The Queen v Carroll and Carroll
[1997] QCA 378
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- The Queen v Carroll and Carroll[1997] QCA 378
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The Queen v Carroll and Carroll[1997] QCA 378
The Queen v Carroll and Carroll[1997] QCA 378
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No 258 of 1997
C.A. No 259 of 1997
Brisbane
[R v. Carroll and Anor]
THE QUEEN
v.
LEON GRANT CARROLL
and
GREGORY SCOTT CARROLL
(Applicants) Appellants
Pincus JA
Lee J
Cullinane J
Judgment delivered 24 October 1997
Joint reasons for judgment of Lee J and Cullinane J, separate concurring reasons of Pincus JA.
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEALS AGAINST SENTENCE ALLOWED.
LEON CARROLL - SET ASIDE SENTENCE BELOW AND IMPOSE SENTENCE OF FIVE YEARS IMPRISONMENT
GREGORY CARROLL - SET ASIDE SENTENCE BELOW AND IMPOSE SENTENCE OF THREE AND ONE-HALF YEARS IMPRISONMENT
CATCHWORDS: CRIMINAL LAW - SENTENCE - Parity - whether sentences manifestly excessive.
Counsel: Mr R Collins for Applicant/Appellant L G Carroll
Ms K McGinness for Applicant/Appellant G S Carroll
Ms L Clare for Respondent
Solicitor: Legal Aid Queensland for Applicant/Appellant L G Carroll
Legal Aid Queensland for Applicant/Appellant G S Carroll
Director of Public Prosecutions (Queensland) for Respondent
Hearing Date: 15 October 1997
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 October 1997
I have read the joint reasons of Lee J & Cullinane J and agree with their Honours that the appeal should be allowed, substantially for the reasons which they give. I also agree with the substituted sentences imposed.
JOINT REASONS FOR JUDGMENT - LEE J AND CULLINANE J.
Judgment delivered 24 October 1997
These are two applications for leave to appeal against sentence and were heard together. The first is by Leon Grant Carroll who in his Notice of Appeal, also appeals against conviction. That appeal is abandoned and is hereby dismissed. The second application is by his younger brother, Gregory Scott Carroll. Both applications arise out of the same incidents. Both brothers were convicted by a jury in the District Court at Brisbane on 30 May 1997 following a joint trial lasting three days. Gregory gave evidence and called one witness. Leon did not give evidence.
Leon was convicted of one count of armed robbery in company with personal violence whilst armed with an offensive weapon, viz, a beer can, and one count of Arson of a motor vehicle, both committed on 5 April 1996. He was sentenced on that date to seven years imprisonment on each count to be served concurrently. There was no recommendation for parole.
Gregory was convicted on one count of robbery in company with personal violence ie, without the additional circumstance of aggravation of being armed with an offensive weapon as in Leon’s case. Gregory was also convicted of arson of the same motor vehicle. Both offences were committed on the same date, 5 April 1996. He was sentenced to four and one-half years imprisonment on each count, to be served concurrently. No recommendation was made. All offences for both applicants carried a maximum term of life imprisonment.
The ground of each application is that the sentences were manifestly excessive. In Leon’s case, There was the further submission that the disparity in his sentence, when compared with that of Gregory, ie, seven years, as compared to four and one-half years, is too great in the circumstances. His counsel submitted that an appropriate range was four to five years imprisonment, with a sentence of four and a one-half years as appropriate. Gregory’s counsel submitted that the range should be two to three and one-half years imprisonment with a recommendation for release on parole. It was generally submitted that, whilst there could be no excuse for the conduct of both appellants, the incident was not premeditated and erupted over some confusion with the directions given to the taxi driver.
Leon was born on 3 February 1959 and was aged 37 on 5 April 1996 and 38 when sentenced. Gregory, who was also known by the nickname of “Snapper”, was born on 26 February 1966 and was aged 30 on 5 April 1996 and 31 when sentenced. On 5 April 1996, both had been drinking at the Northgate Leagues Club for some hours and were in the company of several ladies including Catherine Mary O'Malley and Judith Yvonne Kropp, each of whom gave evidence to the Crown. Later, after midnight, the applicants left that place by taxi and attended a party at the home of Miss Kropp at 41 Lang Terrace, Northgate. They continued drinking and fell asleep on the couch. They were obviously substantively affected by alcohol. Miss Kropp called a yellow taxi which arrived at 3.36 a.m., driven by the complainant, a 55 year old man of slight build who was wearing glasses. She woke the appellants, she saw Gregory (known to her as “Snapper”) get two cans of beer out of the fridge, and saw the two brothers get into the cab, although she was not sure precisely where they sat. Counsel for Leon put to the complainant in cross-examination that the cans of beer were placed next to the fence before they got into the cab because the taxi driver did not want beer inside the taxi. The taxi driver denied that in evidence. Gregory got into the front passenger seat and Leon in the rear seat. The taxi driver said that Leon had two cans of beer in his hand in the rear of the car. He did not object to them being taken into the car as they were not opened at the time.
The applicants asked to be driven to Nudgee Road, and the taxi proceeded in that direction. When the car got to Tufnell Road, Leon yelled, “Where are you going?” and screamed, “Hamilton” and the taxi driver commenced a U-turn. Leon then yelled, “Turn the meter off, stop the car”. He began to hit one of the cans and make a noise. The taxi driver began to panic. Leon said to the driver that if he did not turn the metre off, he would bash him or kill him. He continued to scream, “Turn the metre off”.
The taxi driver pressed the emergency alert button under the dash, Leon continued to scream, “Stop the car, back it up”. The driver said that Gregory said, “Keep calm, keep calm”. Events then got out of hand with Leon screaming and hitting the cab and making threats. Gregory then tried to steer the car to the side of the road and stop it by pulling on the steering wheel. This did not succeed and he then slammed the auto shift into park. The car swerved hard across the road. It then stopped, Leon alighted and he walked to the driver’s door and started hitting the driver with a beer can on the arm, head and face several times. It does not appear whether the can was full or empty. The driver lost his glasses and watch.
The driver put the car back in gear and attempted to drive off, flick the headlights on and off and blew the horn. He drove only 30 to 50 metres when Gregory, who was still in the car, again slammed the gear into park and put his foot on the brakes. Leon ran up and continued hitting the driver with the beer can through the open door. Gregory tried to get the driver’s hand off the steering wheel by hitting the driver’s finger on the steering wheel, causing a crack or hairline fracture of the driver’s left hand. Gregory then pushed the driver out of the car, where he then found his glasses. His sight was not good without them. Apparently he never recovered his watch. He had about $30 in the money dispenser in the taxi.
Gregory yelled to Leon to get into the car and they sped off with Gregory driving, having said, “Let’s get out of here”. This occurred somewhere between 3.36am and approximately 4.00am, which the applicant’s sister, who gave evidence for the defence, said was about the time they arrived at her home at Nundah where they slept the rest of the night. Gregory said he abandoned the car at Toombul Shopping Centre which, he said, was only about four minutes drive away from where the incident occurred, and they then walked to his sister’s house. The car was found burning a short time later at Zillman Road, Hendra.
Pursuant to a call, the control centre at the fire brigade at 4.29am directed a unit to attend the fire. The unit arrived at 4.35am and officers saw the yellow taxi well enveloped in flames. There was some evidence that it would have taken a half an hour or more to become burned to the extent it was when seen by the Brigade. It was apparently totally destroyed. It cost Mr Morris, the owner, $16,500. He received $13,400 from the insurance company. It was submitted by the Crown that he sustained a loss of $3,100 and a loss of income. The shortfall from the insurance would of course depend upon the value of the car at the time of the loss. No restitution was sought in respect of it or the $30 change he had in the car. There is no evidence that the appellants took the money.
There was considerable evidence, including a street map of relevant areas, indicating the area where the assault occurred, the address where the applicant’s sister lived as well as Hendra where the burning car was discovered. The address at Hendra was not a great distance from Nundah. The jury obviously found that the vehicle’s location was close enough for the appellants to have set fire to the car before they went to their sister’s home.
The taxi driver received bruising about the face and head. He attended the Kedron 24 Hour Medical Centre soon after the incident and later that day received further treatment and an X-ray. He made light of his injuries, including the hairline fracture to the hand, although he became apprehensive and reluctant to drive taxis on late night or early mornings shifts. It is clear that he was not seriously injured.
The defence contended at the trial that the taxi driver refused to allow them to have beer in the taxi, which the taxi driver denied. As indicated, he said that he did not object to the two cans being brought into the car as they were then unopened. Gregory asserted that the taxi driver got, “agro” when he refused to turn off the meter, and that he, Gregory tried to calm the driver and Leon down. He agreed that Leon was becoming very argumentative with the driver. This accords with the driver’s evidence. Gregory denied that Leon had hit the driver and said that the driver might have injured himself when he alighted from the car, but Gregory admitted trying to get the driver’s hand off the wheel. He denied that Leon had any beer cans in the car at all and that he, Gregory had only one can in the car.
Gregory said that a stranger in a utility had pulled up and hit Leon with what he took to be a bat similar to a cricket or baseball bat, which was the reason that he yelled to Leon to get back in the car and get out of the area. He denied any intention to steal the car but said that they were provoked and merely absconded to avoid being attacked by the person with the bat or by taxi drivers and others who had since arrived on the scene, pursuant to the alarm call and pursuant to the obvious behaviour of the taxi, including the blowing of the horn and flashing of lights. It appears that the police arrived soon after the applicants absconded. At 5.00am, Gregory rang Miss Kropp asking her to say that she hadn’t seen him the night before. About two weeks later, after she had been interviewed by the police, he told her that he had put his foot on the brake of the car and nothing else.
The jury rejected the defence case and obviously concluded that Gregory had told lies in significant respects. As the Crown Prosecutor submitted, neither applicant showed any remorse whatsoever but raised a fanciful story which was rejected by the jury. The trial Judge described the incident as a brutal robbery committed in frightening circumstances on a vulnerable citizen going about a very useful function in society. His Honour said that such people must be protected and he took a very serious view of the offence. His Honour drew a distinction between the criminality between Gregory and Leon in the above sentences imposed.
During submissions before the trial Judge, counsel for Gregory did not cavil with the submission by the Crown that five years imprisonment was the appropriate head sentence for Gregory. Indeed, he agreed that this was the appropriate sentence and also there should be a similar sentence imposed for the count of robbery in company with personal violence as well as the arson count. He nevertheless asked for a recommendation because of the lesser culpability of Gregory and his relatively good past record.
Leon’s counsel submitted before the trial Judge that a sentence of eight years contended for by the Crown for Leon, without a recommendation, was “on the high side”, and should not warrant an extra three years imprisonment. He did not submit that there should be any differentiation in the sentences imposed on Leon for the armed robbery in company with personal violence and the arson. The learned trial Judge acted accordingly in each case in imposing similar sentences for each offence. His Honour in fact imposed lesser sentences in each case than those of five years and eight years respectively contended for by the Crown.
Whilst the stance of counsel below is not conclusive, it is nevertheless a factor to be taken into account. Gregory was the younger of the two. The jury’s verdict showed that his overall criminality was less than that of Leon. The jury acquitted Gregory of one serious circumstance of aggravation. There was also some attempt by him to calm the situation before the assault erupted, but he nevertheless proceeded to injure the driver’s hand and push him out of the car, speed off, and wantonly burn it, which is necessarily a very serious aggravating circumstance overall. Had they merely abandoned the car, the criminality of each would obviously have been much less. No reason was advanced before the trial Judge or this Court as to why the car was burnt. Gregory’s contention at the trial was that they had merely abandoned it and had no reason to burn it. This was rejected by the jury.
Gregory had two insignificant criminal convictions imposed on 26 October 1995. One was for obstructing police and attracted a fine of $75 with no conviction recorded. The other was for refusing to state his name and address. He was fined $75 and again no conviction was recorded. He is a motor mower body builder, unmarried but has a two weeks old child who he was supporting. Nevertheless, the overall attack was cowardly, with some consequences to the driver and owner and no remorse was shown. As the learned trial Judge said, taxi drivers must be protected.
Leon was convicted of the more serious offence, namely armed robbery in company with personal violence which is an additional aggravating circumstance, as well as arson. He was by far the most active person in the whole affair. It was he who commenced screaming at the driver, hit the beer can and threatened to bash and kill the driver if he did not stop. Gregory tried to calm the situation down and tried to stop the car towards that end. It was Leon who initiated the actual assault on the driver which preceded Gregory’s attempt to wrest the driver’s hand from the steering wheel, after Gregory had first tried to steer the car to the side of the road.
Leon has a somewhat lengthy criminal history commencing in 1983 with stating false name and address, unlicensed driving, behaving in a disorderly fashion, and traffic and drug offences. He was first sentenced to imprisonment on 11 April 1988 for two years on three counts of possession of a dangerous drug and has subsequently been convicted and fined for drug offences and obstructing police. He has no previous offences of violence or dishonesty but nonetheless has shown disrespect for the law. The foregoing indicates that he is not entitled to any particular leniency.
Leon was in employment with G J James. He is separated and supports three children. He also has shown no remorse whatever and went along with Gregory’s attempt to lie as to Leon’s involvement with regard to the cans and with his assaulting of the taxi driver and disposal of the car. It seems that the lack of remorse of both applicants demonstrated by the fanciful story and false statements weighed heavily with the trial Judge.
Reference was made to a considerable number of authorities. Mrs McGinness, who appeared for Gregory, referred to six authorities, some of which were also referred to by Mr Collins who appeared for Leon:
The Queen v. Christopher John Jackson ex parte Attorney-General (CA 276 of 1994, 2 February 1995)
The Queen v. Elhassan (CA 401 of 1994, 29 November 1994)
The Queen v. Hides and Johnson (CA 100 of 1993, 4 June 1993)
The Queen v. Cox (1991) 55 A Crim R 396
R v. Kewley (CA No 57 of 1992, 4 June 1992)
R v. Heta (CA No 106 of 1997, 30 May 1997).
Those authorities in the main dealt only with robberies and did not include arson. Some show more offences than one but of the same or similar kind. They show a number of sentences from non-custodial for youthful first offenders and up to three to four years for persons with criminal histories which contain convictions for like offences.
In Hides and Johnson a sentence of four years was imposed but the case involved persons with serious criminal histories. One offender was on parole at the time of the offence which was committed in company and with violence. Even so, the sentences were described by McPherson JA as within range although towards the higher end. In Kewley, a sentence of two years and four months imprisonment was imposed on a young person with a previous history and who was on probation at the time of the sentence. The offence was robbery with personal violence in company, and his previous offences included break and entering and being in possession of a concealable firearm. The attack was premeditated and on an innocent man who was punched and kicked. In Heta, a term of 18 months imprisonment was imposed for a series of offences. The offender was 18 and had a substantial previous history including a conviction for armed robbery. Those cases are of marginal assistance because of the complicating factor of the arson of the motor vehicle.
Mrs McGinness submitted that the facts of this case distinguish it from those dealt with by the Court of Appeal in Cox. It involved the robbery of a cab driver in the early hours of the morning. The applicant was 19. His companion, Farrah, was 15 months his senior and had initiated the offence. Both men were drunk at the time. Farrah proposed that they rob a taxi and the applicant went along with the proposals so to that extent it was premeditated. A number of taxis were hailed before they entered the complainant’s taxi. Farrah produced a piece of jagged glass, apparently from the base of a stubbie beer bottle and pointed it towards the driver’s chest. He demanded money and obtained $120. The applicant did nothing during that particular incident. The taxi driver was told to lie down on the road. Farrah drove off with the applicant still in the rear.
Both had significant criminal histories and Cox’s history was worse than Farrah’s. Cox was on probation when the offence was committed. The appeal was based upon alleged disparity between an appreciably lower sentence imposed upon Farrah, who was sentenced not only for this particular offence but also for three other armed robberies in company and one offence of unlawful use of a motor vehicle, none of which involved Cox. Farrah was sentenced to five years imprisonment with a recommendation for parole after seven months. He had been in custody for three and half months before sentence so the effect of sentence was about five and a half years. Cox was sentenced to four years imprisonment with no recommendation.
The head sentence of four years remained but a recommendation was made for parole after serving 10 months. The Court held that the Judge who sentenced Farrah manifestly erred on the side of leniency, and made the above recommendation in favour of Cox because there was a real sense of grievance which entitled the applicant to consideration. Mrs McGinness submitted that the conduct of the applicant, Gregory was not as bad as that of Cox, and nowhere near as bad as Farrah in all of the circumstances.
Mrs Clare, who appeared for the Crown, submitted that Cox provided a useful point of comparison. She submitted that the Court considered a sentence of four years to be within range although at the high end or perhaps slightly outside of it. It was submitted that the sentence of four and one-half years on Gregory with no recommendation was a proper one because Cox was the passive one in the robbery and the car itself was not damaged. It was found parked outside of their house by police. Cox pleaded guilty to an ex officio indictment, as opposed to the applicants who showed no remorse and went to trial. Cox was only 19 years of age. Mrs Clare submitted that with the added feature of the burning of the motor vehicle, the sentences were entirely appropriate.
A schedule was handed to the Court by Mrs Clare of sentences involving multiple offences including those involving arson of a motor vehicle. It covered the period April 1994 to April 1995. Apart from one offence of Colombo (CA 503 of 1994, 4th April 1995) involving a 55 year old man, all other offences on the schedule were committed by persons not above 21 years of age and some were committed by juveniles aged 14 and 15 years. The only sentences involving arson of a motor vehicle referred to by Mrs McGinness were in the early 1980's.
In Hunia, (CA 308 of 1994, 20th September 1994), a 21 year old who pleaded guilty, was given probation for two years coupled with 240 hours of community service for offences of arson of a motor vehicle and attempted false pretences. He arranged the vehicle’s burning and made a fraudulent insurance claim which the insurance company discovered. It was an Attorney General’s appeal.
In Colombo, a sentence of five years nine months imprisonment was imposed (on appeal) for arson of a motor vehicle but that was coupled with 16 other serious offences including assault occasioning bodily harm, attempted arson, house breaking, stealing, wilful damage and burglary. The attempt was made on one day to burn the vehicle without success. He returned the next day and succeeded. A sentence of four years imprisonment was imposed with respect to each of the two burglary offences and lesser sentences on the balance. All were served concurrently. The effective sentence was seven years imprisonment with parole fixed at approximately half way.
In Bartz (CA 501 of 1994, 21st March 1995), there were also multiple serious offences including arson of a motor vehicle, house breaking, stealing, armed robbery in company and unlawful us of motor vehicles with circumstance of aggravation. On appeal, the sentence of one year for arson of the motor vehicle was not disturbed but sentences of ten years imprisonment imposed on the two armed robbery counts were reduced to nine years with all sentences made cumulative upon sentences imposed on the 21st May 1993. His eligibility for parole was fixed to become effective on the 4 April 2000, after having served seven years from the date the earlier sentences became effective. He was 21 years of age and had a very bad criminal history including armed robbery and a number of other offences involving violence. He was an escapee from lawful custody, and entered a guilty plea. The conduct of Bartz and Columbo was of the worst possible kind involving many offences.
It appears that the schedule, and other cases referred to, are not particularly helpful in the current case. It must be regarded as in the lower range of robbery offences, even coupled with the senseless burning of the motor vehicle, when consideration is given to robberies of a far more serious kind, including a series of robberies or like offences. On the question of alleged disparity, Mrs Clare conceded that this “certainly has to be at the outer level of difference between them if it is a proper disparity”. Defence Counsel below had conceded that there should be some disparity but certainly not to the extent resulting from the sentences imposed by the trial Judge. Having regard to the principles in Cox and Lowe (1984) 154 CLR 606, the disparity between the sentences in the case of these two applicants is too great and gives Leon a justified sense of grievance, notwithstanding the greater role he played in the actual assault.
Having considered all of the circumstances, the submissions and various authorities, the sentences imposed in the case of each applicant were manifestly excessive. In the case of Leon, a sentence of five years imprisonment is appropriate. In the case of Gregory, a sentence of three and one-half years imprisonment should be imposed. We would allow the application for leave to appeal in each case. The sentences below should be set aside and in the case of Leon, a term of imprisonment of five years should be imposed. In the case of Gregory, a term of imprisonment of three and one-half years should be imposed. These sentences appropriately take into account the background and circumstances of each offender, including the lesser criminal history of Gregory. In our opinion, there should be no further recommendation.