SUPREME COURT OF QUEENSLAND

1. MUIR J:  I have had the opportunity of perusing the reasons for judgment of Lyons J.  I gratefully adopt her Honour’s discussion of the facts, her analysis of comparable sentences and her conclusion in respect of the nature and gravity of the applicant’s conduct.

2. Having regard, in particular, to the approach taken by counsel for the applicant and the respondent I concur in Lyons J’s conclusions in relation to the late surfacing question of double punishment. I note that this matter was not drawn to the attention of the learned sentencing judge and that he did not have the benefit of any submissions in that regard.

3. In my view the sentence of two years imprisonment imposed for count 1 was manifestly excessive having regard to the authorities analysed by Lyons J and the quite distinctive facts surrounding the offences under consideration. The robbery concerned the drunken retrieval of a $30 fare in respect of which the applicant harboured an unjustified but not irrational sense of grievance. The applicant’s acts were not premeditated, no weapon was involved, no blow was struck and there appeared to be genuine remorse.

4. I agree with the orders proposed by Lyons J.

5. FRYBERG J:  Section 409 of the Criminal Code defines robbery.  A possible element in the definition is the use of actual violence to property.  In the course of his reply, counsel for the present applicant, citing Pearce v The Queen^[1], submitted for the first time that if the damage to property caused by the applicant were an element of the robbery count, no separate penalty ought to have been imposed on the wilful damage count.  Counsel were given leave to make written submissions on the point.  Subsequently, counsel provided a joint note to the members of the Court.  They agreed that “the head sentence of four [sic; semble two] years on the robbery takes into account the wilful damage as a factual element of the robbery” and that if a wholly suspended custodial sentence were maintained on the latter count, the appropriate orders in relation to the former were to allow the appeal and set aside the sentence imposed on it. 

6. Either there is an unfortunate element of ambiguity in that agreement, resulting from the use of the phrase “element of the robbery ”, or it is simply not correct. It is clear enough from the record that it was not suggested at the time of sentencing that an element of this offence of robbery was the use of actual violence to property. The applicant's advocate expressly referred to the lack of actual violence.^[2]  The definition of robbery can be satisfied by a threat to use actual violence to a person.  There were threats of violence to the taxi driver.  The statement of agreed facts recorded:  

“The complainant re-commenced the journey and when they were on Underwood Road KOLODZIEJ told the complainant, ‘I’ll smash your dog head, you’re a dog.’  He had his right fist clenched and raised up to in front of his face and the complainant was concerned for his safety thinking he was going to hit him.  He continued driving and KOLODZIEJ punched the security camera above the rear view mirror once with his right fist.  The complainant saw that the camera was not bent away from its original position.  KOLODZIEJ then hit the cab metre with his right hand and grabbed the rear view mirror and wires to the camera and ripped them off the cab.  The complainant told him not to damage the cab, and states both accused then said threatening things to him over a period of a couple of minutes like, ‘I’ll smash your head.’  There was a bit of silence and then they would say, ‘Refund your money.  I’ll smack your head’, swearing and calling him a dog.  KOLODZIEJ was hitting his right thigh with his clenched fist a number of times, and also leaned over towards the complainant and stared at him whilst hitting his leg with his fist.”

I do not doubt that those threats and not the violence to property formed the foundation for the charge of robbery and for the plea of guilty to the charge. 

7. Counsel for the applicant submitted, “There's no doubt that my client intimidated the taxi driver - apart from anything else that's an element of robbery so there's no difficulty with that … .”^[3]  Strictly speaking, that was not correct: intimidation is not an element of robbery.  It was, however, correct that the applicant and his co-offender persistently intimidated the driver for a substantial period of time, and that part of the conduct which led to that intimidation was the destruction of property.  The intimidation certainly succeeded: the driver was so scared that he gave up fulltime driving thereby suffering, as McGill DCJ found, persisting financial hardship.^[4]  His Honour took these matters into account in determining the sentence on the robbery count.

8. This is not a case governed by Pearce v The Queen.  That case dealt with the situation where the conduct constituting one offence was the same conduct as that constituting (in whole or an element of) another offence.  In the present case the judge was entitled to take the wilful damage to property into account in determining the head sentence of two years for robbery.  In this state (and, it seems, in Victoria^[5] and Western Australia^[6], but not in New South Wales^[7]) it is legitimate when imposing concurrent sentences for a number of offences to have regard in fixing the head sentence for the most serious offence to the overall criminality reflected in all of a prisoner’s offending.^[8]

9. It follows that there is no reason in what transpired below to set aside the sentence imposed for wilful damage to property. After some hesitation I have concluded that the concession made by the Crown in this Court provides insufficient reason for such an order.

10. That leaves the question whether the sentence of two years for robbery in company, wholly suspended, was manifestly excessive. Most of the circumstances have been set out in the reasons for judgment of Lyons J and I need not repeat them. There were a number of mitigating factors. They were adequately recognized by wholly suspending the sentence and were not the focus of the applicant's submissions. Those submissions focused on features relevant to the head sentence:  

“11.2.1There was no violence inflicted upon the complainant;

11.2.2There was no weapon;

11.2.3The offences were clearly spontaneous.  There was no premeditation or planning;

11.2.4The offences seemed to have arisen out of a dispute between the applicant and the co-offender, Fish on the one part, and the taxi driver on the other;

11.2.5The only money that was stolen was, in effect, a refund of the fare that the co-offender Fish had already paid.  There was no attempt to steal other takings of the complainant’s.”

It is true that no actual violence was inflicted upon the unfortunate cab driver. 

11. I accept that the features relied upon by the applicant place the case toward the lower end of the range of sentences appropriate for robbery in company. That does not mean that the sentence was manifestly excessive. It had to reflect not only the foregoing features but also some aggravating features: the overall damage to the taxi, the malicious purpose behind the infliction of that damage and the insulting language used to the taxi driver, an ethnic Indian, as well as the protracted intimidation already referred to. There was also the need to impose a deterrent sentence to protect taxi drivers who are, as Lyons J observes, in a particularly vulnerable position; and to take into account the applicant's criminal history (three drug offences, six offences of wilful damage to property and one offence of committing a public nuisance in the period of less than six years preceding the subject offence, and for the last of which he was dealt with only nine days before that offence).

12. There is a paucity of directly comparable cases decided by this Court. Those to which we were referred were all somewhat more serious than the present, usually because they involved a weapon or the use of actual violence. The head sentence in the present case needed to be less than those imposed in such cases. It was. On my analysis it was not disproportionate to those sentences. It was not so high that a miscarriage of judicial discretion must be inferred. It was not manifestly excessive.

13. The applicant also submitted that the sentencing judge impermissibly limited his sentencing discretion. He did so despite the fact that no such ground was included in the proposed notice of appeal and without seeking leave to amend that notice. The respondent took no objection to that cavalier approach, presumably on the principle often invoked in criminal practice that anything can be done orally and there is no need to worry about the state of the record or the rules of court.

14. The submission was based on one sentence, taken out of context:  

“In view of the nature of the offending and in view of the importance of general deterrence I think there is no reasonable alternative to a term of imprisonment to achieve those purposes.”

The short answer to the submission in my judgment is that his Honour was not limiting his discretion - he was stating the result of its exercise.  Contrary to the applicant's submission, his Honour had not ignored the possibility of imposing probation and had discussed it at some length in the course of submissions.  His phraseology was calculated to reinforce the fact that the sentence flowed from the objective circumstances and not from the personal whim of the judge, a point worth making when sentencing.  His sentencing remarks were delivered ex tempore and are not seriously ambiguous.  The submission should be rejected.

15. It is true that his Honour does not appear to have considered the possibility of a sentence of imprisonment with an immediate parole release date, but neither counsel had suggested that he should do so; nor does the proposed notice of appeal suggest that in this regard he was in error. His Honour found that apart from his acknowledged drinking problem the applicant was not the sort of person who required supervision in the general sense of people who are drifting into criminal patterns of behaviour and who need to be supervised by parole officers in order to get them back on track. Had he been asked to consider the point his Honour might well have concluded that an immediate court ordered parole order was a preferable method of dealing with the drinking problem than a suspended sentence. Were I resentencing the applicant the former would be my preference. However neither party suggested that it was open to us to vary the sentence of two years simply by removing the suspension of it and fixing an immediate parole date. Such a variation could easily be seen as increasing the severity of the sentence. It should not be ordered.

16. In my judgment the application should be dismissed.

17. LYONS J:  Christopher David Kolodziej (“the applicant”), pleaded guilty on 21 November 2007 to one count of robbery in company and one count of wilfully and unlawfully damaging a taxi cab.  He was jointly charged with Daniel David Fish (“Fish”).  In relation to the first count on the indictment, which is the robbery, he was sentenced to two years imprisonment and, in relation to the second count of wilful damage, he was sentenced to 12 months imprisonment.  Both periods of imprisonment were wholly suspended for an operational period of two-and-a-half years and the applicant was ordered to pay $1,000 compensation within three months.  Fish was sentenced to 18 months imprisonment on count 1 and 12 months imprisonment in respect of count 2.  These terms were also fully suspended for an operational period of two years.

18. The applicant seeks leave to appeal against his sentences on the grounds they were manifestly excessive.

Circumstances of the offences

19. The complainant was a taxi driver who had collected the applicant and Fish from near the Casino in Brisbane at around 6.00 am on 24 May 2007.  It would appear that the applicant and Fish were both heavily intoxicated, having spent some 12 hours drinking.

20. The complainant took the applicant and Fish, as well as a third passenger, to the intersection of Logan Road and Gaskell Street, Rochedale.  The third passenger alighted and paid $20 towards the fare leaving $20 still outstanding on the meter.  While he was waiting at the lights at this intersection, the taxi driver overheard Fish and the applicant discussing the fact that they were not able to pay for the trip.  The complainant ordered the two passengers from the taxi.  When the complainant was making a phone call to locate the nearest police station, Fish gave the complainant his bank card and told him to take $30 off the card. 

21. It is clear that both the applicant and Fish believed that they would be driven to their destination in return for the money being paid. The complainant however drove off and both Fish and the applicant considered they had been badly treated. As the complainant did a U-turn to return to the City they stopped the cab and demanded to be driven to their destination. The complainant subsequently agreed to take the applicant and Fish further on their journey. It would seem he had been advised by the taxi company to continue the journey.

22. During the resumed journey the applicant, who was sitting in the front, made threats of physical harm to the complainant and complained of being “…ripped off”. He also raised a clenched fist to the complainant and punched the security camera and the fare meter. He damaged both the security camera and the global positioning system. The applicant also made demands for the return of the $30 that had been paid and the complainant eventually handed the $30 over when he dropped both Fish and the applicant at their destination at Rochedale South.

23. Fish was traced through his EFTPOS transaction card. He agreed to take part in an interview and he made extensive admissions but acknowledged his memory was affected by the fact he had had so much to drink. He nominated the applicant as having been involved. The applicant also made extensive admissions but also indicated that his ability to recall details was similarly affected by the amount of alcohol he had consumed. The schedule of facts indicates that they had both been to a State of Origin Rugby League game and had started drinking before the game and had continued drinking through the game and subsequently at the Normanby Hotel and the Casino.  Fish estimates he had about 50 standard drinks in the period and the applicant indicated he thought he had about 30 drinks of beer and Bundaberg rum in the period.  The applicant told police that he drank quite heavily every weekend.  The applicant advised police that any threats he and Fish had made were hollow threats as neither of them were violent. 

24. The applicant provided written apologies to the complainant and the owner of the taxi within a short time after the offences. He also requested the presentation of an ex officio indictment. At the sentencing hearing he also offered to pay compensation which included payment for the damage to the vehicle as well as the loss of profits for the time the cab was off the road.

The unusual circumstances of the offences

25. In imposing the sentence, the learned sentencing Judge took into account the fact that this was an unusual offence in that it did not involve robbery in the usual sense, where the object of the exercise was to get whatever money was available. In this case the amount involved was the $30 which had been paid to the driver for the fare and which had formed the basis of the dispute. It was, in essence, a compelled refund and the motivation was not to take the driver’s takings for the night which was acknowledged by the sentencing Judge when he indicated “…you somehow got the strange idea that you were entitled to have a refund of the $30.”

26. The learned sentencing Judge indicated that he considered the most serious aspect of the offending was that there was a persistent course of threatening and intimidating conduct towards the taxi driver, which included damage to his vehicle. He also considered that the ordeal for the taxi driver would have been terrifying but also took into account that it was not pre-meditated, it was a spur of the moment offence and it had occurred in the context where both offenders had been drinking all night. He concluded, however, that they were in company, which meant that there was a serious aspect to the offending as they were well able to intimidate the taxi driver and persist in their intimidating conduct. The learned sentencing Judge indicated it was not a conventional armed robbery and accepted that there was no actual violence inflicted on the complainant and there were no weapons used. He also indicated it was not sophisticated offending.

The applicant’s personal circumstances

27. In terms of his personal circumstances, the applicant was 24 years old at the time of offending and he had a responsible position and was well thought of by his employer. He had a criminal history which involved minor offending and included a number of counts of wilful damage. It was clear that the applicant had only ever been punished by fines in the past and there was nothing as serious as robbery or any offence of that nature.

28. All of these circumstances were taken into account by the sentencing Judge.

The sentence imposed

29. In coming to an appropriate sentence, the learned sentencing Judge took into account the fact that the applicant agreed to be interviewed and that he had made admissions. Indeed the applicant confessed his behaviour to the extent that he could. The applicant had also apologised to the taxi driver in writing and his Honour accepted there had been remorse on the applicant’s part. It was also of some significance to the learned sentencing Judge that the applicant offered to pay compensation which included the damage to the vehicle as well as the loss of income to the owner of the vehicle.

30. In imposing the sentence that he did, the sentencing Judge took into account the fact that the applicant was the more active participant and that taxi drivers were particularly vulnerable and referred to the decision in R v Briody (2002) 134 A Crim R 170; [2002] QCA 364.  There was a specific acknowledgment by the sentencing Judge that this behaviour was out of character on the part of the applicant and that he had made full admissions and had co-operated with police.  The sentencing Judge did not consider that the applicant required supervision and considered that a probation or parole order was not the appropriate order as the applicant was not drifting into criminal behaviour.  He considered that his life was essentially on track and:^[9]

“…it is just on this occasion you got very drunk and that led you into some very foolish behaviour.  The trouble is that the behaviour that you were led into on this occasion was very serious and would have been extremely unpleasant to the complainant…” 

31. The sentencing Judge also took into account the plea of guilty and the importance of general deterrence. The term of imprisonment imposed was suspended forthwith.

The applicant’s submission

32. The applicant submits that the imposition of a custodial sentence was manifestly excessive or, if a custodial sentence was required, a sentence of two years for the robbery in company was manifestly excessive.

33. The applicant places particular reliance on the fact that the offence had some unusual features and that, whilst it was the robbery of a taxi driver, there was no violence, there was no weapon, the offences were spontaneous, and the offences arose out of a dispute between the applicant and the co-offender Fish, on the one hand, and the taxi driver on the other. Furthermore, the only money that was stolen was a refund of the fare that the co-offender, Fish, had already paid. It is quite clear there was no attempt to steal other takings of the complainant.

34. I consider that, properly assessed, this was a case of two drunken young men acting inappropriately while in a dispute with a taxi driver. It did not involve violence to the driver and it does markedly differ from cases where offenders have robbed taxi drivers. There are a series of cases involving taxi drivers which resulted in terms of imprisonment of three years being imposed with suspensions of the terms after some six or 12 months.

35. An analysis of those cases indicates that the offending in those was much more serious and involved armed robbery which is not a factor in the present case. In R v Briody the offender was armed with a knife and he produced the knife and made demands.  A number of blows were struck and the complainant’s right index finger was cut.  Furthermore, about $100 was stolen.  The offender in that case was sentenced to three years imprisonment suspended after nine months, with an operational period of three years.  In the decision of R v El Hassan [1995] ACL Rep 130 Qld 74; [1994] QCA 591, the offender was armed with a broken bottle and said to the taxi driver, “…[y]our money or your life”, and stole $60.  He was sentenced to three years imprisonment with a recommendation for release on parole after serving 12 months. 

36. In R v Bush [1996] ACL Rep 130 Qld 212; [1996] QCA 172, once again the offender actually assaulted the taxi driver by grabbing the complainant around the neck whereby the co-accused began to punch the complainant in the ribs and the head, and about $80 was stolen.  On appeal, the offender was sentenced to three years imprisonment with a recommendation for release on parole after serving 12 months. 

37. In R v Monday [2001] ACL Rep 130 Qld 32; [2000] QCA 491, the offender entered a taxi and, after directing the taxi to an isolated area, punched the complainant.  During the struggle some 10 to 15 blows were struck to the complainant who suffered lacerations to his mouth and bruising.  In that case the offender pleaded not guilty and, whilst no money was actually taken, he was convicted of attempted robbery, and was sentenced to three years imprisonment, suspended after six months, with an operational period of three years.

38. While it is clear that taxi drivers are in a particularly vulnerable position, that of itself did not necessarily mean that a term of imprisonment was required even if it was fully suspended. The circumstances of this case are clearly different from the cases in which custodial sentences have been imposed. The learned sentencing Judge however considered:^[10]   

“In view of the nature of the offending and in view of the importance of general deterrence I think there is no reasonable alternative to a term of imprisonment to achieve those purposes.” 

39. On an analysis of the cases set out above, a period of imprisonment was not necessarily the only option. In Briody, Williams JA indicated,^[11] having analysed a number of the cases set out above:  

“In my view, those sentences demonstrate that in a case such as this the offender who actually was armed and used the weapon in the course of the robbery ought be required to serve a term of actual imprisonment.”

40. In the present case the applicant was not armed and no actual violence occurred. Furthermore, the circumstances of the case were clearly unusual as the behaviour was not premeditated, it was spontaneous, and involved the refund of moneys paid by the passengers. In terms of the gravity of the offence, and in trying to identify where this offence lies in the spectrum of objective seriousness in these types of offences, it is clear this is not as serious as any of those cases set out above.

41. It would appear from the learned Judge’s sentencing remarks that he was particularly influenced, in relation to imposing the sentence on count 1, by the sustained and threatening behaviour of the applicant including the damage to the taxi. He stated:^[12]  

“What worries me particularly, and what I think is the most serious aspect of the offending, is that there was a persistent course of threatening and intimidating the taxi driver, including the damage to his vehicle, which the taxi driver was subjected to after he agreed to let you back into his cab and agreed to complete the journey.”

42. An analysis of the sentencing remarks indicates that, in fixing the head sentence of two years for the robbery in company, it would seem that the learned sentencing Judge has specifically taken “…the damage to his vehicle” aspect of the behaviour into account as a factor which increased the seriousness of the applicant’s offending and sentenced him on this basis.

43. If one examines the provisions of s 409 Criminal Code 1899 (Qld), the threat of violence to property or actual violence to property is one of the elements of the offence of robbery.  Section 409 provides as follows:  

“409 Definition of robbery

Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.”

44. There are then certain circumstances of aggravation in relation to robbery which are set out in s 411 of the Code as follows:  

“411 Punishment of robbery

(1) Any person who commits the crime of robbery is liable to imprisonment for 14 years.

(2) If the offender is or pretends to be armed with any dangerous or offensive weapon or instrument, or is in company with 1 or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, the offender wounds or uses any other personal violence to any person, the offender is liable to imprisonment for life.”

45. The learned sentencing Judge, in imposing the term of imprisonment in relation to count 1, has identified as a factor in the sentence the circumstance of aggravation namely, the fact the robbery occurred in company. The sentencing Judge also appears to have specifically taken into account the fact that there was damage to property, which is one of the elements of the offence. Even taking these factors into account a period of imprisonment of two years is excessive when compared to the three year terms imposed in the cases where the offender was armed and actual violence occurred. 

46. I consider that the sentence imposed was manifestly excessive and therefore it falls to this court to exercise its discretion.

47. Before turning to the question of what sentence should be imposed a further issue arises in relation to count 2 on the indictment.

48. Count 2 on the indictment relates to the charge of wilful damage. Section 469 of the Code provides as follows:  

“469 Wilful damage

Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence which, unless otherwise stated, is a misdemeanour, and the person is liable, if no other punishment is provided, to imprisonment for 5 years.”

49. Section 16 of the Code provides:  

“16 Person not to be twice punished for same offence

A person can not be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person, in which case the person may be convicted of the offence of which the person is guilty by reason of causing such death, notwithstanding that the person has already been convicted of some other offence constituted by the act or omission.”

50. In Pearce v The Queen (1998) 194 CLR at 623; [1998] HCA 57 at [40] it was held:  

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”

51. During argument at the hearing of the application an issue arose in relation to this question of double punishment. Subsequently both counsel advised the court in writing that the wilful damage in this case was a factual element of the robbery. Therefore, the particulars of the further charge in relation to wilful damage in count 2 are in fact elements of the first charge of robbery in count 1. The proper approach in such cases was set out in R v Elhusseini [1988] 2 Qd R 442 where Williams J said, in relation to separate charges of supplying heroin, possessing heroin, and possessing money which were all particulars of the charge of trafficking in heroin:^[13]  

“In my view s.16 would operate so that, whilst the guilty verdicts on each of the counts would be recorded, the sentencing judge would impose sentence on the trafficking count, but not with respect to the others which involved ‘the same act or omission’.” 

I see no reason to dispute counsels’ considered analysis; particularly as the point does not give rise to any practical consequence.

52. In re-exercising the discretion I shall therefore follow the approach outlined above by Williams J in Elhusseini.  In relation to count 1 on the indictment, which is the count of robbery in company with threats of personal violence accompanied by actual violence to the equipment in the taxi cab, I consider that a period of imprisonment of two years is the appropriate starting point.  This reflects the fundamental difference in the offending in this case to that outlined in the cases set out above where head sentences of three years were imposed.  The unique circumstances in this case include the fact that there was no pre-mediation, there was a genuine dispute, there was no weapon, there was no personal violence, it was spontaneous, and it involved a return of moneys paid only.

53. Even though the applicant was the principal offender there are further factors which then have to be taken into account including the pleas of guilty, the significant co-operation including the full admissions, and the fact that the matter proceeded very expeditiously by way of an ex officio indictment. When one adds to this the genuine remorse, the intoxication, the written apologies, and the compensation, I consider that this reduces the sentence to be imposed to be one of 18 months imprisonment.

54. It then falls to the court to either suspend the term of imprisonment, partly or wholly, or to fix a parole release date. The applicant had a minor criminal history, including a previous offence of wilful damage, and an alcohol problem. Given these circumstances, there is therefore some indication that the applicant would benefit from some supervision in the community which could be supplied by way of parole.

55. However the applicant has good references, he is in good solid employment, and it would seem that his behaviour was seriously out of character. He has also acknowledged that he has a drinking problem which he has taken some steps to remedy. Accordingly, I consider that a period of imprisonment which is fully suspended for an operational period of 18 months is the appropriate penalty.

56. In relation to count 2, I would convict but not further punish.

57. Accordingly, I would allow the appeal, set aside the sentences imposed, and impose a sentence of imprisonment which is fully suspended for an operational period of 18 months in relation to count 1, and convict but not further punish in relation to count 2.