The Queen v Houldsworth and Crossman
[1999] QCA 322
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- Unreported Judgment
- Appeal Determined (QCA)
- The Queen v Houldsworth and Crossman[1999] QCA 322
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The Queen v Houldsworth and Crossman[1999] QCA 322
The Queen v Houldsworth and Crossman[1999] QCA 322
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
CA No 150 of 1999
CA No 156 of 1999
Townsville
THE QUEEN
v
RUSSELL EDWARD HOULDSWORTH and
TROY SAMUEL CROSSMAN
(Applicants) Appellants
McMurdo P
Thomas JA
Cullinane J
Judgment delivered 20 August 1999.
Judgment of the Court.
IN THE CASE OF RUSSELL HOULDSWORTH, LEAVE TO APPEAL GRANTED AND APPEAL ALLOWED. THE SENTENCE OF SIX YEARS IS SET ASIDE AND REPLACED WITH ONE OF FOUR AND A HALF YEARS IMPRISONMENT. THE DECLARATION IN RESPECT OF 181 DAYS PRE-SENTENCE CUSTODY WILL REMAIN.
IN THE CASE OF TROY CROSSMAN, THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.
| CATCHWORDS: | CRIMINAL LAW - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PARITY - CO-OFFENDERS - DISCRIMINATION BETWEEN CO-OFFENDERS. CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS. Armed robbery of service station by three co-offenders - whether sentences reflected level of involvement - fundamental in sentencing function that offender be punished according to his own conduct. Lowe v The Queen (1984) 154 CLR 606 approved. Postiglione v The Queen (1997) 189 CLR 295 approved. R v Truong (CA No 438 of 1998, 19 February 1999); [1999] QCA 21 considered. R v Vanderwerff (CA No 479 of 1998, 14 May 1999); [1999] QCA 169 considered. |
| Counsel: | Mr S Durward for the appellants/applicants. Mr C Chowdhury for the respondent |
| Solicitors: | Legal Aid Queensland for the appellants/applicants. Director of Public Prosecutions (Queensland) for the respondent. |
| Hearing date: | 28 July 1999. |
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 20 August 1999
- On 6 October 1998, three men committed an armed robbery at a Caltex service station on the Bruce Highway at Gordonvale. They were the applicant Russell Houldsworth, the applicant Troy Crossman, and Robert Houldsworth, who is the brother of the applicant Russell Houldsworth. All three pleaded guilty and were dealt with in the District Court at Cairns.
- Russell Houldsworth was sentenced to six years imprisonment, Troy Crossman to six and a half years imprisonment, and Robert Houldsworth to six and a half years imprisonment. Robert Houldsworth has not appealed against his sentence.
- Although there are only two applications it is necessary that consideration be given to the part that each of these three persons played and the relativity of the sentences imposed. The applicant Russell Houldsworth at the material time was 21, the applicant Troy Crossman was 27 and Robert Houldsworth was 19 years old.
- The respective criminal histories of Russell Houldsworth and Robert Houldsworth are fairly minor. Russell Houldsworth had been fined for possession of a weapon in a manner likely to cause alarm, and for breach of a bail undertaking, and shoplifting. He had also been granted probation on a stealing charge, had breached the terms of the probation and, upon being dealt with for the original offence, had been fined $500. He had also been fined for possession of a dangerous drug. It is not a promising history for a 21 year old, but it cannot be regarded as serious, and it had not involved any custody.
- Robert Houldsworth also had been fined for minor offences and had breached fine option orders requiring community service when he did not pay the fines. By contrast, the applicant Crossman had a rather lengthy and serious criminal history, including malicious damage, assault occasioning bodily harm, assault, several possessions of drugs or equipment for administering them, shoplifting, larceny, receiving, assaulting a police officer, entering enclosed lands, burglary, theft and attempted theft. His criminal history included offences in Queensland, New South Wales and Victoria.
- The offenders lived in a house only 500 metres away from the service station. On the night in question they had been drinking heavily, having shared three casks of lambrusco wine, and having taken various tablets. Crossman had taken normison and Russell Houldsworth rohypnol tablets. They then started to talk about robbing the service station. Russell Houldsworth was not heavily involved in the planning and it was accepted below that he was persuaded by the others to participate in it. In the event, Russell Houldsworth drove the three men to the service station in his recently acquired car. He remained in the car while the other men alighted and went into the service station wearing balaclavas, each carrying a knife. Two women were working in the service station at the time. Crossman stood near the door, while Robert Houldsworth jumped onto the counter, brandishing his knife and demanding money. Approximately $620 was stolen. A witness who was in the vicinity heard words from within the shop, "Shut up and stay there you bitch". The witness then saw Crossman and Robert Houldsworth run from the store. They entered the car which drove off. Although the car had a false number plate, it was subsequently dumped into the Mulgrave River by Robert Houldsworth presumably in case it might help to identify the offenders. The three offenders divided the money, receiving about $200 each. They hitchhiked into Cairns and spent the money mainly on alcohol, heroin and amphetamines.
- Statements of the two women attendants were tendered. Both were significantly affected by the robbery.
- The learned sentencing judge rightly observed that such offences are frequent and that persons in the position of service station attendants require protection. General and individual deterrence are important objectives of the sentencing process for such offences..
- However the learned sentencing judge also stated:
"I take the view that where a group takes part in the commission of a crime and perform different functions, there is no basis for distinguishing between the seriousness of the conduct by looking to the functions which each perform provided that the extent of the violence does not go beyond that which would have been contemplated in the agreement to carry out the offence".
His Honour therefore concluded that there was no basis for considering Russell Houldsworth's involvement as anything less than the others, even though his role had been limited to driving the car. In the event, influenced by such considerations the sentences imposed on all three offenders were very similar, the applicant Houldsworth receiving only six months less than the other more heavily participating offenders.
- The statement that we have quoted confuses the notion of criminal liability with the level of punishment to be reflected in the sentence. It is fundamental in the sentencing function that the offender be punished according to his own conduct. A proper sentence must reflect what is sometimes described as proportionality. Although several offenders may be convicted of the very same offence, each must be punished according to the reprehensibility of his own conduct. This has been specifically recognised with respect to various offences, including armed robbery, where those who engaged in violence against others are generally more seriously punished than those who perform a lesser role and do not engage in violence. In R v Vanderwerff[1] the Court of Appeal considered this very point and stated:
"A review of the decisions of this Court and of its predecessor suggests that sentences imposed on a person who acts only as a driver for those who carry out a robbery of this kind have in practice been more lenient than for the actual perpetrator or perpetrators".[2]
- In that particular case of armed robbery, where the weapon was a double-barrelled rifle, where the threats were more sustained, and where $2060 was taken, the driver Vanderwerff's sentence was reduced from seven to five years. As in the present case, he knew that his colleague would be armed and what he proposed to do. The offender who used the rifle in that case had a worse criminal history than Vanderwerff but it is to be noted that that person had pleaded guilty whereas Vanderwerff had gone to trial.
- A similar point is made in R v Truong[3] where the Court noted that insufficient distinction had been drawn between two persons who had been involved in a serious assault on another person. The offender who had been heavily involved received only a slightly more severe sentence than the offender who had remained outside the house, the role of the latter being to increase the show of force and to warn those who went inside if that became necessary. That is not to say that in some circumstances it may be proper to severely punish an offender who has carefully planned and instigated an offence to be performed by others whilst deliberately remaining aloof from its actual commission; but that was not the case here where Russell Houldsworth was not involved in the planning and was persuaded by others to participate in the offence.
- The need for a sentence to reflect the criminality and the different circumstances of co-offenders is fundamental and is recognised in cases of authority including Lowe v The Queen[4] and Postiglione v The Queen.[5]
- In the present case Robert Houldsworth was the most active participant, but Crossman, who was substantially older than the other two, was also closely involved in the action in that he too carried a knife. He also has a considerably more serious criminal history than the others. When the substantially greater involvement of Crossman in the offence along with his notably more serious criminal history is taken into account, the relatively insignificant difference between Crossman's sentence (six and a half years) and Russell Houldsworth's (six years) is obvious.
- To achieve a completely satisfactory parity between the three offenders in a case like the present is not an easy task. It was not seriously submitted that six and a half years was outside the range for Crossman, having regard to his serious criminal history. Indeed, it seems to us that it was an appropriate sentence in his case, notwithstanding Mr Durward's reference to his very genuine remorse. Crossman's application is not seriously arguable, other than on the question of his entitlement to credit for pre-sentence custody which will be mentioned later.
- It is not necessary to comment directly on Robert Houldsworth's sentence, as he has not appealed. It may be noted however that such a sentence does not on its face seem inappropriate in respect of the offender who actually performed the very frightening acts that occurred inside the service station. However it seems to us that in Russell Houldsworth's case, the learned sentencing judge fell into error and failed to take into account his lesser role. It should also be noted in this context that it was accepted by his Honour that Russell Houldsworth was caught up in the incident by the others and encouraged to participate to the extent that he did.
- In our view, the sentence of six years was manifestly excessive in the case of Russell Houldsworth. We would grant leave to appeal, allow the appeal and substitute a sentence of four and a half years.
- In Crossman's case the question remains whether proper allowance has been made with respect to pre-sentence custody. He had in fact been in custody for 181 days prior to sentence, but for the great majority of that time (15 October 1998 to 25 March 1999), he was serving terms of imprisonment for other offences including a number of terms in default of payment of fines. Initially the learned sentencing judge declared the full period of 181 days to be pre-sentence custody served under the present sentence. Subsequently the matter was brought before another District Court judge who amended the declaration and declared that the time served under the present sentence was 17 days of pre-sentence custody. We do not understand counsel for the applicant Crossman to submit that his client is entitled to credit of anything more than 17 days or that he has not received the benefit of the balance of 164 days with respect to the other offences. The submission is limited to a perceived disparity between the credit allowed to his co-offender Robert Houldsworth who was sentenced to the same term (six and a half years), and who was granted the benefit of the full 181 days as time served in respect of the present sentence.
- In our view no question of parity arises with respect to the pre-sentence custody. Quite simply his co-offender Robert Houldsworth was not serving other sentences of imprisonment during the remand period. There is no reason why Crossman should benefit twice simply because both offenders were taken into custody at the same time.
Orders
- In the case of Russell Houldsworth leave to appeal should be granted and the appeal should be allowed. The sentence of six years should be set aside and replaced with one of four and a half years imprisonment. The declaration in respect of 181 days of pre-sentence custody will of course remain.
- In the case of Troy Crossman the application should be refused.