Belvie v The Queen

[2017] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Belvie v R [2017] NSWCCA 36
Hearing dates:	1 December 2016
Date of orders:	14 March 2017
Decision date:	14 March 2017
Before:	Meagher JA at [1]; Johnson J at [1]; Rothman J at [10]
Decision:	Leave to appeal refused.
Catchwords:	CRIMINAL LAW – Appeal – disparity alleged between adult offender and juvenile – substantial difference in subjective circumstances – no arguable case; APPEALS – Criminal law – disparity not squarely put below – no arguable case – leave refused.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 33(1)(b), 33(1)(g), 33(1B) Crimes Act 1900 (NSW), s 59(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases Cited:	Abdelmeseeh v R [2016] NSWCCA 312 Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237 BP v R [2010] NSWCCA 159 Corda v R [2014] NSWCCA 281 CPD v R [2010] NSWCCA 52 Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kentwell v R (No 2) [2015] NSWCCA 96 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 MJ v R; KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v AN [2005] NSWCCA 239 R v Colgan [1999] NSWCCA 292 R v Govinden (1999) 106 A Crim R 314; [1999] NSWCCA 118 R v GDP (1991) 53 A Crim R 112 R v LNT [2005] NSWCCA 307 Ruttley v R [2010] NSWCCA 118 Sheather v R [2009] NSWCCA 173 Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Principal judgment
Parties:	Adam Belvie (Applicant) Crown (Respondent)
Representation:	Counsel: M Smith (Applicant) S Dowling SC (Respondent)   Solicitors: SCT Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2012/230431
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 July 2015 Before: Colefax SC DCJ File Number(s): 2012/230431

Judgment

1. MEAGHER JA and JOHNSON J: We have had the advantage of reading in draft the judgment of Rothman J. We agree with his Honour that the applicant should be refused leave to appeal against sentence. We prefer to express our own short reasons for that conclusion.

2. The factual background to the present application appears in the judgment of Rothman J.

3. The sole ground of appeal seeks to invoke the parity/proportionality principle by reference to a co-offender sentenced in the Children’s Court. The so-called second ground of appeal was merely a submission as to the approach which the Court should take if error had been demonstrated as asserted in the single operative ground.

4. This Court has emphasised the very different sentencing regimes which apply to the Children’s Court and an adult offender dealt with in the criminal courts, whilst accepting that what occurred in the Children’s Court is not irrelevant to the question whether an offender may have a justifiable sense of grievance: R v Govinden (1999) 106 A Crim R 314; [1999] NSWCCA 118 at [36] – [37]; R v Colgan [1999] NSWCCA 292 at [11], [15]; Sheather v R [2009] NSWCCA 173 at [25]; Ruttley v R [2010] NSWCCA 118 at [55] – [56]; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at [96], 504 [121].

5. The applicant confronts some fundamental difficulties in the present case.

6. Firstly, the argument advanced in this Court was not put, in terms, to the sentencing judge. A cursory submission was made in that Court and was dealt with in suitably brief terms by the sentencing judge in a manner which does not disclose error.

7. Secondly, the applicant was an adult offender who committed a serious crime of violence whilst in company with young offenders at a time when the applicant was on parole for a similar serious crime of violence. The applicant had an earlier criminal history as well for an offence of violence. When given an opportunity by way of a grant of bail for the purpose of the sentencing proceedings in the District Court, the applicant committed a further offence thereby rendering his own position bleak with respect to his prospects of rehabilitation and the risk of re-offending and the need for specific deterrence. By way of contrast, the offenders dealt with in the Children’s Court had no prior criminal histories.

8. Apart from the very different sentencing regimes involved, a recital of these aspects of the applicant’s case illustrate the clear difficulties which stand in the way of the applicant contending that error is demonstrated in this case.

9. The applicant’s submissions in this Court are sufficiently unmeritorious that leave to appeal against sentence should be refused.

10. ROTHMAN J: The Applicant, Adam Belvie, appeals against the sentence imposed upon him in the District Court on Friday 17 July 2015. The District Court of New South Wales, comprised, on this occasion, by Judge Colefax SC, imposed a sentence of full-time imprisonment comprising a head sentence of three years and two months, commencing from 17 November 2014 and concluding on 16 January 2018 included in which was a non-parole period of two years and four months that is to conclude on 16 March 2017.

11. The sentence was imposed in relation to a charge of assault occasioning actual bodily harm in company, which is a contravention of s 59(2) of the Crimes Act 1900 and for which the maximum penalty is seven years’ imprisonment. There is no standard non-parole period.

12. The Applicant pleaded guilty and was sentenced on the basis of an agreed statement of facts that was summarised by the sentencing judge. No issue is taken with the summary of facts or any finding of fact.

13. There are two grounds of appeal:

Ground 1: The sentence imposed upon the Applicant is so disproportionate when compared to that imposed on the co-offender NW that the Applicant is left with a justifiable sense of grievance;

Ground 2: A lesser sentence is warranted in law.

14. The first comment I would make is that the proposition that a lesser sentence is warranted in law is relevant to the resentencing exercise required of the Court if there be error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 but does not, itself, give rise to error. A range of sentences is available and unless the sentence imposed is manifestly excessive (or, in the case of a Crown appeal, inadequate) the circumstance, if it were to exist, that the appeal court might consider a lesser sentence warranted does not give rise to a ground for the interference in the discretion exercised by a sentencing judge. Rather, it is a discretionary factor, which, if not satisfied, would allow the dismissal of an appeal for error otherwise disclosed. The foregoing is not a criticism of Ground 2, which was not pressed (either in writing or orally) as a free-standing ground of appeal, but was solely directed to the re-exercise of the sentencing discretion if error were otherwise made out: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [40] – [44]; Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237 at [19]; Kentwell v R (No 2) [2015] NSWCCA 96 at [6], [49] – [54].

Facts

15. On 20 July 2012, the victim (a 15-year-old boy) and two friends attended the premises where the Applicant then lived. The Applicant was aged 21 at the time. Alcohol and cannabis were consumed at the premises.

16. During the evening the victim’s friends left and a co-offender, NW, encouraged the victim to remain at the home. Shortly thereafter, the victim sent a text message to one of his two friends saying: “Dude, please help me, they are about to jump me, please”.

17. After he dismissed the taxi ordered by the victim, the co-offender, NW, offered to drive the victim home and NW, the victim, together with the Applicant, drove to a service station and returned to the premises, where DB joined the other three. Thus the Applicant was involved in the offending from an earlier time than DB and almost at the earliest possible time.

18. The Applicant, the victim and the two co-offenders (NW and DB) went to a nearby reserve where the victim was told to get on his hands and knees. NW kicked him to the left eye. The victim began to cry and curled into a ball.

19. All three offenders began to strike the victim to the head and stomach, whilst he remained on the ground. The assault stopped; but the ridicule continued.

20. The cessation of the assault was accompanied by an implied threat that further assault would occur at the time and the further threat that if anyone were told of what had happened, there would be greater physical repercussions.

21. The victim walked to a service station where he obtained a lift to an address in West Ryde. The victim was then taken to Westmead Hospital and Police were contacted.

22. The victim was observed to be limping, suffering erythema (redness caused by burst capillaries) to the right upper corner of the forehead; abrasion to the central-upper forehead at the hairline; bruising, swelling and tenderness to the left-upper eyelid with bleeding; mild swelling of the centro-left forehead; tenderness over T2-T3 vertebrae and also tenderness at the third and fourth left ribs. He also had erythema, bruising and abrasions to both knees.

23. The Applicant pleaded guilty to the single count set out above and the facts allege that he, with DB and NW, whilst in company with each other, assaulted the victim and caused actual bodily harm. His co-offenders also pleaded guilty to the same charge. NW pleaded guilty to a further offence of “demand money with menaces”, committed upon the same victim.

24. The co-offenders, DB and NW, were aged 17 years and 16 years respectively at the time of the offence. Each was dealt with in the Children’s Court.

25. DB was sentenced to a good behaviour bond for 18 months (pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987) and was required to pay a victim’s compensation levy and court costs. NW was sentenced in respect of both matters (i.e. the offence for which the applicant was sentenced and the demanding money with menaces offence) to a control order for eight months, however the order was suspended on the condition that he enter into a bond to be of good behaviour for that time: see s 33(1)(g) and s 33(1B) of the Children (Criminal Proceedings) Act. He was subject to supervision by community corrections during the course of the suspended sentence and NW was also required to pay a victim’s compensation levy and court costs.

26. In dealing with the sentence to be imposed on the Applicant, the sentencing judge allowed a 10% discount for his plea of guilty and imposed upon him the sentence outlined above.

Remarks on Sentence

27. The learned sentencing judge found that the objective seriousness of the offence was at the mid-range of offending conduct of this kind (ROS p 4) and referred to the subjective fact that a further offence was committed by the Applicant whilst he was on bail for the offence in question. His Honour stated:

“[t]hat bail was revoked recently because of further offending behaviour which involved acting in a group and inflicting violence on a relatively defenceless young person. … is a very disturbing theme in this offender’s life.” (ROS p 5)

28. The further offence that was committed while the Applicant was on bail for the current offence discloses even more starkly the increased need to factor in specific deterrence. The offence for which the Applicant was sentenced and from which the appeal is taken was also committed whilst on conditional liberty. The offender, at the time of the commission of the offence, was on parole for the offence of robbery in company, which, like this offence, involved, amongst other things, punching and stomping on the head of his victim.

29. His Honour also rejected the Applicant’s evidence of remorse, stating:

“[t]he Court of Criminal Appeal has made it clear that a sentencing judge is entitled to look with scepticism at expressions of remorse which do not come from sworn evidence. And, in this offender’s case and by having regard to his background, I look at his so-called expressions of remorse with considerable suspicion.” (ROS p 6)

30. His Honour also considered rehabilitation and concluded that there was nothing to suggest that the Applicant’s “prospects for rehabilitation are other than poor”. (ROS p 6)

31. The sentencing judge declined to find special circumstances and stated that “[n]o sentence other than a period of imprisonment is appropriate … [and by] … having regard to the track record of the offender, I am not satisfied that his prospects of rehabilitation would be enhanced by a longer period on parole and I decline to find special circumstances”. (ROS p 7)

32. His Honour had before him the sentences imposed upon the Applicant’s co-offenders. It cannot be said that the sentencing judge did not consider them. Nor has it been said that any of the other findings or conclusions were errors. As to the issue of disparity, his Honour expressed surprise at the sentences imposed on the co-offenders, in the following terms:

“I am informed that the co-offenders…had no criminal histories. I cannot express other than surprise at the sentences they received in the Children’s Court. And, in any event, the principles of sentencing in that Court are not relevant here. Principles of parity are of little, if any, significance.” (ROS p 7)

33. However, his Honour did not have any extract of the Remarks on Sentencing of either co-accused and the only information conveyed to his Honour was that each had no criminal record.

Applicant’s Submissions and Consideration

34. Essentially the Applicant suggests that there is a justifiable sense of grievance because of the disproportionate sentence imposed upon the two co-offenders compared with the sentence imposed upon the Applicant. The Applicant submits that sentences imposed on a juvenile in the Children’s Court are not necessarily irrelevant when looking at that imposed on an adult. As a general statement, that principle is correct.

35. The principles of sentencing have been expressed on a number of occasions and, for an adult, sentencing occurs for the purposes described in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), including punishment, general deterrence, specific deterrence, protection of the community, retribution and reform: Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14. None can be considered in isolation and the process is one in which the sentencing judge synthesises the objective seriousness of the offence with the subjective circumstances of the offender to achieve the aforementioned purposes. Some of those purposes, all of which are guideposts, point in different directions.

36. The principles of sentencing, broadly defined, do not differ, when dealing with a juvenile, but take account of the juvenile’s age as a fundamental subjective element and emphasise rehabilitation, rendering less significant the factors of deterrence and punishment.

37. Notwithstanding the applicability of broadly defined principles of sentencing, the legislature has made it clear, as has this Court, that the emphasis in sentencing a juvenile is fundamentally different. The terms of s 6 of the Children (Criminal Proceedings) Act requires the sentencing function to be exercised in accordance with the principles there prescribed, which include the equality of rights and freedoms; the need for children to bear responsibility for their actions but the requirement for guidance and assistance in relation thereto; the desirably of the continuation of education and/or employment without interruption; the need to have the juvenile residing in his or her own home; the need to assist in the reintegration into the community of the juvenile; and the need to sustain family and community ties. As otherwise explained in these reasons, generally, considerations of punishment and general deterrence are of lesser weight than in relation to an adult and the purposes of rehabilitation are of greater significance: R v GDP (1991) 53 A Crim R 112.

38. The principles in sentencing a child, as earlier stated, have been expressed on a number of occasions: see R v AN [2005] NSWCCA 239 (per Howie J, with whom James and Rothman JJ agreed); R v LNT [2005] NSWCCA 307; MJ v R; KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22] – [26]; CPD v R [2010] NSWCCA 52; and BP v R [2010] NSWCCA 159. In the last-mentioned matter, Hodgson JA dealt extensively with the principles associated with the sentencing of a young offender, in the following passage:

“[3]   The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

[4]   First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

[5]   Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] NZCA 19; [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

[6]   Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.’

39. As can be seen, while the “principles” of sentencing remain the same, the emphasis on different aspects is quite substantial, when dealing with a juvenile as against the situation when one is dealing with a mature adult. Moreover, in dealing with a juvenile, and doing so in the Children’s Court, the statutory regime is entirely different and the range of sentences imposed is completely at variance.

40. In the written submissions, the Crown referred the Court to a number of judgments of this Court dealing with the parity principle, if applicable, when comparing adult sentences and those dealt with by the Children’s Court: see Ruttley v R [2010] NSWCCA 118; Corda v R [2014] NSWCCA 281; and Abdelmeseeh v R [2016] NSWCCA 312. In the last mentioned reasons for judgment, Johnson J (with whom Meagher JA and Rothman J agreed) made clear that the parity principle did not assist the applicant in that case in comparing the sentence imposed with the sentence imposed on his younger brother and cited, with approval, both Ruttley, supra and Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at [121].

39. Nevertheless, this Court will intervene on the basis of manifest disparity in a sentence imposed upon co-accused. It will do so where there is unjustifiable disparity and the disparity engenders a justifiable sense of grievance on the part of the Applicant: Lowe v R (1984) 154 CLR 606; [1984] HCA 46. It will also do so on the basis that the disparity between co-offenders gives the appearance that justice has not been done.

40. The principle of disparity derives from an application of the principles of equal justice and embodies the norm expressed in the term “equality before the law”: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [28]. It is, as the High Court there expressed, an aspect of the rule of law. It requires identity of outcome in cases that are relevantly identical and requires different outcomes in cases that are different in a relevant respect; the difference in outcome reflecting the difference in the relevant respect.

41. As a consequence of the application of the principles expressed by the High Court in Green & Quinn (supra) and in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, comparisons may be made more broadly than may have hitherto been thought.

42. Nevertheless, the principle was and remains a reflection of the application of the norm of equality before the law and involves this Court intervening only when there is a justifiable sense of grievance at the sentence imposed on others.

43. The difference in the subjective circumstances between the Applicant, on the one hand, and his two co-offenders, on the other hand, in the conduct with which the court below was dealing, is manifest. The Applicant was 21 years of age at the time of the offence.

44. The Applicant was significantly over the age of majority and at or near the age at which mental maturity is reached. One can infer that his influence on the two juvenile co-offenders was significant.

45. The Applicant must realise, as an adult who has reached maturity, the Court will deal with him significantly differently from the manner in which it will deal with juveniles in the same circumstances. There is good reason for a difference between the sentence imposed upon the Applicant and that imposed upon his co-offenders.

46. The Applicant does not submit that the sentence imposed is manifestly excessive and/or outside the range that may have been imposed by the sentencing judge. The sentence imposed is, but for the claim for disparity made on appeal, otherwise within the range for an appropriate sentence for the subjective and objective circumstances involved in the Applicant’s offending.

47. The question raised by the appeal is the more confined and more difficult question of whether the difference between the Applicant’s sentence, on the one hand, and the sentence imposed on his co-offenders, particularly NW, is outside that which would properly reflect the difference in their age and circumstances.

48. On one view of the facts, NW was at least as culpable, if not more culpable, than the Applicant. Nevertheless the difference between the jurisdiction exercised by the Children’s Court and that exercised by either the District Court or this Court cannot be overestimated. These are fundamentally different sentences imposed upon persons for fundamentally different reasons, namely, the additional significance of rehabilitation for the juveniles and the lesser significance of both general and specific deterrence.

49. In my view, if there be a disparity (i.e. a difference that does not reflect the difference in the circumstances), it is not such as would warrant interference by this Court. Further, lest it be said that the matter has been left open by the foregoing comment, I make it clear that, in my view, the difference in the sentences imposed upon the Applicant, as against his co-offenders, reflects the difference in the application of the principles of sentencing that must be exercised and, while judges will have a different view as to the level of that difference, the difference does not give rise to a justifiable sense of grievance.

50. Three further comments should be made. First, no error is disclosed by the remark concerning the difference in principles: see [32] above. To hold otherwise would be to concentrate on form rather than substance.

51. Secondly, where, as here, there is a legitimate basis for different sentences to be imposed, the task for an appellant seeking to overturn a sentence on the basis of disparity is far more onerous. This is due to the necessary range of sentences that may reflect a proper comparison.

52. Thirdly, at first instance the Applicant did not squarely invoke the parity principle. The Applicant, as earlier noted, did not place before the sentencing judge the reasons for the sentences on the co-accused, which would be necessary for a proper assessment to have been made of the similarities and differences between the offenders.

53. The only reference to parity was a passing reference in terms that “the issue of parity is something that would concern your Honour” (Appeal Book at 125). As earlier stated, the parity principle is an application of the norm of equal justice. It arises only where there is an “unjustifiable disparity”, although I prefer the term “unjustifiable difference”, because it is a “disparity” only if it is “unjustifiable”.

54. Nevertheless, it is the lack of justification for the “disparity” that gives rise to the unequal application of the law and it is the “unjustifiable” nature of the disparity that is the ground for intervention: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green & Quinn, supra.

55. In this case, given the age differences and difference in regime to be applied, the imposition of the same sentence (or its adult equivalent) would have been contrary to principle. As such, the Applicant must show error in the particular discretion exercised and, in the absence of identifiable error of fact or principle, must show manifest error in the setting of a sentence that is not related to the different circumstances. This has not been done.

56. Given that the ground of parity was not even squarely raised at first instance, and, even if it were allowed to be raised here, would not be successful, leave to appeal should be refused.

57. For the foregoing reasons, I propose that the Court make the following order:

1. Leave to appeal refused.

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Decision last updated: 14 March 2017