Causon v Tasmania
[2021] TASCCA 13
•16 December 2021
[2021] TASCCA 13
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Causon v Tasmania [2021] TASCCA 13 |
| PARTIES: | CAUSON, Tyler |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 2422/2020 |
| DELIVERED ON: | 16 December 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 22 April 2021 |
| JUDGMENT OF: | Brett J, Geason J, Marshall AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate
– Aggravated burglary and stealing – Sentence of 18 months' imprisonment with partial suspension not
manifestly excessive.
Aust Dig Criminal Law [3521]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between
co-offenders.
Green v The Queen [2011] HCA 49, 244 CLR 462, Colbran v Tasmania [2020] TASCCA 14, referred to.
Aust Dig Criminal Law [3522]
REPRESENTATION:
Counsel:
Appellant: R Mainwaring Respondent: H Denton
Solicitors:
Appellant: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2021] TASCCA 13 |
| Number of paragraphs: | 43 |
Serial No 13/2021
File No CCA 2422/2020
TYLER CAUSON v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J GEASON J MARSHALL AJ 16 December 2021 |
| Order of the Court | |
| Appeal dismissed. |
Serial No 13/2021
File No CCA 2422/2020
TYLER CAUSON v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 16 December 2021 |
1 I agree with Marshall AJ that this appeal should be dismissed.
2 The first ground asserts manifest excess. In my opinion, there is no merit in this assertion. The criminal conduct for which the appellant was to be sentenced was objectively serious. The aggravated burglary involved a group of young men breaking into a residential home during the day, for the purpose of stealing property from it. The crime involved a serious intrusion into the privacy and sense of security which is the legitimate expectation of the home owner. Further, although on this occasion, the house was empty, there must always, with such a crime, be a risk of confrontation between an occupant who is or comes home during the burglary. Community protection and general deterrence are important sentencing considerations in respect of the crime of aggravated burglary.
3 Counsel for the appellant did not suggest that the offences were not objectively serious, but pointed out that in the usual course, and having regard to the aggregate value of the stolen property, they would be dealt with as summary offences in the Magistrates Court. In fact, under s 71 of the Justices Act 1959, because the stealing related to property with an aggregate value of less than $5,000, it was deemed to be a simple offence, notwithstanding that the Supreme Court retained jurisdiction to deal with it. The aggravated burglary was also deemed to be a simple offence unless the appellant elected to have the matter dealt with on indictment: s 72 of the Justices Act. Counsel has pointed out that neither offence was dealt with by a magistrate because the complaint which alleged these crimes also alleged the indictable crime of stealing a firearm or firearm part contrary to s 234A(1) of the Criminal Code. It was not possible for this crime to be dealt with summarily. Strictly speaking, this did not affect the operation of the said provisions in relation to the other two charges, but it is understandable that it seems to have been accepted by all concerned that the charges be dealt with together by the Supreme Court. Of course, once the prosecution decided not to proceed with the charge of stealing a firearm or firearm part, the remaining charges, which would otherwise have been dealt with summarily, remained before the Supreme Court for pleas and sentence.
4 The point of counsel's submission is that irrespective of how it came about that the sentencing was dealt with by the Supreme Court, the objective seriousness of the offences for the purpose of assessment of sentence should take into account that one is deemed to be a simple offence irrespective of the court which deals with it, and the other would ordinarily be dealt with as a summary offence. This is a valid consideration, but the fact remains that the criminal conduct was objectively serious, and when all relevant considerations were taken into account, deserved significant punishment. If dealt with summarily, each offence would carry a maximum sentence of two years' imprisonment. The sentence was required to respond in a proportionate way to the offending, and I agree with Marshall AJ that the sentence imposed was well within the sentencing discretion of the sentencing judge. Indeed, in order to test the comparison, such a sentence would have been well within range, even if imposed by a magistrate.
5 A further matter of debate between counsel on the appeal related to the significance of the inclusion of firearms in the property stolen from the residence. The original indictment included a separate count alleging the stealing of firearms contrary to s 234A(1). In the end, on the basis of an agreement between the parties, the prosecution filed a nolle prosequi in respect of that indictment, and the accused pleaded guilty to the remaining counts of aggravated burglary and stealing contrary to s 234, charged in a new indictment. The particulars of stealing on the new indictment were amended to include
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the firearms. Of course, the stealing of firearms is a serious matter and their presence among the property stolen from the house was capable of aggravating the objective seriousness of both the aggravated burglary and the stealing offences. However, counsel for the appellant submitted that having regard to the principles set down by the High Court in R v Di Simoni (1981) 147 CLR 383, because the stealing of firearms would have warranted conviction for a more serious offence, in particular the crime contrary to s 234A of the Code, one that was charged but not proceeded with, the fact that the property taken during the course of the burglary included firearms should not be regarded as an aggravating factor in respect of either offence to which the appellant pleaded guilty. Counsel submitted that the significance of this argument is increased by the fact that the learned sentencing judge, when pronouncing sentence, referred to the conviction of the appellant for the three crimes on the original indictment, including the crime of stealing the firearm or firearm part. When this was brought to his Honour's attention by the prosecutor at the end of the sentencing comments, his Honour indicated that he would amend his comments to delete reference to that crime, but made no further adjustment to his comments or the sentence. Counsel concedes that this has not been raised as a specific error, but submits that it does highlight the significance of this question, particularly as, in his comments, the sentencing judge expressly recognised "the seriousness of any involvement in the theft of firearms".
6 Counsel for the respondent submits that although the appellant was not to be sentenced for the crime of stealing a firearm or firearm part, the fact that firearms form part of the stolen property, is a factor appropriately taken into account as aggravating the objective seriousness of the aggravated burglary and stealing. I agree with this submission. The weight to be placed on this factor was limited, because it was common ground that the offenders had not set out to steal firearms, and those taking property from within the house came across them unexpectedly. Further, it was common ground that although the appellant was a full participant in the plan to burgle the house and steal property, he had not actually entered the house until after the firearms had been located and taken from it. However, the sentencing judge was correct to regard the theft of firearms as an aggravating factor. Notwithstanding that their discovery and theft was unplanned and opportunistic, the fact remains that the theft of firearms in any circumstances has the potential to place such weapons in the hands of criminals, and this is a matter of concern to the community and contributes to the need for general deterrence in respect of sentencing for such criminal conduct.
7 The sentencing court was not precluded by the principles in Di Simoni from taking the theft of firearms into account in this way. As I noted in the decision of R v Cook [2018] TASCCA 20, the principles arising from Di Simoni operate "as a qualification of the general principle that in sentencing a judge should take into account 'not only the conduct that actually constitutes the crime but also such of the surrounding circumstances as are directly related to that crime and properly to be regarded as circumstances of aggravation or circumstances of mitigation' R v Austin (1985) 121 LSJS 181". In TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106, Porter AJ with whom Tennant J and Marshall AJ agreed, cited with approval the following comments of Green CJ in a dissenting judgment in R v Causby [1984] Tas SR 54:
"However, it is appropriate for a court which is imposing sentence upon a person to have regard to the surrounding circumstances of the offence notwithstanding that they might have been the subject of a distinct charge, provided that those circumstances form part of, or are directly related to one of the ingredients of the charge for which he is being sentenced. It follows that in this case it was proper for the court to have regard to the respondent's threats to the complainant insofar as they formed part of, or facilitated, the assaults which were ingredients of the crime with which he had been charged."
His Honour noted that this passage had been cited with approval by Crawford J (as he then was) in Walsh v The Queen (1996) 6 Tas R 70.
8 Of course, the sentence in this case was not be assessed as if it were for the indictable crime of stealing a firearm or firearm part. However, the fact that the property stolen included firearms was
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directly related to an ingredient of the summary offence of stealing, and that offence is therefore to be regarded more seriously than would otherwise be the case. I reiterate that it is not asserted that the learned sentencing judge misapprehended this principle nor misunderstood the offences to which the accused had pleaded guilty.
9 In respect of ground 2, the appellant's counsel's argument, in essence, was that notwithstanding equivalent culpability between all three offenders, the appellant's sentence was in practical effect more punitive than the sentence imposed on either co-accused, and that this results in disparity which is not justified by differences in their personal circumstances. Accordingly, the difference in practical effect is such as to give rise to a justifiable sense of grievance on the part of the appellant. In respect of Lucas, the difference in punitive effect was significant. Lucas was sentenced to a home detention order for 9 months together with a contemporaneous community corrections order and community service. The appellant, of course, was sentenced to 18 months' imprisonment, which included more than a year of actual custody. Jones was sentenced to 2 years' imprisonment, with eligibility for parole after serving one half of the sentence, and a community corrections to take effect upon release. However, although none of the sentence was suspended, and the head sentence was longer than that imposed on the appellant, it was a global sentence not just for this offending but also for another aggravated burglary and stealing, in which the value of the goods stolen was $62,400.
10 In Colbran v Tasmania [2020] TASCCA 14, I summarised the principles derived from relevant cases in respect of the type of complaint made in this case:
"[62] The philosophical basis of the parity principle is the requirement of equal justice before the law Green v The Queen [2011] HCA 49, 244 CLR 462. The principle requires persons who commit the same crime to receive the same sentence, provided that there are no relevant differences between them. An important aspect of the principle is that relevant differences in conduct or antecedents should be reflected in different sentences: Wong v The Queen [2001] HCA 64, 207 CLR 584; Green v The Queen (above).
[63] It is well established that a failure to give appropriate effect to parity or disparity can amount to appealable error, and constitute a 'ground of intervention in itself': Lowe v the Queen (1984) 154 CLR 606; Green v The Queen. However, I accept that the appellant's argument can comfortably sit within the ground asserting manifest excess. An appeal based on parity ultimately seeks to impugn the discretion of the sentencing judge. This point was made by the majority in Green:
'A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error.'
[64] As with a ground which complains generally about the severity of the sentence,
error will only be demonstrated, in the absence of specific error, if the failure to give
effect to the parity principle is marked or manifest. In Lowe, Dawson J said this:
'The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are "most exceptional". The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of the court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice.'
[65] In the same case, Gibbs J stated that the rationale for appellate intervention based on disparity is because it is 'such as to give rise to a justifiable sense of grievance' on the part of the offender challenging the sentence. This expression has often been adopted as the test for such intervention. However, as Porter AJ demonstrates in his
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analysis in Jenkins v Tasmania [2019] TASCCA 12, this expression encapsulates the real question for the appeal court, which is 'whether the sentencing relativity was outside the range reasonably open to the sentencing judge in the circumstances': R v Lewis [2008] VSCA 202 per Maxwell P, as quoted by Porter AJ in Jenkins at [72].
[66] These judicial comments, although concerned with a complaint based on
inappropriate disparity, apply with equal force to an appeal based on a lack of sufficient
disparity.
11 In this case, in my view, the difference in the sentence between Lucas and the appellant, although marked, is justified on the basis of their personal circumstances. Although Lucas had serious prior convictions as a youth, he was only 18 at the time of committing these offences. This sentence was the first time he had been before a court for offending as an adult. In his comments on passing sentence, the learned sentencing judge referred to his counsel's reliance on the principles in Garcie v Lusted [2014] TASSC 27 and Allie v Wilkie [2019] TASSC 27. These cases explain and restate the long held view of the courts that in respect of the sentencing of young offenders, rehabilitation will usually require particular emphasis, and, in the usual course, will often be regarded as the dominant consideration. In apparent agreement with, and application of those principles, his Honour concluded that Lucas was "to be treated as a youthful offender". The argument before this Court is not an opportunity to review that judgment nor the sentence imposed on Lucas, and I did not understand counsel for the appellant to argue otherwise.
12 In contrast to Lucas, the appellant was 23 at the time of offending. He had a lengthy record of serious offending as a youth which included two separate convictions for aggravated armed robbery. He had continued a pattern of serious offending after becoming an adult, had breached suspended sentences on a number of occasions, and for his previous adult offending had received sentences of actual imprisonment. Although only five years older than Lucas, the difference in their personal circumstances was significant and the appellant could not realistically claim the benefits of youth. The decision to impose an actual term of imprisonment on the appellant, and to take a more lenient approach designed to foster rehabilitation in relation to Lucas, was clearly appropriate. This distinction does not give rise to a justified sense of grievance nor manifest appealable error.
13 A comparison between the sentencing treatment of the appellant and Jones is more complex, primarily because of the extra charges for which Jones was being sentenced. Once again, although this appeal does not permit review or even criticism of the sentence imposed on Jones, as the above stated principles acknowledge, a justified sense of grievance can arise from a lack of sufficient disparity to properly account for differences in the culpability or personal circumstances of co-offenders. A superficial comparison reveals that Jones received a longer sentence, none of which was suspended, whereas the appellant's sentence was shorter and partially suspended. However, it is submitted on behalf of the appellant that, because of its structure, the appellant's sentence is of similar punitive effect to that imposed on Jones. It is argued that because the sentence imposed on Jones was a global sentence for all of the offending, a justified sense of grievance arises from the fact that the appellant is being treated as harshly as him, for less criminal conduct. The argument arises from the sentence of imprisonment imposed on the appellant being backdated to account for all of the time he had spent in custody prior to sentence, a period of one year and 18 days. Because the balance of the sentence was suspended, this period became the operational sentence. By virtue of s 17(3) and (8) of the Sentencing Act 1997, the sentence could have made provision for the opportunity for parole of up to one half of the operative sentence. However, the backdating of the sentence for the full period meant that the appellant was, in practical terms, precluded from the opportunity of applying for parole at all. Jones, although sentenced to two years' imprisonment, was eligible to apply for parole after serving one half of the sentence. Theoretically, therefore, Jones could be released on parole after serving one year of his sentence, slightly less than that actually served by the appellant. Counsel submits that there is, therefore, little difference in punitive effect between the sentences.
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14 However, notwithstanding the potential for the time served in actual custody to be approximately the same, there are significant differences between the two sentences. In Jones' case, none of the sentence was suspended, and there was no guarantee that an application for parole would be successful. If Jones is released on parole then, by virtue of s 78(1) of the Corrections Act 1997, he is taken to still be under sentence. Further, the Parole Board has extensive powers of revocation, variation and amendment of the parole order. In the case of revocation, the prisoner can be returned to prison to complete serving his sentence. Further, the Parole Board may impose terms and conditions on a parole order, s 77 of the Corrections Act.
15 There are some other differences between the two cases. Jones was also made subject to a community corrections order for a period of 12 months. This involved further obligations, albeit that they apply after release from prison. Further, the sentencing judge stated that the sentence imposed on Jones "includes a significant discount of recognition of the defendant's early pleas of guilty". It would seem from the transcript of submissions made to the learned sentencing judge in the appellant's case that Jones entered his pleas of guilty on 22 May 2020, although he was not sentenced until 25 September 2020. The delay presumably arose from the need to resolve the other charges relevant to his sentence, which the prosecution did not ultimately pursue. The appellant entered his pleas on the day of sentencing, which was 3 September 2020. In argument, counsel conceded that the willingness of the prosecution to accept a plea of guilty to the charges of aggravated burglary and stealing in full discharge of the indictment was proposed by it to the appellant on 12 May 2020. The delay between that date and the date on which the pleas were actually entered was attributed to problems arising from communication difficulties between the appellant and his legal advisors, having regard to the fact that he was in custody, the complications brought about by the COVID-19 pandemic and the fact that the appellant is illiterate. It is submitted that the appellant still should have received mitigating benefit from the guilty pleas, both in terms of their utilitarian value and as evidence of remorse. Irrespective of the value to be attributed to the guilty pleas, I do not think that the delay between the indication by Jones of his plea in late May 2020, and the entry by the appellant of pleas on 3 September 2020 represented a significant difference between them. Ultimately both pleaded guilty, and the pleas in both cases had some value. My conclusion is that there is some difference between the cases in respect of this issue, but the significance of that difference is limited. Finally, although Jones was standing for sentence in respect of other charges, the sentencing judge was required to take into account the principles of totality in assessment of the aggregate sentence.
16 Although it could be said that the sentence imposed on Jones was relatively lenient, it does not follow that a comparison of the sentences reveals an unjustified disparity which is so marked or manifest as to indicate error. Viewed objectively, the sentence imposed on the appellant of 18 months' imprisonment with almost six months suspended was well within the reasonable sentencing discretion of the sentencing judge. With respect to parity, Jones did in fact receive a harsher sentence. Taking all relevant factors into account, I am not satisfied that "the sentencing relativity was outside the range reasonably open to the sentencing judge in the circumstances": R v Lewis (above). It does not indicate appealable error.
17 I reiterate that I would dismiss the appeal.
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File No CCA 2422/2020
TYLER CAUSON v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL GEASON J |
16 December 2021
18 I have had the benefit of reading the judgments of Brett J and Marshall AJ. I agree with their Honours' reasons. There is nothing I wish to add. I would dismiss the appeal.
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File No CCA 2242/2020
TYLER ANTHONY JAMES CAUSON v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARSHALL AJ 16 December 2021 |
19 The appellant, Tyler Causon, appeals from a sentence imposed by the primary judge on 4 September 2020 on one count of aggravated burglary and one count of stealing, contrary to ss 245(a)(iii) and 234 of the Criminal Code respectively.
20 The sentence was 18 months' imprisonment backdated to 16 August 2019 with the balance, as at 4 September 2020, suspended on the condition that the appellant commit no offence involving dishonesty for 18 months from 4 September 2020.
21 The amended notice of appeal sets out the following grounds of appeal:
"1 That the learned Judge erred in law in that he imposed a sentence which was
manifestly excessive in all of the circumstances of the case; and
2 That the sentence is disparate with sentences imposed upon co-offenders Zachary Jones and Geoffrey Lucas, so as to give rise to a justifiable sense of grievance."
22 At par 51 of the written outline of submissions of the appellant, the gist of the appellant's argument is succinctly set out as follows:
"51 With regard to parity, there appears to be no reason for the learned sentencing judge to have differentiated between the co-offenders in the manner that he did. Considering the relevant matters regarding the offending and personal circumstances of the co-offenders, the disparity is marked and excessive. There has not been 'equal justice' and the disparity is unreasonable, justifying appellate intervention."
23 The relevant factual background is set out at pars [12]-[28] of the appellant's written outline of submissions where the following is said:
"12 The facts relevant to the Appellant's offending are contained at pages 7 to 11 of
the Appeal Book, Volume 2 (AB - V2).13
In summary, on 16 August 2019, around 11.00 am, Zachary Jones, Geoffrey Lucas, Matthew Davey and the Appellant were located by police in Boa Vista Road, New Town. Lucas was carrying a fuel tank and was walking behind Davey and Jones. Jones ran off, throwing things into the yard at 23 Boa Vista Rd. The Appellant was squatting next to a car and near a car wheel was a watch, a ring in a box, 2 keys and gardening gloves.
14 Lucas, Davey and the Appellant were arrested. 15
The Complainant confirmed his house had been burgled. A firearms safe had been unlocked and opened. Three firearms, ammunition belt, ammunition boxes, firearm scope, camera and Leatherman tool had been removed. The ammunition was on the ground outside and the firearms were wrapped in a towel on the lawn.
16
Other items removed from the house were firearm safe keys, watch, foreign currency, memorial coin, ring and antique rings, gardening gloves, fuel tank, cloth, paperwork, IPhone and light.
17 All of the property removed had a total value of $4250. 18
Items moved from inside to outside were an orange fuel tank, bolt cutters and gloves with three watches inside one glove.
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19 The Complainant confirmed all of the items were his.
20 The Appellant participated in a record of interview. In summary, he stated he was in Boa Vista Road, New Town, with people. He had nothing to do with a burglary. A 'junkie' had 'hocked' one of his deceased brother's bracelets at Cash Converters. He had to buy it back that day, despite having no money. He was in New Town to do some crime to get money to buy the bracelet back. He agreed he knew Davey, Lucas and Jones, stating they were to do their own thing and he was to get money out of cars.
21 The Appellant stated he had tried to get into a black car without success and ran back to the boys who gave him some things, including a ring and a watch. He thought the items were stolen property. He confirmed he was given the gardening gloves to wear.
22 The Appellant admitted entering the residence to retrieve an item of his that one of the other boys had dropped. He ran through the house and shed and then ran off as he was nervous. He stated he knew nothing about a wrapped bundle on the lawn or anything about firearms. He didn't know what the boys were up to but they knew what he was going to do.
23 The Appellant was 23 at the time.
24 It was the Crown's case that Jones, Lucas and the Appellant were part of a joint criminal enterprise/acting in concert with one another and were liable for the acts of each other by their participation in such an enterprise.
25 The Appellant had been in custody since the date of the crime, 16 August 2019, some 386 days.
26 Counsel for the Respondent noted that a plea deal was put to Counsel for the Appellant on 12 May 2020, but there was no response for a significant period of time and the matter was completed by police and papers prepared. It was agreed in writing on 13 August that the matter could be disposed of, so it was a late plea of guilty after the matter had significant work done on it.
27 There were no matters submitted as aggravating features of the crimes.
28 The learned sentencing Judge had heard facts relevant to co-accused, Jones, previously, but was yet to sentence him. The facts for co-accused, Lucas were stated at the same time as facts for the Appellant, and that matter was adjourned to a later stage."
24 The main relevant mitigatory considerations for the appellant are set out at par 29 of the written
outline. They were:
"29 The plea in mitigation is contained at pages 12 – 17 AB-V2. There were relevant mitigatory considerations:
a A plea of guilty; b Remorse, evidenced by admissions;
c A complex, traumatic and dysfunctional background; d Early diagnosis of ADHD, with recurrent persistent symptoms; e The Appellant was Illiterate, with a disrupted education; f A tendency to submit to the influence of others g Demonstrated ability to abstain from illicit substances; h Loss of close family members in recent years and resultant depression, including suicide attempts.
i Extreme emotional distress immediately prior to the Crime; j Significant period in custody; k Had taken steps toward rehabilitation by requesting medical assistance and
recommendations to overcome drug dependency, by arranging to reside at a9 No 13/2021
location removed from negative influences and by securing support from a
family member."
25 Also the appellant did not take the goods from the residence from which the items were stolen. He became involved when he took property given to him by a co-accused. His involvement was opportunistic and he had no knowledge about a firearm that was stolen.
26 Counsel for the appellant informed the sentencing judge that the delay in bringing the matters before the Court in respect of the appellant were occasioned by problems with contacting the appellant during the COVID-19 lockdown, and the illiteracy of the appellant.
27 The crimes on the indictment were, apart from the count of aggravated burglary, summary offences, being at the lower end of the scale for the crimes charged. The value of the stolen property was in the order of $4,250. No damage was caused during the commission of the crimes. All property was recovered, undamaged, and admissions were made by the appellant in the police interview.
28 At the time of the commission of the offences, the appellant was 23 years old. The co-offender, Mr Jones, was 26 years old, and the co-offender, Mr Lucas, was 18 years old.
29 Mr Jones was sentenced to two years' imprisonment backdated to 2 September 2019, and eligible for parole after serving 12 months. He was also subject to a 12 month community correction order. He was sentenced on 25 September 2019, three weeks after the appellant's sentence.
30 Mr Jones had a troubled childhood, poor education and, like the appellant, was illiterate. He had a history of drug use and had been in custody in relation to the crimes. He had a significant prior conviction record, and at the time of offending he had recently served a substantial sentence for similar crimes. He pleaded guilty at an early stage. He was also to be sentenced for an additional aggravated burglary, and stealing goods to the value of $62,400.
31 Mr Lucas was sentenced to a home detention order for nine months and a community corrections order for nine months, as well as being ordered to perform 98 hours of community service.
32 Mr Lucas had stolen foreign currency coins and some of these coins were discovered on him at the police station. He spent four days in custody, made no admissions, and had prior convictions for aggravated robbery, aggravated armed robbery and aggravated burglary.
33 Mr Lucas' offending was opportunistic and he was influenced by an older offender. He pleaded guilty and was remorseful. He was treated as a youthful offender and had the support of a family member.
34 The appellant had prior convictions for aggravated armed burglary of a dwelling, aggravated burglary and burglary. He was dealt with in court on 13 November 2017 after being found guilty of several burglary counts. The same occurred on 10 April 2017, in respect of burglary and stealing, as well as stealing on 10 June 2014.
35 At [28] in Green v The Queen [2011] HCA 49, 244 CLR 462, French CJ, Crennan and Kiefel
JJ said:
"Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice' Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 per Mason J. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455 at 470 per Mason CJ, Dawson and McHugh JJ. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different
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circumstances Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 301
per Dawson and Gaudron JJ."
36 At [30] their Honours said:
"The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application."
37 At [31] their Honours referred to Gibbs CJ in Lowe at 609-610, where his Honour said that there was a statutory discretion to "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender". At 610 in Lowe, Gibbs CJ said:
"... the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."
38 At [32] their Honours said:
"Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive."
39 Mr Lucas was only 18 at the time of the offences and was punished as a young offender and was not sentenced to a term of imprisonment. He was someone who, given his age, would be appropriately considered as having a good prospect of rehabilitation, especially given steps he had taken to remove himself from the negative influence of others. No appearance of injustice arises out of the difference in the sentence (non-custodial) given to Mr Lucas, as compared with the custodial sentence, in part suspended, given to the appellant.
40 Mr Jones was sentenced to a term of imprisonment of two years, six months, less than the appellant, but none of his term of imprisonment was suspended and, in addition, a community corrections order for 12 months was made. This reflects his significant record of relevant offending and a recent sentence having been given for similar crimes. He also had additional charges that he was sentenced for over and above the matters giving rise to the appellant's charges. Mr Jones was punished more severely than the appellant and it was appropriate that he be so punished.
41 I do not consider the lesser charges faced by the appellant compared to Mr Jones justified a lesser sentence being imposed on the appellant. As the High Court majority in Green said at [32], intervention by a court of criminal appeal will not occur unless the sentence under appeal is otherwise excessive.
42 I do not consider that a sentence which had the effect of the appellant being relieved of any further actual time in prison, and being subject to a partially suspended sentence for 18 months, was otherwise excessive. It had the immediate effect of the appellant's release. The suspended part of the sentence as at 4 September 2020 would have been in the order of 7½ months. To have that possible period of imprisonment looming over the appellant for 18 months, having regard to the joint enterprise between Mr Jones, the appellant and others, and the appellant's significant criminal record, does not, in my view, make the sentence given by the primary judge, excessive.
43 I would dismiss the appeal.
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