Beadman, G.T. v The Queen

[1993] FCA 357

GLEN THOMAS BEADMAN v. THE QUEEN
No. ACT9 of 1992
FED No. 357
Number of pages - 6
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Morling(1) and Drummond(1) JJ

CATCHWORDS

Criminal Law - sentencing - disparity between sentence of prisoner and three co-offenders - all offenders pleaded guilty - one co-offender provided assistance to police in relation to offence allowing for reduction in sentence of co-offender on basis of assistance provided to police - disparity not explained by any difference in respective involvement in the offence or criminal history - sentence of prisoner reduced so comparable with co-offenders.

Lowe v R (1984) 154 CLR 606

Malvaso v R (1989) 64 ALJR

R v Cartwright (1989) 17 NSWLR 243

R v Gillan (1991) 54 A Crim R 475

R v King (1986) 82 Cr App R 120

Weetra v Beshara (1987) 46 SASR 484

HEARING

CANBERRA, 29 March 1993

#DATE 1:4:1993

Counsel for the appellant: J. Purnell

Solicitor for the appellant: Meyer Boettcher and Clapham

Counsel for the respondent: S. Ibbotson

Solicitor for the respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The sentence of Gallop J of 8 April, 1992 that Mr. Beadman be imprisoned for five years in respect of the theft count is varied by reducing that sentence to one of three years' imprisonment.

3. The order of Gallop J of 8 April, 1992 is further varied by reducing the non-parole period fixed in respect of the three sentences from four years to two years and eight months.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES, MORLING AND DRUMMOND JJ On 29 March last we heard Mr. Beadman's appeal against a sentence imposed on him by Gallop J on 8 April, 1992. We allowed the appeal and said we would publish our reasons later.

1. His Honour sentenced Mr. Beadman to a term of six months' imprisonment on one count of possession of a drug of dependence and to a term of five years' imprisonment, cumulative upon the first sentence, on one count of theft of $27,490.00. Mr. Beadman pleaded guilty to both offences. His Honour also sentenced Mr. Beadman to a further term of six months' imprisonment, cumulative upon each of these two terms, for breach of a recognisance to be of good behaviour for two years. Mr. Beadman entered into this recognisance on 6 November, 1990. His convictions for the two offences constituted the breaches of the recognisance. In respect of these three sentences, totalling six years' imprisonment, his Honour fixed a non-parole period of four years.

2. The appeal is brought only against the sentence in respect of the offence of theft. It was not suggested that either of the terms of six months' imprisonment were inappropriate or that the orders his Honour made for the accumulation of the three sentences were wrong.

3. We say at once that we do not think the sentence of five years' imprisonment imposed by Gallop J in respect of the theft was outside the scope of a proper exercise of the sentencing discretion. We would not have interfered with it if Mr. Beadman had come before us as a sole offender. But he was not a sole offender. He had three companions in the theft and we have to consider his sentence in the light of the sentences imposed on the others.

4. The appeal was argued on the basis that his sentence for the theft offence should be reduced because of the marked disparity between it and the sentences imposed on Mr. Beadman's co-offenders.

5. It is because of this disparity that we allowed this appeal.

6. Mr. Beadman was the first of the four to be dealt with. Mr. Ward was the next to be sentenced, by Higgins J, followed by Mr. McArthur, who was sentenced by Miles CJ. Gallop J then sentenced Mr. Matheson. That Mr. Beadman was the first to be dealt with does not prevent him from complaining about the disparity between his sentence and those that his co-offenders later received: see Jones v R, The Legal Reporter, 8 March, 1993, in which Lowe v R (1984) 154 CLR 606 was explained and applied.

7. In Lowe v R Dawson J said at 622 that, where co-offenders fall to be sentenced by different judges, "such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible". Just such a situation has occurred here. It is unfortunate that all four were not brought before the same judge. In Lowe, Dawson J, Wilson J agreeing, also said at p 623:
   

"There is no rule of law which requires co-offenders to be

given the same sentence for the same offence even if no

distinction can be drawn between them ... But justice

should be even-handed and it has come to be recognised both

here and in England that any difference between the

sentences imposed upon co-offenders for the same offence

ought not be such as to give rise to a justifiable sense of

grievance on the part of the offender with the heavier

sentence or to give the appearance that justice has not been

done ... This has led to the variation of sentences by

Courts of Appeal in order to reduce the disparity between

sentences separately imposed upon co-offenders even where

the sentence varied was not in itself excessive."

1. Gibbs CJ, at 610, and Mason J, at 611, 612 and 613-4, expressed much the same view.

2. Although all ultimately pleaded guilty, each of Mr. Beadman's co-offenders and, in particular, Mr. McArthur and Mr. Ward, sought (as is understandable) to show that his own involvement was rather less serious than that of Mr. Beadman's. However, notwithstanding this, when regard is had to what was advanced on behalf of each of Mr. McArthur and Mr. Ward when they were sentenced, the facts upon which Mr. Beadman was sentenced provide a reasonably accurate picture of the culpability of all four offenders. It is therefore unnecessary for us to determine how an alleged disparity between sentences imposed on co-offenders is to be established where each co-offender is sentenced by a different judge and where each puts forward a version of his involvement in the offence that minimises his culpability, while being inconsistent with the culpability his co-offenders say he bears.

3. The circumstances in which the theft occurred are as follows. The suggestion that money might be stolen from a particular service station came from Mr. McArthur in response to concerns expressed by Mr. Beadman about his financial problems and, in particular, about his need to meet an outstanding solicitor's bill of about $10,000.00. The service station in question was managed by Mr. McArthur, who owned and operated a dry cleaning business adjacent to it. Discussions continued over a period of time between Mr. Beadman and Mr. McArthur. They considered staging a burglary at the service station. However, because of the difficulty involved in removing the safe, Mr. McArthur suggested staging an armed robbery; Mr. Beadman said that Mr. Ward, an acquaintance, could assist. A detailed plan for the robbery was worked out between Mr. McArthur and Mr. Beadman. This plan was later changed, Mr. Ward asserting on his sentence that this change was made because of his refusal to participate in that particular plan. It was finally agreed that Mr. Beadman and Mr. Ward would rob the van used to carry the service station's takings to the bank. This plan involved recruiting the van driver, Mr. Matheson, a 19 year old employee of Mr. McArthur. It was Mr. McArthur who persuaded him to participate. The agreement was that the proceeds would be split four ways. Mr. McArthur packed about $23,000.00 in cash and $4,000.00 in cheques, comprising the takings of the service station, in bags which he gave to Mr. Matheson who drove the van to a car park near the bank in which the proceeds should have been deposited. Mr. Beadman and Mr. Ward were waiting; they tied up Mr. Matheson and left with the money. Mr. Matheson waited for a time before raising the alarm. Mr. Beadman claims he got about $4,000.00 cash as his share of the proceeds with Mr. Ward taking $5,000.00. Mr. Beadman had nothing on him when he was arrested; he claimed he had spent the money he received, primarily to satisfy his drug addiction. $5,000.00 was found in a dry cleaning machine in Mr. McArthur's premises. Of the $27,490.00 in cash and cheques stolen, $19,410.00 was not recovered.

4. Mr. Beadman was 33 years of age at the time. He had a long history of drug dependence and a criminal history which included a sentence of 12 months' imprisonment suspended after he had served three months, which was imposed in 1990 for a series of offences including supplying and possessing drugs, handling stolen property and possession of an unlicensed firearm. He was also dealt with in 1989 for a serious offence of violence involving his then de facto wife which resulted in his being released on the recognisance, for the breach of which Gallop J sentenced him to six months' imprisonment on 8 April, 1992.

5. Mr. Ward is a little older than Mr. Beadman. However, he has a worse criminal record. His first offence of dishonesty occurred in 1969. He has many such convictions. He was first committed to a youth training centre when he was 15. He was first sentenced to imprisonment when he was 18. Since then, he has committed a number of sexual offences, including rape, for which he received a five year sentence, and a number of offences of dishonesty, including most recently, burglary, for which he received a 15 months' sentence in 1989. He received a sentence on his plea of guilty to the theft charge of 18 months' imprisonment, it was ordered that he be released after six months, on entering into a recognisance to be of good behaviour for two years. In imposing this sentence, Higgins J said that he took into account, among other things, "as a matter of some significance" that Mr. Ward had offered assistance to the police and that the police agreed that that assistance was helpful. Higgins J also took into account the fact that Mr. Ward had offered to give evidence against his co-offender, Mr. McArthur, who had not then indicated his intention to plead guilty.

6. Mr. McArthur can fairly be regarded as the instigator of the offence, although Miles CJ dealt with him on the basis that his participation in the offence was a combination of his initial wish to help Mr. Beadman, who was in financial trouble, combined with his later fear that if he did not co-operate then he ran the risk of violence at Mr. Beadman's hands. Mr. McArthur was a mature man of 40 years of age who, as we have said, committed a serious breach of trust by organising and participating in the theft of a substantial sum from his employer. Miles CJ thought it was likely that Mr. McArthur would have kept part of the $5,000.00 concealed in the dry cleaning machine, if the plan had succeeded. Mr. McArthur had, however, no previous convictions. Miles CJ acknowledged that, as a general rule, the usual sentence in a serious case of theft by a person in a position of trust, such as Mr. McArthur was, is immediate imprisonment. However, for reasons he gave, he regarded Mr. McArthur's case as one of those special ones which attract unusual sentences. He sentenced Mr. McArthur to three and a half years' imprisonment to be suspended forthwith upon his entering into a recognisance conditioned that he be of good behaviour for three years and further conditioned that, within three months, he pay $20,050.00 to the owner of the service station as compensation.

7. Mr. Matheson was much younger than the others and was persuaded to involve himself in the plan to steal the money by his employer, Mr. McArthur, late in the day. He had no previous convictions. Gallop J sentenced him to two years' imprisonment, a sentence suspended immediately upon his entering into a recognisance to be of good behaviour for two years and to perform 104 hours of community service.

8. There is a marked disparity between the sentences imposed on Mr. McArthur and Mr. Ward, on the one hand, and upon the appellant, on the other. This disparity as between Mr. McArthur and Mr. Beadman cannot, in our view, be satisfactorily explained on the basis of their respective involvements: the plan was initially proposed by Mr. McArthur and he participated in refining it to the form in which it was implemented. It is not explained by the difference in their antecedents: even though he was a first offender, Mr. McArthur's offence was such as would ordinarily call for a substantial sentence of immediate imprisonment. Miles CJ correctly, in our view, recognised this. The discrepancy is not explained by the fact that Mr. McArthur ultimately pleaded guilty: so did Mr. Beadman. The discrepancy as between the sentences imposed on Mr. Ward and on Mr. Beadman is not explained by their respective antecedents: Mr. Ward has a significantly worse criminal record than Mr. Beadman, although they are much the same age. We do not think the relatively less extensive involvement of Mr. Ward during the period the plan was devised is by itself enough to explain the disparity, particularly since it was he and Mr. Beadman who executed the theft.

9. Mr. McArthur's sentence was suspended immediately while Mr. Ward's was to be suspended after he had served six months. A suspended sentence must still be regarded as a sentence of imprisonment, imposed in recognition that the case calls for such a punishment, even though the circumstances of the particular offender are such as to justify not imposing an immediate custodial sentence: see Weetra v Beshara (1987) 46 SASR 484 at 491-2 and R v Gillan (1991) 54 A Crim R 475 at 480.

10. A sentence of three and one half years' imprisonment is, we think, entirely appropriate for an offence of the kind committed by Mr. McArthur, having regard to his previous good character. However, in deciding whether a disparity requires appellate intervention, the Court must have regard to the totality of the sentence upon each offender because of the reason for the rule in Lowe v R.

11. The disparity between the sentence of five years' imprisonment imposed on Mr. Beadman and the suspended sentence imposed on Mr. McArthur is so great as to require a reduction in Mr. Beadman's sentence in accordance with the principle in Lowe v R.

12. As to Mr. Ward, we have referred to what Higgins J had to say about the assistance he offered to both police and the prosecution. It is now well recognised that this factor generally justifies a heavy reduction in the sentence otherwise appropriate. In R v Cartwright (1989) 17 NSWLR 243, the New South Wales Court of Appeal held that whatever the offender's motive, where he gives truthful information to, and real co-operation with, the police and prosecution, that justifies a very significant reduction in the sentence otherwise appropriate. The same approach was adopted by the English Court of Criminal Appeal in R v King (1986) 82 Cr App R 120. In general, a reduction to about one half of the sentence otherwise appropriate may be allowed where an offender offers real assistance to the authorities. In special circumstances where the offender's assistance is particularly valuable, e.g., where it leads to the exposure and prosecution of corrupt officials, even greater consideration may be appropriate: see Malvaso v R (1989) 64 ALJR 44. Although it was submitted in argument that Mr. Ward's offer of assistance was illusory (a proposition disputed by counsel for Mr. Beadman), the fact remains that he was sentenced by Higgins J on the basis that the offer was of real value to the police and prosecution. This suggests that, but for that consideration, Mr. Ward's head sentence of 18 months' imprisonment would have been a sentence of about three years' imprisonment.

13. It appears that Higgins J decided to suspend Mr. Ward's sentence in part because of the real prospect that he considered existed of Mr. Ward being able to continue to rehabilitate himself. The material before us shows that no such consideration is applicable to Mr. Beadman. In our opinion, as between himself and Mr. Ward, Mr. Beadman has a legitimate grievance only in respect of the difference between his sentence of five years' imprisonment and a head sentence of three years' imprisonment which we think Mr. Ward would have received, but for his co-operation with the authorities.

14. We think the discrepancies between the sentence imposed in respect of the theft on the appellant and that which can be seen to be appropriate for Mr. Ward, but for his co-operation with the authorities, and between Mr. Beadman's sentence and the sentence imposed on Mr. McArthur, are such as to entitle the appellant to say that he has been treated with such disparity as gives him a claim to recognition within the principle stated in Lowe v R.

15. It was for these reasons that we decided to vary the sentence imposed upon Mr. Beadman for the theft by reducing it from five years to three years. As we have said, no complaint is made about the sentences for the drug offence or in respect of the breach of his recognisance, nor for the order that the various sentences be made cumulative one upon the other.

16. We agree with the learned primary judge that it is appropriate to set a non-parole period and, adopting his Honour's approach, we would fix the non-parole period in relation to the appellant (who we think should receive sentences involving a total period of four years' imprisonment) at two years and eight months. The first of the sentences should commence to run from the date fixed by Gallop J, 12 February, 1992.