Home | Databases | WorldLII | Search | Feedback Supreme Court of Queensland - Court of Appeal

You are here: 

R v W & C [1996] QCA 64 (22 March 1996)

Last Updated: 7 April 2016

IN THE COURT OF APPEAL [1996] QCA 064

SUPREME COURT OF QUEENSLAND

C.A. No. 495 of 1995.

C.A. No. 496 of 1995.

Brisbane

[R v. W & C]

T H E Q U E E N

v.

W and

C

(Applicants)

_____________________________________________________________________

Pincus J.A.

McPherson J.A.

Helman J.

_____________________________________________________________________

Judgment delivered 22/03/1996

Joint reasons for judgment of McPherson J.A. and Helman J., separate reasons of Pincus J.A. dissenting in part.

_____________________________________________________________________

1. APPEAL OF W DISMISSED.
2. APPEAL OF C ALLOWED.

SENTENCE IMPOSED ON C TO BE VARIED BY REDUCING PERIOD OF DETENTION TO 4 YEARS, BUT WITHOUT DISTURBING THE OTHER ORDERS MADE BELOW.

___________________________________________________________________

CATCHWORDS: ROBBERY - PERSONAL VIOLENCE - SENTENCING - previous criminal record - juveniles - results shared by victim and offender - Amituanai (C.A. No. 524 of 1994, 28 March 1995) - Juvenile Justice Act 1992 - s. 109 - remorse lack of remorse - drunkenness - assistance to police.

Juvenile Justice Act 1992 - s. 109, 2. 188

Amituanai C.A. No. 524 of 1994, 28/3/95

Rosenberger [1994] QCA 488; (1994) 76 A.Crim.R. 1

Stephens [1994] QCA 507; (1994) 76 A.Crim.R. 5

Counsel: Ms K McGinness for the applicants.

Mr D Meredith for the respondent.

Solicitors: Legal Aid Office for the applicants.

Queensland Director of Public Prosecutions for the respondent.

Hearing date: 23 February 1996.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 22/03/1996

These are applications for leave to appeal against sentence, the applicants having been on 13 November 1995 convicted in the District Court on pleas of guilty and sentenced. Each of the applicants was convicted of robbery in company with personal violence and W was also convicted of breaking, entering and stealing. C, who was 16 years of age when he committed the robbery, was sentenced to 5 years detention with an order for release after having served 60% of that period. W, who was 15 years of age when he committed the offences, was sentenced to 4 years detention in respect of the robbery with an order that he be released after serving two-thirds of that period; he was sentenced to 1 year (concurrent) for the breaking, entering and stealing. Each of the applicants had a criminal record, although C’s was far more serious than W’s and each was the subject of a probation order at the time the offences in question were committed. The judge explained the reason for the heavier sentence imposed on C as being the slight difference in age (8 months) between the two, the fact that W had a less serious criminal history and that W was under the influence of alcohol at the time of the robbery.

The description of the offence placed before the primary judge was, in summary, as follows. The complainant was a man of 59 years employed as a machinist at a cannery at Northgate. On Tuesday 29 November 1994 he worked late and did not arrive at the railway station at Woodridge until about 9.40 pm. As he was walking home from the station a person approached him and asked him for the time; he was then hit from behind by some heavy object three or four times and fell to the ground dazed. He was lifted up by two attackers who told him they wanted money; he was punched and kicked, and fell to the ground again; three youths were kicking him at that stage. One of the youths took his work bag while another kicked him. A taxi came up to a nearby taxi rank and the four youths who had been attacking him ran off. His bag contained about $140. The driver of the taxi I have mentioned came up to help and initially thought that the complainant, who appeared to be unconscious, was dead. He was taken away in an ambulance and on examination he turned out to have a number of injuries, the most serious being, it was said, a fractured skull. In his sentencing remarks the judge described the victim as having been left with "serious permanent affects" and mentioned that he had undergone surgery. The judge was told that the victim’s eyesight became blurry at times, he suffered from dizziness and headaches, his short-term memory had been affected, as has also his work performance; as a result of these difficulties he has been advised that he should not return to work. It was said that he was a fit and healthy man before the attack and the sentences were, clearly enough, imposed on the basis that the attack in which the applicants took part has greatly affected the victim’s life. The account just set out of the effect of the robbery on the victim, being that given at sentencing, was somewhat misleading.

The impression I have is that the judge sentenced without having his attention drawn in detail to the medical and hospital reports; there is no mention in the record of their having been tendered, but the file contains an exhibit list including a number of such reports which were marked as exhibits. These show that the victim spent only four days in hospital. The only treatment he seems to have received was suturing of scalp lacerations. He had a right-sided subarachnoid haemorrhage, which means bleeding under the central of the three membranes which cover the brain and spinal cord; there is no suggestion that this required treatment, or left any detectable signs.

Dr Hodge, an ear, nose and throat surgeon, examined the victim because he complained of intermittent hearing loss. The doctor described him as having a "mild to moderate sensory neural loss in the right ear with an added conductive overlay in the left ear" and thought that could be consistent with the assault or with natural causes; he did not say which was the more likely cause.

A neurologist, Dr Ohlrich, referred in his report to the victim’s complaints, as set out above. On examination the victim looked well and was in no distress, according to the report. The doctor said "He seems alert and clear mentally and is orientated in time. He is quick and steady in his actions". The victim said he could not hear a whispered voice in either ear, but "there were no other significant neurological findings on full examination". The doctor was unable to find any definite evidence of any brain damage. His opinion was that "post-traumatic symptoms associated with the emotional trauma of the event probably will prevent him from getting back particularly in view of his age".

In short, the reports seemed to say that with a possible exception of some hearing loss, no physical injury is now detectable, but there is substantial psychological reaction to the assault. The record suggests that this feature of the matter - that there appeared to have been little or no permanent physical damage -was not drawn to the primary judge’s attention; also, the judge seems to have had the impression that there was a surgical operation done. This may be a reason for the sentences imposed being, as Mrs McGinness suggested for the applicants, beyond the usual range for offences of this kind, committed by youths of say 15 or 16.

It was pointed out before us that it may have been just good luck that the victim seems not to have suffered a serious brain injury; W admitted kicking him very hard in the head. But it is the practice of the courts to treat the actual effect on the victim as relevant: see the Juvenile Justice Act 1992 s. 109(1)(a) and (g). "The risk that a blow which might by good luck have caused little damage, in fact has catastrophic results . . . is one which is shared by the victim and the offender": Amituanai (C.A. No. 524 of 1994, 28 March 1995 per Pincus JA at 2). Similarly, where (whatever might have happened) the victim does not suffer in fact serious permanent injury, that can redound to the benefit of the offender in the sentencing process.

C was, it is said, identified as an offender shortly after the offence was committed. He was interviewed by police some months later, when he said at first that he had merely seen the incident and walked past, but in May 1995 he admitted he was involved and that he took part in the assault. On that occasion, he said that he hit the victim twice. He named the other offenders to the police and that in my view is a significant point in his favour. But it was C who, in a sense, initiated the whole affair because he was the one who first approached the victim. He told police that when his group first saw the victim they talked about "doing a rolling". He said that when he saw the blood - he had never seen so much before - he went into shock and panicked, running away, but he admits that he got some of the money from the stolen bag, which was gone through when the offenders all met up at a place described as a "hang-out spot". C said it was W who found the money and W who kicked the victim in the face. C explained to the police that the reason he hit the victim was that the victim "looked at him funny".

Counsel for C below told the judge that his client had indicated that he would plead guilty by a letter dated August 1995. Counsel pointed out that it was the Crown case that C was responsible for the initial blows, but others then moved in and C took no further part.

C’s criminal history is extensive. One finds numerous property offences, mainly breaking, entering and stealing and unlawful use of a motor vehicle. There are, however, no offences of personal violence in his record. He was sentenced to a number of periods of detention in 1993 and 1994. At the end of 1994 he was the subject of a probation order and after the commission of the offence in question he committed further offences, at the beginning of 1995. There is a pre-sentence report. C is a member of an Aboriginal family and there were some difficulties in that family. He was seriously injured at the age of 6 by being burnt in an electrical accident, but it is not suggested that this has had any long-term effect. His educational record appears to be poor. The departmental officer who made the report said that he had told her that he wished to stop offending and that while in detention he had had a chance to reflect about the direction of his life, that he wanted to move on and leave his bad behaviour behind.

The officer also said that C had had six previous custodial sentences and had responded well to detention. Her view appeared to be that he should have an immediate release order.

As to W, when interviewed by the police in May 1995 he told them that he had been drinking, before the robbery was done, for quite some hours; he said there were four people in the attacking group and he refused to name the others. He explained that the motive for the assault was "for something to do". He admitted that he had kicked the victim in the head twice and in the abdomen twice. He described the force he used in the kick as being like kicking a football.

Counsel for W below relied on the pre-sentence report, but reference to it does not appear to assist the applicant. W had a considerably less lengthy criminal history than C, but it is not insignificant. In 1994 he was sentenced to probation for committing 14 offences of unlawful use of a motor vehicle and two of stealing and also ordered to perform community service. Then there was a breaking and entering in 1995 for which community service again was ordered.

W was sentenced, on the occasion now in question, for a breaking, entering and stealing offence as well as the robbery. A shop was opened by throwing a rock through the front window and clothing was taken.

The pre-sentence report discloses that W is part-Aboriginal and there was much disharmony in his family. He was at a detention centre early in 1995 on remand for other offences and at the end of that period went to Cairns to live with his father. He apparently liked living in Cairns, but now says that it is best for him to remain in detention. He told the officer of the department who interviewed him for the report that when he thinks about the offence he gets really angry. He also said that the victim deserved it "because they come over here and steal from us"; it appears that the victim is a Filipino. W did not express any remorse. His opinion was that if he were given a community-based order he would soon be back before the court for non-compliance.

It is my view that the attitude, frankly expressed by W, of hostility to the victim and lack of remorse or sympathy, is important in considering whether the primary judge was right in discriminating, in the fixing of sentences, against C.

W’s sentence was 4 years and under s. 188(1) he would ordinarily have been entitled to be released after serving 70% of that period. The judge slightly alleviated that so that he will have to serve 2 years and 8 months, at the end of which time he has an absolute entitlement to be released and in that sense he is in a stronger position than a person on parole. On the other hand, conditions may be imposed on his release and breach of those conditions may result in his return to detention. It seems right, then, to treat the period of detention as 2 years and 8 months, subject to the possibility that further detention of up to 1 year and 4 months may be incurred for breach of conditions of release.

The judge treated C, for the reasons I have mentioned, as deserving of greater punishment than W. One reason for favouring W was that he was, it was said, under the influence of alcohol at the time, but that is not ordinarily a mitigating factor, according to decisions of this Court and of courts in other jurisdictions: Rosenberger [1994] QCA 488; (1994) 76 A.Crim.R. 1, Stephens [1994] QCA 507; (1994) 76 A.Crim.R. 5. The word "ordinarily" leaves room for exceptions, such as that the intoxication has been contributed to by duress or by some illness; here, there seems to be no reason why the Rosenberger prima facie rule should not be applied. I have noted that the idea of lessening a sentence where a violent offender is said to be drunk at the time is sometimes defended on the basis that drunkenness shows or suggests that the offence was uncharacteristic, i.e. not in conformity with the offender’s usual, sober, behaviour. There is little logic in this reasoning; if the offender, drunk or sober, has no previous assaults in his record, then of course he must be sentenced on the basis that the instant assault is uncharacteristic. And there is absolutely no reason to think that one who has been violent when drunk is particularly unlikely to re-offend. In any event, the point has been decided, as set out above, on the basis that drunkenness is generally not a mitigating circumstance and that rule should in my respectful opinion be applied by sentencing judges.

But apart from that difficulty, there are other reasons to think that C should not have been more heavily sentenced than W. Although C was, as has been explained, the initiator of the assault, it seems to have been accepted below that he desisted after striking a couple of blows; also the pre-sentence report relating to C appears to hold out more hope for him than can be held out for W. Whereas W is simply resentful and, remarkably as it appears to me, angry at the victim, C’s reaction is said to be a desire for amendment of his ways and to be with his family with whom he has a close relationship. The apparent desire to behave better may be other than genuine, but the officer who made the pre-sentence report seems to have treated it as sincere.

It is also important, in my view, that although each of the offenders pleaded guilty, it was only C who gave any real assistance to the police; he did so by naming his co-offenders. This is the sort of behaviour which, although contrary to the code of conduct observed by many who come before the courts, should be firmly encouraged. I would therefore conclude that there was no justification for imposing a heavier sentence on C than that imposed on W.

It remains to be considered whether the sentences should be brought more into line with what appears, and indeed seems to be conceded, to be the usual pattern of sentencing in the District Court for offences of this seriousness, committed by people of 15 or 16. It appears that a sentence of 4 or 5 years is, on the face of it, beyond the ordinary range. This was a cowardly and vicious attack, but no worse than some cases to which we have been referred which attracted significantly lower sentences. This Court is not bound by present District Court practice and there is something to be said for the view that an increase in the level of the sentencing may be necessary to deter young people who might be tempted to form a pack to attack individuals going about their lawful concerns.

Because of the peculiarity of sentencing under the Juvenile Justice Act, namely that the time set by the Court for early release is not a recommendation but a requirement, it is convenient to begin with what seems to be an appropriate minimum period of detention, calculated as being 60% of the maximum period. In my view, an appropriate minimum period of detention is 2 years, and the total period therefore should be 3 years and 4 months, the former figure being 60% of the latter.

That is, I would grant the applications and allow the appeals to the extent of setting aside the sentences imposed for robbery below; in lieu of the sentences imposed for that offence, I would order in each case that the applicant be sentenced to serve a period of detention of 3 years and 4 months and order that the applicant be released from detention under s. 188(2) of the Juvenile Justice Act 1992 after serving 2 years.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & HELMAN J.

Judgment delivered the 22nd day of March 1996

The facts of the robbery and details of its consequences for the complainant are set out in the reasons for judgment of Pincus J.A., which we have had the advantage of reading.

We concur with his Honour in thinking that, in the end, there was some basis for complaint on the part of the applicant C that he was dealt with more harshly for this offence than his co-offender W. The sentence imposed on C was detention for 5 years, whereas in the case of W it was only 4 years. They were both 16 years old at the time of the offence. C has a much lengthier record of prior convictions; but he desisted from the attack on the complainant after striking him two blows, while W went on, in company with others, to kick him "pretty hard" in the head twice and also twice in the stomach as he lay on the ground. W said that he joined in the assault "for something to do". C's motive was robbery, but, after seeing the blood, he left the scene. It was only after the incident that he met the other boys again and was given some of the stolen money. In addition to those differences in the extent to which the two applicants took part in the subject offence, W was sentenced on the same occasion to a concurrent term of imprisonment for 12 months for breaking, entering and stealing committed on a separate occasion.

The learned judge further differentiated between them by recommending in the case of C that he be released after serving 60% of his period of detention; and, in the case of W, after ²/₃ of his detention had been served. Both pleaded guilty; but it may well be that the more generous recommendation in C's case was designed to reflect the extent of his early cooperation with the police and his apparent remorse for what he had done.

Giving weight to these various considerations, we agree that there is a rough equivalence between the respective degrees of criminality of the two offenders, which ought to have been reflected in head sentences of approximately the same duration. On that footing, the sentence of detention for 5 years imposed on C should, we agree, be reduced to 4 years.

We are, however, unable to accept that the resulting term of 4 years should be further reduced to 3 years and 4 months. The offence was a serious instance of its kind. Some five, or perhaps as many as seven, young men waited at night at the station at Woodridge, and then followed the 59 year old complainant through the subway, and into the street, where they attacked and robbed him. They beat the complainant until he was unconscious, and appear to have done so for no better reason than a desire to injure him. Certainly the manner and extent of the injuries inflicted went well beyond what was needed to overcome his resistance to their stealing from him.

The consequences for the complainant have been serious, even if the injuries he sustained may after the lapse of some time have proved to be less severe than was originally supposed. On his admission to hospital, a C.T. examination was performed which disclosed a traumatic right-sided subarachnoid haemorrhage. He had scalp lacerations which were sutured. Possibly it was this that his Honour was referring to when he spoke, imprecisely, of the complainant's undergoing a "surgical operation". Later examination has provided no definite evidence of any brain damage, but the complainant continues to be described in the more recent medical reports as having sustained a "significant" or "quite serious" head injury. His hearing has been affected. According to Dr Hodge he is now suffering from a mild to moderate sensory neural loss in the right ear. As a result partly of his injuries and partly of the hypertension they induced, he was compelled to give up work. The prognosis is that it is unlikely he will be able to work again.

In view of these factors, we consider that his Honour was justified in concluding, as he evidently did, that the circumstances of the offence took it beyond the range of penalty commonly imposed for street robberies of this general kind.

We would therefore vary the sentence imposed on the applicant C by allowing the application and appeal in his case, and reducing the period of detention to four years, but without disturbing the other orders made below.

The application by W for leave to appeal is dismissed.