R v Houldsworth & Crossman - [1999] QCA 322

IN THE COURT OF APPEAL [1999] QCA 322
SUPREME COURT OF QUEENSLAND
CA No 150 of 1999 CA No 156 of 1999

Townsville
[R v Houldsworth & Crossman]
THE QUEEN
v
RUSSELL EDWARD HOULDSWORTH and
TROY SAMUEL CROSSMAN

(Applicants) Appellants
McMurdo P Thomas JA Cullinane J

Judgment delivered 20 August 1999.
Judgment of the Court.
IN THE CASE OF RUSSELL HOULDSWORTH, LEAVE TO APPEAL GRANTED AND APPEAL ALLOWED. THE SENTENCE OF SIX YEARS IS SET ASIDE AND REPLACED WITH ONE OF FOUR AND A HALF YEARS IMPRISONMENT. THE DECLARATION IN RESPECT OF 181 DAYS PRE-SENTENCE CUSTODY WILL REMAIN.
IN THE CASE OF TROY CROSSMAN, THE APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS: CRIMINAL LAW - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PARITY - CO-OFFENDERS - DISCRIMINATION BETWEEN CO-OFFENDERS.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO- OFFENDERS.
Armed robbery of service station by three co-offenders - whether sentences reflected level of involvement - fundamental in sentencing function that offender be punished according to his own conduct.
Lowe v The Queen (1984) 154 CLR 606 approved.
Postiglione v The Queen (1997) 189 CLR 295 approved.
R v Truong (CA No 438 of 1998, 19 February 1999); [1999]
QCA 21 considered.
R v Vanderwerff (CA No 479 of 1998, 14 May 1999); [1999]
QCA 169 considered.

Counsel: Mr S Durward for the appellants/applicants.
Mr C Chowdhury for the respondent.
Solicitors: Legal Aid Queensland for the appellants/applicants.
Director of Public Prosecutions (Queensland) for the
respondent.
Hearing Date: 28 July 1999.
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 20 August 1999

On 6 October 1998, three men committed an armed robbery at a Caltex service station on the Bruce Highway at Gordonvale. They were the applicant Russell Houldsworth, the applicant Troy Crossman, and Robert Houldsworth, who is the brother of the applicant Russell Houldsworth. All three pleaded guilty and were dealt with in the District Court at Cairns.
Russell Houldsworth was sentenced to six years imprisonment, Troy Crossman to six and a half years imprisonment, and Robert Houldsworth to six and a half years imprisonment. Robert Houldsworth has not appealed against his sentence.
Although there are only two applications it is necessary that consideration be given to the part that each of these three persons played and the relativity of the sentences imposed. The applicant Russell Houldsworth at the material time was 21, the applicant Troy Crossman was 27 and Robert Houldsworth was 19 years old.
The respective criminal histories of Russell Houldsworth and Robert Houldsworth are fairly minor. Russell Houldsworth had been fined for possession of a weapon in a manner likely to cause alarm, and for breach of a bail undertaking, and shoplifting. He had also been granted probation on a stealing charge, had breached the terms of the probation and, upon being dealt with for the original offence, had been fined $500. He had also been…

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 Houldsworth & Crossman

Details

AGLC: R v Houldsworth & Crossman [1999] QCA 322
Case: [1999] QCA 322
Decision Date: 20/08/1999

CaseChat Overview and Summary

The Supreme Court of Queensland considered an appeal against sentence by two of the three co-offenders who committed an armed robbery of a service station. The applicants, Russell Edward Houldsworth and Troy Samuel Crossman, were convicted and sentenced in the District Court. The legal issues before the Court were whether the sentences imposed on the applicants reflected their respective levels of involvement in the offence and whether the disparity between their sentences was justified. The Court was required to consider the principle of parity in sentencing co-offenders and ensure that each offender is punished according to their own conduct.

The Court held that it was fundamental in sentencing that the offender be punished according to their own conduct, and that a proper sentence must reflect proportionality. The Court noted that although several offenders may be convicted of the same offence, each must be punished according to the reprehensibility of their own conduct. The Court referred to previous cases which had considered the role of drivers in armed robberies and held that they are generally more leniently sentenced than the actual perpetrators. However, the Court found that in the present case, Russell Houldsworth's role had been limited to driving the car and he was not heavily involved in the planning of the offence. The Court held that the sentence of six years was manifestly excessive in Russell Houldsworth's case and substituted a sentence of four and a half years. The Court refused leave to appeal for Troy Crossman, finding that his sentence of six and a half years was appropriate having regard to his more serious criminal history and substantial involvement in the offence.

The Court also considered the issue of pre-sentence custody. The Court found that Troy Crossman was not entitled to credit for the full period of 181 days he had spent in custody prior to sentencing, as he had been serving terms of imprisonment for other offences during most of that time. The Court held that there was no question of parity in this respect, as Crossman's co-offender Robert Houldsworth had not been serving other sentences of imprisonment during the remand period.

In conclusion, the Court granted leave to appeal and allowed the appeal in Russell Houldsworth's case, setting aside the sentence of six years and substituting a sentence of four and a half years. The Court refused leave to appeal for Troy Crossman.

Orders