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.

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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 about events on account of his being very drunk.

Both accused came before the same Judge on 4 March 1996. Horton was sentenced to imprisonment for four years, with a recommendation for parole after 18 months. He had spent 83 days, which I suppose is about 3 months, in pre-sentence detention, and that period was deducted from the term he would have to serve.

Horton is a man of 31 years of age, an alcoholic, with a

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deprived upbringing and childhood; but he has an extensive record of convictions, mainly in Tasmania, running from about 1983. The offences shown on his record are various, but they include stealing and assault and various instances of drink driving. He had previously been sentenced only to fairly short terms of imprisonment .

In contrast, the applicant is a 19 year old man from Victoria with only one prior conviction for stealing, it being a matter that was dealt with on sentence by not recording a conviction in respect of his plea.

He is said to come from a good family and he was working in some capacity in a restaurant, or the like, on the Gold Coast at the time of this offence. The robbery was, on everything one sees of it, a planned escapade; one that was prepared in advance and involved, at any rate, a degree of premeditation including a brutal attack on a taxi driver in a lonely place in the middle of the night. The victim has suffered quite considerable injuries with some, possibly permanent, physical consequences and perhaps with some lasting financial impact.

The applicant, himself, took an active part in the attack and, although he told us here in Court that he was not the leader, there is some reason to doubt that proposition. In any event, there appears to be little basis for distinguishing between his part in the action and that of Horton, except that Horton kicked the complainant while the applicant assaulted him in other ways.

The real basis for complaint, I think, that was put to us, is
that the applicant is 19 and has no previous convictions of any

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consequence, whereas Horton obviously has a quite extensive
record.

My view of the matter is that the sentence of four years is at the high end of the range for an offence, even one like this, involving the use of violence against a taxi driver. I think it is made particularly serious by the fact that there were two assailants involved as compared with some of the cases where much lighter offences have been imposed in the case of unpremeditated attacks on taxi drivers.

A comparison with the sentence imposed on Horton which, as I have said, was also four years as a head sentence, leads me however to the conclusion that the applicant has some basis for complaint in the respect that he was treated very nearly on an equal footing with Horton who has a much more serious criminal record and is a much older man. The applicant, by contrast, is still only 19 years old, and has no previous record to speak of.

In all those circumstances my inclination in this case is to allow the appeal to the extent of reducing the head sentence only from four years to three years imprisonment. I would not disturb the sentence in other respects.

DAVIES JA: I agree.

PINCUS JA: I agree.

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The order is that the appeal is allowed and the sentence varied to the extent of reducing the sentence imposed from imprisonment for four years to imprisonment for three years. The order with respect to parole is not affected.

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6   JUDGMENT