R v Trimble; ex parte

[1998] QCA 172

[1998] QCA 172

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MUIR J

CA No 36 of 1998

THE QUEEN

v.

GRAHAM LESLIE TRIMBLE  Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND              Appellant

BRISBANE

..DATE 17/04/98

JUDGMENT

DAVIES JA:  The Attorney-General appeals against sentences imposed in the District Court on 19 January this year of six years imprisonment for armed robbery in company and three years imprisonment for unlawful use of a motor vehicle together with a recommendation for eligibility for release on parole after serving two and half years of the total sentence. The sentences were imposed concurrently with a sentence which the respondent was then serving of two and a half years imprisonment on two counts of supply of a dangerous drug with a recommendation on that occasion for eligibility for parole after serving nine months of that sentence.

The subject offences, to which I will refer in detail a little later, were committed on 2 July 1997 whilst the respondent was on bail in respect of the supply offences which had been committed in March 1996 but for which he was sentenced only on 18 July 1997.  The effect of making the current sentences concurrent with the earlier sentences was to add about four years to the existing sentence and about two years and three months to the eligibility date, that depending on conflicting views about a sections of the Penalties and Sentences Act 1992 which need not be considered here. It was submitted by the Attorney that this was a manifestly inadequate sentence for the offences the subject of this application; put another way, it was said that a total sentence of six and a half years imprisonment with a recommendation after three years was manifestly inadequate for the totality of the drug offences and the offences the subject of this appeal.

The offences the subject of this appeal involved an armed robbery on the ANZ Bank at Buderim at about 4 o'clock in the afternoon of 2 July 1997.  The respondent and a companion, both wearing balaclavas, the respondent bearing a sawn-off shotgun, entered the bank and the respondent called to the staff and customers to stay down, get away from the phones and no-one would get hurt.  The respondent's co-offender then jumped the counter and took approximately $9,000 from various cash drawers.  They then left the bank and escaped in a Ford utility which had been stolen the previous day.  Two days later the police executed a search warrant on the respondent's house whereupon he admitted his involvement, said that he had been worried sick and that he was waiting for them to come.  The police later found a shotgun buried on his property but the respondent said he did not know it was there. 

The respondent told the police that he and his co-offender had been discussing the offence for about a week and then described it.  They waited at a the bank until they thought there were no customers present.  He said that he was concerned to ensure that elderly people and children were not present.  He said the gun was not loaded.  He spoke of his stupidity in committing the offence but said that it was in effect to feed his drug habit which was costing him $800 a day.  He was a heroin addict.  He hoped to buy sufficient heroin, he said, to wean him of his addiction. 

He refused to name his co-offender or to say where he had acquired the gun.  His reasons for not naming his co-offender was, he said, his concern for the safety of his de facto wife and son.

In the Court below the prosecutor submitted that, if these offences stood alone the appropriate sentence would be one of six years imprisonment but, because he was currently serving a period of imprisonment it would be appropriate to make this cumulative upon the sentence he was then serving.  He went on to say that as an alternative perhaps some reduction should be made, in effect, because of the cumulative terms.

The learned sentencing Judge, after saying that he thought that the sentence called for was greater than that which the prosecution had suggested, nevertheless imposed a concurrent sentence of six years imprisonment.  It was submitted to us on the Attorney's behalf that his Honour must have misunderstood the prosecutor's submission and I think that that submission is correct.  It seems more likely that the learned sentencing Judge imposed a sentence which he did, thinking that a more severe sentence would have been more appropriate.  That is, a sentence more severe than a concurrent term of six years imprisonment.

There are, in my view, a number of reasons for thinking that that was correct and that the sentence which was in fact imposed was manifestly inadequate.  The respondent was, as I have said, on bail when he committed these offences, awaiting sentence on two counts of supplying a dangerous drug, having been convicted in 1993 on 10 counts of supply and one of producing a dangerous drug.  He is no longer a young man.  He also had earlier convictions for offences of dishonesty though it should be said in his favour none for more than 15 years.
The subject offences were both serious and prevalent and a victim impact statement shows that the armed robbery had a substantial psychological effect on at least one of the victims.

On the other hand the respondent has, as I think I have said, committed no offences apart from the supply offences since 1981 and he was addicted to heroin.  Moreover, as I have indicated, he made an early admission and plea although, as I have also said, he refused to name his co-offender or to say where he acquired the gun.  It should also be accepted in his favour that the gun was unloaded, although that did not reduce the fear which it must have caused.  It did mean that the potentiality of serious injury, or even death, was substantially reduced.

If a cumulative sentence of six years had been imposed, the respondent would nevertheless have been entitled to an early recommendation because of his co-operation of plea.  The halfway point of the total of such a cumulative term would have been 18 October 2001.  A recommendation for early parole of an eight and a half year term for the factors I have mentioned would require, in my view, a one year reduction of the halfway point.  That would bring it to 18 October 2000.

His Honour's recommendation, at least on one view, was 19 July 2000, only a few months earlier.  So at least so far as the recommendation for parole is concerned the sentence was not, in that respect, manifestly inadequate. 

However, one has regard to the plain mistake which the learned sentencing Judge made and the fact that in consequence of that mistake the head sentence, because it was made concurrent rather than cumulative, was manifestly inadequate. 

In my view the sentence, as a whole, was manifestly inadequate.  I would therefore allow the appeal, set aside the sentence imposed below and impose a sentence of six years imprisonment cumulative upon the term which the respondent was already serving, but make a recommendation that the respondent be eligible for parole on 18 October 2000.

DAVIES JA:  There's no time served in custody in respect of this offence was there, Mr Hunter, or was there?

MR HUNTER:  There were 14 days.

DAVIES JA:  Oh, his Honour ignored that.

MR HUNTER:  Yes.

DAVIES JA:  And I would add that 14 days was served in custody.  I would not propose to make any order or declaration in respect of those 14 days.

McPHERSON JA:  I agree.

MUIR J:  I agree.

DAVIES JA:  The orders are as I have indicated.

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