Byrns v The Queen
[2000] WASCA 246
•8 SEPTEMBER 2000
BYRNS -v- THE QUEEN [2000] WASCA 246
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 246 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:159/1999 | 2 MAY 2000 | |
| Coram: | KENNEDY J PIDGEON J WALLWORK J | 8/09/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | BROCK RICHARD BYRNS THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Aggravated burglary in company, two armed robberies in company and stealing a motor vehicle Sentence of 7-1/2 years' imprisonment Co-offenders receiving lesser sentences but in respect of different offences Parity Whether justifiable sense of grievance Turns on own facts |
Legislation: | Nil |
Case References: | Lowe v The Queen (1984) 154 CLR 606 Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999 Goddard v The Queen [1999] WASCA 281 Gutteridge v The Queen, unreported; SCt of WA; Library No 940410; 5 August 1994 Jarvis v The Queen (1993) 20 WAR 201 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997 Postiglione v The Queen (1997) 189 CLR 295 R v Ward [1999] WASCA 157 Thorp v The Queen, unreported; CCA SCt of WA; Library No 970584; 5 November 1997 Urquhart v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BYRNS -v- THE QUEEN [2000] WASCA 246 CORAM : KENNEDY J
- PIDGEON J
WALLWORK J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Aggravated burglary in company, two armed robberies in company and stealing a motor vehicle - Sentence of 7-1/2 years' imprisonment - Co-offenders receiving lesser sentences but in respect of different offences - Parity - Whether justifiable sense of grievance - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : Mr B S Hanbury
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowe v The Queen (1984) 154 CLR 606
Case(s) also cited:
Dao v The Queen, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
Goddard v The Queen [1999] WASCA 281
Gutteridge v The Queen, unreported; SCt of WA; Library No 940410; 5 August 1994
Jarvis v The Queen (1993) 20 WAR 201
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997
Postiglione v The Queen (1997) 189 CLR 295
R v Ward [1999] WASCA 157
Thorp v The Queen, unreported; CCA SCt of WA; Library No 970584; 5 November 1997
Urquhart v The Queen, unreported; CCA SCt of WA; Library No 950484; 13 September 1995
(Page 3)
1 KENNEDY J: On 16 July 1999 the applicant pleaded guilty to four counts in an indictment. They comprised one count of aggravated burglary in company, two counts of armed robbery in company and one count of stealing a motor vehicle.
2 The applicant was aged 21 when the offences were committed. Those offences were particularly serious. They were committed between approximately 5.30 am and 6.00 am on 1 February 1999, when the applicant and three other persons, one of them a juvenile, went to a house occupied by a Mr Tang and a number of other persons. Except for the juvenile, all concerned were young people of about the same age. Mr Tang was known to at least some of the offenders.
3 His Honour was not able to determine whose idea it had been to go to Mr Tang's house, and he concluded that it was probably a decision which had been arrived at mutually by the four offenders. He accepted that the four were originally proposing to gain access to the house for the purpose of obtaining drugs or, if not drugs, then money. His Honour also accepted the applicant's statement in his videotaped interview with the police that he had been on a "speed binge" for the past four days. Although his going to the house was premeditated, his capacity to make appropriate judgments would no doubt have been diminished by the drugs which he had taken.
4 When the applicant reached Mr Tang's house, he and one of the other offenders, a woman named Oxnam, went to the front of the house, where the applicant smashed a window with his fist. This resulted in Mr Tang, who had at the time been in bed, saying, "All right. If you are coming in, come in through the door". Mr Tang approached the front door in order to unlock it but, as he opened it, one of the other offenders, Mekss, attacked him from behind with a metal bar. Fortunately, Mr Tang received only minor injuries. Mekss and another of the offenders, a juvenile, B, had gained access to the house by forcing a rear door and then coming through to the front of the building.
5 The foregoing gave rise to the aggravated burglary offence. The circumstances of aggravation were the assault upon Mr Tang, the bodily harm caused to him, Mekss being armed with an offensive weapon and the offenders being in company. The plea of guilty constituted an admission that Mekss, at least, had participated in the commission of the offence, and that the applicant was criminally responsible as an accessory.
(Page 4)
6 Mr Tang then went into the music room in the house. Mekss demanded drugs and money from him. B located a ceremonial samurai sword, which he handed to Mekss. Mekss placed it against Mr Tang's neck and demanded "everything that he had". The applicant then located the keys to Mr Tang's sister's motor vehicle, and he proceeded to collect various items of property belonging to Mr Tang, including musical equipment, clothing, a television set, two laptop computers and jewellery. The value of the property stolen from Mr Tang was substantial, amounting to approximately $5,000. These facts gave rise to the first armed robbery.
7 The second armed robbery occurred when, in the process of ransacking the premises, either the applicant or one of his associates stole a mobile telephone, the property of one of the other occupants of the house, Mr Meek. The applicant then loaded all of the stolen property into Mr Tang's sister's vehicle and drove away from the premises, accompanied by Oxnam, in order to dispose of the property. He thereby stole the vehicle. Mekss and B were left at Mr Tang's house, apparently in order to guard the occupants and to prevent any immediate hue and cry from being raised. The applicant did not return to the house, where Mekss and B remained for some four more hours.
8 The applicant subsequently exchanged some of the stolen property for a quarter of an ounce of "speed", upon which he placed a value of about $1,100. The rest of the property was later sold to another receiver. His Honour did not consider it necessary to make any finding about whether Mr Tang was in possession of any money which had been given to him by the applicant, or whether he was a person who dealt in drugs or anything of that nature. Even if either suggestion were true, it would obviously not provide justification for the unlawful activity in which the applicant was indulging, and certainly provided no reason for mitigation of the punishment imposed upon him.
9 The learned sentencing Judge reasoned that the really serious injuries which the intruders inflicted were not the relatively minor physical injuries which Mr Tang sustained, but the mental and emotional harm which ensued for all the occupiers of the house. The victim impact statements before his Honour made it clear that there was ongoing harm of a kind which might be very difficult for the occupants of the house to cope with, and in respect of which they would need professional help.
10 His Honour noted that the applicant had a record of convictions commencing from the age of about 14. These covered a variety of
(Page 5)
- offences of a very substantial nature, which he accepted as being related to drug abuse, a problem which had been a driving force in the applicant's behaviour. His Honour questioned whether, in the circumstances, he should make an order for the applicant's eligibility for parole, and he would have been inclined not to do so had it not been for the fact that, after being in custody for some 6 months, the applicant appeared to have made a reasonably good start towards his reformation. He had embarked upon courses in small business management, although it was still too early to say whether he had the capacity in himself to make good, for there had been some instances of his relapsing.
11 His Honour acknowledged the applicant's pleas of guilty and indicated that, consistently with the law, he had given them as much effect as he could. He then proceeded to impose a sentence of 2-1/2 years' imprisonment with respect to the aggravated burglary. For the armed robberies he imposed sentences of 5 years and 4 years' imprisonment respectively, the first of these terms to be served cumulatively upon the sentence imposed for the first count and the sentence for the second armed robbery to be served concurrently with the sentence for the first armed robbery. He imposed a sentence of 3 years' imprisonment for stealing the motor vehicle, and he directed that this sentence also be served concurrently. He directed that the applicant be eligible for parole in respect of each sentence.
12 The applicant seeks leave to appeal against his sentence on the single ground of lack of parity, and it is therefore necessary to consider the offences of which the co-offenders were convicted and the sentences which were imposed upon them.
13 The co-offender B, the juvenile, pleaded guilty to one count of aggravated burglary, two counts of armed robbery and four counts of deprivation of liberty. He was sentenced by the learned Children's Court Judge to 18 months' detention. Clearly, different sentencing considerations applied in his case pursuant to the Young Offenders Act 1994, s 7, and the applicant can seek no comfort from the manner in which B was dealt with. No contention based upon disparity in sentences could apply to any disparity between the sentences imposed upon the applicant and those imposed upon the juvenile.
14 The co-offender Oxnam was sentenced in the District Court to a total of 3 years and 6 months' imprisonment, of which 2 years and 6 months' imprisonment related to offences committed in connection with the home invasion. She was sentenced to 1 year and 6 months' imprisonment on a
(Page 6)
- count of aggravated burglary, to 1 year concurrent on each of four counts of deprivation of liberty arising out of the home invasion and to 1 year cumulative for stealing the motor vehicle. The offences of deprivation of liberty were committed when the four occupants of the house were told they were not allowed to leave the premises and were given the impression that, if they attempted to leave, they would be harmed. The applicant faced no charges of deprivation of liberty and Oxnam faced no charges of armed robbery in company. However, she was sentenced to an additional effective term of 1 year's imprisonment for a minor aggravated burglary, for receiving stolen property and for possession of heroin, all of which were unrelated to the home invasion charges except to the extent that they constituted a breach of an intensive supervision order upon which Oxnam had previously been placed.
15 The learned sentencing Judge in the District Court accepted in Oxnam's case that she had gone along with the three other offenders, who considered they had a grievance with Mr Tang by reason of some drug dealing in the past, and that she had gone more in a passive capacity, her role being at a much lower level than that of the others. She was 22 years of age at the time of her sentencing. She had experienced a dysfunctional upbringing. His Honour was reassured by the fact that, while she had been in custody, she had undertaken educational courses. In his opinion, all the indications were that she had made a genuine effort to turn the corner and to do something about her life. He was persuaded that there were genuine prospects for her rehabilitation and, accordingly, he indicated that the custodial term he was to impose was far less than the totality of Oxnam's criminal conduct would otherwise suggest.
16 The position with respect to Mekss is a little more complex. He did not elect to plead guilty, but went to trial on one count of aggravated burglary, two counts of armed robbery in company and four counts of deprivation of liberty. He was acquitted by the jury on the count of aggravated burglary but he was convicted on that count of the lesser offence of stealing, with respect to which he was sentenced to 18 months' imprisonment. He was convicted on only one of the counts of armed robbery in company, for which he was sentenced to 4 years' imprisonment. He was convicted on each of the four counts of deprivation of liberty, in respect of each of which he was sentenced to 2 years' imprisonment. Each of his sentences was directed to be served concurrently, giving rise to an effective head sentence of 4 years' imprisonment.
(Page 7)
17 There was another complicating factor in the case of Mekss. When he committed the offences for which he was sentenced, he was on parole in respect of a series of previous offences for which the District Court had sentenced him on 29 May 1997, that is, some 26 months prior to the later sentencing, to 5 years' imprisonment. In consequence, there was in his case an additional problem of totality to be accommodated. This was clearly taken into account by the learned sentencing Judge, leading to a reduction in the sentences for his later offences.
18 In summary, the offences of 1 February 1999 for which the applicant was sentenced consisted of an aggravated burglary, two armed robberies and stealing a motor vehicle. Oxnam was relevantly sentenced for an aggravated burglary in company, four deprivations of liberty and stealing a motor vehicle, while Mekss was sentenced for a stealing, one armed robbery and four offences of deprivation of liberty. Oxnam was sentenced to an effective total of 2-1/2 years' imprisonment for her offences, while Mekss was sentenced to an effective total of 4 years' imprisonment for his offences; but, significantly, those sentences were to be served cumulatively upon his earlier sentences.
19 The principle of parity of sentences was discussed by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606, at 609:
"The approach to be adopted by a court of criminal appeal when it appears that the sentences imposed on co-offenders exhibit disparity is not always stated in the authorities with complete uniformity. It is unnecessary for me to discuss in detail the cases which are cited in other judgments. The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
20 In this case, it is quite clear that the "other things" were far from equal. The applicant is unable to claim any reduction in his sentence by reason of Mekss having successfully defended the charge of aggravated burglary and one of the armed robbery charges. In respect of the one offence which was common to the applicant and Mekss, he was given precisely the same sentence as that imposed upon the applicant. And, so
(Page 8)
- far as Oxnam is concerned, she was sentenced by the learned sentencing Judge in the District Court on the basis of his finding that her involvement was much lower than that of the others, and that she had gone along essentially in a passive role. The sentences imposed upon her adequately reflected her role in the crimes, which was substantially less than that of the applicant.
21 In my opinion, the only ground of appeal being in relation to disparity, no basis has been demonstrated for interfering with the applicant's sentences. I would refuse leave to appeal.
22 PIDGEON J: I agree with the reasons of Kennedy J.
23 WALLWORK J: I agree with the reasons for judgment of Kennedy J and to the order proposed by his Honour.
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