The Queen v Bowen and Ambrym[1998] QCA 394

IN THE COURT OF APPEAL 

SUPREME COURT OF QUEENSLAND

C.A. No. 249 of 1998

C.A. No. 250 of 1998

Brisbane

[R v. Bowen & Ambrym]

THE QUEEN

v.

DENNIS JAMES BOWEN

and

MAX JOHN AMBRYM

(Applicants) Appellants

Pincus JA

Williams J

Muir J

Judgment delivered 24 November 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

IN EACH CASE - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.  APPEAL ALLOWED.  SET ASIDE THE SENTENCES IMPOSED BELOW AND IN LIEU THEREOF ORDER THAT:

(i)BOWEN TO BE SENTENCED TO 4½ YEARS IMPRISONMENT WITH THE DECLARATION THAT HE HAD SERVED 133 DAYS OF PRE-SENTENCE CUSTODY TO STAND;

(ii)AMBRYM TO BE SENTENCED TO 5½ YEARS IMPRISONMENT WITH THE DECLARATION THAT HE HAD SERVED 143 DAYS PRE-SENTENCE CUSTODY TO STAND.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 24 November 1998

1. The essential facts relating to these applications for leave to appeal against sentence are set out in the reasons of Williams J., which I have had the advantage of reading.  The circumstances of robberies of taxi drivers may vary widely;  it does not seem possible to hold that there is an accepted sentencing range.  In the present case the most significant aggravating factor is the effect on the victim, which is explained in the victim impact statement, summarised in the reasons of Williams J.  Despite the seriousness of these consequences, when the mitigating factors, also explained in the reasons of Williams J., are taken into account, it appears to me impossible to resist the conclusion that the sentences were manifestly excessive, judged against the background of past comparable cases.

2. I agree with the orders proposed by Williams J.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 24 November 1998

1. Each applicant pleaded guilty in the District Court at Cairns on 21 July 1998 to a charge of robbery in company with personal violence.  That offence involved an attack on a female taxi cab driver on 13 February 1998.  Bowen was sentenced to 6 years imprisonment with a declaration that he had spent 133 days in pre-sentence custody.  Ambrym was sentenced to imprisonment for 7 years with a declaration he had spent 143 days in pre-sentence custody.  Each seeks leave to appeal against the sentence imposed on the ground that it is manifestly excessive.

2. The victim of the offence was a 52 year old woman who had been employed as a taxi driver for approximately one year prior to the incident.  At about 2 a.m. on the morning of 13 February she was at the main feeder rank in Lake Street, Cairns, when she was hired by the two applicants.  Bowen got into the backseat and Ambrym into the front seat alongside the driver.  They told the complainant that they wanted to go to Redbank at Gordonvale; that is quite some distance from Cairns and (as would have been known to the sentencing judge) involved driving for a considerable distance through a sparsely populated rural area.  Following the directions given by the applicants the complainant drove off the main road in the direction of Yarrabah looking for a dirt track.  Statements were made by the applicants to the effect that they must have missed the driveway and they would change seats so that Bowen could find it. The complainant stopped her vehicle and the applicants changed positions; she then began driving back in the direction of Cairns.  Bowen told her to turn left and she drove down that road for a short distance before she was told to stop.

3. At about that time Bowen had given to Ambrym a T-shirt which had been in the front console area of the taxi.  As the vehicle came to a stop Ambrym placed the T-shirt around the complainant’s neck and pulled it tight.  Immediately the complainant had trouble breathing and she panicked.  She endeavoured to activate her taxi alarm and heard one of the applicants calling out “Get the keys”.  Bowen turned the ignition off and pulled the bandbrake on.  The area was deserted and there were no street lights.  The complainant was in fear of her life and then lost consciousness.  She next remembers a voice over her taxi radio calling her in.  Shortly after police arrived at the scene.  The applicants had fled taking cigarettes, money, and other items out of the taxi.

4. The complainant suffered soreness to her throat and had a cut to her left leg occasioned during her struggles.  The complainant was obviously in a state of shock when the police arrived.

5. As a result of information received police apprehended each of the applicants.  Bowen told the police he had been in Cairns drinking when he and Ambrym decided to catch a cab home.  He said they had talked “about doing a bolt on the taxi” because they did not have any money.  They were going to catch the taxi and then run.  When asked why he changed seats with Ambrym, Bowen told the police he “didn’t want to do it”.  He claimed that the incident was “just a spur of the moment.  She was just in a bad spot at the wrong time at the wrong place”.  During the interview Bowen in effect said that if the complainant had fought back she would have ended up very injured.  According to Bowen the money stolen was spent on pies and drinks.

6. Ambrym told police it was Bowen’s idea to rob the complainant; Bowen said something about strangling the lady when they changed seats.  He told police: “Dennis just told me to pull the shirt back and I ended up doing it”.  They both ran off, but Ambrym was concerned he might have killed the complainant so he returned to the area; he heard the complainant speaking on the radio and so left the scene.  Ambrym said the money was spent on “grog and things”.

7. Before the sentencing judge the crown prosecutor conceded that the Crown could not say that the whole incident was planned before they got into the taxi, but he did contend that it was not done on the spur of the moment; there was some element of pre-meditation.

8. The Crown prosecutor at first instance emphasised the vulnerability of taxi cab drivers, particularly females, at night.  They were obliged to drive people to isolated areas, and it was submitted that in consequence the deterrent aspect of sentencing was important here.

9. Bowen was born on 29 May 1979 and was aged 19 when sentenced.  He had previous convictions for street offences (including assaulting police) and a minor drug offence.  Ambrym was born on 10 August 1976, making him 21 at the relevant time.  His criminal history was more extensive.  He was dealt with in the Gladstone Magistrates Court in February 1995 for a number of breaking and entering offences; he was given community service.  Then in July 1997 he had a conviction in the Cairns Magistrates Court for wilful and unlawful destruction of property; a fine was imposed.

10. A victim impact statement was handed to the court on behalf of the complainant.  She had been treated for post traumatic stress since the incident and had lost confidence in driving.  She experienced panic attacks at night when she had to leave the house.  She found it difficult to relax, her memory and concentration were affected, and she had difficulty sleeping.  She has received counselling from a clinical psychologist and a psychiatrist and has received treatment for depression at the Cairns Based Hospital.  The complainant had been cab driving for about 18 months prior to the incident, but was now unfit to continue in that occupation.  She could not return to either of her previous major employments (pizza delivering and bar attendant) and was now virtually unemployable because of her condition.  The incident has obviously had a severe impact on her well being and life style.

11. Before the sentencing judge counsel for the appellants stated that both had been drinking alcohol for most of the day prior to the incident and had also been using cannabis.  They had no money and decided before the journey to take a taxi and run off when the time came to pay.  The initial plan was only to steal.  He submitted that they did not look for a lady taxi driver, rather they took the first cab on the rank at the time.

12. Counsel for the appellants indicated that about $40 in money was stolen; he asserted they did not take all the money in the driver’s possession.

13. It was submitted to the sentencing judge that Ambrym was the product of a broken home and commenced petrol sniffing when he was young; in consequence of that he suffered some brain damage.  That was confirmed to some extent by a medical report.

14. Bowen was said to have also had learning difficulties.  As with Ambrym he could not read nor write.

15. In the course of his submissions counsel for the appellants said: “The two accused regret what they have done, they have asked me to apologise to the taxi driver”.

16. In the course of his sentencing remarks the learned sentencing judge referred to the prevalence of violence directed towards innocent members of the community and the particular vulnerability of taxi drivers to such attacks.  Dealing with the facts of this case he said: “... actual violence was used to the extent that this lady was choked into unconsciousness and quite justifiably, whilst she remained conscious, feared for her life”.  He then referred to the consequences of the attack for the complainant.

17. Next, the learned sentencing judge referred to the necessity for the sentence reflecting “the deterrent requirement”.  He then concluded his remarks by saying:

“I feel bound to differentiate between the two of you.  Ambrym, you are the older of the two by a couple of years, and it was you who was the one who actually used the T-shirt to disable into unconsciousness the lady taxi driver in this case.  I take into account that whilst you are no longer children, you are still of a young age.  I take into account that whilst you have been in trouble with the law before, none of the offences involved were particularly serious and I give you credit for your plea of guilty.  And I will therefore make the head sentence in each case a year less than I otherwise would have.”

18. It was against that background that the sentences noted above were imposed.

19. On the hearing of this application counsel for Bowen submitted that the sentence imposed did not reflect proper discounting for mitigating features - the plea of guilty, Bowen’s age, and co-operation with the police.  It was submitted that whilst the offence was “very grave” it was a “spur of the moment” act, and the applicant was not armed.

20. Counsel for Ambrym made submissions along the same lines.  He also referred to the applicant’s deprived background and his brain damage as a result of petrol sniffing.

21. Counsel for the Crown emphasised that actual violence was used and submitted that that more than counter balanced the fact that the applicants were young and did not have significant prior criminal histories.  Reference was made to the statement in R v Lovell, unreported, CA 408/1997; judgment 6 March 1998: “The youth of an offender, whilst still relevant, does not have the weight which it had, especially where violence is used or physical harm caused to another person in considering whether a term of actual imprisonment should be served”.  That statement was made with respect to the operation of s.9(2)(a) of the Penalties and Sentences Act 1992.

22. In the Crown’s submission the court had to have regard to the fact that the offence was committed in an isolated place on an innocent, vulnerable woman.  Extremely dangerous and unnecessary protracted violence was used; the complainant was choked into unconsciousness.  It was the victim’s employment which placed her in the vulnerable position.

23. A schedule showing comparable sentences for robbery of a taxi driver was placed before the court;  a reading of that shows that the degree of violence used and extent of injury, if any, caused to the victim is a critical factor to be taken into account.  The sentences generally ranged from 4 years imprisonment with recommendation for parole after 12 months to 8 years imprisonment.

24. The learned sentencing judge here expressly stated that he made the sentences a year less than he otherwise would have because of the mitigating factors.  A head sentence of 8 years for Ambrym would have been at the very top of the range, if not manifestly excessive, when this offence is compared with others on the schedule.  Though this offence was a serious one the learned sentencing judge was required to recognise, in particular, the pleas of guilty and to incorporate into the sentence a discounting factor for that consideration.  He had also to have regard to the age of the applicants, the fact that they did not have serious criminal histories, and that each was intellectually disadvantaged.

25. I have come to the conclusion that the sentences as imposed were manifestly excessive, primarily because sufficient recognition was not given to the mitigating circumstances.  Nevertheless the offences were serious, and had particularly serious consequences for the complainant; in consequence significant custodial sentences are called for.  It was a serious attack by two young men in company on a particularly vulnerable person.

26. In each case I would grant leave to appeal, allow the appeal, set aside the sentences imposed and in lieu thereof order that:

1. Bowen be imprisoned for 4½ years with the declaration that he had served 133 days of pre-sentence custody to stand;

2. Ambrym to be sentenced to 5½ years imprisonment with the declaration he had served 143 days pre-sentence custody to stand.

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 24 November 1998

1. I agree with the orders proposed by Williams J. and with the reasons which he gives for making them.