Charlesworth v R

[2009] NSWCCA 27

Reported Decision: 193 A Crim R 300

New South Wales

Court of Criminal Appeal

CITATION:	Charlesworth v Regina [2009] NSWCCA 27
HEARING DATE(S):	17/11/08
JUDGMENT DATE:	25 February 2009
JUDGMENT OF:	Allsop P at 1; Kirby J; Hall J
DECISION:	(1) The appeal against conviction dismissed (2) The application for leve to appeal against sentence granted (3) The appeal allowed (4) The sentences imposed upon the applicant by O'Connor DCJ on 4 May 2007 are quashed and, in lieu thereof, the applicant is sentenced as follows: Count 1: To a non parole period of 2 years commencing on 6 April 2006 and expiring on 5 April 2008, with a balance of term of 2 years commencing on 6 April 2008 and expiring on 5 April 2010 Count 2: To a non parole period of 2 years commencing on 6 April 2007 and expiring on 5 April 2009, with a balance of term of 2 years commencing on 6 April 2009 and expiring on 5 April 2011 The first date that the applicant will be eligible for parole is 6 April 2009.
CATCHWORDS:	Criminal Law - appeal against conviction and sentence - joint criminal enterprise to rob - aid and abet detain for advantage - whether evidence in agreed facts capable of supporting charges - parity with sentences for co-offenders.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 R v Sagiv (1986) 22 A Crim R 73 at 81 Liberti (1991) 55 A Crim R 120 Osland v The Queen [1998] HCA 75: (1998) 197 CLR 316 Tangye (1997) 92 A Crim R 545 Stokes and Difford (1990) 51 A Crim R 25 Giorgianni v Regina (1985) 156 CLR 473 Davis v Regina [2006] NSWCCA 392 R v Reid [1973] QB 299; (1972) 2 All ER 1350 R v Campbell and Brennan [1981] Qd R 516 R v MAK; MSK [2006] NSWCCA 381: (2006 167 A Crim R 159 Lowe v The Queen (1984) 154 CLR 606; (1984) 12 A Crim R 408 Postiglione v The Queen (1997) 189 CLR 295; (1997) 94 A Crim R 397 SZ v Regina [2007] NSWCCA 19; (2007) 164 A Crim R 249 MacDonald v Regina [2007] NSWCCA 105
TEXTS CITED:	Annotated Criminal Legislation NSW (2008/2009 Ed): Howie & Johnson
PARTIES:	Neil Scott Charlesworth (Appl) Regina (Resp/Crown)
FILE NUMBER(S):	CCA 2006/11552
COUNSEL:	R Burgess (Appl) P Miller (Resp/Crown)
SOLICITORS:	S O'Connor - LAC (Appl) S Kavanagh - DPP (Resp/Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/05/2007
LOWER COURT JUDICIAL OFFICER:	O'Connor DCJ
LOWER COURT DATE OF DECISION:	4/5/07

2006/11552

ALLSOP P
KIRBY J
HALL J

Wednesday 25 February 2009

Neil Scott CHARLESWORTH v REGINA

Judgment

1 ALLSOP P: I agree with Kirby J.

2 KIRBY J: Neil Scott Charlesworth (the appellant) was arraigned upon an indictment containing two counts. The first was a charge of aggravated robbery, contrary to s 95 of the Crimes Act 1900 (“the Act”) (maximum penalty: imprisonment 20 years). The terms of the indictment are important. The charge was expressed as follows:

“1. On or about 25 March 2006 at Wyong in the State of New South Wales, did rob (JC) of his property, namely, a Commonwealth Bank Key Card and mobile phone and at the time of such robbery did maliciously inflict actual bodily harm upon (JC).”

3 The second count was a charge that the appellant aided and abetted a co-offender, Lindsay Hearn, in the offence of aggravated detention for advantage, contrary to s 86(2) of the Act (maximum penalty: imprisonment 20 years). The indictment was as follows:

“2. Lindsay Hearn on or about 26 March 2006 at Wyong in the State of New South Wales did, without consent, detain (JC) with the intention of obtaining an advantage, namely to steal property, and immediately beforehand actual bodily harm was occasioned to the said (JC) and that
Neil Scott Charlesworth
on the day and year aforesaid at Wyong in the State of New South Wales was present aiding, abetting and assisting the said Lindsay Hearn to commit the said serious indictable offence.”

4 The charges arose out of the events of 25 and 26 March 2006. On 14 September 2006, in the Wyong Local Court, Mr Charlesworth pleaded guilty to both offences. He was committed for sentence to the District Court. There was, however, a defect in the way in which the charges had been framed. Mr Charlesworth was rearraigned on 17 November 2006 in the Gosford District Court. He again pleaded guilty. He was then remanded in custody for sentence.

5 The matter came before O’Connor DCJ in Gosford on 15 March 2007. Mr Charlesworth gave brief evidence. The solicitor appearing for him drew his attention to the terms of a Probation and Parole Report. The examination was as follows: (T 4)

“Q. You’re aware that the presentence reports at page 4 indicates that and I’ll read, ‘Of more concern is that Mr Charlesworth sees himself as a victim and does not view any of these actions as more than being caught up in it’. Is that true?
A. No.”

6 Mr Charlesworth added that he was not a brave man and was intimidated by Lindsay Hearn. His attention was drawn to the presence of the victim in court. The appellant then gave the following evidence: (T 5)

“Q. Is there anything you wish to say to the victim?
A. Yes I’m terribly sorry for not stopping it.
Q. You’re sorry for assisting in it, assisting to playing your part. Are you sorry for that?
A. Yes I’m terribly sorry for that yeah.”

7 On 4 May 2007, O’Connor DCJ sentenced Mr Charlesworth as follows:

Count 1: A non parole period of two and a half years commencing on 6 April 2006 and expiring on 5 October 2008 and a balance of term of two and a half years commencing on 6 October 2008 and expiring on 5 April 2011;
Count 2: A non parole period of three years commencing on 6 April 2008 and expiring on 5 April 2011 and a balance of term of two years commencing on 6 April 2011 and expiring on 5 April 2013.

8 The total sentence was 7 years imprisonment with a non parole period of 5 years.

The Notice of Appeal.

9 The notice of appeal against conviction relied upon a single ground, expressed as follows:

“There is a miscarriage of justice as the appellant, upon the admitted facts, could not in law have been convicted of the offences charged.”

10 The application for leave to appeal against sentence identified the following grounds:

“1. The applicant has a justifiable sense of grievance in relation to the sentence imposed on the co-offender Lindsay Hearn for the robbery of (JC) and detaining him for advantage.
2. The applicant has a justifiable sense of grievance in relation to the sentence imposed on the co-offender Brett Molloy for the offence of aiding and abetting Lindsay Hearn and the applicant to detain (JC) for advantage.
3. The sentences for the aggravated robbery and aiding and abetting detain for advantage are manifestly excessive.”

The sentencing proceedings.

11 In the sentencing proceedings the Crown, with the consent of the appellant, tendered the Crown brief, which included an agreed statement of facts. His Honour, in his remarks on sentence, said this: (ROS 2)

“I find those facts proved beyond reasonable doubt for the purpose of sentencing the offender. I provide a copy of the agreed statement of facts to the Reporting Services Branch and request that they be incorporated in these remarks on sentence.”

12 The agreed statement was lengthy. It is, nonetheless, fundamental to the argument of the appellant on this appeal. It described the events of the evening of 25 March 2006 and the morning of 26 March 2006 in respect of all three offenders. There were a number of episodes, not all of which involved the appellant. The first concerned the robbery of the victim (who will be referred to as “JC”). The agreed facts were in these terms: (Exhibit A)

“During the evening of the 25th March 2006 Charlesworth was at the residence of Jacqueline Sturch. At about 8.30 pm Brett Molloy came by with Lindsay Hearn. After consuming some alcohol Molloy and Hearn said that they were going to Sydney. Charlesworth agreed to go with them. At the time he believed that they were going to steal something. They left in Hearn’s vehicle (white Commodore) and Hearn drove. Charlesworth was seated in the back of the vehicle and Molloy was seated in the front passenger’s seat. The three males drove south on the F3 Freeway.
About 11.20 pm (JC) was driving his motor vehicle south along the F3 Freeway between Morisset and Ourimbah on his way home from work. At the time he was working as a night manager at Subway, Morriset. The complainant suffers from Aspergers syndrome. At this time Hearn’s white Holden Commodore sedan (RFG-852) commenced to follow his vehicle.
Hearn flashed his high beam lights at the complainant’s vehicle. Believing something may have been wrong with his vehicle or thinking the occupants of the vehicle required help, the complainant pulled his vehicle into the breakdown lane of the Freeway and stopped. It is to be noted that Neal Waters was also travelling the F3 Freeway this evening and he, too, was tailed by a white commodore constantly flashing its headlights from low to high beam.
After the complainant’s vehicle had become stationary in the breakdown lane of the F3 Freeway, Hearn alighted from the driver’s seat of his vehicle and approached the complainant. Both Charlesworth and Molloy remained seated in the vehicle. At this time Charlesworth believed that Hearn intended to steal money from the complainant (Q/A 143). The complainant later told police that Hearn identified himself as a plain clothes police officer and ordered the complainant from his vehicle. Hearn then walked the complainant to the rear of his vehicle and told him to place his hands on the rear of the car. Hearn then ordered the complainant to produce his driver’s licence as he had been ‘speeding’. The complainant, believing Hearn to be a police officer, complied.
The complainant became suspicious and requested to see some identification. Hearn flicked open his wallet and upon seeing no form of identification in the wallet the complainant became worried. Hearn told the complainant that he had to pay a fine for speeding and wanted to know how much money he had in his possession. The complainant said that he had no money. Hearn then demanded the complainant’s licence and snatched it from the complainant’s hand. During this time both Charlesworth and Molloy were still in their vehicle. Hearn then returned [to] the white Commodore and spoke with Molloy and Charlesworth and gave the complainant’s driver’s licence to Molloy. At this time both Charlesworth and Molloy were still seated in the vehicle. It is at this time that Charlesworth became aware that Hearn had identified himself as a ‘Constable’ of police. Charlesworth told police that Hearn indicated to him and Molloy that he (Hearn) had to ‘kill’ the complainant. Charlesworth believed that this was because the complainant would have the licence number of Hearn’s vehicle.”

13 The account continued, describing events which culminated in Hearn savagely kicking the victim:

“Hearn then returned to where the complainant was standing and stated ‘You’ve got to pay a fine, if you have got no money then you will have to pay with your key card’. Hearn then grabbed his wallet from his hand and then pushed the complainant, causing him to fall over a guard rail on the side of the Freeway. The complainant then got to his feet, returned to his vehicle and started to drive away. Hearn then returned to his vehicle and all three then followed the complainant, flashing their headlights at him. When the complainant refused to pull over, Hearn drove his vehicle in front of the complainant’s car, coming to rest at a 45 degree angle forcing the complainant to stop his vehicle.
At this point all three got out of the Commodore. Whilst Hearn approached the complainant Charlesworth and Molloy discussed whether they should ‘stop’ Hearn and they approached the complainant and Hearn. Charlesworth heard Hearn demand money from the complainant and Charlesworth then said to the complainant …; ‘just give him your money and you can go’. Hearn then opened the driver’s door of the complainant’s vehicle, kicked the complainant to the right side of his face and Charlesworth ran off. The complainant placed his right hand over his face to protect himself and then Hearn kicked the complainant a second time, hitting him in the right hand. The force of the first blow cause the teeth of the complainant to lacerate through the flesh under his bottom lip. The complainant was bleeding profusely from the wound under his mouth but Hearn then forced him to the passenger seat. Hearn then got into the driver’s seat and drove off. Molloy followed Hearn in the white Commodore.”

14 This was the material relied upon by the Crown to support the first count, that of aggravated robbery.

15 It will be noticed from this account that, after Hearn kicked the victim in the face the first time, Mr Charlesworth ran off. He ran up the freeway to the Westfield Shopping Centre where he arranged for his girlfriend to pick him up. He then returned to her home at Gorokan.

16 The victim’s ordeal, however, was far from over. There followed a sequence in which the appellant was not involved. It was described in the agreed statement as follows:

“Hearn drove the complainant to the Toukley area and ordered the complainant down so he could not see out of the vehicle. During this journey Hearn demanded that the complainant supply him with his PIN number to his Key Card. Whilst driving along Hearn also threatened the complainant. Molloy was still following the complainant’s vehicle at this stage and Hearn drove the complainant to an area underneath the Wallarah Point Bridge.
Hearn then forced the complainant to perform oral sex upon him. Hearn then ordered the complainant to lick his anus. Fearing for his safety, the complainant complied with Hearn’s demands. Hearn then ordered the complainant to take his pants off and ordered the complainant to get on top of him. Hearn then forced his penis into the anus of the complainant. During this time the complainant was bleeding from his earlier wounds and Hearn then ordered the complainant to again perform oral sex on him. At some point Molloy left the area in Hearn’s vehicle.”

17 It was clear from other material that Molloy witnessed the oral sex which Hearn ordered the victim to perform.

18 The three offenders again came together at the appellant’s girlfriend’s home at Gorokan. The agreed facts described the circumstances in which the victim’s key card was used to obtain money from his bank account:

“Hearn then drove the complainant and his vehicle back to Cornwall Avenue Gorokan. At this time Charlesworth and Molloy had both returned to the property, separately. Molloy’s vehicle (blue coloured Mitsubishi Magna, RQX 494) was also at this property. As Hearn arrived he told the complainant (who was still in the vehicle): ‘If you try anything fuckin stupid I will kill your family. Don’t think any of these people are going to help you.’ Hearn again threatened the complainant and demanded to know his PIN number. The complainant then gave Hearn the correct PIN and Hearn recorded the number in the complainant’s mobile phone.
Hearn entered the premises and told Charlesworth and Molloy that he had the complainant’s key card and PIN number and that they needed to go to the bank. Charlesworth told the police that Hearn had told him that the complainant had given him the PIN number. Charlesworth noticed at the time that Hearn had blood on his clothing. The group then travelled in Molloy’s Magna to the St George ATM at Lakehaven. Charlesworth was driving the motor vehicle because Molloy was unlicenced and did not want to be pulled over by the police. Hearn obtained some cash for himself and gave Charlesworth $200.00 and Molloy $250.00. Charlesworth told police that when he received this money he thought ‘let’s go play the pokies’ (Q/A 295).”

19 The victim’s vehicle was a hatchback, with a rear compartment. The statement of facts described what then occurred, although the appellant, at this point, was not aware that the victim was still in the vehicle. The statement included these words:

“The three then travelled to the Caltex Service Station at Lakehaven. All this time the complainant was still in the back of his vehicle at Cornwall Ave, unbeknownst to Charlesworth. The three were captured on CCTV placing fuel into the vehicle and entering the service station. Whilst in the store the CCTV footage shows Hearn wearing a white and red ‘Holden’ t-shirt with blood down the front of it. Hearn also attempted to use the store’s Eftpos facility and was captured on the CCTV utilising the complainant’s mobile phone to retrieve the PIN number.
The group then left the service station and returned to Cornwall Avenue, where Charlesworth enters the premises and gives a pack of cigarettes to his girlfriend. At this time Hearn returned to the complainant’s car (where he had parked it earlier in Cornwall Ave). At this time the complainant was still in the back of the vehicle and Hearn demanded to know how to increase the limit on the card, Hearn said; ‘I will kill your family, or I will kill you’. Hearn then ordered the complainant to lie down in the back seat of the vehicle. There is no suggestion at this time that Charlesworth knew that the complainant was in the vehicle.”

20 The appellant then became aware of the complainant’s presence. This is the material upon which the Crown relied in support of the second count, the charge of aiding and abetting Hearn in the detention of the victim for advantage:

“They all then left for a local hotel (‘The Grand’). Charlesworth and Molloy travel in Molloy’s vehicle and Hearn followed in the complainant’s vehicle. Upon arriving at Wyong Hearn parked the complainant’s vehicle in a car park near the river. He then said to the complainant; ‘Stay in the car, were I’ve parked, these people are part of a biker gang, if you do anything stupid they will shoot you on the spot.’ At the time of Hearn saying this, Charlesworth and Molloy were about ten feet away in Molloy’s vehicle. Charlesworth tells the police he heard some of what Hearn said at this point but did not make any inquiries for the safety of the complainant.
The three then went into the Grand Hotel at Wyong, where they played the poker machines, using the money withdrawn from the complainant’s account earlier. The group remained at the hotel area for about one hour.
When the three left the hotel they went to get the complainant’s vehicle. Hearn returned to the complainant’s vehicle while Charlesworth and Molloy returned to Molloy’s vehicle. Hearn had told Charlesworth that he needed a blanket. Charlesworth and Molloy went back to Cornwall Ave, and Hearn followed them in the complainant’s vehicle. On route Hearn stopped a number of times and alight(ed) from the vehicle. Each time Hearn stopped the vehicle he threatened the life of the complainant and his family should he try to escape. Hearn then returned to the premises at Cornwall Avenue Gorokan. Charlesworth obtained a white sheet from the premises and gave this to Hearn who ordered the complainant to place it over himself. The complainant at this time was still in the hatch area of his vehicle. The three offenders then got into the complainant’s vehicle and drove off. All three were in the front of the vehicle – Hearn drove the vehicle, Charlesworth sat in the middle and Molloy was on the passenger side. During this journey Hearn said ‘I’ve got to fill up. Don’t move or I will fuckin’ hunt down your family.’ The car then slowed down and as they pulled into a service station, Hearn asked the complainant; ‘What type of fuel does the car take?’ The complainant replied; ‘Unleaded’ and then Hearn asked; ‘What side is the pump on?’ The complainant replied; ‘Passenger’s side’ . The car was then filled with petrol and the complainant was eventually taken to the Foreshore Reserve, Canton Beach.”

21 The statement continued:

“Charlesworth told police that he did not look at the complainant during any of the journey because he did not want to and ‘blocked’ this from his head (Q/A 501). However he knew he was all covered with the sheet and was lying down in the back of the vehicle. He also told police that he had noticed the state of Hearn’s clothing and noticed blood on Hearn’s ‘T’ shirt.
When they arrived at Canton Beach, Hearn took the complainant out of the vehicle. At this point the complainant was covered by the sheet. Hearn and the complainant walked down to the long reeds on the edge of Tuggerah Lakes, whilst Charlesworth and Molloy watched on.
Soon Hearn returned to the vehicle and all three drove off. They went first to Morisset to try and buy some marijuana and then they went back to Cornwall Ave. After this the group went to the Commonwealth Bank and tried to use the complainant’s debit card again. Hearn told the other two that there was no money in ‘there’ . Charlesworth states to police that he then decided to leave and he walked away from Hearn and Molloy. He tried to make a phone call at the public phone box. This was not successful but Hearn and Molloy tried to ‘get me back in the car’. Charlesworth told police that he wanted to leave and caught a bus away from the area.”

22 Mr Charlesworth’s departure ended his involvement in these events. The statement of facts described what happened to the victim thereafter in these terms:

“Whilst this was occurring the complainant was still at Canton Beach. Hearn had ordered the complainant to remain in the long grass or he would be killed, believing this, the complainant remained still for about an hour and when it started to become light he jumped into Tuggerah Lake, and waded through the water until coming out onto Wilfred Barrett Drive. Shaun Robinson was driving past at the time and saw the complainant and stopped. Police and ambulance were then called.”

23 The statement concluded as follows:

“About 11.25 am on Sunday the 26th of March 2006 the complainant’s car was found well alight at Peace Park at Gorokan; the same park in which the sexual assaults upon the complainant took place. The vehicle was extensively damaged by fire. Charlesworth knew of the damage to the complainant’s vehicle as he told police that Hearn and Molloy had arrived at his house late in the evening and said that they had ‘just burnt the car out’ (Q/A 596).
On the 6th April 2006 Charlesworth handed himself into police. He indicated that he had read what had occurred in the newspapers and said he had nothing to do with the sexual assault upon the complainant. He had talked it over with his girlfriend (Sturch) and eventually decided to speak with the police about his involvement. Molloy also surrendered to the police after some discussions with his family, but Hearn left the area and went to the ACT where he was extradited and returned to New South Wales. Hearn did not participate in a record of interview with police but both Charlesworth and Molloy did participate in records of interview.”

24 Let me turn to the grounds of appeal, dealing first with the appeal against conviction.

Were the admitted facts capable of supporting Count 1: Aggravated Robbery?

25 A plea of guilty is an admission by the accused of the essential elements of the offence (R v O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59). Indeed, a plea has been described as the most cogent admission of guilt that can be made (R v Sagiv (1986) 22 A Crim R 73 at 81). Nonetheless, in certain circumstances, it can be set aside on appeal. In Liberti (1991) 55 A Crim R 120, Kirby P (Grove and Newman JJ agreeing) said this: (at 121/2)

“This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears:
(a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or
(b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26.
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”

26 The appellant filed an affidavit in which he said that he relied upon his solicitor’s advice. His solicitor negotiated the plea on his behalf. The appeal was argued by his counsel, based upon paragraph (b) in Liberti. The following was said on his behalf: (AS: 10)

“26 … The agreed facts were substantially based on admissions made by the appellant in his ERISP. Detective Senior Constable Moir was of the opinion that these admissions were an accurate account of events and that he did not deflect his involvement in any way (R/S 3). The problem is that the offences charged are not supported by the agreed facts (or the admissions made by him).”

27 Each charge must be considered in turn. Count 1 charged aggravated robbery under s 95 of the Crimes Act 1900. The elements are conveniently set out in Howie and Johnson’s Annotated Criminal Legislation NSW in these terms (omitting alternatives, not material): (2008/2009 Ed: p787/8)

1. The accused with intent
2. took property
3. from the victim’s immediate control or presence
4. by the use of violence, or by putting the victim in fear; and
5. in circumstances of aggravation which involved the accused immediately before, at the time of or immediately after, the assault:
(ii) intentionally or recklessly inflicting actual bodily harm to any person.

28 Count 1 was put to the sentencing Judge upon the basis of a joint criminal enterprise (T4: 15.3.07). A convenient statement concerning the nature of a joint criminal enterprise (approved in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316) was made by Hunt CJ at CL in Tangye (1997) 92 A Crim R 545: (at 556/7)

“1. The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.
3. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
4. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”

29 Counsel for the appellant asserted that there was no basis upon which an inference could be drawn that Mr Charlesworth was complicit in a joint criminal enterprise to commit robbery with the infliction of actual bodily harm. According to the appellant, the Crown case at its highest was capable of supporting a charge that he was an accessory after the fact to robbery, in that he shared in the money withdrawn from the victim’s bank account, using the keycard at the ATM.

30 Counsel for the appellant, in submissions, analysed each paragraph of the agreed statement of facts. The agreement, when they left Gorokan, was to “steal something”. It was not an agreement to rob. It was submitted that it was certainly not an agreement to commit a robbery involving actual violence. When the victim was stopped, the appellant remained in the rear of the vehicle. He did nothing, according to his counsel, to assist or encourage Hearn. His failure to stop Hearn did not amount to complicity. Whilst the agreed statement contained general phrases such as “all three offenders then followed the complainant flashing their headlights at him”, the precise role of the appellant was made clear by the additional material which had been tendered. The answers he provided to the police furnished no basis for inferring that he had encouraged Hearn in his further pursuit of the victim (ERISP 140-142; 152-153).

31 It was further argued that the robbery was complete once the wallet with the keycard was taken by Hearn. The wallet was taken when the complainant was stopped the first time, at which time the appellant was still in the back of the car. When the victim was stopped a second time, after the pursuit, the appellant got out of the car (as did Molloy and Hearn) and addressed the victim saying, “Just give him the money and you can go”. The appropriate inference, according to the appellant, was that he was endeavouring to ensure the safety of the victim. It was not, it was submitted, an act intended to encourage or assist Hearn. In any event, no further property was stolen. If there was an offence, it was aiding and abetting an attempted robbery, which had not been charged.

32 Further, there was no evidence that the appellant could have foreseen the possibility of Hearn’s assault upon the victim, when he kicked the victim in the head. His Honour remarked, when sentencing the appellant, that he ran off immediately after because “no doubt he was alarmed” (ROS 2).

33 Nor was there evidence, according to the appellant, that Mr Charlesworth knew anything about the theft of the mobile phone. That occurred much later, when the victim was sexually assaulted by Hearn at a time that the appellant was not present.

34 Finally, a joint criminal enterprise to commit robbery with the infliction of actual bodily harm could not be inferred from the acceptance by the appellant of part of the proceeds when the PIN number was used to gain access to the victim’s bank at the ATM. Such evidence, at its highest, supported a charge of accessory after the fact to robbery.

35 The Crown answered these submissions by drawing attention to the issue. In the context of a plea of guilty, the issue was whether there was evidence capable of supporting the charges. That should not be confused with the question of whether, at a contested hearing, the offence had been proved. There was, according to the Crown, evidence in respect of each element. The robbery, from the viewpoint of the appellant, was not complete until he ran off. Alternatively, if the view were taken that the robbery was complete before the vehicle stopped for a second time, the indictment should have been amended. Whereas it alleged that the actual bodily harm was inflicted “at the time of such robbery”, if the robbery was complete it should have alleged that it was inflicted “after the time of the robbery”. The Crown, in written submissions, said this: (CS p 8)

“[28] … Whether it was ‘immediately after’ the robbery is a question of fact and degree in the light of all the evidence: R v Attard (unreported CCA 20.4.1993). The actual time between the two incidents is not stated in the agreed facts but the assault which caused the injury occurred after what appears to be a brief car chase and it would have been open to a Jury to conclude that it was ‘immediately after’. The offence would have been effectively the same and no miscarriage of Justice has been occasioned.”

36 The appellant, in a written reply, answered that submission in these words: (Reply p 2)

“2. As to C/s [28], if the appellant had stood trial on the present indictment and the Crown sought to amend the robbery count … so as to plead that the infliction of actual bodily harm occurred ‘immediately after’ the robbery rather than ‘at the time of’ the robbery, this amendment may have been allowed. If it was, this was a matter for the jury to determine. However, whilst it may have been open to a jury to be satisfied that the assault was occasioned immediately after the robbery, this is a matter of fact for the jury to determine. In this case no amendment was sought and the plea was entered to the charge alleging the aggravating circumstance occurred ‘at the time of the robbery’. It cannot be said that there was no miscarriage of justice.”

37 The Crown, when dealing with the sharing of money once the keycard had been used at the ATM, asserted that it was material from which an inference could be drawn that all three were part of the joint enterprise which included robbery with violence.

38 Dealing with these submissions, it should be said at once that there was no evidence that the appellant was party to stealing the victim’s mobile phone. On the agreed facts, that appears to have occurred later, after the appellant had run away. However, the theft of the phone was a particular of the indictment. The issue was whether there was evidence that the appellant was party to a robbery that concerned the wallet which included the keycard.

39 The agreed facts described the joint enterprise as the three men setting out for Sydney “to steal something”. Once Hearn had succeeded in stopping the complainant’s vehicle, and had alighted from the vehicle, the appellant believed, according to the statement of facts, that Hearn intended “to steal money from the complainant” (Q/A 143) (supra [11]). The stealing amounted to robbery. If one supposed that the wallet contained cash, and the proceeds had been distributed between the three, one would readily infer that there was a joint enterprise to rob. If there had been no money but a keycard, and the PIN number had been supplied by the victim and was later used, with the proceeds being distributed between the three, again one would readily infer a joint enterprise to rob. In the context of this case and the issue arising on this appeal, one would say that there was evidence to support the charge of robbery.

40 Here, the matter evolved in a different way. The victim had no cash. His wallet contained the keycard. Hearn snatched the wallet and pushed the victim over the guardrail. The victim got to his feet, returned to his car and drove off. Hearn then drove his vehicle (with Molloy sitting beside him and the appellant in the back seat) in pursuit. The victim was stopped for a second time. On this occasion all three got out. The appellant, whatever his precise motivation, made the demand: “Just give him your money and you can go.” (supra [12]). If the victim had handed over money, which had then been distributed between the three, again there would be evidence of a joint criminal enterprise to rob. Had he provided the PIN number for the keycard and all three went to the bank and obtained money, again there would be evidence of a joint criminal enterprise to rob.

41 There was, in my view, one robbery. Hearn, it may be noted, was charged with one count which, in his case, was the more serious robbery in company with wounding. His offence comprehended each phase of the robbery, the stopping of the victim the first time (when his wallet was snatched), pursuing him and stopping him a second time (when the wounding was inflicted) and, later, (in the absence of the appellant) securing by fear the PIN number for his bank account.

42 It would, I believe, be artificial to break up the offence into a series of robberies, or attempted robberies. If someone were stopped in the street and robbed, and then broke away and were chased and caught further down the street, where further demands were made, it would be reasonable in my view to regard that sequence as the one episode, and charge the one offence. In this case, the action of Mr Charlesworth in getting out of the vehicle and, in company, making a demand upon the victim for money, provided a basis for an inference as to his complicity, not only in respect of that demand but in respect of that which had gone before.

43 Here, the offence charged was aggravated robbery. Hence the Crown was obliged to prove that, as an incident of the joint enterprise to rob, Mr Charlesworth foresaw the possibility that actual bodily harm would be intentionally or recklessly inflicted upon the victim. Was there material capable of supporting that inference? I believe there was. Two things came to the notice of Mr Charlesworth concerning Mr Hearn when the victim was stopped on the highway on the first occasion. Both signalled that Hearn was prepared to use violence in pursuit of the primary objective, which was money. It will be remembered that Hearn left the victim standing at the rear of the vehicle whilst he spoke to Molloy and Charlesworth, who were inside the vehicle. He said that he would have to kill the victim. Mr Charlesworth assumed he said that because the victim knew the registration plate of his vehicle. Shortly after, Hearn snatched the wallet and pushed the victim over the guardrail.

44 The statement of facts does not say, in terms, that Mr Charlesworth saw that occur, although one would assume that the vehicle had windows. In the ERISP, the appellant was asked by the police what he saw. His answers were somewhat contradictory. There was, nonetheless, evidence from which it may be inferred that he did see Hearn push the victim over the fence. He said:

“Q129 Front passenger. Yeah. And what happened then?
A. … And then he pulled him over, said he was Constable so and so. And then, and I was just sitting there in the car. And then Brett got out but he did, wasn’t doing, he wasn’t in on it. And Mick fuckin’, the next thing I seen he was over the railing, the, the young bloke was over the railing and Mick tackled him and then, and then from there he got, he got back in his own car and, and he drove off and then Mick pulled him over again. And then that’s when, yeah, and then that’s when I said, yeah, ‘cause the car was like that on the highway.

45 Later, Mr Charlesworth said this:

“Q145 OK. I think you said that at one stage you saw the young kid fall over the rail. Did you see how that happened?
A. No, no. ‘Cause I was in the back, I didn’t fuckin’, I was just thinking what’s going on, you know.
Q146 Right. So when that young kid’s fallen down the first time you’re still in the back of the car?
A. Yeah.”

46 There was, in my view, evidence in respect of each element of the first count (aggravated robbery). The plea should not be set aside. The appeal in respect of the conviction on that count should be dismissed.

Were the admitted facts capable of supporting Count 2: Detain for Advantage?

47 Count 2 charged the appellant with aiding and abetting Hearn in the offence of aggravated detention for advantage. The issue is the same as in respect of Count 1, that is, having pleaded guilty, was there material before the sentencing Judge capable of supporting each element of the offence?

48 The offence, broadly, involved two aspects. There must be evidence of the principal offence, as well as evidence that the appellant aided and abetted that offence. Hunt J in Stokes and Difford (1990) 51 A Crim R 25, said this: (at 37)

“To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused) by aiding and abetting him, the Crown must establish:
(1) the commission of that crime by the principal offender, and
(2) that the accused was present at the time when the crime was committed , and
(3) that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and
(4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge (emphasis added).”

49 His Honour elaborated upon the state of mind required in the case of an aider and abetter, referring to the High Court decision in Giorgianni v Regina (1985) 156 CLR 473. He said: (at [38])

“Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him.”

50 His Honour added: (at [39])

“ ... it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past.”

51 The offence of aggravated detention by Hearn, in the context of this appeal, involved the following elements: (cf Howie & Johnson (supra) p 748: s 86(2) Crimes Act)

“1. Hearn detained the victim, JC;
2. The detention was without the victim’s consent;
3. Hearn did this with the intention of obtaining an advantage;
4. Immediately beforehand, the offence of actual bodily harm had been occasioned to the victim.”

52 Here, although the appellant had witnessed Hearn kicking the victim in the face (thereby inflicting actual bodily harm), he then ran off. It was submitted by the appellant that the detention of the victim therefore began in his absence. There was no basis, in these circumstances, for suggesting that he had encouraged or assisted Hearn in that detention. He could only be liable once he became aware of Hearn’s detention and rendered assistance. Further, the appellant argued that, since the advantage specified was “steal property”, by the time the appellant became aware of Hearn’s continued detention of the victim, the property had already been stolen. The key card had been used and money withdrawn from the account. The offence was therefore complete. In written submissions, the appellant said this: (AS p10)

“25 ... The appellant’s assistance was to provide a sheet to conceal the complainant whilst Hearn drove him to a suitable venue to allow him his freedom. His actions are consistent with him being an accessory after the fact to a detention for advantage, rather than an aider and abetter.”

53 The Crown, in response, pointed out that the principal offence (detention for advantage) was a continuing offence (Davis v Regina [2006] NSWCCA 392). The detention arguably began when the victim was first stopped on the freeway, at a time that the appellant was present. It continued until his ultimate escape. According to the Crown, it was not necessary for the appellant to be present, aiding and abetting Hearn, for the whole time that the victim was detained. Even if the view were taken that the detention began after the victim had been kicked by Hearn, the appellant later became aware of his detention. He also became aware of the advantage which Hearn sought to derive from that detention. The advantage was specified as “steal property”. The property he intended to steal, according to the Crown, was either the victim’s car (as in fact occurred), or the further withdrawal of money from the victim’s bank account, through the ATM.

54 The appellant, in reply, stated that the Crown’s uncertainty as to the advantage arising through the detention of the victim, demonstrated that the advantage was really “a matter of speculation”. It highlighted the miscarriage of justice occasioned by the plea. The advantage, according to counsel for the appellant, could plainly not have been the car. Hearn returned to the Gorokan property driving the victim’s car. He had taken the vehicle without the owner’s consent. Even if there were uncertainty as to the point at which Hearn formed the intention of permanently depriving the victim of that vehicle, there was no advantage in terms of stealing the car through the continued detention of the victim. Indeed, the victim’s continued presence was, according to the appellant, a hindrance and inconsistent with an intention to permanently deprive the victim of that vehicle.

55 Further, it was said by the appellant that Davis (supra) had no relevance to the facts of this case. There was no question of accessorial liability in that case.

56 A number of issues arise from these submissions. When did the detention of the victim begin? Is it possible, as the Crown suggests, to view the facts as suggesting that his detention began, for the purposes of Count 2, when the vehicle was first stopped by Hearn on the freeway? I do not believe that view is open. The detention began, for the purposes of the indictment, after Hearn kicked the victim in the face. Count 2 charged that Hearn:

“ ... did, without consent, detain (JC) with the intention of obtaining an advantage, namely to steal property, and immediately beforehand actual bodily harm was occasioned to the said (JC) ...”
(emphasis added)

57 What was the advantage which arose from the victim’s detention? I accept the appellant’s submission that detaining the victim in order to perfect the stealing of his car cannot be regarded as a possibility. Hearn drove the victim’s car from the location on the freeway where he had kicked JC. He returned to the house at Gorokan. He thereafter drove that vehicle throughout the evening. In other words, he had possession. In the course of the evening he addressed a number of questions to the victim, which were answered (whether the car took leaded or unleaded fuel and the location of the petrol tank). However, one would infer that he did so as a matter of convenience, instead of making his own investigation. The continued presence and detention of the victim was, as the appellant suggests, a disadvantage when it came to stealing the motor vehicle.

58 It follows that the only possible advantage from the continued detention of the victim arose from the repeated attempts by Hearn, Molloy and the appellant to obtain further funds from the victim’s bank account using the ATM. I will return to this issue below.

59 Before analysing the agreed statement of facts and the other material before the sentencing Judge, it may be useful to say something about Davis (supra). The accused and the victim in that case had been in a relationship which had ended. The victim thereafter obtained an apprehended violence order. Some months later the accused drove to the victim’s place of employment. As she arrived at work, he physically forced her into his vehicle. He then drove off, constantly reaching into the rear of the vehicle attempting to strike her in order to ensure that she lay on the back seat. He told her that he was taking her to Mt Druitt where she would be raped. He said that there was no-one there to protect her and he could kill her if he wished. He ultimately drove to a lonely track where he attempted to have sex with her. There was a physical altercation, after which he drove to Parramatta and allowed her to leave.

60 Howie J, referring to the English Court of Appeal decision in R v Reid [1973] QB 299; (1972) 2 All ER 1350 and to R v Campbelland Brennan [1981] Qd R 516, said this:

“64 Neither Reid nor Campbell supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been ‘taken’, in the sense that he or she has been compelled to go where he or she did not want to go, the ‘taking’ continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.”

61 Here, as mentioned, the appellant was not present when the victim was first detained. He became aware of the victim’s vehicle upon his return to Gorokan, where he linked up again with Hearn and Molloy. He was not aware, at that stage, that the victim was still inside that vehicle and had been threatened. He only became aware of the detention of the victim after the group had obtained money from the ATM and set out for the local hotel. On that journey they travelled in separate vehicles, Hearn driving the victim’s vehicle. Once they stopped, the appellant heard Hearn threatening a person at the rear of the vehicle. It may be inferred that he immediately realised that Hearn had detained the victim from the time he had taken his vehicle at the freeway.

62 After some time spent in the hotel, the group returned to Gorokan in the two vehicles. Before that return journey, Hearn told the appellant that he needed a blanket. Once at Gorokan the appellant obliged, providing a sheet. The sheet was given to Hearn, who then ordered the victim to cover himself as he lay in the back of the vehicle. All three then got into the victim’s vehicle, with Hearn driving. The agreed statement, it will be remembered, included these words:

“Charlesworth told police that he did not look at the complainant during any of the journey because he did not want to and ‘blocked’ this from his head (Q/A 501). However he knew he was all covered with the sheet and was lying down in the back of the vehicle. He also told police that he had noticed the state of Hearn’s clothing and noticed blood on Hearn’s ‘T’ shirt.”

63 They drove to Canton Beach where Charlesworth watched Hearn take the complainant to an area at the edge of the Tuggerah Lakes. Hearn then returned and the three drove off in search of marijuana. They then returned to the bank and tried once more to use the key card, although without success. The appellant, at this point, decided to leave, walking away from Hearn and Molloy.

64 On these facts there can be no doubt that the appellant provided Hearn with assistance. His assistance extended beyond simply providing the sheet. During the journey to the lake his presence, in company with Hearn and Molloy, assisted Hearn by deterring the victim from offering resistance. When providing that assistance, the appellant was aware that the victim had been detained without his consent after the vehicle had been stopped for the second time on the freeway. He was aware that Hearn had viciously kicked the victim in the face at that location. He had later seen blood on Hearn’s clothing. One would infer that he was aware that actual bodily harm had been inflicted immediately before the detention.

65 Was there evidence capable of establishing that Mr Charlesworth also was aware of Hearn’s state of mind in continuing to detain the victim? I believe there was. The victim had a bank account, which he could access by means of his key card, using his PIN number. Until the group had removed all money from the account, the victim was potentially useful in completing that objective. I infer that the appellant readily appreciated that common sense objective. It was argued that since the appellant was not present for the whole time that Hearn had detained the victim, the second requirement of Hunt J’s description of the offence in Stokes and Difford (supra) had not been satisfied (supra at [47]). It will be remembered that the second requirement was expressed by Hunt J in these terms:

“2. That the accused was present at the time when the crime was committed.”

66 However, that statement of the principle, I believe, requires refinement. In the context of the continuing offence of detain for advantage (s 86 Crimes Act 1900), it is enough, in my view, if the accused is present during some part of that detention and, knowing of that detention, provided assistance and otherwise satisfied the requirements as set out in the judgment of Hunt J in that case.

67 There was, in my view, evidence in respect of each element of Count 2 (aid and abet aggravated detention for advantage). The plea should not be set aside. It follows that the appeal against conviction in respect of both counts fails and should be dismissed.

68 Let me turn to the application for leave to appeal against sentence, dealing with each ground in turn.

Ground 1: Parity with Hearn.

69 The major argument on this appeal concerned parity, which assumed the sentences were otherwise appropriate.

70 Hearn was plainly the principal offender. He pleaded guilty to an indictment which may be summarised as follows:

Count 1: Robbery in company with wounding (contrary to s 98 Crimes Act 1900) (maximum penalty 25 years imprisonment with a standard non parole period of 7 years).
Count 2: Specially aggravated detention for advantage, the purpose being sexual gratification and stealing the victim’s property. The circumstances of special aggravation were that Hearn was in company with Molloy and Charlesworth and actual bodily harm was occasioned to the victim (contrary to s 86(3) of the Act) (maximum penalty 25 years imprisonment).
Count 3: Aggravated sexual assault (fellatio), the circumstance of aggravation being the infliction of actual bodily harm (contrary to s 61J(1) of the Act) (maximum penalty 20 years imprisonment with a standard non parole period of 10 years).
Count 4: Aggravated sexual assault (anal intercourse), the circumstance of aggravation being the infliction of actual bodily harm (contrary to s 61J(1) of the Act) (maximum penalty 20 years imprisonment with a standard non parole period of 10 years).
Count 5: Aggravated sexual assault (fellatio) in circumstances of aggravation being the infliction of actual bodily harm (contrary to s 61J(1) of the Act) (maximum penalty 20 years imprisonment with a standard non parole period of 10 years).
Count 6: Indecent assault (forcing the victim to lick his anus) (contrary to s 61L of the Act) (maximum penalty 5 years imprisonment).
Count 7: Malicious destruction by fire of a motor vehicle (contrary to s 195(1)(b) of the Act) (maximum penalty 10 years imprisonment).

71 Hearn also pleaded guilty to the following related offences on a s 166 Certificate:

1. Impersonating a police officer (maximum penalty 6 months imprisonment and/or a fine of $11,000).
2. Driving whilst disqualified (maximum penalty 2 years imprisonment with an automatic disqualification from driving for 2 years).
3. Obtain money by deception (3 counts) (maximum penalty 1 year imprisonment).

72 Mr Charlesworth, on the other hand, pleaded guilty to two offences, as set out above, namely:

Count 1: Aggravated robbery (contrary to s 95 Crimes Act 1900) (maximum penalty 20 years imprisonment).
Count 2: Aiding and abetting Hearn in the offence of aggravated detention for advantage (contrary to s 86(2) of the Act) (maximum penalty 20 years imprisonment).

73 Counts 1 and 2 in Mr Charlesworth’s indictment, therefore, were the companion offences to Counts 1 and 2 in the Hearn indictment. Hearn, in each case, faced a more serious alternative in respect of each charge (where the maximum penalty in each case is 25 years imprisonment, compared to a 20 year maximum in respect of the charges faced by Mr Charlesworth). Recognising these differences, counsel for Mr Charlesworth sought to compare the sentences imposed upon each offender in order to demonstrate that Mr Charlesworth had a justifiable sense of grievance. The Crown submissions on this appeal included a useful table which enabled such a comparison:

OFFENDER	OFFENCE	NPP	BALANCE OF TERM
Charlesworth	Aggravated Robbery Maximum: 20 years	2y 6m	2y 6m
Hearn	Robbery with Wounding Maximum: 25 years	6y	2y
Charlesworth	Aid and Abet Aggravated Kidnapping Maximum: 20 years	3y 6 months concurrent with robbery offence	2y
Hearn	Specially Aggravated Kidnapping Maximum: 25 years	6y 3 years concurrent with robbery offence	2y

74 Aggregating the non parole period and the balance of term in respect of each count, the comparison was as follows:

OFFENDER	OFFENCE	AGGREGATED TERM
Charlesworth	Aggravated Robbery Maximum: 20 years	5y
Hearn	Robbery with Wounding Maximum: 25 years	8y
Charlesworth	Aid and Abet Aggravated Kidnapping Maximum: 20 years	5y
Hearn	Specially Aggravated Kidnapping Maximum: 25 years	8y

75 However, these were sentences imposed after allowing discounts to each offender. It will be remembered that the offences were committed on 25 and 26 March 2006. Once the victim reached safety, his ordeal received significant publicity. On 6 April 2006, Mr Charlesworth surrendered himself to the police. He described what had occurred. The police were satisfied that he held nothing back. He identified Hearn and Molloy and agreed to give evidence against each. Mr Charlesworth later pleaded guilty in the Local Court. His Honour allowed a 50 percent discount which was expressed to be for the plea of guilty and assistance (including, inappropriately, 5 percent for remorse) (cf R v MAK; MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [44]).

76 Hearn was arrested in the ACT on 13 April 2006. He refused to be interviewed. He was then extradited to New South Wales. He later entered an early plea and was given a 25 percent discount (Hearn ROS: 23). Using these discounts to calculate his Honour’s starting point in each case, the comparison is as follows:

OFFENDER	OFFENCE	STARTING POINT
Charlesworth	Aggravated Robbery Maximum: 20 years	10y
Hearn	Robbery with Wounding Maximum: 25 years	10.66y
Charlesworth	Aid and Abet Aggravated Kidnapping Maximum: 20 years	10y
Hearn	Specially Aggravated Kidnapping Maximum: 25 years	10.66y

77 The selection by his Honour of almost the same starting point for each offender ignored, according to counsel for Mr Charlesworth, important differences between them. It gave rise to a justifiable sense of grievance on the part of Mr Charlesworth (Lowe v The Queen (1984) 154 CLR 606; (1984) 12 A Crim R 408; Postiglione v The Queen (1997) 189 CLR 295; (1997) 94 A Crim R 397).

78 The Crown, in response, said that the Court should have regard to the end result, rather than any notional starting point (SZ v Regina [2007] NSWCCA 19; (2007) 164 A Crim R 249 at 257, approved in MacDonald v Regina [2007] NSWCCA 105 at [46]). The greater criminality of Hearn, according to the Crown, was recognised in the longer sentences imposed upon him. The real question was whether this Court could be satisfied that a less severe sentence was warranted in law and should have been passed (s 6(3) Criminal Appeal Act 1912).

79 I accept that for each offence the starting point in sentencing Hearn should have been significantly greater than in the case of Mr Charlesworth. First Hearn, as mentioned, faced a more serious alternative to the same offence on each count with a higher maximum penalty (25 years as opposed to 20 years). The robbery offence against Hearn included a standard non parole of 7 years.

80 Secondly, there were obvious differences between the role which each played in the commission of each offence. Hearn led at every stage. It was Hearn who threatened the victim and later viciously assaulted him, inflicting significant injuries including a fracture of the cheek bone. The appellant was largely passive. He got out of the vehicle (as did Molloy) when the victim was stopped a second time and then addressed certain remarks to him. The words he used may suggest that he had mixed motives. He told the victim to pay and that he would then be allowed to go. One may infer that Mr Charlesworth recognised Hearn’s potential for violence and saw payment as in the victim’s interest as well as his own. The difference between the position of Hearn and that of Mr Charlesworth was even more stark in the context of the detention offences, as the indictment recognised. Hearn was the principal offender. Mr Charlesworth had a supporting role. He was not aware of the victim’s presence, nor the demands that had been made upon him, until towards the end.

81 Thirdly, there were also striking differences in the subjective cases of each offender, again favouring the appellant. The appellant had never been to gaol. He had a criminal record which his Honour described as “not of a serious nature” (ROS: 9). He had been convicted of offensive behaviour and fined. In February 2003, he was fined for possessing equipment for administering prohibited drugs, possessing such drugs and self administering them. His Honour said this: (Charlesworth ROS: 9)

“... I am of the view that his antecedents will not materially effect the sentence to be imposed, other than perhaps to confirm that he has an addiction to illicit drugs.”

82 Hearn, in contrast, had a criminal record which his Honour described as “extensive”. He had been convicted of offences involving dishonesty and violence in New South Wales, the ACT and Queensland. On a number of occasions he had served terms of imprisonment. His Honour said this: (Hearn ROS: 16/17)

“The current offences represent a marked escalation in his criminal behaviour. His record is such that it does disentitle him to leniency. It also illustrates that the current offences are not an uncharacteristic aberration, but represent a continuing attitude of disobedience to the law.”

83 Hearn had no remorse. There was nothing to mitigate his offences except his plea of guilty (Hearn ROS: 22). Mr Charlesworth, in contrast, showed remorse from the moment he handed himself to the police. His Honour accepted that his remorse was genuine (Charlesworth ROS: 3). He also accepted that Mr Charlesworth was alarmed by the level of violence displayed by Hearn towards the victim, and that was the reason he ran off (Charlesworth ROS: 10). His Honour further accepted that Mr Charlesworth was unlikely to reoffend (Charlesworth ROS: 10). Because of the assistance provided to the Crown, Mr Charlesworth was in protection and was subject to a number of restrictions.

84 The use by his Honour, in these circumstances, of approximately the same starting point when fixing each sentence was erroneous. I believe this Court should intervene. It is unnecessary to deal with Ground 3, manifest excess.

Ground 2: Parity with Molloy.

85 In view of the conclusion reached on Ground 1, it is unnecessary to consider Ground 2 at length. However, it is instructive, in view of the issues that remain, to look at sentences imposed upon Molloy and the remarks on sentence. It will be remembered that Mr Charlesworth was the first to go to the police (6.4.2006), almost two weeks after the offences had been committed. Hearn was arrested on 13 April 2006. On 16 April 2006, Molloy presented himself to a police station. He agreed to be interviewed and to provide assistance if required. He was committed for trial on 19 October 2006 in respect of the charges of “specially aggravated kidnapping, aggravated robbery and malicious damage, being the destruction of the motor vehicle” (Molloy ROS: 11). The trial was set down for 7 May 2007. One infers that there were discussions before the trial between the prosecution and counsel for Molloy, culminating in a fresh indictment and pleas of guilty to two charges. The two charges may be summarised as follows: (cf Molloy ROS: 1)

Count 1: Accessory after the fact to Hearn detaining the victim for advantage (contrary to s 86(1)(b) and s 350 Crimes Act 1900) (maximum penalty 5 years imprisonment).
Count 2: Aid and abet Hearn and Charlesworth (in company) to detain the victim for advantage (contrary to s 86(2)(a) and s 345 Crimes Act 1900) (maximum penalty 20 years imprisonment).

86 Molloy also asked the sentencing Judge, O’Connor DCJ, to take account of the offence of malicious damage to property (being the destruction of the car by fire) when sentencing on Count 2. That offence (under s 195(1)(b) Crimes Act) carried a maximum penalty of 10 years imprisonment.

87 The agreement reached between the Crown and counsel for Molloy was, in some respects, odd. The Crown, perhaps understandably, may have had misgivings concerning its ability to prove a joint enterprise which included Molloy in respect of the aggravated robbery. He had been present as part of the group, but unlike the appellant, had not addressed a demand to the victim. It is not entirely clear from the remarks on sentence what conduct was comprehended by Count 1 (accessory after the fact to Hearn detaining for advantage). Presumably it was Molloy’s obedience to Hearn’s direction to “follow” once Hearn took the wheel of the victim’s car, forcing the victim into the passenger’s seat. Molloy drove Hearn’s car and ultimately returned to Gorokan. However, that conduct might equally have been dealt with under Count 2, aiding and abetting Hearn in detaining the victim for advantage. Molloy certainly knew the victim was still in the car, and later witnessed the first sexual assault by Hearn upon the victim (Molloy ROS: 4/5).

88 The Crown, in written submissions, again produced a table which provided guidance as to the charges against each offender and the sentences imposed.

OFFENDER	OFFENCE	NPP	BALANCE OF TERM
Charlesworth	Aggravated Robbery Maximum: 20 years	2y 6m	2y 6m
Aid and Abet Aggravated Kidnapping Maximum: 20 years	3y 6 months concurrent with robbery offence	2y
Molloy	Accessory after the fact to Hearn detaining for advantage Maximum: 5 years	1y 8m	--
Aid and abet Hearn and Charlesworth (in company) to detain for advantage Maximum: 20 years	4y 8 months concurrent with accessory after the fact offence Form 1 taken into account (malicious damage by fire)	3y

89 The end result was that Mr Charlesworth was sentenced to a term of 7 years overall, with a non parole period of 5 years. Mr Molloy was sentenced to 8 years overall, with the same (5 year) non parole period. Each had the benefit of a finding of special circumstances. However, the reduction in the statutory ratio was significantly less in the case of Mr Charlesworth (71 percent) than in the case of Mr Molloy (62.5 percent).

90 The sentences in each case were derived after allowing a discount for pleading guilty and a further discount for assistance. The discounts varied and were as follows:

Charlesworth – 50%

Molloy – 35%

91 Applying these discounts, the starting point in each case in respect of the count they had in common (Count 2: aiding and abetting detention) was as follows:

Charlesworth – 10 years

Molloy – 12 years

92 The sentencing Judge considered parity between Messrs Molloy and Charlesworth. He saw Mr Charlesworth as the least culpable and Hearn, naturally, as the most culpable. Molloy therefore was in the middle. That was a common sense assessment on the facts overall, rather than an assessment based upon the different charges which each faced.

93 Because of the significant differences in the indictments presented against each offender, comparison between the two is difficult. Count 1 in the Molloy indictment was a much less serious charge than the aggravated robbery charge to which Mr Charlesworth pleaded guilty. Even a comparison between the charge they had in common is difficult because of the Form 1 offence which his Honour was obliged to take into account when sentencing Molloy. The destruction of the vehicle by fire in order to destroy evidence of their involvement in these crimes was a significant matter.

Resentence.

94 An affidavit of Mr Charlesworth was tendered, which is relevant to resentencing. It provides insight into his progress since his incarceration. He has used his time well. He works fulltime in textiles and has undertaken various courses. His affidavit included the following:

“7. I attend AA every Tuesday which has given me some insight into my abuse of drugs and alcohol. I will never use drugs again. It was crazy. I can’t believe that at the age 32 years old I started using needles. It was very stupid.”

95 I adopt the sentencing Judge’s discount of 50 percent for the early plea and for the assistance provided. I also adopt his Honour’s findings that Mr Charlesworth has good prospects of rehabilitation and that there are special circumstances.

Orders.

96 I propose the following orders:

1. The appeal against conviction dismissed.

2. The application for leave to appeal against sentence granted.

3. The appeal allowed.

4. The sentences imposed upon the applicant by O’Connor DCJ on 4 May 2007 are quashed and, in lieu thereof, the applicant is sentenced as follows:

Count 1: To a non parole period of 2 years commencing on 6 April 2006 and expiring on 5 April 2008, with a balance of term of 2 years commencing on 6 April 2008 and expiring on 5 April 2010.
Count 2: To a non parole period of 2 years commencing on 6 April 2007 and expiring on 5 April 2009, with a balance of term of 2 years commencing on 6 April 2009 and expiring on 5 April 2011.

The first date that the applicant will be eligible for parole is 6 April 2009.

97 HALL J: I agree with Kirby J.

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