Crawley v The Queen
[2011] VSCA 131
•10 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
SAPCR 2009 0800
| FRANK CRAWLEY |
| v |
| THE QUEEN |
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| JUDGES | ASHLEY and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 10 May 2011 |
| DATE OF JUDGMENT | 10 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 131 |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Howard, 2 September 2009) |
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CRIMINAL LAW – Sentence – Identical sentence passed on co-offender – Parity – Role of offenders – Antecedents – Timing of pleas of guilty – Appeal allowed – Appellant re-sentenced.
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| Appearances: | Counsel | Solicitors |
For the Applicant | Mr T Kassimatis | Paul Vale Criminal Law |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Frank Crawley appeals by leave against sentence passed upon him in the County Court on 2 September 2009 when, having pleaded guilty, he was sentenced to seven years’ imprisonment on a count of aggravated burglary (count 1) and to two years’ imprisonment on a count of reckless conduct endangering serious injury (count 2). With cumulation, the total effective sentence was eight years’ imprisonment. The judge fixed a non-parole period of five years’ imprisonment.
On 21 November 2008 a co-offender, Dieter Gruber, had been sentenced on the same counts. He received sentences which were identical in all respects with those imposed upon the appellant. Some time after the appellant had been sentenced, I refused Gruber leave to appeal against sentence.
Grounds
The grounds of appeal are as follows:
1A. The learned sentencing Judge erred by:
(a)imposing on the appellant and his co-offender GRUBER identical terms of imprisonment; and
(b)engendering in the appellant a justifiable sense of grievance.
1B.The learned sentencing Judge erred by:
(a)mistakenly proceeding to sentence the appellant on the basis that his Counsel and the Prosecutor ‘both ultimately agreed that [the appellant’s] position balances out reasonably evenly when compared with GRUBER’s’; and
(b)failing adequately or at all to have regard to the Crown’s concession on the appellant’s plea that he played a lesser role in the offending than did GRUBER.
2.The learned sentencing Judge erred by employing in particular, for the offence the subject of Count 1, a two-tiered method of imposing sentence.
Circumstances of offending
The offences were committed on 29 December 2006.
The appellant and his co-offender invaded a home and attacked an occupant. The offending occurred in the milieu of the illicit drugs scene.
The judge described the circumstances of the offending as follows:[1]
[1]I have deleted some presently irrelevant details.
The victim, [N], lived alone at Pearcedale. His was a remote house in the sense that it was in the middle of a 3 acre block, at the end of a 200m dirt driveway, surrounded by trees.
On 29 December 2006, at about 2am, you and Dieter Gruber went to the victim’s house intending to steal money and/or drugs from him. Apparently [N] was a known drug dealer in the area and owed a drug ‘debt’ to Gruber. He knew you both. You had each been to his home before this incident and he had been a tenant at your home with your sister before you moved in there.
Some hours before your arrival at the premises, significant damage had been caused to the victim’s house by Adam Edwards, one of his drug associates. Apparently [N] had made threats to him. A number of windows were smashed including glass around the front door. I do not hold you responsible for any of that offending.
However, [N] was fearful that a further attack might have been made upon him or his house and had armed himself with a home-made spear and a can of lighter fluid. He stayed up late monitoring a number of surveillance cameras which he had set up at the premises. He saw you both coming up to the front door. Neither of you were fooling around. You were carrying a loaded shot gun which you say was given to you by Gruber and he was also armed with a shotgun. You told police you were asked to attend so you could assist Gruber with the enforcement of the debt, to look ‘scary’ as you put it, for which you were to be paid a couple of hundred dollars.
When you got to the front door, Gruber placed his hand through a broken glass panel and attempted to open it from the inside. The light was on in the lounge room and on the veranda and [N] identified him immediately. He asked him what he wanted, calling him by his nickname ‘Dida’. Gruber told him to open the door and called him a ‘fucking dog’. He told Gruber to get out and that the police had been called but, undeterred, Gruber called him by his name and again demanded that he open the door.
To defend himself, [N] then squirted lighter fluid onto Gruber’s sleeve and set it alight. He was not injured but ran backwards in fright. As he did so he called out to you, ‘Frankie, shoot him’. Rather than to have retreated in those circumstances, you raised your weapon to hip height and pointed it in [N’s] direction. Not surprisingly, [N] turned and started running away from the two of you. Even then, when you had him on the run and he was no threat to you, you fired in [N’s] direction when he was about 5 or 6 feet away from the front doorway. Shotgun pellets narrowly missed [N’s] head and lodged in a nearby wall. As he described it: ‘I felt like something went over my head. I thought that the shot was really close to me. It was like something attracted my ears to follow [the] sound over my head.’
Fortunately, for [N] – and you – he was not directly hit or injured by any of those pellets. I am not to sentence you on any basis that you intended to harm the victim by the discharge of the weapon at that time. The reckless conduct in count 2 is the firing of the shotgun in the direction of the victim, thereby placing him in danger of serious injury.[2]
Following the discharge of the weapon, the two of you used the butt of each firearm to smash the front door glass so as to gain entry. The force used was so severe you broke the butts of both firearms into five different pieces, which were later recovered by police and upon which Gruber’s DNA was found.
Having got into the house, you then chased the victim down a hallway. He was only able to escape by breaking through a back window, thereby badly gashing his thumb in the process. You did not get him. The victim hid in some bushes and a short time later saw you both leaving the property in a car which he associated with Gruber. He then reported the matter to police and that night identified you and Gruber as the offenders.
[2]The detailed elements of this offence were set out by Batt JA, with whom Buchanan and Vincent JJA agreed, in R v Wilson; R v Carman [2005] VSCA 78, [17].
Events thereafter
The appellant was arrested later on the same day. He made a record of interview in which he made admissions but minimised his role. He went into custody, and so remained up until sentence – a total of 947 days. He contested a committal hearing in August 2007. On 23 June 2008, he and Gruber pleaded guilty to the counts on which he was ultimately sentenced. He sought to change his plea and on 22 October 2008 the judge who in due course sentenced him permitted him to do so. At issue, it seems was whether admissions in the appellant’s record of interview had been made voluntarily. The judge sentenced Gruber on 21 November 2008. The appellant came up for trial on 24 August 2009. After a voir dire had been held, the judge ruled that the record of interview was admissible. The judge also ruled that evidence could be led of the appellant’s earlier guilty plea. They led to the appellant pleading guilty to the same counts as those upon which Gruber had been sentenced.
Personal circumstances
The appellant was born on 1 April 1979. At date of offending he was aged 27. At date of sentence he was aged 30.
The appellant admitted ten prior convictions from five previous Magistrates’ Court appearances between 26 October 1998 and 11 July 2006. Four of the court appearances were inconsequential. But on 16 July 1999 the appellant had been convicted on charges of reckless conduct endangering serious injury and causing injury recklessly. It seems that the appellant had got into a fight with hotel patrons after a car in which he was a passenger had collided with part of a hotel. The magistrate imposed an intensive corrections order. The appellant breached it. He was then sentenced to 88 days’ imprisonment. That was the only occasion on which a sentence of imprisonment had been imposed upon him.
The appellant was not the product of a broken home. He left school after completing year 9 and went to work with his father, a painter and decorator. Thereafter he was in full time work until his arrest in respect of the instant offences. Three former employers provided glowing references.
Drug-taking, and involvement in the drug scene, lay behind the present offending. But urine screens conducted whilst the appellant was on remand were reported negative.
There was unequivocal evidence that the appellant would have work on his release.
The plea of guilty
The judge accorded the appellant’s late pleas of guilty utilitarian value. But he referred to the course of events, and stated that the appellant had ‘played the system in a cynical and opportunistic way’. There was ‘no element of remorse’ in the guilty pleas.
The role of the offenders
The judge said this –
Frankly, I do not have confidence I understand the true relationship between you, Gruber and the victim. However, I am prepared to proceed on the basis that it was Gruber’s ‘debt’ and his idea to attack the victim, but you were an enthusiastic player, as I shall mention again shortly, and were involved to make some money.
The period on remand
The appellant had been in protective custody ever since his arrest – apparently as a result of a threat made by Gruber, and because of the way in which he was treated by other inmates.
The judge accepted that this had been an increased burden for the appellant. But, his Honour said, it had not significantly held him back, because he had completed a number of courses.
Pausing, this analysis was scarcely fair to the appellant. It might correctly have been concluded that, despite the increased burden of his conditions whilst on remand, he had bettered himself.
Prospects of rehabilitation
The judge concluded that the appellant’s prospects of rehabilitation were good. He was unable, for unstated reasons, to find that they were excellent.
Characterisation of seriousness of the offence, and culpability of offenders
The judge said this:
Regrettably, there is a prevalence of serious offences being committed by drug addicts and others to obtain money and/or drugs, sometimes to feed their addiction. Your offending is all the more serious, constituting as it does, a well-planned home invasion at night, conducted against a lone person in isolated premises, while you and your co-offender were armed with fearsome looking shotguns. This was no unplanned spontaneous entry into someone’s home following an emotional altercation, as sometimes occurs.
… N was entitled to the full protection of the law – whether he was engaged in the insidious drug trade or not. There is no victim sub-class upon whom criminals such as you can prey and then expect there might be no report to police or a lesser sentence because of the character of the victim. Every person, however troubled or afflicted, is entitled equally to the enjoyment of the human right to be free of physical violence of any kind.
You (sic) conduct was designed to cause the maximum degree of terror and you achieved that aim. This was a most frightening experience for the victim, so much so that he moved out of his house and is no longer able to live alone.
Instead of retreating once Gruber’s arm was set alight, you spontaneously complied with his request to shoot the victim.; You actually aimed and fired the weapon that you held, thereby placing the victim in danger of serious injury. In the highly volatile situation which existed, it must have been obvious to you that one or other weapon would or might be discharged. It was only fortuitous that the victim was not actually shot, let alone killed. Undeterred by the enormity of what you had done, with Gruber you then used your weapon to smash through the front door and enter the house so that you could pursue the victim.
None of this conduct suggests to me that you were a mere follower, as submitted. Quite the opposite – you were an equal aggressor with your co-offender and bear an equal legal and moral culpability with him for these offences.
Differences between the co-offenders
The judge said this –
However, there are other differences and similarities between you and Gruber which should be considered.
Unlike you, he had much worse prior convictions, including multiple offences of violence and having been sentenced to imprisonment on no less than six previous occasions. He had committed further offences of dishonestly and violence beyond the commission of the present matters. It was unclear whether he was on parole at the time of the offences, but there was a need for a sentence which would specifically deter him from future offending. On this basis, he should receive a longer sentence than you.
However, and of great significance, he pleaded guilty in very different and far more commendable circumstances than you. His pleas were associated with regret, if not remorse and entered and pursued long before yours. On this basis, he should receive a lesser sentence than you.
You both shared a number of similar circumstances. Like you, he had no convictions for aggravated burglary nor using or possessing a firearm in a violent way. He was also a drug user with a longstanding affliction. He did not fully own up to the matter and contested his committal. Over a lengthy time in prison leading up to his sentence, he, too, had made positive developments and become a better person. He had negative urine screens and had performed well in prison employment. Finally, like you, he had reasonable prospects for rehabilitation.
Had Gruber taken the same course as you in reversing his pleas, or had you gone ahead with your pleas in June 2008, there would have been a basis to distinguish between you and he on sentence. But, looking at the matter as broadly as possible, and taking into account these differences and similarities, both counsel ultimately agreed with me that your position balances up reasonably evenly when compared with Gruber’s.[3]
[3]Footnote omitted.
The Crown’s submission as to range
The prosecutor eventually provided the judge with a range of sentences which the Crown considered appropriate: a head sentence of between five and seven years, and a non-parole period of three to four years. Counsel persisted in the submission. The judge disagreed with it, in part because he concluded that ‘no ultimate distinction [should be] drawn between the appellant and his co-offender’.
Grounds 1A and 1B
Submissions for the appellant
Counsel for the appellant submitted that:
(a) Gruber’s criminal history was very much worse than that of the appellant;
(b) The appellant had been on remand for 947 days in protective custody by time of sentence. Because of subsequent offending, conviction and sentence, Gruber’s pre-sentence detention was only 49 days.
(c) The prosecutor had submitted, in the knowledge of the sentence imposed upon Gruber, that a lower range of head sentence and non-parole period was appropriate in the appellant’s case. Further, the prosecutor had submitted that a non-parole period of two years and eight months’ imprisonment – that is, time served - would suffice as a non-parole period.
(d) Gruber’s plea of guilty, of which the judge made much in sentencing the appellant, had attracted a finding that it was attended by regret, but not remorse.
(e) The prosecutor had differentiated between the roles played by the appellant and Gruber in the offending. It was not correct for the judge to have stated that both the prosecutor and counsel for the appellant had ‘ultimately agreed that [the appellant’s] position balance[d] out reasonably evenly when compared with Gruber’s’.
Submissions for the Crown
Counsel for the Crown submitted that the judge had recognised the importance of the parity question, and that he had carefully considered it in his sentencing remarks. The only evidence to support the contention that the appellant’s role in the offending had been a lesser one was in his record of interview; but that was inconsistent with the victim’s account. Nothing could be gleaned from Gruber’s account, because, when interviewed, he had made no admissions at all.
Counsel submitted further that the stage at which the offenders had pleaded guilty was significant, and had properly been brought to account.
Resolution
In my opinion these grounds should be upheld. In consequence, I will say nothing about ground 2.
The following matters are pertinent to my conclusion.
First, the appellant’s later plea of guilty was treated by the judge as being of much importance. Gruber had entered an earlier plea. But, for the following reasons, the distinction was more apparent than real: (a) in sentencing Gruber the judge said that his plea of guilty had been entered at a ‘late stage’; (b) the appellant made admissions at the outset (albeit that he later unsuccessfully attempted to resile from them) whilst Gruber made no admissions at the outset at all; (c) the pleas of neither offender, the judge found, were indicative of remorse; and (d) at his plea hearing Gruber withdrew his admission that the appellant had been his co-offender, and said that it was another man whom he would not name. This bespoke little assistance to the prosecuting authority.
Second, by time of sentence, the appellant had been in protective custody for 947 days, yet he had bettered himself. Gruber had served only 49 days of pre-sentence detention, because he had subsequently served another sentence. He had offended subsequently, between December 2005 and January 2007, and had been gaoled for 21 months with a minimum of 15 months in October 2007. The most that could be said in his favour was that, after he was imprisoned in October 2007, he had taken some steps to better himself.
Third, the appellant was aged 27 at time of offending. Gruber was nearly eight years older.
Fourth, Gruber had offended on this occasion while on parole.
Fifth, the appellant had the limited criminal history to which I have referred. Gruber admitted 106 prior convictions, and four findings of guilt from nine court appearances between March 1990 and April 2005. He had been sent to gaol on a number of occasions for serious offences. His prior offending included multiple burglaries and three offences of violence. He did not have the appellant’s sound work history, or family support. So much is evident from reading the judge’s sentencing remarks in Gruber’s case. The prospects for rehabilitation of the two men were, in my view, undeniably very different. The most that the judge said, sentencing Gruber, was that he had ‘reasonable’ prospects for rehabilitation.
Sixth, counsel for the parties did not agree that the roles of the two offenders balanced out reasonably evenly. The furthest that appellant’s counsel went was to concede that, making discrete allowances, the circumstances balanced up ‘pretty much so’. But he maintained that ‘Gruber is the lead player in all this activity’; and he submitted that ‘Were it not for [Gruber], my client wouldn’t be here’. For his part, the prosecutor described the appellant’s role as ‘subsidiary or ancillary’. He held to that submission despite questioning by the judge. The appellant’s statement, which by the judge’s ruling as to its admissibility became part of the material before his Honour, supported such a conclusion. The victim’s account was incapable of gainsaying certain differences in the roles of the offenders as described by the appellant. The judge’s finding, in the face of the prosecutor’s concession, was adverse to the appellant. The judge was not bound by the prosecutor’s concession, but a finding adverse to the appellant required a strong degree of satisfaction. I doubt that the judge was entitled to reach the conclusion which he did. But at worst for the appellant, his role did not exceed that of Gruber.
Having regard to all the circumstances, I consider that the appellant is entitled to have a justifiable sense of grievance in respect of the sentence passed upon him.
Re-sentencing the appellant
I consider that the appellant should be re-sentenced to five years’ imprisonment on count 1 and to 18 months’ imprisonment on count 2. I would cumulate nine months of the sentence on count 2 on the sentence on count 1. The total effective sentence would be five years and nine months’ imprisonment. I would fix a non-parole period of three years and nine months’ imprisonment.
Had the appellant been convicted after trial, I would have sentenced him to an overall term of seven years’ imprisonment with a non-parole period of five years.
I cannot undo the past. But in view of the conclusion which I have reached about this appeal, it is much to be regretted that the appellant has already spent more than four years in custody.
BONGIORNO JA:
I agree.
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