Apps v The Queen
[2020] ACTCA 53
•13 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Apps v The Queen |
Citation: | [2020] ACTCA 53 |
Hearing Date: | 2 November 2020 |
DecisionDate: | 13 November 2020 |
Before: | Murrell CJ, Mossop and Abraham JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – SENTENCE APPEAL – Aggravated robbery – Parity principle – Where co-offenders sentenced on different facts |
Legislation Cited: | Supreme Court Act 1933 (ACT) ss 37E, 37O |
Cases Cited: | Baladjam v The Queen [2018] NSWCCA 304; 341 FLR 162 Bond v The Queen [2020] NSWCCA 277 Swan v The Queen [2006] NSWCCA 47 |
Parties: | Aren Paul Apps (Appellant) The Queen (Respondent) |
Representation: | Counsel J Purnell SC (Appellant) R Christensen (Respondent) |
| Solicitors Bevan & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 1 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 20 December 2019 Case Title: R v Apps (No 2) Citation: [2019] ACTSC 369 |
THE COURT:
Introduction
On 20 December 2019, Burns J (the sentencing judge) sentenced the appellant for two offences of aggravated robbery: R v Apps (No 2) [2019] ACTSC 369.
The first offence occurred on 18 October 2017. For this offence, the appellant was sentenced to four years and one month’s imprisonment (reduced from four years and 10 months’ imprisonment for the plea of guilty), from 8 October 2019 to 7 November 2023.
Mr Fisher, the co-offender, was sentenced to three years and seven months’ imprisonment (reduced from four years’ imprisonment): R v Fisher [2019] ACTSC 370.
The second offence occurred on 7 March 2019. The appellant was sentenced to four years’ imprisonment (reduced from five years’ imprisonment for the plea of guilty), from 8 May 2022 to 7 May 2026.
The appellant pursued the appeal only on the ground that there was an unjustified disparity between the sentence imposed upon him for the first offence and that imposed upon Mr Fisher.
The appeal
The appeal was brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA). On such an appeal, the Court of Appeal has broad powers: SCA s 37O. However, it is well-established that the Court will intervene only if it is satisfied that there has been a specific error of fact or law, or an error must be implied: House v The King (1936) 55 CLR 499 applied, for example, in R v Duffy [2014] ACTCA 53 at [53].
Facts on sentence
The first offence
On 18 October 2017, Mr Fisher met the complainant at the city bus interchange and invited him to the appellant’s apartment in Turner, where Mr Fisher often “hung out”. On the way, they met the appellant, his girlfriend, and his mother.
The group entered the apartment. The front door was locked. The mother’s partner was present at the apartment. The complainant sat down at the kitchen table.
Mr Fisher armed himself with an aluminium baseball bat, approached the complainant, and demanded money. He struck the complainant’s forehead with the baseball bat, causing a laceration that started to bleed. He attempted to strike the complainant again with the baseball bat, but the complainant blocked the blow and seized the bat.
The appellant armed himself with a metal pole and a knife. Using the pole, he hit the complainant’s forearm. He threatened to kill the complainant and demanded his money. The complainant removed his wallet and handed about $150 to the appellant.
The complainant moved to the front door and unlocked it. The appellant followed him, still holding the knife. The complainant opened the door, ran from the apartment, and rang police.
The complainant sustained a deep laceration to his left forehead and swelling to his forearm.
After the complainant left, Mr Fisher mopped up the blood on the kitchen floor. The group then left the apartment.
The second offence
At about 1:50 AM on 7 March 2019, the appellant and an unidentified co-offender approached the intoxicated complainant and asked for cigarettes. The appellant was pushing a bicycle. When the complainant said that he did not have any cigarettes, the appellant and the co-offender attacked him. The co-offender used a screwdriver to jab and slightly injure the complainant. The complainant’s bag was ripped from him, and his wallet and bank card were removed.
The appellant forced the complainant to walk to a nearby automatic teller machine (ATM) and threatened to kill the complainant if he did not provide his PIN number. The complainant provided his PIN, fearing for his safety. As the co-offender attempted to withdraw cash using the complainant's card at the ATM, the complainant fell to the ground. The appellant struck him with the front wheel of his bicycle. The co-offender struck the complainant to the face with his hand.
The co-offender forced the complainant to use the ATM to make three withdrawals from his bank account, in the total sum of $1,900. Meanwhile, the appellant blocked the complainant’s escape. The appellant and the co-offender took the cash and ran away.
Sentencing remarks
The sentencing judge concluded that each offence was in the mid-range of objective seriousness.
In relation to the first offence, his Honour noted that there were two circumstances of aggravation; the appellant was both in company and armed (both the appellant and Mr Fisher were armed, and the appellant was armed with both a metal pole and a knife). His Honour observed that actual violence was inflicted on the complainant, who was in a vulnerable position. He suffered significant psychological consequences. On the other hand, the offence was not planned, and a relatively small sum of money was stolen.
The sentencing judge noted the following subjective features and drew the following conclusions:
(a)The appellant was a 25-year-old Aboriginal man who was one of eight siblings.
(b)His criminal history disentitled him to significant leniency in sentencing. Most recently, he had been sentenced to one month’s imprisonment from 8 July to 7 August 2019 for an offence of failing to appear on a bail undertaking.
(c)He suffered childhood disadvantage. He resided out of home until he was 10 years old. He had no contact with his father from 13 years of age. He was educated only to primary school level and had little employment history. Childhood neglect continued to affect the appellant’s life and choices: at [35].
(d)He abused alcohol and illicit substances from 12 years of age. The sentencing judge concluded that the appellant probably committed the offences to obtain money to purchase drugs and/or alcohol. Because the appellant had commenced to abuse substances at an early age, his substance abuse problem somewhat reduced his moral culpability for the offences: at [35].
(e)He had been diagnosed with borderline personality disorder, anxiety, agoraphobia, and antisocial traits.
(f)He had undertaken relevant programs within the prison and expressed interest in a residential rehabilitation placement upon release. However, he had continued to use illicit substances while in custody.
(g)He had limited insight into the offending behaviour, no appreciation of victim impact, and had no plans to disassociate from antisocial influences. He was “not particularly remorseful” and was at high risk of general reoffending: at [32] and [36].
(h)Because the appellant was relatively young, rehabilitation was an important consideration. However, the appellant’s present rehabilitation prospects were “poor”: at [36].
The sentencing judge observed that, while not binding, the guideline decision in R v Henry [1999] NSWCCA 111 (Henry) was a persuasive authority in this jurisdiction. The circumstances of the offence were more serious than those of the “typical” case described in Henry: at [38].
The sentencing judge was satisfied that relevant sentencing purposes, particularly personal and general deterrence, required that he impose an immediate term of imprisonment: at [39].
The co-offender
On the same day as the sentencing judge sentenced the appellant, his Honour sentenced the co-offender, Mr Fisher, to three years and seven months’ imprisonment (reduced from four years’ imprisonment) for aiding and abetting the armed robbery committed by the appellant on 18 October 2017: R v Fisher [2019] ACTSC 370. The sentence was to commence on 20 January 2019 and expire on 19 August 2022. His Honour fixed a nonparole period of two years and four months’ imprisonment, expiring on 19 May 2021.
The facts upon which Mr Fisher was sentenced were similar to those upon which the appellant was sentenced, but included the following additional facts:
(a)The incident started when the appellant said to Mr Fisher “let’s rob this guy”.
(b)When the appellant threatened to kill the complainant, Mr Fisher told the complainant “you better give him what he wants and get the fuck out”.
(c)The appellant’s girlfriend directed Mr Fisher to mop up the blood on the kitchen floor.
His Honour characterised Mr Fisher’s involvement in the offence as “quite significant” but accepted the Crown concession that he was “marginally less culpable” than the appellant: at [37].
The sentencing judge noted that Mr Fisher had told the author of the pre-sentence report that he had attended the appellant’s address for the purpose of using illicit substances and that the offence had not been planned: at [26].
The sentencing judge noted the following subjective circumstances and drew the following conclusions about Mr Fisher:
(a)Mr Fisher had “a reasonably significant criminal history, including prior convictions for dishonesty and violence” and was not entitled to leniency on the basis of his prior criminal history: at [13].
(b)In relation to other matters, he had been in custody from 21 March 2018 to 3 June 2019.
(c)He identified as Aboriginal. He was one of eight siblings (six of whom were half-siblings).
(d)He suffered childhood disadvantage. He moved from his mother’s home when he was 12 years old and lived in refuges. He had never known his father.
(e)He left school prior to completing Year 8 and had limited literacy and numeracy. He had little employment history.
(f)He had a long history of substance abuse, commencing with cannabis at 12 (or 14) years of age and progressing to methamphetamine use at 16 years of age. He had attempted residential rehabilitation programs but had not completed a program.
(g)He suffered from schizophrenia which, at the time of sentencing, was well-managed on oral antipsychotic medication. There was no evidence to substantiate a finding that mental illness reduced his moral culpability for the offence, but the condition was relevant as general background about his health: at [33].
(h)He acknowledged the link between drug use and the offending behaviour and showed some victim insight: at [26].
(i)He was at high risk of general reoffending.
(j)It was difficult to assess Mr Fisher’s prospects of rehabilitation; they were “guarded”: at [40] and [41].
The sentencing judge referred to Henry, noting that the Henry principles were relevant when sentencing for an offence of aiding and abetting an armed robbery: at [36], citing R v Goundar [2001] NSWCCA 198; 127 A Crim R 331. His Honour observed that the use of actual violence rendered the offence more serious than the “typical” case discussed in Henry: at [39].
As in the appellant’s case, in sentencing Mr Fisher, the sentencing judge was satisfied that relevant sentencing purposes, particularly personal and general deterrence, required that he impose an immediate term of imprisonment: at [42] and [43].
The parity principle
The parity principle derives from the norm of “equal justice” which is an aspect of the rule of law: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) per French CJ, Crennan and Kiefel JJ at [28]. Their Honours continued:
[Equal justice] requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. …
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Footnotes omitted)
The parity principle applies to persons charged in connection with the same criminal conduct or enterprise, regardless of whether they are charged with the same offence, although the existence of different charges may cause practical difficulties in applying the principle: Green at [30]; Lowe v The Queen (1984) 154 CLR 606 (Lowe); Postiglione v The Queen (1997) 189 CLR 295.
Where an appellant alleges an unjustified disparity between their sentence and that imposed on a co-offender, the question is whether the disparity is such as to give rise to an objectively justifiable sense of grievance, i.e. whether it gives the appearance that justice has not been done: Lowe at 610; Green at [31].
The appellant submitted that Mr Fisher was at least as culpable as the appellant, if not more so; Mr Fisher had instigated the crime and inflicted more physical damage. Further, the subjective circumstances of the two men could not justify the disparity in sentences.
On this appeal, as in most appeals alleging breach of the parity principle, the real dispute was a factual one, turning on the extent to which the cases concerning the two offenders were comparable or different: Bond v The Queen [2020] NSWCCA 277 per Adams J at [60] (McCallum JA and Campbell J agreeing).
There were several points of distinction between the cases of the appellant and Mr Fisher.
First, the Crown conceded, and the sentencing judge accepted, that Mr Fisher was “marginally less culpable” than the appellant. Presumably, the fact that Mr Fisher was charged as aiding and abetting the substantive offence with which the appellant was charged, reflected the Crown view of his relative culpability.
In sentencing Mr Fisher, the sentencing judge was entitled to accept that Mr Fisher was “marginally less culpable” than the appellant. On the agreed facts in Mr Fisher’s case, it was the appellant who orally proposed committing the offence. The facts in the appellant’s case made no reference to an oral communication before Mr Fisher armed himself with an aluminium baseball bat. On the appeal, the appellant contended that, at least by inference, on the facts in the appellant’s case, Mr Fisher was the instigator. However, that argument was not put to the sentencing judge. In the appellant’s case, his Honour was entitled to proceed on the basis that the facts were silent about instigation.
Second, Mr Fisher was in possession of one implement, but the appellant was in possession of two implements, one of which was a knife. As the sentencing judge found, the knife was “a weapon capable of inflicting serious harm and even death”: at [22].
Third, the appellant was the offender to whom the complainant handed his money. The appellant threatened to kill the complainant, and at the conclusion of the incident he followed the complainant from the apartment, still holding a knife.
Fourth, Mr Fisher’s subjective circumstances were somewhat different. The expert report of Dr Samuels was tendered. It outlined the impact of schizophrenia on Mr Fisher.
The appellant contended that his personality disorder and the other psychological conditions from which he suffered were mental conditions that were relevant in the same way that Mr Fisher’s schizophrenia was relevant; Mr Fisher’s mental condition was not a distinguishing feature. The appellant relied on the decision of Brown v The Queen [2020] VSCA 212, in which the Victorian Court of Appeal (comprising a bench of five judges) determined that the “Verdins principles” (the principles directing the manner in which mental illness may inform sentencing) were not necessarily excluded in the case of personality disorders. At [69], the Court said:
Whether in a particular case involving such a disorder the expert evidence establishes a clinically significant impairment of mental functioning will, of course, depend on the circumstances of the case and the nature and content of the expert opinion.
In Mr Fisher’s case, there was expert opinion about the impact of the condition of schizophrenia. The sentencing judge was entitled to take it into account. In the case of the appellant, there was no such expert material.
The appellant’s prospects of rehabilitation were “poor”, whereas those of Mr Fisher were difficult to determine; the sentencing judge was “guarded” in relation to Mr Fisher’s prospects of rehabilitation.
Compared to the appellant, Mr Fisher displayed slightly more insight into the reasons for his offending conduct and the impact of his actions on the victim.
These differences in objective and subjective features were not dramatic, but they were real. Similarly, the starting points for the sentences of the appellant and Mr Fisher (58 months’ and 48 months’ imprisonment) were different, but not vastly different. Ultimately, the question of whether there should be a difference in the sentences was a matter for the sentencing judge.
Where offenders have been sentenced by the same judge, and especially when they have been sentenced by the same judge at the same time, the inference is that the sentencing judge knew and took account of relevant similarities and differences in the objective and subjective circumstances relating to each offender. In such circumstances, this Court should be cautious about deciding that one offender has a justifiable sense of grievance because they received a different sentence: Baladjam v The Queen [2018] NSWCCA 304; 341 FLR 162 at [154] citing, among others, Swan v The Queen [2006] NSWCCA 47 at [71].
In this case, the sentencing judge’s discretionary decision that there should be different sentences and that the appellant’s sentence should be somewhat greater does not give rise to a justifiable sense of grievance; it does not give the appearance that justice has not been done.
On the other hand, given the Crown concession about relative culpability and the differences referred to above, if this Court reduced the appellant’s sentence to match that of Mr Fisher, Mr Fisher may well have a justifiable sense of grievance: see Eakin v The Queen [2020] NSWCCA 294.
Order
Appeal dismissed.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Abraham. Associate: Date: |
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