Clark v The Queen
[2000] TASSC 161
•15 November 2000
[2000] TASSC 161
CITATION: Clark v R [2000] TASSC 161
PARTIES: CLARK, Christian Paul
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 49/2000
DELIVERED ON: 15 November 2000
DELIVERED AT: Hobart
HEARING DATE: 30 October 2000
JUDGMENT OF: Cox CJ, Slicer J, Blow J
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Disparity between co-offenders - "Justifiable sense of grievance" - Principles applicable.
Lowe v R (1984) 154 CLR 606; Postiglione v R (1996 - 1997) 189 CLR 295, referred to.
Aust Dig Criminal Law [1005]
REPRESENTATION:
Counsel:
Appellant: R A Browne
Respondent: M P Shirley
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 161
Number of paragraphs: 12
Serial No 161/2000
File No CCA 49/2000
CHRISTIAN PAUL CLARK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
SLICER J
BLOW J
15 November 2000
Orders of the Court:
Appeal dismissed.
Serial No 161/2000
File No CCA 49/2000
CHRISTIAN PAUL CLARK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COX CJ
15 November 2000
The appellant pleaded guilty to three counts of aggravated burglary and five counts of stealing. In company with a co-accused, Simon Casey, he had, on 28 October 1999 at 3.30am, broken into office premises in the central business district of Hobart, systematically searched them, forcing open locked cabinets and cupboards, and had stolen computerware and a variety of other goods, plus cash. Some two weeks later, they returned to the same premises, again at 3.30am, and broke in. Considerable damage was again done and property stolen. In preparation for their entry, they had earlier that morning stolen a quantity of rigging rope from a fishing boat at the Hobart docks. A fortnight later they returned for a third time and broke into the same premises, once again stealing rigging rope from a fishing boat at the Hobart wharves. This time, however, they triggered the alarm system and, while security staff were on their way to the premises, gathered yet more property which was put near a fire escape outside the office. While still in the office searching for more property to steal, they were apprehended by security staff and were handed over to the police. Both made full admissions. The value of the property stolen was $14,000 approximately, of which about $4,000 worth was recovered, and the damage done amounted to $7,119.
Both pleaded guilty to all charges, Casey doing so on 25 May 2000 when he was remanded in custody for sentence. The appellant, however, who was due to appear on remand on 1 May 2000, failed to appear on that date and was arrested on warrant on 22 June 2000. He remained in custody until 6 July when he, too, pleaded guilty to all charges. Both were sentenced to imprisonment for twelve months, the sentence being backdated to the respective dates upon which they were taken into custody and no complaint is made at that head sentence. The execution of the last six months of Casey's sentence was, however, suspended on condition that he be of good behaviour for a period of two years following his release from prison, whereas the execution of the last three months only of the appellant's sentence was suspended on the same condition. The sole ground of appeal relied upon is that the sentence imposed upon the appellant was unjustifiably disparate with the sentence imposed upon Casey.
In Lowe v R (1984) 154 CLR 606, the High Court made it clear that mere disparity between the sentences imposed upon co-offenders is not of itself a ground for the intervention of an appeal court and that such intervention will occur only where the difference between the sentences is manifestly excessive. Mason J, as he then was, said at 613:
"… the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander."
Then, in addressing the question of what is the correct principle to be applied in cases of discrepancy, he said:
"It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate. (At 613 - 614)
Dawson J, at 623 - 624, added:
"… the interference of a 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; see Pecora [1980] VR at p 504; Tisalandis [1982] 2 NSWLR at p 438."
In Postiglione v R (1996 - 1997) 189 CLR 295, the court made it clear that "the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components" (per Dawson and Gaudron JJ at 302). Thus it is proper to intervene if there is a marked disparity between the effective portions to be served before eligibility for parole will arise or before a conditional release is granted pursuant to a partial or total suspension of the execution of the sentence.
In Lowe v R (supra) at 609, Gibbs CJ said:
"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
This is not a case where "other things are equal". In respect of their involvement in the crime, there was little to choose between them and both were young men, the appellant being 18 years old and Casey 21 years old. The appellant had a previous conviction for motor vehicle stealing at the age of 14, whereas Casey was said to have no prior convictions, although a psychiatric report tendered on his behalf said that he had three prior convictions all arising out of events during mid-1997 which resulted in the imposition of "modest fines". Both had supportive family backgrounds and counsel for the respondent conceded in his written submissions that they were "similar in their personal circumstances". However, there were differences. Casey, the learned trial judge who dealt with both of them was told, had, while in remand awaiting sentence, advised the prosecuting authorities of the names of the receivers of the two most expensive stolen items, namely laptop computers, and had indicated a preparedness to assist in the prosecution of those offenders. While it is arguable that this fact might have been more appropriately recognised in the imposition of a lower head sentence than in the suspension of a greater part of time in actual custody, the effect is the same. There is no justification for grievance on the part of the appellant if Casey received a reduction in his penalty by virtue of that fact. If it was a factor which should have been taken into account in setting the head sentence, the only person entitled to complain would be Casey, who would be in jeopardy of serving a term unreduced by virtue of his co-operation in the event that he failed to abide by the condition on which part of the sentence was suspended.
The second difference is that Casey more convincingly demonstrated an insight into his offending behaviour and showed the existence of genuine remorse. His counsel put to the learned sentencing judge:
"As an indication of Mr Casey's insight into his offending behaviour and his remorse he has sought intensive counselling. Mr Casey has acknowledged his offending behaviour stemmed from alcohol abuse and subsequent health problems and I have three reports in relation to counselling."
Jeb Gold, an Outreach Worker, said in his report:
"I remain convinced that Simon [Casey] has a genuine understanding of the events in his life which led to the activities which have brought him into Court; has a genuine remorse for his behaviour, and has done what he can to turn his life around to ensure that he is able to deal with emotional issues in his life in a more constructive manner."
Victoria Henderson, a Youth Health Worker, said:
"Simon [Casey] has made significant changes to his life. He repaired his relationship with his family and was able to move back to live there. He found permanent employment and was offering his services as a volunteer to Non-Government Organisations in Launceston. Many of these changes have been brought about by his own making and determination to return to a functioning and useful member of the community [sic]."
Donna Harriss, a psychologist, said:
"It is my opinion Mr Casey demonstrated sincere remorse for his actions and significant insight into their cause and effect. He actively changed his social network and his behaviour in an attempt to redress the effects of his actions. I advised Mr Casey to continue seeking assistance whilst in Launceston and maintain contact with The Link if he felt he needed to. He continued to experience some symptoms of anxiety but these had diminished.
It is my opinion that Mr Casey is not at risk for repeating his criminal activities. I think he has a good conscience and is aware of the consequences of his actions."
Psychiatrist Dr Ian Sale said in a written report tendered in mitigation:
"I am not able to give a psychiatric explanation for the conduct for which he now faces charges. All I am able to do is provide some idea of the setting in which they occurred, namely a young man whose previously normal adolescent development and adjustment, started to deteriorate from 1997. His sound premorbid adjustment, stable family background and obvious intelligence should provide much greater opportunities for rehabilitation than is often the case. In this regard, since his arrest he appears to have been making strenuous efforts to obtain various services and advice. His prior adjustment would suggest that the risk of re-offending should be relatively low."
The appellant, on the other hand, while expressing remorse through his counsel, did not demonstrate that he had taken any particular action to adopt a different lifestyle other than to approach four firms in the hope of obtaining a job. In the circumstances, it is not surprising that the learned sentencing judge felt more confidence in Casey's prospects of rehabilitation and encouraged them in the way he did. In my view, neither the appellant nor the objective bystander could validly regard some differentiation in respect of Casey for that reason as having the appearance of injustice.
A final matter should be noted. Casey pleaded guilty in the May Sittings of the Court to which they were both remanded. The appellant failed to appear on the first day of the Sittings and was arrested on warrant seven weeks later. He is not to be punished in respect of the crimes on this indictment for his breach of bail. His reason for doing so was that he was "too scared to appear in Court" as he feared a sentence of imprisonment and the effect that would have on his former de facto wife's two young children whom he treated as his own. In respect of the breach, he is in jeopardy of summary trial under the Bail Act 1994, s9. Nevertheless, the learned sentencing judge was entitled to take into account in sentencing Casey and in measuring the extent of his remorse and chances of rehabilitation the fact that he did not shirk his responsibility and pleaded guilty at an earlier time than did the appellant. The combination of all these factors constitutes ample grounds for the differentiation made by the learned sentencing judge. In my opinion, it has not been shown that the appellant has any justifiable sense of grievance at having been given a little less leniency than that accorded his co-accused.
Though not a specific ground of appeal, complaint was made that the learned sentencing judge did not express reasons for the slight difference in disposition he made in each case. It has been said that a sentencing judge should give reasons explaining any disparity between the sentence he imposes and earlier sentences imposed on co-offenders (R v McGowan (1986) 42 SASR 580 at 583, R v Cheng and Ors (1999) 73 SASR 502 at 531). Nevertheless, where there are discernible reasons for differentiation, a failure to fully articulate them in comments on passing sentence does not necessarily call for appellate intervention. As Muirhead J said in R v Davey (1980) 50 FLR 57 at 66:
"Remarks on sentence should not be reviewed on appeal as though they are a reserved judgment. They are frequently made extempore and in conversational manner, but generally only after anxious thought."
See also the remarks of Wright J in Pavlic v R (1995) 5 Tas R 186 at 191.
In sentencing Casey, the learned judge at first instance said:
"You are 22 years of age and have no prior convictions. When interviewed by police you made a full confession and you have pleaded guilty at an early date. Since the commission of your offences you have made a genuine effort to restore stability to your life and resume your former good ways. You have shown genuine remorse. You are a person of considerable ability and there are good prospects for your reform.
…
You are sentenced to 12 months' imprisonment to date from 25 May 2000, the date since which you have been held in custody. In recognition of your prospects of reform and to encourage that objective, I will suspend the operation of six months of that sentence on condition that you are of good behaviour for two years following your release from prison."
When he sentenced the appellant, he said:
"You are 19 years of age. When interviewed by police you made a full confession. You have a prior conviction for motor vehicle stealing some five years ago.
As I observed when sentencing your co-offender, Mr Casey, these were premeditated crimes effected with considerable guile and agility. To access the premises you broke into, you climbed the fire escape of an adjoining building and lowered yourself from the roof of that building to the burgled premises. In breaking into the same premises on three occasions within a comparatively short period of time you showed a callous disregard for the occupants, to the point of appearing to taunt them. A penalty directed towards personal and general deterrence is called for. I see no reason for imposing a different head sentence than that which was imposed on Mr Casey.
You are sentenced to 12 months' imprisonment to date from the 22nd June 2000, the date since which you have been held in custody. In view of your comparative youth I am satisfied that there are sufficient prospects for your reform to warrant suspending three months of the sentence on condition that you be of good behaviour for two years from your release from prison."
A comparison of the two sets of comments on passing sentence shows that his Honour was conscious of differing claims in respect of the length of a partial suspension of sentence. The objective facts before him substantiated those claims. I would dismiss the appeal.
File No CCA 49/2000
CHRISTIAN PAUL CLARK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
15 November 2000
I have had the advantage of reading in draft form the Reasons for Judgment of the learned Chief Justice and agree with both his reasoning and conclusion. I would dismiss the appeal.
File No CCA 49/2000
CHRISTIAN PAUL CLARK v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
15 November 2000
I agree with the learned Chief Justice. There is nothing that I wish to add.
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