SUPREME COURT OF QUEENSLAND

CITATION:	R v Wright [2022] QCA 42	
PARTIES:	R
v
WRIGHT, Wayne Francis
(applicant)	
FILE NO/S:	CA No 255 of 2020
DC No 1773 of 2020
DC No 2739 of 2019	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application
Miscellaneous Application – Criminal	
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 21 October 2020 (Byrne QC DCJ)	
DELIVERED ON:	Date of Order: 17 November 2021
Date of Publication of Reasons: 1 April 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	17 November 2021	
JUDGES:	Sofronoff P and Daubney and Boddice JJ	
ORDER:	Date of Order: 17 November 2021
Application for leave to appeal is refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to armed robbery – where the applicant was sentenced to seven years’ and six months’ imprisonment – where the applicant breached parole – where the applicant was sentenced to 12 months for breaching parole – where leave refused
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited	
COUNSEL:	K M Hillard and C Bernardin for the applicant
D Kovac for the respondent	
SOLICITORS:	Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  The applicant pleaded guilty to armed robbery.  Byrne DCJ sentenced him to seven years’ and six months’ imprisonment with parole eligibility fixed at 29 May 2022.  By committing this offence the applicant breached a parole order that had been imposed on him and for this he was sentenced to a term of imprisonment for 12 months with parole fixed also on 29 May 2022.  Both sentences were to be served concurrently.
[2]	The applicant sought leave to appeal against these sentences. Leave was refused on 17 November 2021.  These are the courts reasons for reasons for refusing leave.
[3]	On 25 March 2020 the applicant entered the Heritage Bank at the Brookside Shopping Centre.  He was wearing a high-vis jacket, a black and white cap, sunglasses and a scarf.  Byrne DCJ found that the applicant wore these clothes in an effort to disguise his identity.  Upon entering the bank, the applicant pulled the scarf over the lower part of his face, also to hide his identity, and brandished what appeared to be a handgun.  He pointed this at a teller.  The gun had a laser sight so that a red dot appeared on the chest of the teller.  The gun was in fact a replica air pistol.  Byrne DCJ found that it was the applicant’s intention that the teller should believe that he was facing a loaded gun and that the red dot signified that a bullet fired from the gun would enter the teller’s chest.  The applicant demanded $20,000.  Pointing the gun he said to the teller, “Hurry up.  I want it”.  He said, “I hate to do this to you but I have been off work and I need the money”.
[4]	The teller handed over $12,000 and the applicant left the bank and caught a taxi which took him to Milton.  While in the taxi he changed his clothes.  Byrne DCJ found that the applicant did this, once more, in an effort to hide his identity.  The applicant was identified by the use of the taxi’s camera recording system and he was arrested a few days later.  His guilty plea was held by his Honour to have been “a particularly early plea of guilty”.  His Honour said that it would be reflected favourably in the sentence that was to be imposed.
[5]	The applicant had a criminal history.  He was first convicted in Queensland in 1993 when he was 17 years old.  Thereafter, the applicant committed a total of 27 break and enter type offences.  Another 64 offences were taken into account when he was sentenced at various times between 1993 and the date of sentencing for this offence.  He has struggled with drug addiction for the whole of this time.  The applicant also has a criminal history in the Northern Territory.  This includes robbery convictions.  A robbery conviction in 2007 resulted in a four year prison term with a non-parole period of two years and two months.  In early 2011 the applicant committed another robbery.  He was sentenced this time to a longer period of imprisonment, one of five years and three months with a non-parole period of three years and three months.
[6]	The applicant therefore came before Byrne DCJ with an extensive criminal history of property offences, including convictions for robbery, one of which was armed robbery.  It is significant that before committing this offence, the applicant had been sentenced for his previous robberies to terms of four years and of five years and three months respectively.  Yet those (increasing) sentences were ineffective in deterring the applicant from again committing the same offence.
[7]	It is also significant that the applicant committed this offence while on probation for a previous offence.  This was an offence under s 321A(2) of the Criminal Code, namely making a statement, knowing it to be false, with the intention to induce a person to believe that an explosive is present.  For this offence he was sentenced to imprisonment for 123 days, being the time served on remand, and to probation for 28 months.
[8]	Byrne DCJ rightly remarked that personal deterrence featured highly in this matter.  His Honour concluded that, having regard to the seriousness of the offence, and the applicant’s “particular circumstances”, a sentence in excess of seven years was warranted.  The reference to “particular circumstances” must, in the context in which that expression was used, be a reference to the previous convictions and sentences for armed robbery as well as the breach of probation.
[9]	Defence counsel at sentencing urged four matters in mitigation.  The first of these was the applicant’s poor mental health.  Second, the applicant was a drug addict and this affected his moral culpability.  The third matter was that the applicant’s pistol was not real.  The fourth matter was the early guilty plea.  His Honour said that he would take account of these matters in fixing a parole date.  The time until parole, if time in remand was included, was 29 months.  This was just under one third of the sentence of 90 months.  The setting of a parole eligibility date in this way manifestly took into account the mitigating factors.
[10]	The applicant submitted on this appeal that the learned judge did not give “sufficient consideration to the applicant’s mental health”.  As has been said many times before in this court, the weight to be given to any particular factor is entirely a matter for the judge at first instance when exercising the sentencing discretion.  It would confound the principle for which House v The King stands if an appellate court were to alter a sentence just because the appellate judges’ had a different notion about the weight to be given to a particular factor.  This ground should be rejected.
[11]	In seeking to support this ground, the applicant sought to tender the report of a psychiatrist.  There was no suggestion that this report constituted fresh evidence of any sort and an application for leave to appeal against sentence is not an occasion to restart proceedings with a new approach.  The applicant’s counsel could offer no proper basis for the tender and the report should not be admitted in evidence.
[12]	The second point raised is that the learned judge did not “give consideration or moderation” in relation to the impacts of Covid-19 on the applicant’s incarceration having regard to his mental health.  This submission is merely a restatement of the proposition that some weight should be given to the applicant’s mental health as a mitigating factor and, as related above, his Honour did so in fixing the parole eligibility date.  This argument fails.
[13]	The third point is that the learned judge was wrong to equate placing the laser sight red dot on the teller’s body with placing a gun to a person’s head.  This submission should be rejected.  His Honour made that particular observation during the course of submissions by the prosecutor.  It was not contradicted by the applicant’s counsel and it did not figure in the sentencing remarks.  It was undoubtedly accurate.  The fixing of a laser sight on the body of a victim signifies the readiness of the holder of the gun to put a bullet into the place where the red dot appears.  This is the same thing that is signified by holding the barrel of a gun at a place on a victim’s body.
[14]	The fourth point is that there was no amelioration of the sentence on account of the mitigating factors.  That submission is made in the face of his Honour’s statement that he was giving effect to the mitigating factors in fixing a parole eligibility date at a point just below one third of the head sentence.  In the case of a recalcitrant armed robber that was a generous reduction in the weight of the penalty.
[15]	By way of his fifth point, the applicant submitted that the learned judge “fettered his sentencing discretion” by relying on out of date sentences.  This submission is misconceived.  His Honour had regard to older cases only because of the lack of modern authorities for this particular kind of armed robbery offence.  Bank robberies are no longer in vogue as they once were.  However, there is simply no indication at all that, as a result of his Honour’s consideration of those cases, the sentence imposed on the applicant was wrongly greater than it should have been.  Indeed, when one bears in mind that sentences of four years and five years respectively were imposed on the applicant for previous armed robberies and when one had regard to his sorry history of break and enter type offences, and that this offence was committed while on probation, it cannot seriously be argued that the discretion miscarried in imposing a sentence of seven years and six months with parole eligibility set at below one third of that period.
[16]	There is no merit in this application and it should be refused.