bartz, C.A. No. 501 of 1994, judgment delivered 21 March 1995.

For the totality of his 1990 and 1994 criminal conduct he will now be required to serve 21 years 8 months from 20 March 1991 or 16½ years from 19 February this year. A point to notice is that if the single robbery and associated unlawful use which occurred on 27 July 1990 had been considered with all the offences, including other July 1990 robberies, dealt with on 19 February 1996, it is unlikely that the total head sentence would have been as much as 18½ years, that being the total of the head sentences imposed for all the robberies. The mid point in the former period, say 10 years 10 months from 20 March 1991, is 20 January 2002. The mid point in the latter period is 19 May 2004, beyond the mid point of the total term which he is now serving. The effect of the current sentences is to postpone the respondent's ultimate release date by 12 years and his parole eligibility date by six years. Looked at in that way the sentence imposed, including the recommendation that the respondent be eligible for parole on 26 November 2000, does not appear to be manifestly inadequate when one has regard to the respondent's timely pleas of guilty and the prospect of his rehabilitation appearing from Dr. Curtis' report. We do not think that it assists in determining its adequacy to compare his new eligibility date with the date when he would have been released had he served the full term of his earlier sentence. We would therefore dismiss the appeal.