R v Anthony[2013] QCA 95

SUPREME COURT OF QUEENSLAND

[1] WHITE JA: I have read the reasons for judgment of Atkinson J and agree with her Honour’s reasons that the sentences imposed below are manifestly excessive.  I agree with her Honour’s orders.

[2] ATKINSON J: The applicant, Luke Stephen Keith Anthony, was convicted on his own plea of guilty on 11 December 2012 on a three count indictment and two summary charges.  Count 1 on the indictment was dangerous operation of a vehicle, for which he was sentenced to three years imprisonment; count 2 was robbery with personal violence, for which he was sentenced to five years imprisonment; and count 3, wilful damage, for which he was also sentenced to five years imprisonment.  The summary charges were one of wilfully destroying or damaging corrective services facility or property for which he received three months imprisonment, and unregulated high risk activity for which he also received three months imprisonment.

[3] All sentences were ordered to be served concurrently.  His Honour declared the 401 days that the applicant had spent in pre-sentence custody from 7 November 2011 until the date of sentencing, 11 December 2012, to be time already served under the sentence.  He fixed a date six months from the date of sentence, 11 June 2013, as the parole eligibility date.  That effectively gave him a parole eligibility date after he had served almost one year, eight months imprisonment or approximately one-third of the sentence imposed.

[4] During the sentencing remarks the learned sentencing judge said that he proposed to impose the same sentence for each of the indictable offences to reflect the totality of the applicant's conduct.  On being informed that the maximum penalty for count 1 on the indictment was three years imprisonment his Honour determined to impose a penalty on each of counts 2 and 3 which was designed to reflect the totality of his offending.  The maximum period of imprisonment that could be imposed on count 3 on the indictment was five years imprisonment.  The sentencing judge imposed the maximum period of imprisonment which could be imposed on counts 1 and 3.

[5] The applicant appeared for himself in this court.  His grounds of appeal were that the sentence was manifestly excessive and the sentencing judge failed to give sufficient weight to the mitigating factors. 

[6] The circumstances of the applicant's offending were set out in the submissions of the prosecutor before the sentencing judge.  The offending concerned incidents that happened on two quite separate occasions.  The first was the subject of the counts on the indictment.  They occurred early in the morning of 22 October 2011 when the applicant, who was intoxicated, was put into a taxi by his brother at Surfers Paradise.  This occurred after he had attracted the attention of the police with some sort of disturbance and his brother undertook that he would send the applicant home in the taxi.  The applicant's brother gave sufficient cash to the taxi driver.  The taxi driver then drove towards the applicant's residence at Kirra.  When the taxi reached Coolangatta, the applicant told the driver to turn into a side street in Tugun which was a dead end. 

[7] Without warning the applicant grabbed the taxi driver on the face with both of his hands and forced the taxi driver's head into his lap.  The applicant then punched and bit the taxi driver on the head and the body and then pulled on the steering wheel which caused the taxi to turn off a safe course.  It mounted the footpath and stopped when it hit a tree.  The applicant then continued to punch the taxi driver to the head, face, chest and back.  The applicant bit the taxi driver on his fingers.

[8] The applicant demanded, under threat of further assault, that the taxi driver give him his wallet.  The taxi driver then handed the applicant his wallet and activated the distress alarm in the taxi.  The applicant pulled the eftpos machine from its mounts and broke the taxi meter by punching it.  Witnesses nearby heard the applicant yelling, "Give us your money.  Give us your money, or I will shoot you.  You give it to me or I will stab you."

[9] The taxi driver's wallet, which included his credit cards, his driver's licence, his taxi licence, his medical cards and $50 of his own money as well as $850 of the takings from that night, was stolen.  The damage to the taxi was in the order of $15,700.  The learned prosecutor told the sentencing judge that the taxi was uninsured.  The taxi driver was medically examined and noted as having a graze to his forehead and swelling to the front of his neck.  No reparation had been made for the stolen cash or damage caused to the taxi.

[10] The sentencing judge also had before him a victim impact statement by the taxi driver.  His Honour quoted the following excerpt from that statement:

"After I was attacked in my taxi, I was taken to emergency at Tweed Heads hospital where I stayed for approximately 10 hours being monitored.  I was in a great deal of pain and felt very out of it because of the pain.

I continued to have pain in my chest and arms for about 2-3 months after I was attacked.  I could not work for 2 weeks but had to go back because I needed to earn money for my family and living expenses.

This attack has affected not only me but my wife and child and even my family overseas.  For several weeks my wife had to lift me up or assist me in getting up from sleeping or sitting positions.  I had so much pain in my upper body, I couldn't lift my small child during that time and comfort him.  The rest of my family lives overseas and they were very worried about my health and my safety, and continually begged me to go back home.

I still drive cabs, however the memories are still with me and I haven't forgotten the attack.  I am always worried about the people getting into my cabs and what they will do especially if they are very drunk."

[11] The offences the subject of the summary charges occurred whilst he was in custody.  The applicant made a placard out of sheets and planned a protest on the roof of the Arthur Gorrie Correctional Centre.  On those sheets he wrote, "Torture severe physical and mental anguish.  Prisoners get inadequate medication.  Adequate medical care is not a privilege it is a duty of care."  The first summary offence relates to the wilful destruction of those sheets which belonged to Corrective Services.  The second summary offence occurred on 13 November 2012 when the applicant broke away from the group with whom he was doing exercises at the correctional centre and climbed on top of the roof of W unit.  He refused to come down until a media helicopter had flown over him and filmed his protest.  He then came down from the roof.

[12] The following personal circumstances of the applicant were before the sentencing judge.  The sources of this information were the submissions made by his counsel, Ms Bryson, his criminal and traffic history in Queensland and New South Wales, a report prepared for Legal Aid Queensland by Peter Perros, a forensic psychologist and clinical neuropsychologist, reports of programs attended, drug urine test results, a personal reference, a prison medical report and a letter from the applicant to the presiding judge.

[13] He was born on 25 March 1989 so was 22 years of age at the time of the offences on the indictment.  He came from a family of three children.  The applicant witnessed his mother killing his father with a tomahawk when he was six years old in circumstances where his father was apparently going to stab his younger sister.  His mother is still alive but has had many psychiatric admissions for mood disorder associated with battered wife syndrome.  The mental health issues suffered by the applicant's mother caused disruption to his childhood in that when she was admitted to hospital for treatment he and his siblings would stay with their paternal grandparents.  The applicant and his siblings also suffered from threats of violence from his mother and also several of her partners.  The applicant was physically abused by his grandparents and put into foster care after a fire at their house.  While in foster care he and his brother were repeatedly sexually molested by their foster father over about three years.  The foster father also threatened violence against their sister.  He told his mother what was occurring but she was unable to help.

[14] The applicant left school in year 7 and started abusing alcohol, cannabis, amphetamine and methylamphetamine.  A relationship he entered into at 16 years old lasted for about two years.  The relationship was very troubled.  He admitted that his methylamphetamine use made him paranoid and psychotic and very difficult to live with.  The relationship broke up angrily when he discovered his partner's infidelity.  In 2012 the applicant had a baby son from a casual relationship.  He has no contact with that child.  It appears that from 16 years of age the applicant has been in employment whenever he has not been in prison or suffering from trauma related to his childhood experiences.

[15] The applicant has a very troubling criminal history, particularly for one so young.  On 29 March 2005 he committed the offence of assault occasioning actual bodily harm and on 2 May 2005 a bond was imposed in the Grafton Children's Court and he was sentenced to 18 months supervision.  On 8 June 2006 he committed the offence of wilful damage and was sentenced in the Coolangatta Magistrates Court on 29 June 2006 when he was fined and no conviction recorded.  On 10 July 2006 he was dealt with in the Grafton Local Court for driving a vehicle on a road whilst never licensed.  He was fined. 

[16] The applicant committed a number of offences in October 2006.  On 16 October he committed a common assault for which he was fined in the Tweed Heads Children's Court on 22 January 2007.  He committed the offences of dangerous operation of a vehicle on 19 October 2006, stealing between 18 and 20 October 2006, and unlawful possession of suspected stolen property between 1 and 20 October 2006.  He was fined in the Southport Magistrates Court on 2 November 2006 and no conviction recorded.  He was disqualified from driving for a period of six months.  Then on 22 October 2006 he was charged with driving a vehicle on a road whilst never licensed.  On 26 March 2007 he was fined in respect of that offence and disqualified from driving for a period of three years. 

[17] On 16 June 2009 the applicant was convicted in the Lismore District Court of recklessly causing grievous bodily harm on 14 March 2008.  He was sentenced to a period of imprisonment of three years with a non-parole period of 18 months.  On 30 January 2010 he committed the offences of common assault and using intimidation and violence to unlawfully influence a person.  He was sentenced in respect of those offences to six months imprisonment commencing on 12 April 2010.  Earlier that month, on 6 April 2010, he had been dealt with in the Ipswich Magistrates Court for unlawful possession of weapons and possessing shortened firearms on 21 March 2010.  Convictions were recorded and he was fined.  Then on 7 April 2010 a warrant was executed for the applicant's breach of parole with regard to an apprehended violence order.  The warrant was executed at the Tweed Heads Local Court.

[18] On 3 October 2011 the applicant was convicted in the Coolangatta Magistrates Court of committing a public nuisance.  He was again fined.  His only infringements since that time apart from the offences before the sentencing judge were two traffic offences which occurred in October and November 2011 and which led to fines.  He has been in custody with regard to the offences for which he was sentenced from 7 November 2011.

[19] While in prison he has successfully completed a lifestyle modification unit in stress management, an anger management course, a drug intervention and treatment program and an ending offending program.  He has also commenced and completed a substantial number of units in the tertiary course of Diploma in Management.

[20] Mr Perros referred in his report to what he aptly described as the applicant's extensive criminal history including two convictions for violent acts against a person.  The offence of recklessly causing grievous bodily harm on 14 March 2008 was committed when he stabbed the man he found in bed with his then partner.  He told Mr Perros "I was smoking ice, I was pretty messed up."  The offences committed on 30 January 2010 were committed while he was in custody.  In respect of the second of those offences he denied his guilt to Mr Perros, in spite of his plea of guilty.  Mr Perros summarised his criminal history as revealing deterioration in his behaviour punctuated by accounts of violence against others.

[21] He told Mr Perros that he had poor recall of his offending behaviour with regard to the offences against the taxi driver.  He had taken Xanax for the first time on that day, ingesting two tablets, followed by drinking a large quantity of Jim Beam.  He admitted to hitting the taxi driver, taking his wallet and to breaking the taxi meter inside the taxi.  He knew he had done those things as he had seen a video surveillance tape that recorded the offence.  He commented that he was appalled by his behaviour.

[22] The applicant has had alcohol and illicit drug abuse problems since his childhood.  He has relapsed into drug use whenever stressed.  Mr Perros referred to his illicit drug use as self-medication for stress.  In custody he has been treated with anti-depressants and mood stabilisers.  He reported not having had any positive drug urine tests in prison.  This was supported by the drug screen tests in evidence before the sentencing judge.

[23] Mr Perros' clinical assessment was that the applicant suffered from very high levels of stress and anxiety and was reliving multiple post-traumatic experiences and using drugs to self-medicate.  His health had improved since he had been in custody.  Mr Perros was of the opinion that the applicant faced serious and potentially permanent mental illness with continued drug abuse.  He said that the applicant required intensive long-term rehabilitation and close regular supervision in the community.  He needed to maintain abstinence from drugs.  Mr Perros said that clinical psychology therapy was strongly indicated but he suspected that the applicant was not "psychologically minded" and would need to be convinced as to the benefit of psychological therapy and social skills training.  The applicant's risk of recidivism was moderate to high.  His prognosis would improve if he could demonstrate a stable lifestyle in the community.

[24] A psychiatric registrar for the Prison Mental Health Service reported that the applicant had been regularly attending appointments with the service at the Arthur Gorrie Correctional Centre since January 2012.  He had been diagnosed provisionally with "a resolving Drug Induced Psychosis, a complex Post Traumatic Stress Disorder with features of anxiety, and a background suggesting antisocial personality traits."  He was on treatment with sertraline for anxiety and quetiapine at night to assist sleep.  When released from custody, it was planned that he follow up with drug and alcohol treatment, his general practitioner, and engage with a regular psychologist or private psychiatrist in the community.  District Mental Health Services were considered by the Prison Mental Health Service to be less suitable to engage him personally in the counselling he was likely to require.

[25] The applicant's letter to the sentencing judge apologised for his actions, referred to his dysfunctional upbringing, his intoxication on the night of his offending and his determined attempts to rehabilitate himself in prison.  His sister wrote in support, offering him stable accommodation and work and a realistic plan for psychological treatment on his release.

[26] The applicant was self-represented on the hearing of his application.  His outline of submissions, perhaps unsurprisingly, failed to distinguish between strong and weak points.  His first complaint was as to the factual basis on which he was sentenced.  He said that it was the police rather than his brother who put him in the taxi.  If that were true, it would have no impact on the sentence to be imposed.  He argued that it showed that his attack on the taxi driver was not premeditated but he was not sentenced on the basis that it was planned or premeditated.

[27] He submitted the sentencing judge failed to take into account that at the time he committed the offence he was in a state where he had no self-control and was unaware of his actions.  His state of self-induced intoxication was not a mitigating factor.  In any event it was taken into account by the sentencing judge.

[28] He asserted that the factual basis for his sentence was wrong as it could not be the case that the taxi was uninsured as there is a legal requirement for taxis to be insured.  The document he produced in support did not in fact support his assertion.

[29] The applicant complained of the use of the victim impact statement as evidence of the ongoing injuries suffered by the taxi driver who was the victim of the offences on the indictment.  However, s 9(2)(c) of the Penalties and Sentences Act 1992 ("PSA") provides that amongst the factors to which the court must have regard is any physical, mental or emotional harm done to a victim, including harm mentioned in a victim impact statement.  The provision of a victim impact statement to the sentencing court is dealt with by s 15 of the Victims of Crime Assistance Act 2009.

[30] A sentencing judge may nevertheless be obliged to exercise caution in acting on a victim impact statement if it contains statements that are not within the victim's knowledge or experience or which should be the subject of expert evidence.  However, nothing in the victim impact statement quoted by the sentencing judge in this case fell outside matters within the victim's own knowledge and so the sentencing judge did not commit any error by referring to it in the way he did.

[31] The applicant complained that "the fact that I am not a good candidate for parole and with an eligibility date I am most likely to serve full time due to the summery [sic] offences was mentioned and not considered a mitigating factor when the sentence was imposed."  When a sentence of more than three years imprisonment is imposed the sentencing judge may not impose a parole release date.[1]  In those circumstances it is within the sentencing discretion to impose a parole eligibility date where the applicant has not been declared to have committed a serious violent offence.

[32] Section 13 of the PSA requires a sentencing court to take a plea of guilty into account and provides that the court may reduce the sentence that it would have imposed had the offender not pleaded guilty.  Although this confers a discretion on the sentencing judge, it would be unusual not to reduce the sentence, where that is possible, because of the guilty plea.  If that is not done, the judge should state the reasons in open court.[2]

[33] To take account of the plea of guilty where the sentence imposed is more than three years imprisonment, the court may reduce the head sentence, may wholly or partially suspend the sentence or may impose an earlier than usual parole eligibility date.  Notwithstanding the circumstance that the applicant's own conduct has made a release on parole less likely, no error has been shown in the sentencing judge's choice of the last of those alternative methods of taking the plea of guilty into account.  His Honour applied the common practice of recognising the value of the early plea of guilty and other factors in mitigation by ordering that he be eligible for parole after serving approximately one-third of the term of imprisonment imposed as a head sentence.[3]  The applicant in this case was clearly in need of the supervision he would have on parole.

[34] The most significant ground of appeal was that the sentence was manifestly excessive when one has regard to sentences imposed on similar or more serious offenders.  The applicant referred to the comparative cases of R v Briody [2002] QCA 364; R v Bowen & Ambrym [1998] QCA 394; and R v Carroll & Anor [1997] QCA 378.

[35] The respondent referred to R v Bush [1996] QCA 172; R v Mallon [1997] QCA 58; R v Monday [2000] QCA 491; R v White [2012] QCA 115; and R v Gray [2012] QCA 144.

[36] I shall refer to the relevant cases, particularly concerning offences committed on taxi drivers, in more detail in order to assess whether that ground is made out.

[37] In R v El Hassan[4] the applicant was sentenced to four and a half years imprisonment for robbery of a taxi driver.  He was armed with a broken bottle and threatened the driver in a dark section of a street.  He damaged the taxi driver's shirt and stole $60.  The applicant pleaded guilty, was only 20 years old and had a very brief criminal history including a previous conviction for assault, was drunk at the time and did not cause any physical harm to the driver.  The sentence was reduced on appeal to three years with a recommendation that he be released on parole after serving 12 months of that sentence.

[38] In R v Bush[5], the applicant, who was 19 years old, had been sentenced to four years imprisonment with a recommendation for parole after 12 months on his plea of guilty to one count of robbery in company with actual violence.  The complainant was a 41 year old taxi driver who picked up the applicant and another man in the early hours of the morning at a cab rank on the Gold Coast.  The passengers directed the taxi driver to a deserted area where they assaulted him both inside and outside the cab.  They threatened to kill him.  The taxi driver suffered severe bruising to his lower back and ribs and a fracture to part of one of his vertebrae as well as many minor abrasions and lacerations.  They stole $70 to $80 in coins and caused $400 damage to the taxi.  The applicant's co-accused was an older man with an extensive criminal history and yet received the same head sentence.  The applicant was only 19 with no previous convictions of any consequence.  The sentence imposed upon him was held to be excessive once the parity principle was applied and was reduced by the Court of Appeal to three years imprisonment with no change to the parole recommendation.

[39] R v Carroll & Anor[6] concerned applications for leave to appeal against sentence by two brothers convicted after a short trial.  Leon Carroll, the older brother, 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.  He was sentenced to seven years imprisonment on each count to be served concurrently.  There was no recommendation for parole.  The younger brother, Gregory, was convicted with regard to the same incidents of one count of robbery in company with personal violence, without the additional circumstance of aggravation of being armed with an offensive weapon.  He was also convicted of arson of the same motor vehicle.  He was sentenced to concurrent terms of four and one-half years imprisonment.

[40] On appeal, the sentence of Leon Carroll was reduced to five years imprisonment and the sentence of Gregory Carroll reduced to three and one-half years imprisonment.

[41] The facts on which they were sentenced were that the applicants, who were both substantially affected by alcohol, got into a taxi called by a friend in the early hours of the morning.  Leon Carroll was 37 years of age and Gregory Carroll was 30 years of age at the time of the offending.  The taxi driver was a 55 year old man of slight build who wore glasses.  Leon was in the back seat of the taxi with two cans of beer.  He disputed the direction in which the taxi was going.  He was verbally abusive, yelling at the driver to turn the meter off or he would bash or kill him.  The taxi driver pressed the emergency alert button.  Gregory tried to calm his brother but then forcibly stopped the cab which swerved hard and then stopped.  Leon got out of the cab and hit the driver with a beer can on the arm, head and face several times.  The taxi driver managed to start the car again and drove only 30 to 50 metres when Gregory 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 hit the driver's hand to get it off the steering wheel causing a hairline facture of his hand.  He pushed the driver out of the car.  Leon got in and they sped off.  They destroyed the car by burning it.  It was worth $16,500 but insured for only $13,400.  The appeal court noted that had they merely abandoned the car, their criminality would have been much less.  Gregory had an insignificant criminal history whereas Leon had "a somewhat lengthy" criminal history which included imprisonment for drug offences.

[42] The court referred to a number of authorities which dealt in the main with robberies which did not include arson.  Some dealt with more than one offence, but of the same or similar kind.  They show, the court said, a number of sentences from non-custodial for youthful first offences and up to three to four years for persons with criminal histories which contain convictions for like offences.

[43] In R v Bowen and Ambrym,[7] Pincus JA observed that "the circumstances of robberies of taxi drivers may vary widely; it does not seem possible to hold that there is an accepted sentencing range."  The offence in that case was robbery in company with personal violence.  The victim was a 52 year old female taxi driver.  The applicants directed her to an isolated rural area.  One attempted to strangle her with a T-shirt the other had handed him.  She feared for her life, lost consciousness before she could activate the taxi alarm.  The applicants fled taking cigarettes, money and other items out of the taxi.

[44] The applicant Bowen was 18 years old, was "intellectually disadvantaged" and had previous minor convictions.  Ambrym was 21 years old and had a more extensive but still limited criminal history.  He had a very deprived upbringing in which he had suffered brain damage.  Both were cooperative with police and expressed remorse.  The victim impact statement showed that the complainant had suffered severe psychological symptoms and was unemployable as a result of the incident.  She was described by the court as being a "particularly vulnerable person".  The sentence imposed on Ambrym was reduced from seven years to five and one-half years and on Bowen from six years to four and one-half years.

[45] R v Monday[8] was an unsuccessful application for leave to appeal against a sentence of three years imprisonment suspended after six months with an operational period of three years on a conviction for attempted robbery after a short trial.  The applicant assaulted a taxi driver in an isolated spot.  He punched the taxi driver 10 to 15 times and tried to grab cash in the driver's hand.  The driver threw the money to the floor of the car, put the car into gear and drove forward dragging the applicant for some distance.  He fled without any money.  The complainant suffered lacerations and bruising to his face and head.  The applicant was 22 years old and had an insignificant criminal history.  In upholding the sentence imposed the court referred to the sentencing judge's observation with which it agreed that "taxi drivers are in an extremely vulnerable position and … the sentence to be imposed must send a message to the community that such conduct will not be tolerated."

[46] R v Briody[9] was also an unsuccessful appeal against a sentence imposed for an offence of armed robbery in company with personal violence after a plea of guilty.  He was sentenced to three years imprisonment to be suspended after nine months with an operational period of three years.  The complainant was a 55 year old taxi driver.  The applicant was 18 years old and came from a traumatic domestic background.  He was one of three young men who were picked up at 9 pm and gave directions to the applicant.  The applicant pressed a knife against the side of the complainant's neck.  A number of blows were directed at the complainant along with a demand to give the applicant his money.  The taxi driver received a cut to his finger as he tried to pull the knife away.  The offenders escaped with $100.

[47] Williams JA referred to a number of cases which dealt with sentences for robbery of taxi drivers before holding that the sentence was not manifestly excessive.

[48] In R v Hamilton[10], the President referred to the need for deterrence in sentencing for attacks on taxi drivers:

"Unquestionably, there are very serious aspects to both the offence of grievous bodily harm and the offence of attempted armed robbery.  They were committed upon taxi drivers, merely doing their not especially well-paid job.  Taxi drivers provide a valuable community service, particularly late at night and often in situations which leave them vulnerable to attacks like this.  Courts must ordinarily impose heavy deterrent penalties on those who gratuitously assault taxi drivers."

I endorse those remarks.

[49] The applicant in this case was not in company, was not armed and had not planned the assault which he carried out.  However, he carried out a vicious assault on the taxi driver, stole from him and extensively damaged the taxi.  Fortunately the taxi driver did not suffer serious physical injuries and has been able to continue working although understandably he continues to be worried as a result of the attack.

[50] The applicant pleaded guilty, expressed remorse and is still relatively young.  He has endured horrific childhood experiences.  He commenced drug and alcohol abuse as a boy and has an extensive criminal history including for offences of violence leading to periods of imprisonment.  His future capacity not to re-offend depends on his being able to free himself of alcohol and illicit drug abuse and receive psychological or psychiatric treatment.  He has commenced to deal with those problems in prison.

[51] As for the other offences on the indictment, there seems to have been no justification for imposing the maximum penalty for those offences.

[52] Taking all of those factors into account and sentences imposed previously for like or more serious offending, the sentences imposed do appear to be manifestly excessive.  I would grant the application for leave to appeal, and allow the appeal to the extent of imposing two years imprisonment on count one, four years imprisonment on count two and three years imprisonment on count three, all to be served concurrently with each other and with the penalties imposed on the summary charges.  He should be immediately eligible for release on parole.

[53] MARTIN J: I agree with Atkinson J.