R v. Duckworth

[2007] QCA 274

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duckworth [2007] QCA 274

PARTIES:

R
v
DUCKWORTH, Wayne Alfred
(applicant)

FILE NO/S:

CA No 110 of 2007
DC No 914 0f 2007

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 July 2007

JUDGES:

de Jersey CJ, Jerrard JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where the applicant pleaded guilty to one count of armed robbery in company with personal violence – where the applicant was sentenced to four years imprisonment, to be suspended after he had served 10 months, for an operational period of four years – where the applicant was 46 years old at the time of the offence, and 47 when sentenced – where the applicant had no relevant previous history – whether the sentence was manifestly excessive

Lowe v The Queen (1984) 154 CLR 606, applied

COUNSEL:

The applicant appeared on his own behalf
R G Martin SC for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland)

1. de JERSEY CJ : I have had the advantage of reading the reasons for judgment of Jerrard JA.  The application should be dismissed, for those reasons.

1. JERRARD JA: On 3 April 2007 Mr Duckworth pleaded guilty to one count of armed robbery in company with personal violence, and on 11 April 2007 he was sentenced to four years imprisonment, to be suspended after he had served             10 months, for an operational period of four years.  Nine days of pre-sentence custody was declared as time already served.  Mr Duckworth sought leave to appeal against that sentence, arguing that it is manifestly excessive.  He contended an appropriate sentence based on a proper understanding of the material put before the learned sentencing judge would result in any custodial sentence being wholly suspended.

1. The circumstances described to the sentencing judge were that Mr Duckworth was 46 years at the time of the offence, and 47 when sentenced.  He had no relevant previous history.  A co-offender, a Mr Paul Carr, the manager of the Park-Ridge Tavern, had suggested to a third co-offender, a Mr Brett Gale, that Mr Carr and Mr Gale rob the tavern premises on a Friday or Saturday night.  Mr Carr told Mr Gale that Mr Carr would be there on duty, and could ensure that the safe was open and the alarms were turned off.  He arranged with Mr Gale that the signal for Mr Gale to enter the premises as a robber would be that Mr Carr would turn off the XXXX sign outside the hotel. 

1. Mr Carr and Mr Gale planned the purported robbery in some detail, meeting in the fortnight prior to the day it happened – on 5 November 2006 – and Mr Carr drew Mr Gale a map.  Mr Gale in turn recruited Mr Duckworth, some two days before     5 November 2006, and Mr Gale told Mr Duckworth how the manager of the hotel had devised a plan to steal its takings.  (All three men were ex-New South Wales Police Officers).  Mr Duckworth agreed to a plan whereby he and Mr Gale would hide themselves in bushland near the rear of the hotel, wearing disguises and carrying iron bars, and would wait until the staff had finished work and the hotel had closed.  At that time the manager would give the signal (turning off the illuminated XXXX sign), and Mr Duckworth and Mr Gale would enter the hotel carrying the iron bars and masked, take Mr Carr into the hotel and purport to threaten him; Mr Carr, purporting to be terrified, would take them to the office, unlock the safe, give them the takings, and they would tape his hands and leave with the money, leaving him locked in the office.

1. That account of the plan appeared in an affidavit sworn by Mr Duckworth in support of this appeal, and which he sought leave to read.  It was consistent with what the prosecutor told the learned judge, which was that Mr Carr maintained later to police that he had attempted to stop the robbery on the afternoon on which it happened, but had been told by Mr Gale that it was too late.  On the night, Mr Carr had some trouble actually setting the alarm, and two female staff then waited outside the hotel for Mr Carr.  Eventually, those two women went back inside to see why he was taking so long, and at that point Mr Carr turned off the XXXX sign, and then he and the two women walked out.  Mr Duckworth came running at them and pushed all of them back through the door, and Mr Gale followed.  Mr Duckworth and Mr Gale were wearing balaclavas, and otherwise had dark coloured clothing and gloves, and each was armed with a steel bar.

1. The prosecutor incorrectly told the judge that Mr Duckworth also had a knife, but then corrected that to delete the assertion that Mr Duckworth had a knife, when Mr Duckworth objected in court to what had been said.  The learned judge specifically clarified that the Crown did not allege Mr Duckworth was armed with a knife, and that the Crown’s allegation was only that he had an iron bar.

1. The prosecutor told the judge that the two female staff members were asked to drop their handbags onto the floor, and that Mr Carr said to Mr Gale and Mr Duckworth (the purported robbers):

“Don’t hurt the girls.”

Mr Carr and the female staff were then pushed toward the office, and Mr Carr turned off the alarm.  One female staff member was forced to the ground and a steel pipe held to her throat by Mr Gale, and Mr Duckworth required the other female to sit on the ground.  Mr Carr was unable to open the safe, and Mr Gale got one of the two females to do that.  Mr Gale asked Mr Duckworth to get a roll of tape which Mr Gale had dropped in the foyer area, and Mr Duckworth went and got that, and on returning tied one woman’s hands together.  Mr Duckworth’s affidavit says that when he returned, he saw one of the female staff loading a bag with cash, and to him that was a clear representation that both of those staff were also involved in the plan to rob.  For that reason, he taped the hands of both women, on Mr Gale’s instructions, and then he and Mr Gale left the hotel, taking with them $63,000.

1. Mr Gale and Mr Duckworth left at least the two women with their hands tied with tape, and Mr Duckworth said to the purported victims of the robbery that they were to stay where they were for 10 minutes.  Mr Gale said they were not to ring anybody; and one or other of Mr Gale or Mr Duckworth said:

“If you do I know who you are; I’ll come back and fucking kill you.”

The prosecution told the learned judge that one woman said that Mr Gale said that, and the other woman was unable to say who did.  The prosecution accordingly told the judge that it contended the statement was made, but could not say who said it.  Mr Duckworth told this Court that it was not him, but the learned judge did not suggest in any way that the judge assumed Mr Duckworth had said it.

1. The prosecutor told the learned judge that Mr Carr eventually confessed his participation in planning the robbery to the police, and then Mr Carr participated in a pretext telephone call to Mr Gale.  The police then arrested Mr Gale, who made full admissions and returned some $36,000.  Mr Duckworth, by arrangement, attended at a police station and returned his share of the stolen money, and he too made a full confession.

1. The prosecutor told the sentencing judge that Mr Duckworth said to the Queensland Police that he thought was it was an “inside job”, and that there would be only Mr Carr present; but that Mr Duckworth had forced the two females back inside, and had then continued with the robbery, and further that Mr Duckworth had said his understanding was that the money would be split three ways.  Despite that earlier agreement, after the robbery Mr Duckworth and Mr Gale decided that Mr Carr should only receive $17,000 because of his inability to open the safe and his general disorganisation; Mr Duckworth and Mr Gale would share the rest and get more than one third each.  Nearly all of the money was recovered, other than some $1,000.

1. The prosecutor suggested to the judge that those matters showed that the offence was premeditated and involved some degree of planning, particularly by Mr Gale.  The prosecutor also referred to:

“...the level of violence used in that they pushed the victims back inside the hotel.  Duckworth tied the hands of the victim, Reid.  Gale pushed Reid and jabbed her with his weapon and Gale pushed the weapon at Mercer’s head and it’s clear that it’s had a lasting effect on the victims.”

The applicant’s argument on the appeal, in reliance on his affidavit, complained of the judge being told that Mr Duckworth carried a knife, but there is nothing in that complaint.  The statement was immediately corrected, and the judge clarified the position.  Mr Duckworth was not sentenced on any incorrect assumption that he carried both a knife and an iron bar.

1. His affidavit also asserts that his clear understanding was that both female staff members were participants in the robbery charade, because they were seen standing outside having a cigarette, and seen to go back inside before the XXXX sign was turned off by Mr Carr.  Mr Duckworth’s affidavit asserts that he played the part of a robber because he did not know where any internal cameras were situated, and he wanted to be convincing on film.  Those assertions of fact go further than what the prosecutor told the learned sentencing judge, and the prosecutor’s statements to the judge were not contradicted by submissions from Mr Duckworth’s experienced barrister, nor by any evidence from Mr Duckworth.  Further, the contention that Mr Duckworth understood the two females were participants in the pretended robbery, and not simply innocent bystanders, seems inconsistent with his description to the police that he understood the stolen money would be split three ways. 

1. All that his counsel said on this point at the sentence was as follows:

“The other thing is, your Honour, and it’s not challenged by the Crown that – and my client referred to in his interview certainly as far as he was concerned – he understood that when they were to go there was to be a sham robbery and that the bars were to be for the video. 

I can’t get away from the fact that once he got there and saw that there were the two women, he then proceeded with that.  He referred to that in the interview with the police.  He said that he saw them come out and the women did come outside for a smoke, as your Honour’s heard from the prosecutor’s recitation of some of the facts.  And then they went back in.  Apparently Mr Carr was having some trouble with the alarm – whether that is real or not.

And he told the police he was watching outside that the two ladies came out, he said; ‘You beauty, there is only going to be him.’ Which was what he initially thought.  Then they went back in.  And then at that stage he felt that he still had to proceed with it, so I can’t get away from the fact that he could have gone away but he then proceeded to go.  But when he first went there, that was not the plan.  And a distinction there in my submission is that most of the cases are pre-planning of an actual robbery.  Not, for example, as a party to a sham or as a stealing as a servant, party to a stealing as a servant.  I don’t quibble with what happened inside as recited in the schedule and as voiced out by the prosecutor.”

The schedule referred to was Exhibit 1 tendered without objection by the prosecution.  It says nothing about Mr Duckworth believing the two women were co-offenders and not victims.

1. Mr Duckworth’s argument on the appeal was that the learned judge sentenced him on an incorrect version of the facts.  The correct version was that Mr Duckworth was only playing out a charade of a robbery, for the purpose of helping Mr Carr to steal.  That submission depends on this Court accepting Mr Duckworth’s affidavit evidence and the claim made only therein, that he thought the two female staff were co-offenders.  The learned judge said nothing in the sentencing remarks about Mr Duckworth’s now asserted belief, because nothing at all was said by anyone about that to the learned judge.  Instead, the prosecution put before the judge without any objection victim impact statements from the two women[1], which made it very clear that both were significantly adversely affected by being threatened with what each thought was genuine violence.

   [1]Reproduced at AR 34 and 36.

1. It is too late for Mr Duckworth to claim that he believed they were co-offenders, and that he was incorrectly sentenced as a perpetrator of an offence rather than a co-participant playing a role with the three “victims”.  Even if the learned sentencing judge had been told of that understanding, and had accepted it, the fact remains that both women were the victims of express and implied threats to use violence on them, by Mr Duckworth and Mr Gale.  Both women were terrified.  Mr Duckworth said nothing to them to suggest he was not genuine, and acted as if he was.  If Mr Duckworth thought they were simply pretending the terror they showed, he was wrong; if his belief had been reasonable, he should have expected to have to share part of the $63,000 with them, and he did not.

1. Mr Duckworth’s account of events is that he took part in a plan to stage a false robbery, to get money.  He did exactly that, and got (intending to keep) a little more than one third of $63,000.  He had an iron bar and a mask, and he did help to terrify two innocent victims.  The sentence he received for that was not imposed on any misunderstanding or wrong construction of the material put before the sentencing judge, and was appropriate even if the sentencing judge had been told of Mr Duckworth’s hope that the only real wrong doing was in respect of property, and not in respect of people.

1. Mr Duckworth argued that his head sentence should have been less than Mr Gale’s.  Mr Gale was sentenced to four years, to be released after serving 12 months, or two months more than Mr Duckworth.  Mr Duckworth agreed in his arguments on this application that he expected to share equally with Mr Gale in the proceeds of the robbery.  That makes it appropriate they got the same head sentence, and that Mr Duckworth cannot claim any legitimate sense of grievance (Lowe v The Queen (1984) 154 CLR 606) because those sentences are the same. Mr Duckworth’s lesser degree of involvement in the overall planning is adequately reflected in the lesser time he has to serve before release; it could have been a shorter time, but that does not make the 10 months actual custody an obviously excessive punishment.

1. His real position is that he has already suffered such financial and other loss that no good purpose is achieved by any further time in prison for him, and he should be released now, because it is very unlikely he will re-offend.  Further, he needs to be protected from other prisoners because of his past employment in New South Wales and so imprisonment is very onerous for him.  His situation is hard, but sentences of jail are also intended to deter others from like offending, not just the person being sentenced.

1. Mr Duckworth overall received a lenient sentence for a successful robbery, which reflected in full the extent of his considerable co-operation with the authorities, and I would dismiss his application.

1. MULLINS J:  I agree with Jerrard JA.