Bowyer v The Queen
[2013] VSCA 358
•9 December 2013
VSUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0101
| SCOTT DOUGLAS BOWYER |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES | MAXWELL P and PRIEST and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 October 2013 |
| DATE OF JUDGMENT | 9 December 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 358 |
| JUDGMENT APPEALED FROM | DPP v Tidboald & Ors (County Court of Victoria, Judge Tinney, 9 May 2013) |
---
CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Criminal damage – Non-prohibited person in possession of a firearm – Term of imprisonment of 3 years 9 months – Non-parole period of 2 years 2 months – Whether disparity in sentence with co-offender reflected differences in offending and personal circumstances – Appeal dismissed – No point of principle.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms P Murphy | Victoria Legal Aid |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I agree with Coghlan JA.
PRIEST JA:
I also agree with Coghlan JA
COGHLAN JA:
The appellant and his two co-offenders, Sean Tidboald and Bradley Males, each pleaded guilty to one charge of aggravated burglary and to one charge of criminal damage in the County Court. Tidboald and Males pleaded guilty to an additional charge of being a prohibited person in possession of an unregistered firearm. Each offender pleaded guilty to a related summary offence. They were sentenced by the learned sentencing judge on 9 May 2013 as set out in the table below.
Offender Charge Offence Maximum penalty Sentence imposed Cumulation TES Scott Bowyer 1 Aggravated Burglary 25 years 3 years and 6 months Base 3 years and 9 months with a non-parole period of 2 years and 2 months 2 Criminal Damage 10 years 9 months 3 months RSO Non-prohibited person in possession of an unregistered firearm 2 months Concurrent Pre-sentence detention declared: 25 days S6AAA statement: 6 years with a non-parole period of 4 years Sean Tidboald 1 Aggravated Burglary 25 years 4 years Base 4 years and 8 months with a non-parole period of 2 years and 9 months 2 Criminal Damage 10 years 9 months 4 months 3 Prohibited person in possession of an unregistered firearm 10 years 12 months 3 months RSO Dealing with property suspected of being the proceeds of crime 3 months 1 month Pre-sentence detention declared: 116 days S6AAA statement: 7 years with a non-parole period of 5 years
Offender Charge Offence Maximum penalty Sentence imposed Cumulation Offence Bradley Males 1 Aggravated Burglary 25 years 4 years and 8 months Base 5 years and 6 months with a non-parole period of 3 years and 9 months 2 Criminal Damage 10 years 12 months 5 months 3 Prohibited person in possession of an unregistered firearm 10 years 15 months 5 months RSO Failing to appear on bail 1 month concurrent Pre-sentence detention declared: 159 days S6AAA statement: 8 years with a non-parole period of 6 years
Leave was granted by Weinberg JA on 9 October 2013 for the appellant to appeal against sentence on the following ground:
The learned sentencing judge erred in not adequately reflecting the disparity between the [Appellant] and the co-offender ST.
A summary of the offending was set out in Weinberg JA’s reasons which I adopt.
On 5 September 2012, all three men were together from about 10pm at the [appellant]’s house in Brookfield. Some time after midnight they agreed to burgle certain premises in Exford. Their target was said to be an extremely isolated property. They travelled together in Tidboald’s vehicle, arriving at about 1am.
Tidboald parked his car outside a locked gate. All three men then entered the property. Males was carrying a double-barrelled shotgun and Tidboald, a sawn off rifle. The [appellant] was unarmed, but brought with him some rope.
Both the firearms were unregistered. Tidboald was, at the time, subject to an intervention order. He was therefore a prohibited person. Males, by reason of his criminal record, was also a prohibited person. As the charges indicate, the [appellant] was not a prohibited person.
The three men approached a workshop which was then being used by a man named Richard Harris who happened to be working alone late at night. He was refurbishing the building in order to establish a custom-made fabrication business. Within the workshop were a silver Holden sedan, several motorbikes, two boats, some jet skis and various car parts. Mr Harris, and his partner, who happened to be pregnant at the time, planned to live in a residential section of the property.
Males used the butt of the shotgun to bang on the outside of the workshop. Mr Harris then checked the CCTV screen that he had recently installed and saw three men, armed with what seemed to him to be firearms, outside the building. He panicked, and got into his four-wheel drive vehicle. He opened a roller door using a remote control and drove out of the workshop at high speed. A firearm was discharged, but the CCTV footage did not show who fired the shot, and the Crown was not able to establish to the requisite degree which of the men was responsible.
Mr Harris then drove through the paddock fence, and the chained cyclone gate at the front of the property, in order to escape. Upon exiting, he noticed Tidboald’s vehicle parked outside the gate. He noted the registration number, telephoned the police, and his partner.
During this time Males gained access to the workshop through the roof. An upper window was smashed, and the rope that the [appellant] had brought with him was used to enter the ground floor through the broken window. Males then let Tidboald and the [appellant] into the workshop.
The three men ransacked the premises, searching for keys to the various vehicles. Males attempted to use an oxy-acetylene torch to burn the lock off the office door, but was unsuccessful. The men then used a forklift in an attempt to enter the second level office through an internal window. The ransacking continued for about 30 minutes during which time windows were smashed and damage to the value of about $50,000 was caused to ceiling vents, cooling panels, furniture, fixtures and fittings.
Police arrived at about 2.25am. Shortly thereafter they conducted a search of the property and of the workshop area. At about 4.45am the three men were discovered hiding inside the building. The double-barrelled shotgun was located, concealed within a large piece of machinery. Upon examination, it was seen to have one live cartridge still in it, and one spent cartridge in the breech. The rifle was found hidden under a vehicle in the workshop. It was loaded, and the [appellant]’s fingerprints were subsequently found on it.
A search of Tidboald’s vehicle led to the discovery of bolt-cutters, rope, three mobile telephones, and a sum of about $3,600 in cash.
Tidboald made some admissions, but claimed that he had attended the premises merely in order to frighten a man called Sean who, he said, had been involved in a relationship with Tidboald’s girlfriend. He denied having discharged any weapon. Males declined to comment. The [appellant] told police that he had gone to the premises in order to scare a man who he understood to have been in a relationship with Tidboald’s girlfriend. The sentencing judge later described the [appellant]’s account as total nonsense.
Ground One – Parity
It is argued on behalf of the appellant that the difference in sentence between himself and his co-offender, Sean Tidboald, did not sufficiently reflect the difference between the two in their offending and personal circumstances for the purposes of sentencing.
His Honour dealt with the question of parity in his reasons for sentence. He engaged in a careful analysis of the relevant principles and the matters relevant to each of the three offenders. He said,
To illustrate, there are some mitigatory circumstances that apply only to one individual. For instance, in your case, Mr Bowyer, as I have said, I have made a decision as to there being an increased custodial burden. No one else has suggested that such a consideration applies to their circumstances. So that is clearly a matter that is in Mr Bowyer's favour, but not a matter in mitigation capable of being relied upon by either Mr Tidboald or Mr Males.
…
As to role, I do not differentiate between your individual role in the commission of the aggravated burglary because you were acting as a team and clearly had one object or goal to enter and to steal as a group. There is no meaningful distinction to be drawn, and no ability for me to draw any conclusions as to lesser levels of enthusiasm or commitment to the actual offence. Nor do I think there is any particular comfort derived from the physical activities, because again I do not believe there is any true distinction because you were a team. It was your car, Mr Tidboald. Without it; no crime. They were your guns, Mr Males. You set out from your house, Mr Bowyer, the three of you, as a team and that is what is critical: it was a team exercise.
Although there was reference made to the basis of liability as against you, Mr Bowyer and you, Mr Tidboald, for the criminal damage, and your lack of physical activity being a matter in mitigation, for the reasons I have described, I simply do not see it in that light. I do not believe that that is a basis to draw distinctions in your favour in terms of sentence. You aided and abetted Mr Males in the criminal damage caused by him. The three of you had entered the premises pursuant to a joint enterprise.
Ultimately I have to take into account and apply the principle of parity of sentence which really has at its heart the avoidance of any justifiable sense of grievance as between co-accused.
In the broadest of senses, it is clear that the ultimate sentences imposed upon you, Mr Tidboald, and you, Mr Bowyer, must and ought be less than the sentence imposed as against you, Mr Males. The Crown submitted that there should be a significantly reduced sentence upon you, Mr Bowyer, when compared to Mr Tidboald to recognise the existence of the increased custodial burden and the lack of criminal history possessed by Mr Bowyer. I do not accept that rolled up proposition in this sense. Clearly I have accepted and do accept an increased custodial burden operates in Mr Bowyer’s favour, but as to the criminal history being some point of distinction between Tidboald and Bowyer, I entirely disagree. Mr Tidboald has, as I have said, one matter and one matter which I judge to be of no relevance at all in his prior criminal history. I disregard it as I feel I should and so treat him on the same footing as Mr Bowyer, at least in that regard. [1]
[1]DPP v Tidboald & Ors (Unreported, County Court of Victoria, Judge Tinney, 9 May 2013) (‘Sentencing remarks’) [78], [80]-[83].
It is argued that in carrying out that analysis the learned sentencing judge gave insufficient weight to a higher level of remorse and better prospects of rehabilitation of the appellant when compared with Tidboald. In particular it is submitted that because the appellant gave evidence at the plea hearing about his remorse and his co-accused did not, that much more weight should have been given to that consideration in his case. It is also argued that a distinction should have been made between the two of them because Tidboald had continued to use drugs whilst on bail and had matters outstanding. It is further submitted that the difference in the two firearm offences merited a larger distinction than that represented by the cumulation of 3 months on the sentence of Tidboald. Tidboald also fell to be dealt with for the additional offence of dealing with property suspected of having been stolen from which he received accumulation of one month.
The distinction in sentence was that Tidboald had to serve six months more for the aggravated burglary, 1 month more for the criminal damage and, due to the orders of accumulation of 3 months and 1 month respectively on Tidboald’s two additional charges, he has been sentenced to 11 months more than the appellant.
In relation to the firearm offences, I am entirely unconvinced that any question of disparity arises. Tidboald was a prohibited person because he was subject to an intervention order under the Family Violence Protection Act 2008. The purpose of that prohibition is clear but hardly relevant to present circumstances. That the appellant should have the sentence of 2 months ordered to be served concurrently while Tidboald had 3 months of his sentence of 6 months to be served cumulatively is a reasonable distinction.
The real issue on this appeal is whether or not a disparity of 7 months for the two principal offences was sufficient to reflect the differences between the appellant and Tidboald. The co-offender Males had received 16 months more on those two offences. No real issue appears to arise with respect to Males.
The legal principles to be applied were recently and usefully summarised by Redlich & Weinberg JJA in R v Kelly:
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the co‑offenders is ‘marked’ or, as Dawson J said in Lowe v R, where the differences between the sentences are ‘manifestly excessive'.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co‑offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the co‑offender. While the sentence imposed on the co‑offender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the co‑offender.[2]
[2][2011] VSCA 10 [5]-[7].
It is argued that the difference of one year in both the head sentence and non-parole period made in the s 6AAA[3] declarations in comparison with the difference in the actual sentences of only 11 months on the head sentence and 7 months on the non-parole period more accurately reflected the appropriate differences in sentence. Comparison to be made on the basis of s 6AAA statements is of little utility relating to this argument.[4]
[3]See Sentencing Act 1991 s 6AAA.
[4]Saab v The Queen [2012] VSCA 165 [58].
His Honour dealt separately in his reasons with the questions of remorse and rehabilitation. He accepted that the level of remorse and prospects of rehabilitation were better for the appellant than his co-offenders.
I am satisfied, however, that the difference in the sentences is sufficient to reflect the differences in the circumstances between the appellant and Tidboald. The learned sentencing judge dealt with the question very carefully. As already observed, he was well aware of any real differences which arose as a result of degrees of remorse or prosects of rehabilitation and saw the major difference as being the fact that the appellant’s sentence would be more burdensome as the principle distinction.
It should be noted that Ms Murphy who appeared for the appellant pressed the case of the appellant forcefully. She could not have done more.
I would, however, dismiss the appeal.
- - - - -