R v Bowen and Ambrym

[1998] QCA 394

IN THE COURT OF APPEAL	[1998] QCA 394
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.

CATCHWORDS:	CRIMINAL LAW - sentence application - guilty pleas to charge of robbery in company with personal violence attack on female taxi driver - whether sentences imposed reflected proper discounting for mitigating factors - pleas of guilty - young age - insignificant criminal histories - intellectual disadvantage - sentences manifestly excessive.
Counsel:	Mr P Leask for the applicant/appellant Bowen. Mrs D Richards for the applicant/appellant Ambrym. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Queensland for the applicants/appellants. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	4 November 1998

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

3. 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.

4. The victim of the offence was a 52 year old woman who had been employed…