Dalton v The Queen

[2008] NSWCCA 108

New South Wales
Court of Criminal Appeal

CITATION:	Dalton v R [2008] NSWCCA 108
HEARING DATE(S):	19 May 2008
JUDGMENT DATE:	26 May 2008
JUDGMENT OF:	James J at 1; Hislop J at 2; Hoeben J at 24
DECISION:	Leave to appeal granted; appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentencing - proportionality - sentence not manifestly excessive.
LEGISLATION CITED:	Crimes Act, 1900 Criminal Appeal Act, 1912
CASES CITED:	R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482 R v Poihipi [2001] NSWCCA 306 Postiglione v The Queen (1995-1996) 189 CLR 295 R v Boney [2001] NSWCCA 432 R v Douglas [2006] NSWCCA 94 Markarian v R (2005) 215 ALR 213 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Mathew James Dalton v R
FILE NUMBER(S):	CCA 2007/3724
COUNSEL:	A. Francis (Applicant) J. Dwyer (Crown)
SOLICITORS:	Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/1004
LOWER COURT JUDICIAL OFFICER:	Toner DCJ
LOWER COURT DATE OF DECISION:	16 May 2007

2007/3724

JAMES J
HISLOP J
HOEBEN J

Monday 26 May 2008

MATTHEW DALTON v REGINA

Judgment

1 JAMES J: I agree with Hislop J.

2 HISLOP J:

Introduction

The applicant pleaded guilty to two counts of robbery in company contrary to the Crimes Act , 1900, s 97(1). The maximum penalty for such an offence is 20 years imprisonment.

3 On 16 May 2007 the applicant was sentenced for each of those offences in the District Court to imprisonment for four years commencing on 2 December 2006, with a non parole period of 18 months expiring on 1 June 2008. The sentences were wholly concurrent.

4 The facts of the offence were agreed. They may be shortly summarised as follows: at 3.10 pm on Saturday 2 September 2006, the victims, two boys aged 14 and 15, caught a westbound train at Emu Plains station. They stood in the vestibule of the carriage with their pushbikes. Whilst travelling between Lapstone and Glenbrook, the victims were approached by the applicant and two young persons in his company, DB and CH. After a short conversation the applicant proceeded to threaten the victims with physical violence. He pushed one of the boys up against the side of the carriage. The offenders stole the i-Pod, wallet and mobile phone of one victim and the wallet of the other. The offenders ran from the train when it stopped at the next station. The victims gave chase and each was punched by the applicant. The offenders were subsequently apprehended.

5 The applicant has sought leave to appeal against sentence on the grounds that

“1. The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with the sentences imposed upon the co-offenders.
2. The sentence is manifestly excessive in the circumstances of this case.”

Sentencing considerations

6 His Honour expressly had regard to the following factors in sentencing the applicant:

(a) the applicant was born on 16 March 1988;

(b) the guideline in R v Henry (1999) 46 NSWLR 346 which, although set for the offence of armed robbery, has been held to apply to the offence of robbery in company - see R v Murchie (1999) 108 A Crim R 482 at [20] and R v Poihipi [2001] NSWCCA 306 at [31], and that the offences were serious;

(c) the applicant had a significant history of various forms of violence involving malicious damage to property, common assault and assault occasioning actual bodily harm;

(d) at the time of the offences the applicant was on conditional liberty in two ways in that he was in breach of a 12 months probation order commencing on 10 May 2006 and a 12 month s 10 bond imposed on 20 June 2006;

(e) the applicant was arrested on 2 September 2006 and had been in custody since, during which time he served a three month sentence for assaulting his mother. Accordingly his Honour commenced the sentence on 2 December 2006, the date when the three month sentence terminated;

(f) the applicant’s background, which his Honour described as both sad and depressing. He said the applicant’s life has been characterised by violence, homelessness, absence of love, hopelessly dislocated education and drug abuse;

(g) his Honour found special circumstances by reason of the applicant’s youth and need for ongoing supervision toward rehabilitation;

(h) he accepted the applicant was remorseful and contrite;

(i) the guilty pleas were entered at the earliest opportunity and accordingly a utilitarian discount of 25 percent was appropriate.

Ground 1: The sentence imposed upon the applicant gives rise to a justifiable sense of grievance when compared with the sentences imposed upon the co-offenders

7 DB was dealt with in the Children’s Court on 29 March 2007. In respect of the offences in common with the applicant, he received a sentence of 15 hours community service for each, ie a total of 30 hours community service in all. The magistrate, when imposing sentence, stated that the offences were sufficiently serious as to deserve a custodial penalty. DB was dealt with for other offences at the same time and in respect of two break and enter offences was required to enter a probation arrangement for 18 months.

8 His Honour in his remarks on sentence stated:

“I should note in passing that one of the two young persons has been dealt with but I don’t think parity has a role to play in this sentencing procedure, given that the person who has been dealt with has been dealt with as a juvenile.”

9 Counsel for the applicant, in her written submissions, submitted that

“The differential manifest by a term of imprisonment of four years (reflecting a starting point of five years and six months full time imprisonment) in the case of the applicant and the imposition of a 30 hour community service order upon DB is sufficient to engender a legitimate grievance despite those features of the applicant’s case which warranted a more severe penalty.”

10 It was not suggested that the sentence imposed upon the applicant ought be comparable to that imposed upon DB, but rather that the differential in sentence ought be ameliorated. Accordingly, counsel for the applicant preferred to describe the sentences as evidencing a lack of proportionality rather than an absence of parity. However, as disparity is a question of due proportion between sentences - Postiglione v The Queen (1995-1996) 189 CLR 295 at 301-302, nothing turns on this distinction.

11 As a general principle,

“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” - Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ.

12 In R v Boney [2001] NSWCCA 432 at [14] this court held:

“There is no longer an inflexible rule that there is no utility in comparing sentences imposed upon co-offenders who are separately dealt with: one in the Children's Court and the other as an adult…
While it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence.”

13 In R v Douglas [2006] NSWCCA 94 the applicant was 21 years old and the co-offender was 17 years old. The four year age difference between the offenders was said to be capable alone of distinguishing them on parity considerations, and the court declined to intervene. Latham J said at [14]:

“A determination that issues of parity do not arise in a given case is nonetheless consistent with an acknowledgement of the relevance of a sentence passed upon a co-offender. As Sully J. observed in R v Colgan [1999] NSWCCA 292, where the sentencing regime applied respectively to a co-offender and to an applicant are completely different, it may be that the outcome in the less punitive jurisdiction is not ‘wholly irrelevant’. However, it does not follow that it is appropriate to advance a parity argument, of the kind which seeks to draw direct comparisons between two offenders, as though they were both subject to the same jurisdiction.”

14 Here matters were not equal. The applicant was 18½, DB had just turned 14 at the time of the offences; the applicant had a not insignificant prior criminal history, DB had none; the applicant committed the offences whilst on conditional liberty, DB did not; the applicant played the lead role in the offences in that it was he who was foremost in threatening physical violence and inflicting it, DB was dealt with as a juvenile and his sentence for these offences was part of an overall sentencing exercise dealing with a number of offences and must be viewed in the context of totality principles.

15 In my opinion, considerations of parity or proportionality were non existent here where the differences between the offenders were so great that no legitimate grievance could reasonably be engendered. In my opinion, there was no error in not reducing the applicant’s sentence by reason of the sentence imposed upon DB. His Honour was correct to conclude that parity did not have a role to play in the sentencing of the applicant. This ground of appeal is rejected.

Ground 2: The sentence is manifestly excessive in the circumstances of this case.

16 His Honour, in imposing sentence, said that:

“The best I can do is impose a sentence which, both reflects the seriousness of the offences and offers the hope of rehabilitation…
I believe that without discount the proper total sentence would be one of five years and six months. But, with the allowances I have described, I propose a total sentence of four years. I will impose a non parole period of 18 months, having found special circumstances. I am of the opinion that the offences were part of the one criminal incident, and will make the sentences wholly concurrent.”

17 His Honour took as a starting point to determine the range of total sentence the guideline in Henry. In that case it was held that sentences for the type of offence identified therein should generally fall between four and five years for the full term, that aggravating and mitigating factors would justify a sentence below or above the range. The narrow range of four to five years for the full term is a starting point.

18 His Honour made allowance for the s 21A(2) aggravating features which he had identified. He took into account the applicant’s criminal history “but cautiously” as a reason for the underlying source of his offending behaviours. His Honour made reference to a previous offence of malicious damage. This appears to be an error but, in my opinion, it is immaterial as the record did demonstrate a not insignificant history of violence. His Honour noted that, unlike the Henry case, it could not be said the applicant had little or no criminal history. He noted there was some violence but there was no weapon like a knife involved. He also took into account that the offences occurred whilst on conditional liberty, which his Honour correctly considered a significant aggravating factor.

19 Counsel for the applicant submitted that the head sentence of four years was manifestly excessive in the circumstances of the case and that the starting point of 5½ years was a discrete error. There was no challenge to the non parole period.

20 As has been pointed out more than once, there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies - Markarian v R (2005) 215 ALR 213. In my opinion, the head sentences imposed by his Honour were within the discretionary range open to him albeit toward the top of the range. However that was more than balanced by the lenient non parole period and the order that the sentences be served concurrently. In my opinion, it has not been demonstrated that the full sentences are excessive. This ground also fails.

Conclusion

21 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79].

22 In my opinion, material error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed in relation to these matters. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

23 I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

24 HOEBEN J: I agree with Hislop J and the orders he proposes.

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