R v. Bainbridge, Cullen & Ludwicki [1993] QCA 428 (25 October 1993)

Court of Appeal (Qld)|1993-10-25|Before: Mr J

These are applications for leave to appeal against sentence by three youths, each of whom was convicted on 30 July 1993 on his own plea of armed robbery in company and of deprivation of liberty. Each was sentenced on the same day to an effective term of imprisonment of three years six months with a recommendation that he be eligible for parole after serving twelve months of that term. That was the sentence imposed in each case for armed robbery in company. The sentence imposed in each case for deprivation of liberty was imprisonment for twelve months, that sentence to be served concurrently with the longer sentence. A fourth offender, B, was sentenced as a child.

The offences occurred on 25 March 1993. At that time Bainbridge was only four months over 17, having been born on 21 November 1975. Neither Cullen nor Ludwicki had yet turned 17. Cullen was born on 3 July 1976 and Ludiwkci, the youngest of the three, was born on 4 April 1976. All were 17 by the time of conviction and sentence. Cullen and Ludwicki were still at school at the time of commission of the offence.

Pursuant to the arrangement, Cullen and Ludwicki entered the agency on the afternoon of the above date whilst Bainbridge and the other offender kept watch outside. Cullen threatened the attendant, a 34 year old woman, with the knife and instructed her to get on the floor. He then instructed Ludwicki to tie her hands behind her back, which he did. They then obtained over $2,000 in cash and left. The attendant was able to free herself and ring the police almost immediately and they apprehended Cullen only a short distance from the agency although he had, by then, changed clothing. After at first denying his involvement and giving a version of his movements which could not have been true, he finally admitted his involvement to the police and of that of the others. Each of the others confessed when apprehended.

The police recovered $350 of the stolen money from Ludwicki's home. None of the balance of the money was recovered. Although no explanation for this was given it was probably as follows. Cullen and Bainbridge were quite heavy users of marijuana. Cullen, and possibly Bainbridge, owed money to a drug dealer arising out of that use. The dealer was apparently putting pressure on Cullen to pay. This was at least part of the motive for the robbery. It was not disclosed how much was owed to the drug dealer, but it is a reasonable assumption that a substantial part of the proceeds of the robbery went to that dealer.

None of the boys was prepared to disclose the identity of the dealer. Each gave as his reason fear of reprisal and knowledge of "paybacks" that had occurred in the town, apparently by that or other drug dealers. We think that the applicants' fear in the circumstances was understandable. They were made aware that disclosure of the drug dealer's name might assist in reducing their sentences.

Bainbridge had no relevant previous convictions. He had been convicted and fined on 6 October 1992 for producing a dangerous drug, namely cannabis sativa, in August of that year.

Cullen had been the subject of an order made under s. 62(h) of the Childrens Services Act 1965 on 3 July 1992 on two counts of breaking and entering a dwelling house with intent between 2 and 6 April 1992. He was then placed under the supervision of the Director of Family Services for twelve months and ordered to make restitution. These conditions were satisfactorily performed although he was still subject to this order when the offences the subject of this application were committed.

There can be no doubt of the seriousness of these offences, particularly that of armed robbery in company. Nor can there be any doubt of its prevalence. But for the youth of these applicants and the fact that none of them had been in custody before or could be described as persistent or serious previous offenders, there could also be no doubt that his Honour would have been justified in imposing on them the sentences which he did. The sole question before this Court is whether, given their ages and, in the case of Bainbridge and Ludwicki, the fact that they had no relevant previous convictions and, in the case of Cullen, that he had only one, those sentences are justified.

Even before the enactment of the Penalties and Sentences Act 1992 courts were most reluctant, even for offences of this kind, to send 17 year olds to jail if there was any other sentence reasonably open. In R. v. Fitzgerald (Indictment No. 2500 of 1992, Trafford-Walker D.C.J., 11.12.92) a document which collected the sentences imposed between 1988 and 1992 upon 17 year olds for armed robbery or armed robbery in company was tendered to the court. The source of that document was the Director of Prosecutions' computer. This showed that during that period 28 sentences were imposed on 17 year olds for offences of one or other of those kinds. Fifteen of those sentences were non-custodial. Of the 13 custodial sentences imposed, eight of them involved offenders with relevant previous convictions. Thus, of the 28 sentences imposed, only five involved a custodial term where the offender had no relevant previous convictions. Of those five, one was a term of nine days and two were of six months, all with substantial periods of probation. We have asked the respondent to bring this document up to date and that amended document is annexed to and forms part of this judgment. Assuming the document is accurate - and the fact that it has an official source renders that assumption safe - it demonstrates that the sentences imposed on the applicants do not fit into the recent pattern of sentences of youths about their age, as shown in that document.

It is unfortunate that this document was not tendered by the Crown Prosecutor to the learned sentencing judge. It is even more unfortunate that his Honour was given almost no assistance on the question of comparable sentences. The Crown Prosecutor referred to only three. None of them is comparable nor was it asserted before this Court that any of them was comparable. Indeed, none of them was even cited to us. It is even more surprising that the schedule to which we have referred was not cited to us.

It is important that crime be suppressed by appropriate sentences; but a measure of uniformity and consistency in sentence is also necessary, lest the public lose confidence in the justness of the courts' sentences.

"A court may impose a sentence of imprisonment on an offender who is under the age of 25 years and has not previously been convicted only if the court, having -

(b) taken into account the desirability of not imprisoning a first offender;

is satisfied that no other sentence is appropriate in all circumstances of the case."

That provision gives legislative support to the view which, as appears from the above document, has long been the view of courts with respect to youthful first offenders. It need hardly be said that the younger the offender generally the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment; though there are, of course, some cases which are so serious that notwithstanding youth and the absence of relevance previous convictions, the offender must go to jail.

In sentencing the applicants the learned sentencing judge said that there did not seem to be much remorse on the part of the applicants for what they had put the agency attendant through. We are unable to see any substantial evidence, one way or the other, before his Honour with respect to remorse. Certainly all three pleaded guilty promptly and were entitled to credit for that. On the other hand, perhaps it is unlikely that their early pleas were evidence of remorse given that Cullen was apprehended near the scene and that in his confession he implicated each of the others. The report from officers of the Department of Family Services and Aboriginal & Islander Affairs suggests some evidence from Cullen's school which indicated little change in his behaviour since the commission of the offence, but we do not think that anything can be safely said about his remorse.

Like the learned sentencing judge, we can see little to distinguish, in terms of sentencing, between the three applicants. It is true that Cullen alone had relevant prior offences, that the payment of his debt (and possibly also Bainbridge's) was one of the motives for the commission of the offence and that, on one view of the report referred to above, Cullen's behaviour since the commission of the offences gives less cause for optimism about his rehabilitation than Ludwicki's. However, we do not think that these factors - and there are no others - are sufficient to justify a higher sentence in his case than in the case of the others.

All three have been in jail since 30 July this year, that is for about two and a half months. Taking that into account and taking into account the matters to which we have already referred, we think that each applicant should be released under the supervision of an authorised Commission Officer for a period of three years. Counsel for each of the applicants have indicated that the effect of such an order has been explained to their respective clients and that each has agreed to such an order being made.

The applications for leave to appeal should therefore be granted and the appeals allowed. The sentences imposed on the applicants below should be set aside. In lieu thereof, each of the applicants should be ordered to be placed on probation for a period of three years on the conditions stated in s. 93 of the Penalties and Sentences Act 1992. Each of the applicants must report to the authorised Commission Officer at Gladstone within 72 hours of this order. We would further order that convictions be recorded in respect of each of the offences.

Childrens Services Act 1965

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