Davenport, M.T. v The Queen
[1995] FCA 294
•4 APRIL 1995
CATCHWORDS
Criminal Law - appeal against sentence - young person committed for sentence in the Supreme Court - whether principles of disparity in sentences apply to co-offenders who are young people - whether manifest disparity between sentences imposed on three co-offenders.
Lowe v R (1984) 154 CLR 606
Matter No. ACT G63 of 1994
MARK THOMAS DAVENPORT v THE QUEEN
VON DOUSSA, HIGGINS and NICHOLSON JJ
CANBERRA
4 APRIL 1995
IN THE FEDERAL COURT OF AUSTRALIA)
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G63 of 1994
GENERAL DIVISION )
On appeal from the Honourable Justice Gallop a judge of the Supreme Court of the Australian Capital Territory
BETWEEN:
MARK THOMAS DAVENPORT
Appellant
AND:
THE QUEEN
Respondent
MINUTES OF ORDER
JUDGES MAKING ORDER : VON DOUSSA, HIGGINS
and NICHOLSON JJ
WHERE MADE : CANBERRA
DATE OF ORDER : 4 APRIL 1995
THE COURT ORDERS THAT:
The appeal be allowed.
The sentence imposed on count 1 of the indictment be set aside and in lieu thereof a sentence of committal to an institution for 12 months with effect from 5 August 1994 be substituted.
The sentences and orders imposed in the Supreme Court of the Australian Capital Territory on 17 August 1994 be otherwise confirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA)
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No. ACT G63 of 1994
GENERAL DIVISION )
On appeal from the Honourable Justice Gallop a judge of the Supreme Court of the Australian Capital Territory
BETWEEN:
MARK THOMAS DAVENPORT
Appellant
AND:
THE QUEEN
Respondent
Coram: von Doussa, Higgins and Nicholson JJ
Place: Canberra
Date : 4 April 1994
REASONS FOR JUDGMENT
THE COURT: This is an appeal against sentences imposed by Gallop J in the Supreme Court of the Australian Capital Territory on 17 August 1994.
The appellant stood charged on four counts. The first was that on 3 March 1994 at Canberra, he intentionally and without lawful excuse damaged by means of fire property, namely the Charnwood High School, belonging to the ACT Schools Authority. Without going into the circumstances at length, the damage caused to the school by reason of a fire lit on that occasion was in the order of $68,000, indicating the seriousness of the offence.
The second count was a related matter, that on 3 March 1994 he entered a building, namely the Charnwood High School, as a trespasser with intent to commit an offence involving damage to that building.
The other two counts were unrelated to the fire. The third count was that on 18 November 1993, at Canberra the appellant entered a building, namely Kippax Cellars, as a trespasser with intent to steal therein. The fourth count was that on 11 January 1993, at Canberra the appellant entered a building, namely Latham Newsagency, as a trespasser with intent to steal therein.
The appellant was a young person, born on 31 October 1979. He was committed for sentence in the Supreme Court because of the seriousness of the offences charged in counts 1 and 2. He pleaded guilty to each count.
On count 1 the appellant was sentenced to a period of 3 years in an institution. On count 2 the Court deemed it inexpedient to inflict any penalty because the offending was embraced in the sentence for arson on count 1. On count 3 the appellant was committed to an institution for 6 months cumulative upon the 3 year sentence imposed in relation to the first count. On count 4 the appellant was committed to an institution for a period of 6 months concurrent with the committal to an institution on count 3.
There was a further matter listed before the sentencing judge and dealt with at the same time which related to an assault which the appellant committed whilst he was on bail pending sentence. On that matter a further penalty of 6 months committal to an institution cumulative upon the sentences imposed on counts 3 and 4 of the indictment was also ordered.
The aggregate effect of the sentences was a period of committal to an institution for 4 years.
The appellant was aged almost 15 at the time of the offences. Three of the offences were committed in company with others. In the case of the arson, the offence was committed in company with one Wayne McTaggart who was aged almost 16 and the appellant's brother Paul Davenport who was aged almost 17. McTaggart was not otherwise charged. The appellant's brother Paul was charged in addition to the offence of arson with entering the school premises on the occasion of the fire as a trespasser with intent to commit an offence involving damage to the building. He was also charged with entering the Latham Newsagency on 11 January 1993 as a trespasser with intent and with stealing therein.
The penalty imposed on McTaggart in respect of the arson was that he be committed to an institution for 12 months but that the sentence be suspended upon him entering into a recognisance in the sum of $1000 to be of good behaviour for 2 years and to accept supervision from the Director of Family Services. The appellant's brother, Paul, received a sentence of 3 years committal to an institution for the arson offence. No further penalty was imposed in relation to his entry to the school as a trespasser with intent. For entering the Latham Newsagency with intent and stealing he was sentenced to 12 months committal to an institution to be served concurrently with the 3 years committal for arson.
The principal ground of appeal is that a manifestly excessive disparity exists between the sentences that were imposed on the one hand on the appellant, and on the other hand on the other offenders. It is contended that for the offence of arson, which attracted the major sentence, excessive disparity exists, first with the sentence imposed on McTaggart and, secondly, with the sentence imposed on Paul Davenport. The principles enunciated by the High Court in Lowe v R (1984) 154 CLR 606 regarding sentences imposed on co-offenders usually have application where the co-offenders are adults. In the application of those principles to young offenders there is the difficulty that in sentencing young offenders, the primary concern of the Court is with the rehabilitation and future welfare of the offenders. The circumstances of each young offender are likely to differ, and to greatly influence the penalty which is imposed. Nevertheless, it seems to us that the principles of disparity still have application where the offenders are each young persons. Young persons, particularly those like the appellant who have unfortunate anti-social attitudes, are just as likely to smart under a feeling of injustice and sense of grievance where there is a marked disparity in the sentences awarded to each offender, especially as the disparity may not be readily understood by a young person.
In the present case, the personal circumstances of McTaggart differ considerably from those of the appellant, and whilst, at first glance, there is a marked disparity between his sentence and that of the appellant, it is one that may be understood by lawyers and others familiar with the sentencing process on account of the personal facts and circumstances peculiar to McTaggart.
The disparity between the sentence for arson imposed on the appellant's brother Paul, and that imposed on the appellant, cannot be explained on the same grounds. The information before the Court discloses that Paul is not only some two years older than the appellant, but that he was very much the ringleader of the conduct with which the two brothers were charged. Moreover he had a prior conviction for arson. Those are matters which, in the ordinary course, would attract a significantly greater sentence in his case, than in the case of the appellant, particularly having regard to matters of similarity in their family and domestic backgrounds. In our opinion, the differences between the positions of the two brothers warranted a lesser sentence in the case of the appellant.
In the result, it was the appellant who received the higher aggregate sentence for the matters in respect of which they were both charged. Each was awarded 3 years committal for the arson. The appellant was awarded 6 months committal for entering the Latham Newsagency with intent whereas his brother who was charged with entering and stealing on that occasion was awarded 12 months committal; but the appellant's sentences were cumulative whereas his brother's were concurrent.
In our opinion, there is a manifestly excessive disparity between the two sentences such that the intervention of this Court on appeal is warranted. We propose, therefore, to allow the appeal.
As members of the Court have indicated during argument, as the appellant is a young person the Court is concerned to arrive at a result which is in the best interests of the young person and his rehabilitation. It is apparent from the transcript from the Court below that the learned sentencing judge was equally concerned with the welfare of the child, but it seems that his concern to prevent further offending by the appellant has led to a sentence which we do not consider can be justified having regard to the sentences imposed on the co-offender Paul Davenport.
The Court, in the course of argument, sought assistance from counsel for both parties as to the orders which would be perceived to be in the best interests of the appellant. In the course of that discussion, the Court was given information indicating that certain difficulties have arisen in the implementation of the sentencing order presently under appeal which caused the Court to explore whether a suspended sentence might be more beneficial than an order of the kind imposed by the learned sentencing judge. We are informed by counsel for the respondent that the Director is of the view that an order of the kind that was imposed would be appropriate if the period of committal were shorter. That view coincides with the view which this Court has reached on the merits of the appeal.
We propose, therefore, to allow the appeal and to reduce the sentence on count 1 to one of committal to an institution for 12 months. The sentences for the remaining offences will remain unaltered so that the two additional sentences on count 3 in the indictment and on the charge of assault that were expressed to be cumulative will remain cumulative one upon the other and of the same length, and that the sentence on count 4 which was expressed to be concurrent with the sentence on count 3 will remain concurrent with it. Those orders will lead to committal to an institution for an aggregate period of two years. The sentences will operate from 5 August 1994, the day on which the appellant was remanded in custody for sentence.
We add that the Court is of the opinion that the Director has power to act under this order to make whatever placements as to residence or education outside of Quamby that the Director thinks are appropriate; in particular, the Director has a wide power to grant leave of absence for those purposes on such terms as the Director thinks fit under s.68 of the Children's Services Act 1986 (ACT).
The appeal will be allowed. The sentence imposed on count 1 will be set aside, and in lieu thereof there will be a sentence of committal to an institution for 12 months with effect from 5 August 1994. The sentences and orders in the Court below will be otherwise confirmed.
I certify that this and the
preceding pages are a true
copy of the Reasons for
Judgment of the CourtAssociate:
Dated:
Counsel for the appellant : Mr J Sabharwahl
Solicitor for the appellant : Capon and Hubert
Counsel for the respondent : Mr M J Maxwell
Solicitor for the respondent : Director of Public
Prosecutions for the
Australian Capital
Territory
Date of hearing : 4 April 1994
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