Coleman v Regina

[2009] NSWCCA 7

New South Wales
Court of Criminal Appeal

CITATION:	COLEMAN v REGINA [2009] NSWCCA 7
HEARING DATE(S):	Friday 21 November 2008
JUDGMENT DATE:	11 February 2009
JUDGMENT OF:	Tobias JA at 1; Kirby J at 2; Hall J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – grounds for interference – whether – disparity in sentences between co-offenders – where objective criminality of co-offender of a higher order – overall sentencing outcome appropriate – consideration of relevant principles – totality – seriousness of offence – where appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v Kollas & Mitchell [2002] NSWCCA 491
PARTIES:	Tony Keith COLEMAN v REGINA
FILE NUMBER(S):	CCA No 2005/1507
COUNSEL:	Crown: Ms N Noman App: M Dennis
SOLICITORS:	Crown: S Kavanagh App: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0861
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	18 May 2007

2005/1507

TOBIAS JA
KIRBY J
HALL J

WEDNESDAY 11 FEBRUARY 2009

TONY KEITH COLEMAN v REGINA

Judgment

1 TOBIAS JA: I agree with Hall J.

2 KIRBY J: I agree with Hall J.

3 HALL J: By application for leave to appeal dated 5 August 2008 and filed on 6 August 2008, the applicant seeks leave to appeal against sentences imposed on him by the District Court on 18 May 2007. On that date, he was sentenced for two counts of maliciously damaging property by fire committed respectively on 10 August 1998 and 7 October 1999. The offences were contrary to the provisions of s.195(b) of the Crimes Act 1900.

4 The maximum penalty for an offence under that section at the relevant time was 10 years’ imprisonment. The applicant sought to have a further offence under s.195(b) taken into account on a Form 1.

5 The applicant was sentenced as follows:-

(1) On Count 1, a non-parole period of 12 months to commence on 24 February 2005 and to expire on 23 February 2006 with a total term of three years to commence on 24 February 2005 and to expire on 23 February 2008.

(2) On Count 2, taking into account the matter on the Form 1, a non-parole period of 18 months to commence on 24 February 2006 and to expire on 23 August 2007 with a total term of four years to commence on 24 February 2006 and to expire on 23 February 2010.

6 The total effective sentence was, accordingly, a term of imprisonment of five years with an effective non-parole period of two and a half years.

7 The applicant relied upon one ground of appeal in the following terms:-

“The sentences imposed upon the applicant are such as to give rise to a justifiable sense of grievance when considered against the sentences imposed upon the applicant’s co-offender and father, Anthony Coleman.”

8 The applicant was almost 19 years of age at the time of the offence committed on 10 August 1998 and was 20 years of age at the time of the offence committed on 7 October 1999.

Facts

9 An agreed statement of facts was tendered at the sentencing hearing. The Crown set out a summary of the facts based upon the agreed statement of facts in its written submissions in the following terms:-

“ Count 1: In the early hours of the morning of 10 August 1998, the Applicant’s father set alight the warehouse belonging to a company trading as Matrix Essentials Australia at Zetland. The building stock and operating equipment were destroyed. The loss was estimated at $4.35 million. The Applicant assisted his father by driving him to the premises (they were living on the Central Coast at the time) and by helping him to get up onto the roof. His father had offered $500 for driving him there, but the Applicant claimed not to have received any payment. The Applicant played no part in the planning or organisation of the offence, which involved other co-offenders (ROS 3-6).
Count 2: In the early hours of the morning of 7 October 1999, an explosion and fire occurred at the premises of Laxales Hair and Beauty Supplies Pty Limited at Seven Hills. The loss of stock and profit was estimated at $262,000 and damage to the building was approximately $65,000. Again the Applicant’s father was responsible for setting alight the premises. The Applicant’s role was limited to that of a look out.
Form 1: On the night prior to the offence in Count 2, a smaller fire was lit by the Applicant’s father in a garage at the Laxales premises, causing the loss of stock limited to that contained in the garage. The estimated loss was $49,000. Again the Applicant’s role was limited to that of a look out.”

10 In the Written Outline of Submissions for the Applicant, the facts are set out in detail (paragraphs 7 to 17 of those submissions). In paragraph 15, it is noted that police spoke to the applicant on 22 December 2004 and he made admissions stating that he had been helping his father out by driving him to the fires. He was later interviewed by way of ERISP interview and made admissions in relation to the offences.

11 In relation to the “Matrix” offence (Count 1), it is noted that the applicant admitted assisting his father with scaffolding to gain access to the roof of the premises. In the submissions it is noted (paragraph 16) that it was an agreed fact that the applicant played no part in the planning or organisation of the offence. He had been offered the payment of $500 in exchange for driving his father to the scene, which it is stated he never received.

12 In relation to the “Laxales” offences (Count 2 and Form 1), the applicant also made specific admissions when interviewed. It was agreed that his role with respect to those matters was that of a “look out”.

Ground of appeal

13 The applicant’s father was sentenced in the District Court. His Honour Judge Hulme SC sentenced him at Parramatta on 21 September 2007. The applicant’s father had earlier pleaded guilty before Her Honour Judge Morgan on 20 February 2007 to a number of offences including the following:-

“ Count 1: For that he on 10 August 1998 at Zetland in the State of New South Wales maliciously damaged property by fire namely the premises of Salon Management Services trading as Matrix Essentials Australia located at 3/5 15 Epsom Road.
Count 2: For that he on 11 Jun 1999 at Auburn in the State of New South Wales maliciously damaged property by fire namely the premises at Hairtech Australia Pty Limited located at 86A Adderley Street.
Count 3: For that he on 7 October 1999 at Seven Hills in the State of New South Wales maliciously damaged property by fire namely the premises of Laxales Hair and Beauty Suppliers Pty Limited located at Boomerang Place.
Count 4: For that he between 22nd January and 25 January 2000 at Wamberal in the State of New South Wales maliciously damaged property by fire namely the premises of Philip Kennedy and Margaret Kennedy located at 3/99 Ocean View Drive.”

14 The applicant’s father was sentenced as follows:-

“ Count 1: a non-parole period of two and a half (2½) years commencing on 20 December 2004, and a total term of four and a half (4½) years.
Count 2: a non-parole period of two and a half (2½) years commencing on 20 June 2005, and a total term of four and a half (4½) years.
Count 3: a non-parole period of two (2) years commencing on 20 December 2005 and a total term of four (4) years.
Count 4: a non-parole period of two (2) years commencing on 20 June2006 and a total term of four (4) years.
The overall effective sentence for the applicant’s father was one consisting of an effective non-parole period of three and a half (3½) years and a total effective term of five and a half (5½) years.”

15 It is noted in the written submissions for the applicant that Counts 1 and 2 for which the applicant was dealt with were the same matters as are referred to in Counts 1 and 3 with respect to his father.

16 The applicant’s father, accordingly, had a further two counts on the indictment that were not common to the applicant.

17 The applicant, as previously noted, had taken into account on a Form 1, a matter which was not common to the counts for which his father pleaded guilty.

18 In the written submissions for the applicant it was contended:-

“26. When considering the matters common to both the applicant’s father and the applicant (allowing for the fact that the applicant had a further matter on a Form 1 taken into account) the notional overall effective sentence for the applicant’s father with respect to these matters is one consisting of an [sic] notional effective non-parole period of three (3) years and a notional effective total term of five (5) years.
27. The difference between the applicant and the applicant’s father when this comparison is made is therefore is [sic] one of only six months as to non-parole period.”

19 In the Crown’s submissions, the sentences in respect of the applicant and his father in respect of Counts 1 and 2 are set out in the following terms:-

“12. The sentences imposed were:

Count 1: 12 mths NPP/ 3 yr term 2½ yr NPP/ 4½ yr term

Count 2: 18 mths NPP/ 4 yr term 2 yr NPP/ 4 yr term
[including Form 1 offence] [count 3]”

Consideration

20 In the Outline of Submissions for the Applicant, a number of objective and subjective matters relating to the applicant and the applicant’s father are set out (paragraphs 28 to 51).

21 In the Crown’s written submissions, it is observed:-

“13. The Applicant argues at QWS [23]-[53] that by reference to Anthony Coleman’s breach of conditional liberty, his more extensive criminal record and the Applicant’s clear record, the Applicant’s difficulties with drug addiction and mental health issues, the more senior role of the Applicant’s father in the offending and lack of any distinguishing features between them as to the timing of their pleas, remorse, rehabilitative prospects and a common finding of special circumstances, that the Applicant has a justifiable sense of grievance in respect of his father’s sentence when a comparison is made of the sentences in common for which they were sentenced. The Applicant points at QWS [5] and [26] to his effective sentence of 5 years with a 2½ year non-parole period compared to his father’s effective sentence on the two matters in common of 5 years with a non-parole period of 3 years. Therefore, the Applicant argues, there should have been a greater difference between the sentences than the 6 month difference in their effective non-parole periods.
14. There are difficulties with this argument.”

22 It is correct to say, as has been submitted on behalf of the applicant, that the objective criminality of the applicant’s father was of a higher order given the father’s lead role in the commission of the offences and the remuneration received by him for his efforts, in particular, in respect of Count 1. Additionally, the fact that the father was on various forms of conditional liberty at the time of the commission of the offences for which he was sentenced is an important matter to be taken into account. Additionally, the applicant’s father’s criminal history distinguished him from the applicant who was treated as not having had a criminal record as at the time of sentence.

23 The matters concerning the applicant’s earlier history of drug taking and his psychological assessment recorded in the report of Mr John Taylor, forensic psychologist, dated 17 April 2007 (Exhibit 1) are matters that also distinguish his position from that of his father.

24 It is relevant to observe in relation to the particular ground of appeal relied upon that this is not a case of true parity in the offences for which the applicant was sentenced and the offences for which his father was sentenced. The father had two more substantive offences than the applicant and the applicant had a matter on the Form 1.

25 An important aspect to be taken into account is that the sentencing outcome in respect of the applicant’s father was the result of the application of the principle of totality with the sentences in respect of the four offences each being accumulated by six month periods. Accordingly, it is necessary to consider the total effective non-parole period and the total effective sentence imposed in respect of the applicant’s father in that context.

26 In the course of his remarks on sentence in respect of the applicant’s father, Hulme DCJ, in his remarks on sentence dated 21 September 2007, referred at some length to the factors taken into account in the sentencing exercise in relation to the applicant (ie, Tony Keith Coleman): see remarks on sentence, pp.12 to 13.

27 At the conclusion of his remarks on sentence, Hulme DCJ observed (at 14):-

“Having regard to the different roles played by the co-offenders, the differences in offences for which they were dealt with, and the differences in personal circumstances, no question of direct parity arises. However, it is important that I have regard to those sentences so as to ensure that the sentences to be imposed upon the present offender retain an appropriate proportionality. In terms of the respective roles played, it is clear that the present offender played a more significant role than his son, Tony Keith Coleman, but he was subordinate to that of Awit and Zakhem.”

28 It is also to be observed that his Honour did, in fact, sentence the applicant’s father to longer sentences on each of the two counts in common (being Counts 1 and 3 in relation to the applicant’s father). In respect of Count 1, the applicant’s father received a total term of four and a half years with a non-parole period of two and a half years. In respect of Count 3, he received a term of four years with a non-parole period of two years.

29 I consider that, in the circumstances, the Court should accept the submission made on behalf of the Crown to the effect that “the difference in approach occasioned by the principle of totality in each case invalidates the direct comparison in overall sentence length suggested by the applicant” (Crown’s written submissions, paragraph 18).

30 I do not consider that the ground of appeal relied upon has been made out. Even if it could be said that there was a valid basis of complaint in respect of the overall sentencing outcomes in the two cases (and I do not consider that there is such a basis), it is necessary to bear in mind the seriousness of the offences and, in particular, that involved in Count 1. The sentencing judge, in relation to the applicant, observed :-

“These are, of course, extremely serious matters and the extent of the damage or loss which was occasioned was enormous, particularly on Count 1 …” (Remarks on sentence, 18 May 2007, at p.12)

31 Any lesser sentences than that imposed in this case would, in my opinion, fail to properly give effect to the aspects of specific and general deterrence. It was necessary that the objective criminality of the offences be reflected in both the head sentence and the non-parole period.

32 I consider that the observations of Wood CJ at CL in Regina v Kollas & Mitchell [2002] NSWCCA 491 at [45] are relevant to the present case:-

“45. The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree or kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p.4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved.
46. In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered.
47. That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is ‘an aspect of equal justice’. Equal justice requires, as their Honours pointed out, that ‘like should be treated alike, but that, if there are relevant differences, due allowance should be made for them’.
48. The principle is enlivened only where the disparity is such as to give rise to a justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337):-
‘So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellant court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders.’
49. This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and for an individual assessment of the facts by the sentencing Judge who has the benefit of seeing and hearing the evidence first hand.
50. The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person, looking at the circumstances of the case, would regard the offender’s grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at par 6).”

33 I confirm that even if the grounds of appeal had been established the gravity and repeated nature of the offences would have indicated that no lesser sentences were warranted in law: Criminal Appeal Act 1912, s.6(3).

34 I consider that the appropriate orders are as follows:-

(1) Leave to appeal be granted.

(2) The appeal be dismissed.

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