R v Bush - [1996] QCA 172

[1996] QCA 172

COURT OF APPEAL

PINCUS JA DAVIES JA McPHERSON JA

CA No 71 of 1996
THE QUEEN
v.

CRAIG MATTHEW BUSH

BRISBANE

..DATE 17/05/96

JUDGMENT
170596 D.1 T24/LAM M/T COA116/96

McPHERSON JA: The applicant pleaded guilty to one count of robbery in company with actual violence to the person. He was sentenced to a term of imprisonment for four years with a recommendation for parole after serving 12 months of the sentence.

The complainant is a 41 year old taxi driver at the Gold Coast.
At 2.05 a.m. on Thursday 19 October 1995 he was in his vehicle
waiting at a cab rank in Cavill Avenue. When he reached the head
of the rank, two men got into his cab. One was the applicant,

the other was his co-accused, Horton. Horton sat in the front

passenger seat and the applicant in the rear seat.

They gave an address to the driver and the cab set off. In the course of the journey, Horton said that he felt sick and put his head between his knees. At their direction, the cab went to a deserted area near a water treatment plant. The applicant grabbed the complainant around the neck from behind and Horton began to punch the complainant in the ribs and the head.

The complainant made efforts to take off his seat belt. By this time the applicant was punching him, and the taxi was rolling backwards. It hit a ditch and the jolt or jar enabled the complainant to wrench himself free and get out of the cab. The two accused caught up with him and continued to assault him. The complainant fell to the ground where Horton kicked him in the back and the applicant continued to assault him.

The applicant said, "We are going to kill you". Eventually the cab driver broke free and ran down the road, with Horton shouting after him they had a shot gun and would shoot him.

2 JUDGMENT

170596 D.1 T24/LAM M/T COA116/96

When the complainant later returned to his taxi, he found the coin dispenser containing some $70 or $80 in change had been taken. The damage to the taxi from the incident I have described cost some $400 to repair. The complainant suffered multiple abrasions and minor lacerations to both knees, to the forehead, the face and scalp. He suffered severe bruising to the lower back and ribs and a fracture to part of one of his vertebrae.

He continues now to have headaches and other disabilities and he is unable to continue what was a formerly active sporting life.

He remains a taxi driver but it is said he does so from

economic necessity.

The police came to the scene and pursued the offender and they captured Horton in the long grass near where the incident had taken place. Later, with the dog squad, they caught up with the applicant who had the coin dispenser in his pocket. He professed to be unable to remember much…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bush

Details

AGLC: R v Bush [1996] QCA 172
Case: [1996] QCA 172
Decision Date: 17/05/1996

CaseChat Overview and Summary

The case of R v Bush involved Craig Matthew Bush, who was sentenced to four years in prison for his involvement in a robbery committed in company with another individual, Horton. The incident occurred in October 1995 when Bush and Horton assaulted a taxi driver, causing him significant physical injuries and robbing him of money from the coin dispenser. Bush pleaded guilty to the charge of robbery with actual violence. The Court of Appeal was tasked with reviewing the sentence imposed on Bush, considering both the nature of the offence and the circumstances surrounding his involvement.

The primary legal issue before the Court of Appeal was whether the sentence imposed on Bush was appropriate in light of his age, lack of prior convictions, and the comparative sentence given to Horton, who had a more extensive criminal history. The Court needed to determine if the sentence was disproportionate, particularly when compared to the sentence handed down to Horton, who had a more serious criminal record and was older.

The Court of Appeal found that while the offence was serious, involving violence and premeditation, the sentence of four years was at the higher end of the scale for such offences. The judges noted that the sentence might be justified by the brutality of the attack and the involvement of two assailants. However, they also observed that Bush, being only 19 years old and with no significant prior convictions, had been sentenced almost equally to Horton, who had a more serious criminal history. The Court concluded that the sentence was disproportionate and varied the sentence to three years of imprisonment, while keeping the parole recommendation unchanged.

In summary, the Court of Appeal allowed the appeal and reduced the sentence imposed on Bush from four years to three years of imprisonment. The decision recognised the severity of the crime but also considered the mitigating factors related to Bush's age and lack of prior criminal history.

Orders