Director of Public Prosecutions v McGee

[2010] TASCCA 12

[2010] TASCCA 12

COURT:              SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              Director of Public Prosecutions v McGee [2010] TASCCA 12

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v

McGEE, Thomas Jackson

FILE NO/S:  CCA 113/2010
DELIVERED ON:  15 September 2010
DELIVERED AT:  Hobart
HEARING DATE:  10 August 2010
JUDGMENT OF:  Crawford CJ, Evans and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Whether parity principles apply to Crown appeals against sentence.

R v Radloff (1996) 6 Tas R 99, followed.
R v Vincent [2006] NSWCCA 276; Steer v R (2000) 171 ALR 463, considered.
Aust Dig Criminal Law [3522]

REPRESENTATION:

Counsel:
           Appellant:  T J Ellis SC, A Hensley
           Respondent:  E Hughes
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  Legal Aid Commission of Tasmania

Judgment Number:  [2010] TASCCA 12
Number of paragraphs:  46

Serial No 12/2010
File No 113/2010

DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  EVANS J
  PORTER J
  15 September 2010

Orders of the Court

1. Appeal allowed.

1. Sentence quashed.

Serial No 12/2010
File No 113/2010

DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  15 September 2010

1. The respondent was found guilty by a jury of one count of burglary and one count of arson.  He pleaded guilty to another count of burglary and one count of stealing.  On 15 February this year, Tennent J recorded convictions and sentenced him for the four crimes to 12 months' imprisonment wholly suspended on condition that for three years he be of good behaviour. 

1. The Director appealed on two grounds that asserted errors of law.  The first is that the sentence was manifestly inadequate in all the circumstances of the case.  The second is that the sentence was unjustifiably and significantly disparate to a sentence imposed on one of the respondent's co-offenders, Jye Gregory Halliday, the respondent's sentence being significantly more lenient.  In the alternative, the second ground is put on the basis that the learned judge failed to consider and apply parity principles.

The factual basis for sentencing

1. The crimes concerned a pasta and pizza restaurant in a built up area in the centre of St Helens.  There were three offenders who were the respondent, who was 18 years old at the time (and 19 when sentenced), Halliday, who was 23 years at the time, and a 17-year-old youth. 

1. In the early hours of 20 January 2009, the three offenders entered the restaurant at least twice.  On one occasion, alcohol and about $200 in coins were stolen.  On the last occasion, all three returned with petrol with the intention of setting fire to the premises to destroy forensic evidence that may have been left by them.  The petrol was spread around and the fire was lit.  Substantial damage was caused by the fire. 

1. The jury was left to consider the allegation of arson on either of two bases, that the respondent personally set fire to the premises or that he aided one or other of his co-offenders to do so.  The jury was not requested to return a special verdict, or to find specially on any of the facts, under the Criminal Code, s383, but when announcing its verdict on the arson count, the foreman said that the respondent had been found guilty as an aider. That was understandable for, as will be seen when I refer to the evidence, there was no direct evidence, and no convincing circumstantial evidence, that identified the person or persons who actually lit the fire.

1. The learned judge accepted the verdict on that basis.  In her comments on passing sentence she said to the respondent that by the verdict, the jury had accepted that he "was not the primary offender in relation to the arson, but accepted that you entered the premises knowing what was to occur and helped the others, either pour the petrol into containers to take to the restaurant or carried the petrol there.  They accepted, however, that you did not physically pour petrol or light the fire."  It was also said by the learned judge that the idea to break into the restaurant and to burn the premises was Halliday's and that all offenders were significantly affected by alcohol and cannabis. 

1. The learned judge said that Halliday "had little criminal history" and had been sentenced by another judge to 18 months' imprisonment of which half was suspended. 

1. I was the judge who sentenced Halliday.  I sentenced him on the basis that he in fact had no criminal history, for that was what I was told.  The learned sentencing judge was aware of that from my comments when sentencing Halliday.  I was also told that he had committed traffic offences.  The statement by the learned judge that Halliday had little criminal history suggests that nevertheless, he had a history for committing one or more crimes.  That conclusion could only have been based on Halliday's evidence in cross-examination at the respondent's trial, in which he agreed that in April 2008 he had broken into the same restaurant with another offender and stole a purse, alcohol, coins from the till and the contents of a tip jar.  He also agreed that after he was sentenced by me, he was sentenced by a magistrate for that burglary and stealing to one month's imprisonment, concurrent with the imprisonment I imposed.

1. The learned judge observed that the respondent had "some prior convictions but they are not extensive".  What qualifies as being extensive is a question of degree.  His record, which was before the learned judge, revealed that he had committed 21 offences before the crimes with which this appeal is concerned.  On 5 December 2007, he had appeared in the Magistrates Court, presumably the Youth Justice Division, and was sentenced for 12 offences, all except one of which was committed when he was 16 years old, and two of which involved dishonesty.  They were committed on the dates stated below:

24 December 2006	Abusive language to a police officer
7 February 2007	Disorderly conduct
Abusive language to a police officer
Resisting a police officer
24 February 2007	Motor vehicle stealing
Driving with no licence
Failing to comply with a direction given by a police officer
Contravening the conditions of a notice
10 March 2007	Motor vehicle stealing
Driving without due care and attention
Driving with no licence
Driving with alcohol in his body

1. The record before the learned judge did not explain fully what sentencing orders were made, but they included a probation order.  Because of breaches of it, he was re-sentenced on 8 May 2009. 

1. His record also revealed that when he was 17 years old he had committed nine offences, four of which involved dishonesty and all of which were committed prior to the commission of the crimes that are the subject of this appeal.  They were:

27 May 2008	Stealing
Resisting a police officer
Trespass
2 June 2008	Motor vehicle stealing
Driving while disqualified
Driving under the influence of intoxicating liquor
3 June 2008	Contravening the conditions of a notice
29 June 2008	Burglary
Stealing

1. He had appeared before the Magistrates Court on 8 May 2009 and was sentenced for the nine offences just listed and for breaching the probation order made on 5 December 2007, and he was resentenced for the 12 offences for which he had been sentenced on that earlier date.  Sentences imposed consisted of a detention order for six months, wholly suspended for two years, a fine of $1500, a probation order for 12 months from 8 May 2009, and an order disqualifying him for driving for two years from 8 May 2009. 

1. His counsel said he was brought up by his mother in a turbulent and unstable environment.  She had problems with alcohol and street offences and counsel said that he spent a lot of time with the children of his mother's friends, who were negative influences, and as a result he had offended in the past.

1. The comments of the learned judge reveal that she gave considerable weight as a factor in mitigation of sentence to submissions made by the respondent's counsel concerning the last four months of the 13 months since the commission of the crimes.  Counsel said that the respondent's father, who was employed as a mate on an interstate trading vessel, had arranged for him to be employed on the vessel as a trainee deckhand.  Counsel said that he spent 27 days of each month at sea under his father's direct supervision and control.  Conflicting with that statement was another that the respondent had about one week a month when he was not working.  Counsel said he earned $100 for each day worked and was liable to lose his employment if he failed random drug tests administered by his employer, and he would lose his traineeship if he was sent to prison.  His counsel asserted that he was "clearly flourishing" and "away from any temptation to commit crime", his employment dominating his life.  He was living at his father's address at York Town. 

1. Having sentenced the respondent to a wholly suspended term of 12 months' imprisonment, the learned judge said "that while I consider the crime serious and a deterrent sentence warranted, I am proposing to take the step I've taken to assist you in rehabilitation because of the steps you've taken in the 12 months since this offending."  It would have been more accurate to refer to the most recent four months of that 12 month period. 

1. Although the matter is not a ground of appeal, I comment, with respect to the learned judge, that this was a clear case for obtaining a pre-sentence report before proceeding to sentence the appellant.  The crimes of arson and the other crimes were, in total, particularly serious ones and counsel's suggestion that substantial steps towards rehabilitation had been taken, based on the respondent's employment for four months, ought to have been viewed with circumspection.  It is a common experience of judicial officers to hear from defence counsel that offenders who have significant records have moved towards rehabilitation as the hearing of charges approached.  Such claims require careful consideration and many should be viewed with scepticism.  The respondent was a young offender who had been subject to a probation order made on 5 December 2007, and at the time of the hearing he was subject to another probation order that had been made nine months earlier for a period of 12 months.  He would have been well known to the probation service and it is likely that a pre-sentence report would have been of assistance.

Do parity principles apply to the appeal?

1. The learned judge was informed that the 17-year-old offender was sentenced for the crimes in the Youth Justice Division of the Magistrate Court where a wholly suspended sentence was imposed.  More detail was available to the learned judge in my comments when sentencing Halliday, when I said that the youth was sentenced to 12 months' wholly suspended detention and a probation order.  Counsel for the respondent submitted to the learned judge that a wholly suspended sentence should be imposed on the respondent, commenting that would be "in keeping with the sentence that was imposed on the youth".  Counsel also submitted that the youth had a higher degree of culpability than the respondent.  If counsel was referring to the arson, that was incorrect.  However, the factual basis upon which the Youth Justice Division sentenced the youth was not before the court, nor was his record, if any.  For that reason, parity principles could not be applied with reference to his sentence.

1. The learned judge could see from my comments when passing sentence on Halliday that he was sentenced for an additional burglary and stealing at the restaurant, the court being informed that he, the respondent and the youth entered the premises twice for the purpose of stealing and a third time for the arson.  As to the arson, the factual basis was that Halliday provided the petrol and the other two offenders spread it around and lit it in his presence.  He was also sentenced on the basis that the cost of repairs to the premises, and other losses, were likely to total $310,000.  In this case, the sentencing judge knew that the damage was substantial, and although not provided with a specific figure by the evidence or counsel, would have been aware of what it was for the purposes of Halliday's sentence.

1. There were a number of mitigating factors for Halliday.  He was a fairly young offender, aged 23, and had no record except for traffic offences.  He had been employed for much of the time since leaving school.  A pre-sentence report concluded, from a number of enquiries and sources, that he had the ability and personal resources to rehabilitate himself if he was so determined.  Upon his arrest on the night following the crimes, he fully admitted his role in what occurred.  He made early pleas of guilty.  In addition, he undertook to give evidence at the trial of the respondent.  The Crown conceded that his evidence would be of great assistance in proving its case. 

1. When sentencing Halliday, I rejected any suggestion that there should be parity between his sentence and the youth's sentence, noting that for an offender of Halliday's age, the wanton destruction of someone's property that caused losses of about $310,000 demanded actual and substantial imprisonment.  I declared that if it had not been for his undertaking to give evidence against the respondent, I would have sentenced him to two years' imprisonment with 12 months of it suspended, but in the light of that undertaking I reduced the sentence to one of 18 months' imprisonment with nine months of it suspended, on conditions that included that for two years following his release from prison he be of good behaviour and that for 18 months following his release from prison he submit to the supervision of a probation officer and comply with that officer's reasonable directions. 

1. The respondent's version of the events is unknown.  He did not give evidence at his trial.  Halliday and the youth did give evidence.  The evidence established that Halliday suggested that the restaurant be burgled, based on his knowledge of the premises.  It also established that he was the one who first suggested that they set fire to the premises to destroy their fingerprints.  The youth's evidence was that the youth tried to talk Halliday out of it and that the respondent did the same.  Halliday's evidence was that the respondent did not do so.  I comment that Halliday's evidence was more convincing generally than that of the youth.

1. Halliday's evidence was that the three of them went to the restaurant and the respondent and the youth made an unsuccessful attempt to break in at the back door while Halliday watched them.  To an extent, that version was supported by the evidence of the youth who said that he attempted to get through the door and that someone was with him but he could not remember who it was.  That is an example of a number of unconvincing aspects of his evidence. 

1. The evidence established that access into the premises was gained through a window which the youth smashed.  The youth said he was on his own when he did so.  Halliday said that he and the respondent were hiding in a nearby park when that occurred.  All three of them ran away in case anyone came as a result of the noise.  After a time, the three of them returned and they all entered the premises. 

1. Halliday's evidence was that each of them took something to steal.  They then returned to where Halliday and the respondent lived. 

1. In cross-examination, the youth expressed uncertainty about whether the respondent entered the first time.  He said that all three of them returned to the premises to steal from it a second time.  However, Halliday's evidence was that the respondent entered and stole the first time but not on the second occasion, when only Halliday and the youth returned to steal some food and cans of coke. 

1. As I noted earlier, when sentencing the respondent the learned judge said that he entered the premises knowing arson was to be committed and he helped the others, either by pouring the petrol into containers to take to the restaurant or by carrying the petrol there.  However, the learned judge's additional finding that by its verdict the jury accepted that the respondent did not pour petrol in the premises was not open.  The jury's verdict did not lead to that conclusion.  The foreman's statement that the respondent was guilty as an aider revealed that the jury was not satisfied that he lit the fire, but not that he did not pour petrol in the restaurant.

1. Halliday's evidence was that he had the petrol in a jerry can in the back of his car and the respondent and the youth poured petrol from it into two containers.  Halliday turned on lights so that they could see what they were doing.  In cross-examination, he said that the respondent held the containers while the youth poured petrol into them.  The youth's evidence about the matter was another example of unconvincing aspects of his evidence.  He said that he was the one who held the two containers while one of the others poured petrol into them, but he could not remember who that person was. 

1. The evidence of Halliday was that all three of them walked to the premises for the purpose of lighting the fire.  Both the respondent and the youth carried a container of petrol.  Consistent with other evidence given by him, the youth admitted he carried one of the containers but claimed that he could not remember who carried the other one. 

1. All of them entered the premises.  Halliday said that the respondent and the youth went into the kitchen while he remained in the dining area.  The youth then joined him and passed a container to Halliday who emptied it onto a counter, cash register and a window sill.  He said that he did not see what the respondent did in the way of spreading petrol around, nor whether he lit a fire.  Halliday said he did not light a fire and did not see who did so.  He said the youth exited the building first, Halliday was second and the respondent last.  It was after Halliday exited that he saw that the fire was burning.  The inference open from his evidence was that the respondent poured petrol from his container inside the premises. 

1. The youth's evidence was that he poured petrol in the dining area and then Halliday took his container and poured more petrol in the area described by Halliday.  The youth said that the respondent was standing inside the restaurant, but he did not see him pouring petrol out.  The youth's evidence did not account for what happened to the second container of petrol.  He said that as he was leaving he saw that the fire was burning.  He gave no evidence about who lit it. 

1. The three of them watched the premises burning from a nearby vantage point before leaving the area. 

1. In summary, Halliday was sentenced upon the basis that he was an aider of the arson and not one who lit the fire.  At the respondent's trial, Halliday said he did not light the fire and it is to be inferred from the youth's evidence that he did not do so either.  That left the respondent as the one who must have lit it, if their evidence was to be accepted.  Nevertheless, the finding of the learned judge that the respondent did not light it is not open to challenge.  Both the respondent and Halliday were sentenced on the basis they aided the arson, and that was appropriate.  

1. I have referred to the mitigating factors in favour of Halliday when he was sentenced.  They were substantial.  He had no record for offending and a good work record.  He confessed to his role very quickly after the crimes, made an early plea of guilty and undertook to give evidence against the respondent.  On the other hand, the respondent had a substantial record for offending in comparison with Halliday and no record for working apart for the four month period prior to the trial, he made no admissions and he pleaded not guilty to the arson and the final burglary.  In his favour, when compared to Halliday, was that although he was an adult, he was younger and he was sentenced for one less burglary and theft of the restaurant on the night in question. 

1. The appellant is understandably concerned about the considerable difference between Halliday's sentence and the respondent's sentence.  He submitted that there was practically no difference between them in culpability, apart from that arising out of the fact that Halliday was sentenced for an additional burglary and stealing on the night in question.  It was a valid argument that the arson, and the burglary to commit it, were by far the most serious of the crimes committed that night, that both Halliday and the respondent were sentenced for the arson as aiders and that in any event, they were to be sentenced as being equally culpable with regard to it.  That Halliday was the one who suggested the arson is of little significance, for the respondent actively participated.  The Director pointed to the mitigating factors in favour of Halliday and the fewer in favour of the respondent. A pre-sentence report for Halliday concluded that he had the ability and personal resources to rehabilitate himself if he was so determined, whereas the only argument the respondent had in his favour, based on the possibility of rehabilitation, was based on the four months of employment arranged by his father and recognition that he was younger than Halliday.

1. The Director further submitted that the crime of arson demanded a relatively substantial sentence of actual imprisonment, having regard to the aggravating factors that included the substantial amount of damage and the motivation for lighting the fire, and the lack of mitigating factors such as cooperation with authorities and remorse, plea of guilty, good character and sound employment record. 

1. Parity principles require that there should not be such a marked disparity between sentences imposed upon co-offenders that could give rise to a justifiable sense of grievance on the part of the co-offender who received a heavier sentence.  Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295. The Director submitted that Halliday would be entitled to harbour a justifiable sense of grievance concerning the leniency of the respondent's sentence when compared to his own. The Director conceded that a mere unjustified disparity would not be sufficient to warrant the success of a Crown appeal. But he argued that the disparity between the two sentences was such a great one that error in the sentence was demonstrated. He conceded that before such an argument could be accepted, the Court would have to be satisfied that Halliday's sentence was an appropriate one.

1. The respondent's counsel submitted that parity principles cannot be invoked in support of a prosecution appeal against sentence.  Reliance was placed on an earlier decision of this Court in R v Radloff (1996) 6 Tas R 99 at 106 – 108, where at 101, it was said by Cox CJ, with whom Underwood J (as he then was) and I agreed, that "the existence of unjustifiable disparity in favour of an offender may be an additional factor in determining whether or not to grant the Crown leave to appeal against a sentence which is shown to be outside the sound exercise of the sentencing court's discretion, but if the sentence is within the permissible range and not otherwise tainted with error, disparity alone cannot justify an increase in the sentence."

1. This Court should follow what was said in Radloff.  It accords with what was said by Spigelman CJ, with whom the other members of the New South Wales Court of Criminal Appeal agreed in R v Vincent [2006] NSWCCA 276 at par[19], that no issue of parity arises directly on a Crown appeal. Radloff was applied in the Full Court of the Federal Court in Steer v R (2000) 171 ALR 463, where at par[11], Miles and von Doussa JJ said: "It is important to recognise that there is no principle in sentencing, whether relating to parity or otherwise, which requires or justifies an increase in the severity of a sentence passed on an offender in order to bring it into line with more severe sentences passed on co-offenders."

1. Concerning the alternative basis of ground 2, the learned judge ought to have had in mind the need for consistency in sentences for the crimes of arson, burglary and stealing, both generally and having regard to the circumstances of the particular case, and also having regard to the sentences imposed on the respondent's co-offenders.  Consistency in punishment is a fundamental element of criminal justice.  Lowe v R (1984) 154 CLR 606 at 610. For that reason, sentencing judges commonly have regard to sentences imposed against like offenders and in like cases. In her comments when sentencing the respondent, the learned judge referred to the sentence imposed on Halliday but not to parity principles. But there is no rule of law that in a case such as the present, the learned judge ought to have made express reference to parity principles and there is no reason to infer that her Honour did not consider them when determining the sentence she regarded as appropriate for the respondent. In any event, no error of law was occasioned by the failure to refer to them.

1. For these reasons, the second ground of appeal must fail.

Was the sentence manifestly inadequate?

1. I regard this as a clear case of a manifestly inadequate sentence to the point of error.  It is well established that arson is a serious crime.  It is, generally speaking, and subject to all the circumstances of the case, among the most socially dangerous and disturbing to the community of all crimes which do not involve personal violence, because it is so easy to commit, is so potentially dangerous to property and sometimes life, and is often so difficult to control.  Honner v R unreported 35/1977, per Neasey J, with whom Green CJ, agreed, at 3.  A sentence that included retribution and denunciation in particular, and also general and personal deterrence, was demanded.  The damage caused by the fire was considerable and the motivation for the crime made this a particularly bad case.  For an arson committed in similar circumstances, that is to say an arson committed with pre-meditation to destroy forensic evidence that could lead to detection following a burglary and stealing, this Court, in Targett v R unreported A74/1996, had no hesitation in concluding that three years' imprisonment for an aider of an arson that caused $150,000 damage was not manifestly excessive for a 23-year-old offender who pleaded guilty.  No doubt some of the length of the sentence could be accounted for by the fact that the offender had an appalling record, mainly for dishonesty. 

1. Although he was an adult at the time of the crimes, the respondent was still a young offender.  That required consideration of whether he should be given another opportunity to reform before sending him to prison.  Jones v Fleming [1957] Tas SR 1 at 4; Lahey v Sanderson [1959] Tas SR 7 at 21; Everett (1994) 72 A Crim R 422 at 435 – 441. What was said by Burbury CJ in Jones v Fleming (in a case of a 19-year-old stealing nine litres of petrol for use in his car) is generally accepted:  "The modern approach to the juvenile offender as recognized by the courts implies the realization that a juvenile offender should be given every reasonable opportunity to reform, rather than that he should be exposed to the possible corrupting influence of other inmates of the gaol and thereby be set on a path of crime.  ...  In the case of a young man of this age who has had no previous convictions involving dishonesty or previous conviction of a serious crime, he should not be sent to gaol unless the nature of his crime is such that it is clearly the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors." 

1. Nevertheless, there are exceptions to the principle, such as where the offender has a persistent record for offending or where the offence is a serious one, or both.  Lahey v Sanderson (supra); Everett (supra).  In this case, the nature of the arson, and the circumstances surrounding it, demanded a sentence of actual imprisonment notwithstanding that the appellant was 18 years old at the time, and particularly so having regard to his record.  With respect, the learned judge was unduly merciful and gave too much weight to the fact that in the four months prior to the hearing, the respondent had been in employment arranged by his father. 

1. For these reasons, I would allow the appeal and quash the sentence.  This Court should re-sentence the respondent after hearing from the parties. 

   File No 113/2010

DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J
  15 September 2010

1. I agree with Crawford CJ and the orders he proposes.

   File No 113/2010

DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  PORTER J
  15 September 2010

1. I agree with the reasons for judgment of the learned Chief Justice and would also allow the appeal and quash the sentence.