R v Cowan

[1992] QCA 123

COURT OF APPEAL	[1992] QCA 123
MACROSSAN CJ DAVIES JA McPHERSON JA
CA No 11 of 1992
THE QUEEN
v.
ANDREW UYRDAR COWEN

(Applicant)

BRISBANE

... DATE 29/4/92

JUDGMENT

JUDGMENT

THE CHIEF JUSTICE: The applicant pleaded guilty to eight charges and was sentenced on 12 December 1991 to terms which effectively totalled twelve and a half years. These were the charges: robbery in company with personal violence - he was sentenced to a term of imprisonment of six years in respect of that. There were three counts of deprivation of liberty. For those, he was sentenced to two and a half year terms of imprisonment to be served concurrently with each other, but cumulatively upon the robbery sentence of six years to which I have referred.

There were then three charges of assault occasioning bodily harm with circumstances of aggravation. He was sentenced to four years' imprisonment on each of those charges, served concurrently with each other, but to be served cumulatively upon the sentences of six years and two and a half years to which I have already referred.

Finally, there was one count of unlawfully using a motor vehicle.
He was sentenced to 12 month's imprisonment to be served
concurrently with the other sentences imposed. The twelve and a
half years effective term to which I have referred is then made

up by the addition of the terms of six years, four years and two

and a half years.
The applicant was a young man. All of the offences were
committed in the course of a continuing episode when he and a
companion called Broadhurst in effect abducted an elderly man of
75 years, carried him off in his own motor vehicle and dealt with
him in savage fashion.

Broadhurst was the applicant's companion. He was sentenced by the same sentencing Judge more recently to a term of twelve and three-quarter years effective term. He had been in custody for a longer period than the applicant, a total of some 11 months. The applicant had been in custody on remand pre-sentence for a period of six months.

It is common to regard the remand time, pre-sentence, as equivalent in this State to twice its length considered as a sentence, so it will be seen that Broadhurst was visited with a more significant penalty when matters are looked at in that way than was the applicant, but it also appears that the applicant was sentenced to terms which, allowing for the six months remand time in custody, can be regarded as equivalent to a total of about thirteen and a half years.

The learned sentencing Judge described the episode which, as I say, involved an abduction outside a hotel or from a car parking yard, as being barbaric and cruel. He noted that there was a sustained physical and, as he put it, verbal attack on the 75- year-old complainant. The complainant was brutalised over a lengthy period at different locations.

The motivation is a little hard to understand. I appears as savagery once commenced, becoming out of control and continuing, but it is to a rather astounding degree. The applicant pleaded guilty, but when originally detained, he made denials and no admissions at that stage.

He was only two days short of his 20th birthday when he was sentenced. The applicant had three previous chances in his past when he had been placed or left on probation. He failed to take advantage of these opportunities.

The complainant in the abduction was thrown into his car, having been seized in its vicinity. Both the applicant and Broadhurst thereafter acted to assist one another. It could be said with some degree of persuasiveness that Broadhurst was rather the leader and the applicant, to a degree, the follower and no doubt, the difference in the sentences in their effective length imposed by the sentencing Judge is meant to reflect this.

The complainant, when he was driven off, a captive in his own car, had his wallet taken from him. The drive however continued on after that. He was held, there were continuing threats. Some of the threats suggested that he was to be killed. He was abused. Acts of gratuitous cruelty continued. In the course of it all, he was elaborately beaten up, this occurring on a number of occasions and he suffered injuries which were gross, according to the photographs taken shortly after, although fortunately, he has no permanent consequences it would appear.

The applicant and Broadhurst were only detained after a high speed chase by police had taken place and having eluded the police for a time and getting out of the car, in which they had been driving. One of them was apprehended the next day. That was the applicant.

The course which the learned sentencing Judge took of imposing a series of cumulative penalties for acts committed in the course of a single episode represents, it may be said, one possible approach. We are not called upon to judge the relative appropriateness of the different courses which could be taken. The problem for us is to decide whether the overall criminality is properly represented by the sentences imposed in their effective term or whether the effective term is indeed manifestly excessive as counsel for the applicant contends.

Both the applicant and Broadhurst were apparently drunk when the incidents commenced. The applicant, when left with the complainant for a short period, during the episode, Broadhurst having gone off for some purpose, did show some relative humanity but on other occasions he joined in the abuse and in the assaults.

In the end, although the applicant has a criminal history and this started in November 1989 when the applicant was still 17 and although he had been placed or left on probation on occasions since then, that is in December 1989, in April of 1990 and in July of 1990, no custodial terms had previously been imposed upon him.

During the course of the sentencing with which we are concerned, the jurisdiction to sentence for breach of the terms of the prior probations was actually invoked by counsel appearing for the Crown before the sentencing Judge. In fact, no specific penalties were imposed by the Judge. It would appear this was on the basis that no practical difference would result because of the terms which the Judge proposed imposing. However, the jurisdiction being invoked and no specific penalties being imposed, we do notice that the Crown has not appealed against a failure to impose a specific penalty for the breaches of probation. In this somewhat confused situation, it seems appropriate for us to leave the breaches of probation out of separate consideration, noting of course however, the fact that when these current offences were committed the applicant was on probation and had rejected the chances that he had as a result of that.

The effective overall term of 13-1/2 years as one can put it, allowing for the six months remand time in custody on the basis as I have described it, appears to me to be excessive for a 19 year old who had never previously been sentenced to a term of imprisonment and I reach that conclusion notwithstanding the undoubted savagery of the continuing episode which constitutes the offences with which we have to deal.

I think, accordingly, some reduction should be made and I would favour granting the application to permit this to be done.

The robbery count, in respect of which a term of six years was imposed, should have that penalty set aside. In lieu thereof a term of four years should be imposed on that count.

I would follow the pattern which the learned sentencing Judge has established of achieving some cumulative effect and would do it this way. I would allow the deprivations of liberty count, to retain the two and a half years terms imposed and I would leave them concurrent, both amongst themselves and with the other sentences including the robbery to which I have just referred and the assault to which I now turn.

Those assaults attracted four year imprisonment terms. I would allow those terms to remain but order that they be served cumulatively upon the new term of four years to be imposed for the robbery. The sentence of 12 months for unlawfully using a motor vehicle, that was the motor vehicle of the complainant, I would not interfere with and it will remain concurrent.

The result is that a total effective term of eight years will operate in lieu of the 12-1/2 years. This, it appears to me, is an appropriate sentence allowing for the six months in custody on remand and for the plea to which our attention was directed. To this extent then, I would allow the application and the appeal and would otherwise dismiss the appeal.

DAVIES JA: I agree.
McPHERSON JA: I agree.

THE CHIEF JUSTICE: That will be the order of the Court.

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