Bird v The Queen
[1988] TASSC 65
•22 December 1988
Serial No 64/1988
List “A”
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Bird v R [1988] TASSC 65; A64/1988
PARTIES: BIRD
v
THE QUEEN
FILE NO/S: CCA 113/1988
DELIVERED ON: 22 December 1988
DELIVERED AT: Hobart
JUDGMENT OF: Neasey, Underwood and Crawford JJ
Judgment Number: A64/1988
Number of paragraphs: 33
Serial No 64/1988
File No CCA 113/1988
BIRD v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
NEASEY J
UNDERWOOD J
CRAWFORD J
22 December 1988
ORDERS OF THE COURT:
1 Leave to appeal granted.
2 Appeal dismissed.
List "A"
File No CCA 1131988
BIRD v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
NEASEY J
22 December 1988
I agree with the judgment of Underwood J
List "A"
File No CCA 113/1988
BIRD v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
UNDERWOOD J
22 December 1988
This is an application for leave to appeal against sentence. The applicant pleaded guilty to the following:
1 Five counts of motor vehicle stealing contrary to the Police Offences Act, s37B.
2Two counts of unlawfully setting fire to property contrary to the Code, s269. In both cases the property set fire to was a motor vehicle.
3Six counts of stealing contrary to the Code, s234. In four cases the property stolen was a motor vehicle and in two cases, accessories from a motor vehicle.
4One count of burglary contrary to the Code, s244. The property unlawfully entered by the applicant was a motor vehicle.
On one count of stealing a motor vehicle and one count of unlawfully setting fire to that motor vehicle, crimes committed with an accomplice David John Barr, the applicant was sentenced to nine months' imprisonment.
On five counts of motor vehicle stealing, crimes committed with an accomplice Richard Lee Cook, the applicant was sentenced to 12 months' imprisonment. The execution of the whole of that sentence was conditionally suspended for two years.
On five counts of stealing, one count of unlawfully setting fire to property and one count of burglary the applicant was sentenced to 27 months' imprisonment to be served at the expiration of the sentence of nine months' imprisonment. With respect to these matters four of the five counts of stealing and the count of unlawfully setting fire to property were committed with the accomplice Cook.
In total, the applicant was sentenced to 48 months' imprisonment, the execution of the last 12 months of which was conditionally suspended for two years. The applicant relied upon the following grounds of appeal:
1The learned trial judge erred in law and in fact in accepting and concluding that the appellant's culpability was greater than that of his accomplice Richard Lee Cook.
2The sentences of imprisonment imposed upon the appellant were unjustifiably disparate with the sentences imposed upon his accomplices, Richard Lee Cook and David John Barr.
3The sentences of imprisonment imposed upon the appellant were, in all the circumstances, manifestly excessive.
4The learned trial judge erred in law and in fact in affording insufficient weight to the overall or total effect of the various sentences of imprisonment which were in fact imposed.
5The learned trial judge erred in law and in fact in affording insufficient weight to the prospects of rehabilitation of the appellant.
The crimes in respect of which the applicant was sentenced to nine months' imprisonment were committed after the applicant and the accomplice Barr were approached by a person and asked to steal and destroy a van. The keys were left under a mat on the floor of the van and the two offenders took it and, after driving it for a short while, set fire to it by placing a rope in the petrol tank and igniting it. For these crimes Barr was released on a probation order to be of good behaviour for two years, and during that period to appear for sentence when called upon to do so and place himself under the supervision of a probation officer.
The applicant's principal complaint with respect to his sentence is that it is unjustifiably disparate to the sentence imposed upon Barr. In Lowe v The Queen (1984) 154 CLR 606 Mason J (as he then was) said at 613:
" ... what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."
See also Prestage v The Queen [1979] Tas R 270.
Although there was nothing in the circumstances surrounding the commission of the crimes to warrant discrimination between the two offenders there was much in their backgrounds to justify the imposition of the different sentences. At the time the crimes were committed the applicant was aged 21 years and Barr 18½. The applicant had a large number of previous convictions for offences of dishonesty and had served several periods of imprisonment. Barr's prior convictions for dishonesty were less numerous than those of the applicant and he had not previously been in prison. The pre–sentence report on the applicant held little promise for his future rehabilitation. The pre–sentence report on Barr indicated that, since the commission of these crimes, he had been influenced by a Mr Leitch, a supervisor for the Community Service Order Scheme. As a result of Mr Leitch's counselling Barr went to the police and voluntarily confessed to the commission of these crimes. He took up and maintained remunerative employment and re–established good links with the family that had fostered him as a child. In short, the circumstances of the applicant called for the imposition of a substantial term of imprisonment but the circumstances of Barr required that he be given an opportunity to continue the process of self rehabilitation. No justifiable sense of grievance arises out of the disparity between the two sentences.
Of the remaining 12 offences, 10 were committed with the accomplice Cook. However, Cook was additionally convicted of five other offences being four counts of motor vehicle stealing and one count of unlawfully setting fire to a motor vehicle. On all these matters Cook was sentenced to a total of 36 months' imprisonment but the execution of the last 15 months was conditionally suspended for a period of two years. On the disparity ground learned counsel for the applicant submitted:
1The applicant's and the accomplice's participation in the 10 matters of which both were convicted was equal.
2The antecedents of the applicant and Cook were, for all practical purposes, identical.
3Cook was convicted of three more offences than the applicant.
4The total of the applicant's sentence exceeded Cook's by three months and, by reason of the different periods of suspension the applicant's period of actual custody exceeded Cook's by six months.
Cook was convicted of stealing nine motor vehicles contrary to the Police Offences Act, s37B. The applicant was also convicted of stealing five of those motor vehicles with Cook. With respect to these offences Cook was sentenced to 15 months' imprisonment wholly suspended and the applicant to 12 months' imprisonment also wholly suspended.
Cook was convicted of stealing three motor vehicles contrary to the Code, s234, unlawfully setting fire to two of those motor vehicles and stealing accessories from one of them. For these crimes he was sentenced to 21 months' imprisonment.
The applicant was also convicted of stealing the same three motor vehicles, setting fire to one of them and stealing accessories from one of them. In addition, he alone was convicted of burglary and stealing from another vehicle being one of those in respect of which both he and Cook were convicted of motor vehicle stealing. For these crimes he was sentenced to 27 months' imprisonment.
No distinction can be drawn between the applicant and Cook with respect to their involvement in the commission of the crimes. The applicant was 15 months' older than Cook. The applicant's first prior conviction for an offence of dishonesty occurred in 1982. Cook's first such conviction was also 1982. Cook was not convicted again until December 1983. In the same period the applicant was convicted on six occasions for offences of dishonesty, unlawfully setting fire to property, making a false declaration and breaches of a probation order. In December 1983 Cook was convicted of motor vehicle stealing, burglary (2), stealing (4), destroying property and injuring property (6) and, in February 1984, of "shoplifting".
In 1984 the applicant was convicted of imposition, motor vehicle stealing (2), trespass (5), destroying property (3), burglary (5), stealing (12) and a breach of probation order. In that year he was sentenced to imprisonment for 14 months but seven months of that sentence was conditionally suspended. These were the applicant's last prior convictions for offences of dishonesty.
In June 1985 Cook was convicted of stealing (2), motor vehicle stealing, injuring property and burglary and stealing and received sentences totalling four months, one month of which was conditionally suspended.
From the foregoing analysis it can be seen that, although the applicant has not been convicted of any serious offence since 1984, his overall record of convictions was more extensive than Cook's. The psychiatric material before the court described Cook as:
" .... a boy of borderline intelligence who tries to buy friendship by going along with whatever his mates are doing and does not have any self–esteem to be able to say no to some of the exploits his friends have been getting into, although he did seem to draw the line at not getting into drugs."
This view was confirmed by a pre–sentence report which referred to Cook being led by his associates. The report also referred to the benefit Cook would be likely to receive from supervision by a probation officer and the fact that he had not previously been in breach of a supervision order.
The pre–sentence report on the applicant spoke of his poor general attitude and scholastic achievement. The report stated that the applicant had been in breach of a probation order on three occasions between 1982 and 1984 but that he had satisfactorily completed the three year order following his release from prison in 1984. His performance of community service orders was described as only fair.
It is not correct to say that the antecedents of each offender were the same. In addition the learned sentencing judge was entitled to infer that, by reason of intellectual impairment, Cook's responsibility for the offences was less than the applicant's and that Cook's prospects for rehabilitation were brighter than the applicant's.
In imposing sentence the learned sentencing judge was entitled to take into account the fact that, prior to the commission of the offences with Cook, the applicant had stolen and set fire to a motor vehicle in company with Barr.
Having regard to those matters and the different offences in respect of which Cook and the applicant were convicted it cannot be said that a difference of three months in a total sentence in excess of three years and/or a difference of three months in the period of suspension of the two sentences was sufficiently disparate to warrant intervention.
In Lowe v The Queen (supra) the court considered a sentence of six years (two year non–parole period) with a probation order for three years on a conviction for armed robbery. The references in the judgments of the members of the court to unjustified disparity must be read in the light of those facts. The principle established by Lowe's case does not require this Court to examine in minute detail minor differences in the sentences imposed upon co–offenders. Imposing sentence calls for the exercise of a judicial discretion and it will be a rare case when it can be demonstrated that the circumstances of co–offenders are so identical that any difference in sentence will give rise "to a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander" (per Mason J at 613). This court will only interfere on the ground of disparity where the disparity is excessive.
In his comments on passing sentence on Cook the learned sentencing judge referred to the contents of the probation report and the psychiatric report and said:
"As a general overall assessment, which is not an easy assessment to make when there has not been a trial, but my assessment is that in many ways his [Cook's] culpability is less than Mr Bird."
Ground 1 of the application for leave to appeal asserts that the learned trial judge erred in making a finding that the appellant's culpability was greater than that of his accomplice Cook.
In the pleas in mitigation counsel for Cook and counsel for the applicant each asserted that the accomplice played the dominant role in the commission of the offences. No evidence was adduced on the plea in mitigation and complaint is made that, in the face of conflicting submissions, the learned sentencing judge was unable to make any finding with respect to this matter in the absence of sworn evidence.
The reception of material in the sentencing process in the criminal court is governed by the Code, s386(7) to (10). Subsection (10) states in statutory form that which has always been accepted as a fundamental principle of justice. In R v O'Neill [1979] 2 NSWLR 582 Moffitt ACJ said at 588:
"First a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied on by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. [Provided for by s386.] Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused."
See also R v Maitland [1963] SASR 332; Murphy v The Queen [1947] QWN 4; Eastwood v Lyons, Cox J, 4184.
However, in my view, his Honour's statement that in many ways Cook's "culpability" was less than that of Mr Bird was a reference to the antecedents of the two offenders and not the relative degrees of participation in the commission of the crimes. The statement is described by his Honour as "a general overall assessment" and is made in the context of the material contained in the pre–sentence and psychiatric reports. His Honour was referring to the relative culpability or "deserving of punishment" (OED) by reason of antecedents and mental capacity and not to participation in the commission of criminal activity. Accordingly ground 1 is not made out.
Although both offenders were relatively young, neither was inexperienced in criminal activity. The crimes committed by the applicant were numerous and serious, committed over a period of time, related to seven different motor vehicles and involved the destruction and loss of property worth thousands of dollars. The applicant's conduct amounted to sustained and repeated criminal activity committed in the absence of extenuating circumstances. Viewed both individually and collectively the sentences cannot be described as manifestly excessive. The suspension of 12 months of the total sentence of 48 months was a proper exercise of his Honour's discretion having regard to the prospects, albeit not bright, of the applicant's future rehabilitation.
I would allow the application for leave but dismiss the appeal.
List "A"
File No CCA 113/1988
BIRD v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL:
CRAWFORD J
22 December 1988
For the reasons stated by Underwood J I agree that the application for leave to appeal should be granted but the appeal should be dismissed.
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