Ersman v Regina
[2007] NSWCCA 161
•19 June 2007
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Ersman v Regina [2007] NSWCCA 161
FILE NUMBER(S):
2007/612
HEARING DATE(S): 22 May 2007
JUDGMENT DATE: 19 June 2007
PARTIES:
John Ersman v Regina
JUDGMENT OF: McClellan CJ at CL Hislop J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 06/21/3072
LOWER COURT JUDICIAL OFFICER: Maguire DCJ
LOWER COURT DATE OF DECISION: 22/09/06
COUNSEL:
(A) R Burgess
(C) D Woodburn
SOLICITORS:
(A) S O'Connor (LAC)
(C) S Kavanagh
CATCHWORDS:
Criminal Law - Sentencing - Armed robbery with offensive weapon - serious offence but offender very limited in skills and with poor judgment - long standing deficiencies - sentence manifestly excessive - parity - co-offenders sentenced in Children's Court to inadequate sentences - lack of due proportion and relativity in sentences
LEGISLATION CITED:
Crimes Act 1900
Children (Criminal Proceedings) Act
CASES CITED:
Broad unrep. NSWCCA 13/3/84
R v Henry (1999) 46 NSWLR
Lowe v The Queen (1984) 154 CLR
Postiglione v The Queen (1997) 189 CLR
R v Boney [2001] NSWCCA 432
R v Coghlan [1999] NSWCCA 292
R v Diamond NSWCCA 18/2/1993
R v Govinden 106 A Crim R
DECISION:
Sentence below quashed. Applicant re-sentenced. See para 84.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/612
McCLELLAN CJ at CL
HISLOP J
SMART AJ
Tuesday, 19 June 2007
John ERSMAN v Regina
JUDGMENT
PROHIBITION : No material may be published which would tend to identify the two juveniles.
McCLELLAN CJ at CL: I agree with Smart AJ
HISLOP J: I agree with Smart AJ.
SMART AJ: John Ersman seeks leave to appeal against a sentence of imprisonment comprising a non-parole period of 3 years commencing 12 January 2006 and a balance of term of 3 years expiring on 11 January 2012 for the offence of robbery whilst armed with an offensive weapon (s 97(1) of the Crimes Act 1900). The maximum penalty for that offence is 20 years imprisonment. The applicant pleaded guilty in the Local Court and adhered to his plea in the District Court. The offence took place on 24 August 2005. Three persons were involved and the judge proceeded on the basis of a common enterprise. Two co-offenders were dealt with in the Children’s Court for this offence. N, aged 14 was sentenced on 2 December 2005 to a control Order of 12 months with a non-parole period of 2 months. D, aged 17 years, was sentenced on 13 February 2006 to a suspended control Order of 7 months with a non-parole period of 3 months. The applicant was born on 18 June 1986 and was thus 19 at the time of the offence but importantly functions on a day-to-day basis as borderline disabled and is maladjusted.
There was an agreed statement of facts but that does not identify the role played by each offender.
About midnight on 24 August 2005 SD, a 44 year old lady who had completed her shift at an aged care facility, alighted from the train at Warwick Farm Railway Station. As she walked through the car park of the Railway Station, she sensed that she was being followed from behind. She was confronted by the three offenders who blocked her path. At this point one of the offenders said to her, “Have you got any money on you?” She replied “No”. She took out her mobile phone and gestured that she was calling “000” to raise the police. One of the offenders produced a knife, then passed it to a co-offender who held it out in front of him towards her. One of the offenders asked her, “What’s in your bag?” She did not reply but took her Walkman out of her pocket to indicate that was all she had. One of the offenders asked her to empty out her pockets.
A vehicle approached their location. This appeared to frighten the offenders. However, the vehicle did a U-turn and drove away. Once the vehicle drove away, one of the offenders snatched the victim’s backpack off her shoulder. One of the offenders attempted to grab her mobile phone. The phone was broken in the process. One of the offenders again asked the victim for money. Upon seeing a train approach the Railway Station the offenders walked away, with N hitting SD in the back of her head, causing her immediate pain.
SD’s back pack contained a “Sony” brand cassette Walkman, the victim’s wallet which contained her driver’s licence and three bank key cards, a Medicare card, about $5 and other personal papers.
CCTV footage from the Railway Station depicts the offenders getting off the train and walking along the platform of Warwick Farm Railway Station.
Other CCTV footage from the ANZ Bank at Cabramatta shows the offenders using the ATM attempting to withdraw money from the victim’s account and wearing the same clothing as that shown in the Railway Station footage and as described by the victim. The offenders attended the ATM shortly after the robbery.
The applicant was arrested on 12 January 2006. In his recorded interview he told the police that he had played no part in the armed robbery on SD and was not aware of his co-offender’s intentions. His version of events was not consistent with SD’s account of the robbery or the Bank CCTV footage. The judge remarked that the applicant’s plea negates his denial. The judge recorded that in the Children’s Court the applicant had an extensive record of robbery and had other violence offences.
The applicant was born on 18 July 1986. The judge edited the following from the Probation and Parole report of 26 May 2006.
“Born in Campbelltown in 1986 to a single mother, Mr Ersman described his upbringing as being raised in a household characterised by a chaotic lifestyle and his mother’s transient relationships. After living with his mother on and off throughout his childhood he said that at the age of eighteen, he and his girlfriend secured their own accommodation. He said however that they only stayed there for approximately three months before moving to Queensland where they lived for a short time with his aunty.
Although he has five siblings, Mr Ersman said that his only significant relationship is with his sister and her boyfriend with whom he was living at the time of his arrest.
Mr Ersman said that he left school after completing Year 8 as he found the work difficult. He said that he and his friends were frequently subjected to disciplinary action. He said that whilst in a juvenile institution he completed Year 10 at TAFE. During the periods when he’s not been in custody, Mr Ersman said he has had various short term periods of employment generally labouring. He said that abuse of alcohol and drugs has made it difficult for him to remain employed.”
There is a poignant note in the report that the applicant does not receive visits from family and/or friends and that since coming into custody had received three visits, two from legal practitioners and one from a psychologist preparing a report for the Court.
The judge went on to set out these further edited passages from the Probation and Parole report:
“In his Clinical Psychologist’s Report dated 18 July 2003 Mr Champion concluded in respect of Mr Ersman that:
‘… young man with significant intellectual and academic limitations … family background appears from reports to have more than it’s share of dysfunction, and it would seem that this has impacted significantly on John’s behavioural and emotional development and his social adjustment.’
…
The Offender stated that he started abusing alcohol at the age of fourteen and has continued to abuse alcohol on and off since that time until his arrest for the current offence. … He said also since the age of fourteen he’s abused crystalline methylamphetamine.
…
At the interview Mr Ersman agreed that he was present at the time of the offence and that he grabbed the victim’s backpack. He denied having possession of a knife at any time, denied hitting the victim and denied saying anything to her throughout the robbery. Asked how he became to be involved, he said, ‘I was in the wrong place at the wrong time.’ When asked who had been affected by the offence, Mr Ersman nominated himself and his co-offenders who he referred to throughout the interview as ‘the boys’. When asked who else he thought might have been affected he was unable to think of anyone. When asked how he thought the victim might have been affected he said, ‘She was probably frightened,’ but he appeared to have little insight into victim empathy. … Throughout the interview he appeared reluctant to take any responsibility for any part he played in the commission of the offence.
…
The Offender’s continued abuse of alcohol and cannabis renders him virtually unemployable, pre-disposes him to continued involvement with criminal associates and a transient lifestyle and removes any possibility of him establishing the positive supportive male relationships/role models which he may otherwise develop through stable long term employment or suitable accommodation.”
The Department of Juvenile Justice first sought a report from Mr Peter Champion, a Clinical Psychologist in 2002 after the applicant had been charged with robbery in company. On 9 April 2002 Mr Champion prepared a detailed report observing that the applicant appeared to come from a dysfunctional background and that he was a gauche, intellectually and academically limited young man whose manner was atypical. He had done poorly at school and had a history throughout High School of being in the special education stream. It was for those with mild developmental disabilities and/or major learning problems.
In his later report of 18 July 2003 which was commissioned by the Department after the applicant was charged with demand property with menaces with intent to steal, Mr Champion adhered to his 2002 opinion that in functional terms the applicant on a day to day basis performs more in line with a person who would be classed as borderline disabled than a person who would be classified as low average. Mr Champion added:
“Certainly, in terms of his verbal reasoning capacity, the limitations in his expressive and receptive language, his judgment and planning, his skills are seriously below average and I believe in part explain his maladjustment and tendency to ill considered offending and his inability to coherently or consistently look at his own behaviour, the likely repercussions of it and its impact on others.”
Mr Champion was troubled in July 2003 why the applicant had re-offended so quickly. He wrote:
“[30] In relation to the issue of why he has re-offended again so quickly, it would appear that he became involved with a group of peers who engaged in drinking and this progressively impacted on his adjustment and compliance. I think that his offending can be attributed to a range of factors, namely his intellectual limitations (which impact on judgment and foresight); his exposure to and experiences of violence; his exposure to inappropriate behavioural models; his lack of solid consistent relationships; his substance abuse; his involvement with subcultural peers; his mood dysfunction. In essence John does not appear to have been equipped with adequate internal controls, does not appear to have developed appropriate attitudes/values or moral development, and lacks judgment. At this stage I think that his prognosis is poor.””
There does not appear to have been much change between 2003 and 2006.
The judge noted that on 25 May 2006 the applicant was assessed by Ms K Seidler, psychologist, and that in a lengthy report she concluded:
“For someone so young, Mr Ersman has had some considerable experience of custody and, without positive change, support and intervention, this is likely to continue. As stated, this is his first experience of an adult correctional centre, which will increase his exposure to adult antisociality and entrenched substance abuse. It is timely that he be offered a structured programme of support, such that he may have an opportunity for greater community stability, before he runs the risk of becoming further entrenched in an antisocial lifestyle and of institutionalisation.”
Ms Seidler described the appellant as having low cognitive ability and poor psychosocial functioning. She noted that he had a significant history of juvenile offending and incarcerations within Juvenile detention centres.
The judge accepted that the applicant’s actions and those of his two co-offenders had had long term and adverse effects upon SD. This is to be expected.
The judge took the guilty plea into account on sentence and noted his early plea entitled him, all other things being equal, to a sentence lower than the range set down in Henry (1999) 46 NSWLR 346. However, the applicant had a criminal history of significance. The judge said:
“In general the case matches the Henry case except that the offender has a prior offence for robbery in company with an offensive weapon.
… In particular his record calls for consideration and deterrence.”
The judge found special circumstances as he thought that the applicant’s prospects of rehabilitation would be enhanced by an extended period of supervision. I agree.
The judge stated that he was mindful of the principles of parity but both the co-offenders were juveniles and the orders made in their cases were no reflection of the sentence to be imposed upon an adult.
The applicant’s record in the Children’s Court can be summarised thus:
13/02/2002Use offensive language in/near public place/school
Fined $150
13/02/2002Robbery in company
Probation 33(1)(e) 2 years subject to conditions
19/04/2002Robbery armed with offensive weapon
Control Order s 31(1)(g) 10 months. Non-parole period
4 months. Conditions imposed.
Robbery in company
Control Order s 33(1)(g) 4 months concurrent
20/11/2002Possess implements to Enter/Drive Conveyance
Dismissed s 33(1)(a) with caution.
Maliciously destroy or damage property
Dismissed s 33(1)(a) with caution
Take/Detain person in company with intent to obtain advantage
Control Order s 33(1)(g) 6 months from 11/8/02
Robbery in company (2 counts)
Control Order s 33(1)(g) 2 years from 11/8/02 Non-parole period
9 months. Conditions on release
Assault with intent to rob in company
Control Order s 33(1)(g) 2 years from 11/8/2002 Non-parole period
9 months. Conditions on release.
13/08/2003Demand property with menaces with intent to steal
Control Order s 33(1)(g) 2 years from 11/6/2003 Non-parole
period 18 months. Conditions on release
(The details as to this in the papers are confusing)
16/02/2004Maliciously destroy or damage property
Control Order s 33(1)(g) 1 month from 16/2/04.
At an early stage of her oral submissions counsel for the applicant summarised the basis of the application; the sentence was manifestly excessive being the product of two specific errors. First, excessive weight was given to the applicant’s criminal history and secondly insufficient weight was given to his early plea of guilty. Counsel’s second main attack was based on the lack of due proportion of the sentences imposed on the three co-offenders. In view of the thrust of the submissions I will take grounds 1 to 3 together.
Ground 1 – His Honour erred in the manner in which he took into account the applicant’s previous criminal history and placed excessive weight on it.
Ground 2 -His Honour erred by failing adequately to take into account the plea of guilty
Ground 3 – The overall sentences and the non-parole period are manifestly excessive.
The applicant does not dispute that the judge was entitled to take the applicant’s criminal history into account. The complaint is as to the manner in which he did so and that this led to an excessive sentence.
At a relatively early stage of his remarks the judge stated that the applicant had “an extensive record of robbery and has other violence offences” in the Children’s Court.
The applicant relied on this passage in the later stages of the judge’s remarks:
“The guilty plea is taken into account on sentence. The Henry guideline assumes a plea but the Crown concedes that this early plea entitles him, all other things being equal, to a sentence lower than the range set down. He does however, have a criminal record of significance. In general the case matches the Henry case except that this offender has a prior offence for robbery in company with an offensive weapon.
I am mindful of the provisions of s 21A and I have taken them into account. In particular, his record calls for consideration and deterrence. This is a very serious crime and the community expects it to be dealt with accordingly.”
(emphasis added by counsel)
Counsel for the applicant pointed out that most of the offences of the applicant were committed when he was aged 15 or 16 years and when he lacked family support and had impaired judgment because of his various disabilities. The reports of Mr Champion set out in some detail the marked disadvantages to which the applicant was subject.
Counsel submitted that the applicant’s lack of judgment, lack of insight and foresight and his lack of internal controls were partly due to his intellectual limitations and partly due to the dysfunctional family background, his lack of support and his lack of skills. As Mr Champion remarked the difficulty was with the applicant’s low language/reasoning skill base; his ability to profit from routine “counselling” was probably inherently limited. This points to the need for an extended period on parole and the need for extended counselling.
The applicant relied upon the guideline judgment in Henry esp at 380 and the opinion that the overall sentences for offences under s 97(1) of the Crimes Act (armed robbery with an offensive weapon) should generally range between four and five years in respect of young offenders who met the criteria there set out. It was acknowledged that this young offender did not meet the criterion of a young offender with no or little criminal history. On the other hand Henry involved a late plea of guilty. These two differences do not balance out.
The applicant placed reliance upon the Judicial Commission statistics in 18 cases as to sentences for offences under s 97(1), robbery being armed or in company, after Henry & Ors where there was one count, prior offences of the same type with custodial sentences, a plea of guilty and the offender was aged 18 to 20 years. Most of the sentences were of five years or less. There was one case of a sentence of six years and none for longer periods. The bulk of the non-parole periods were for 2½ years or less, but in three cases there were non-parole periods of three years. There were no longer non-parole periods. The particular facts of the cases are not available.
Nevertheless the statistics reveal that the sentence imposed in the present case was at the high end of the range of sentences where the offender had prior similar offences. In my opinion, having regard to the gravity of the instant offence, the statistics and the subjective features of the applicant the sentence is manifestly excessive,
Disparity
Ground 4 – The applicant has a justifiable sense of grievance when considering the sentences imposed on the co-offenders N and D.
N was sentenced on 2 December 2005 as to the incident involving SD in respect of robbery, being armed with an offensive weapon by a Children’s Magistrate to a 12 months control order with a minimum term of 2 months starting that day. He was also sentenced to a concurrent fixed term control order of 2 months in respect of an attempted theft from an automatic teller machine. N was born on 23 September 1991.
In the course of his sentencing remarks the magistrate described the robbery with an offensive weapon at Warwick Farm in the circumstances in which it was committed as a very serious offence. At the time of that offence N was on a suspended control order which had been imposed six days earlier, that is on 18 August 2005.
The magistrate took into account that N had a very unfortunate upbringing. His father was in and out of gaol and both his parents were amphetamine users. He had been effectively passed over to his father’s mother who had attempted to care for him and he had had periods of homelessness. He had learned how to commit crime at too early an age. There was no suggestion that N was of low intelligence.
At the time of the imposition of the control order for 12 months for the armed robbery N was the subject of a control order of 9 months commencing 4 August 2005 with a non-parole period of 6 months for other serious offences. Effectively, N, if he behaved himself on parole, was not required to spend any extra time in a juvenile justice institution for the armed robbery offence because of the concurrency in part of the sentences. N had a poor criminal history.
On 18 August 2005 he was sentenced for a raft of serious offences committed in May and June 2005. These included taking and driving a conveyance without the consent of the owner, possessing implements to enter/drive conveyance, serious motor vehicle offences and obtain money etc by deception, for which he had received a 9 months suspended control order. Conditions were imposed. There were other offences for which he received a six months control order.
On 28 September 2005 in respect of the offence of break and enter building with intent to steal, apparently committed in July 2005 N was sentenced to a control order of 9 months commencing on 4 August 2005 with a non-parole period of 6 months. Conditions were imposed on his release. There were other offences for which he received the same concurrent sentence.
N received excessive leniency on the offence of robbery whilst armed with an offensive weapon.
D was sentenced on 13 February 2006 as to the incident involving SD in respect of robbery being armed with an offensive weapon to a 7 months control order with 3 months non-parole period suspended subject to conditions. As to the offence of obtain money by deception he was ordered to perform a further 30 hours community service work. D was born on 13 August 1988.
In the course of her sentencing remarks a different Children’s Magistrate stated:
“At the time of this offence you were on a bond for robbery and also shortly after that … you came before the Court on a charge of break enter and steal for which you’ve had a sentence of sixty hours community service imposed.”
She also noted that he was undertaking a Draw TAFE program and that there were prospects of rehabilitation. She was influenced by a favourable report from Juvenile Justice and noted that the offender’s co-offender and younger brother had received a relatively short control order.
On 1 February 2005 in respect of an offence of robbery in company committed at least seven months earlier, D was placed on a 12 months bond, a condition of which was that he endeavour to find and stay in regular work.
On 15 September 2005 in respect of events that took place not later than July 2005 D was sentenced to 60 hours community service for breaking and entering a building with intent (steal).
D received excessive leniency on the offence of robbery whilst armed with an offensive weapon.
The Crown submitted that there were significant differences between N and the applicant::
(a)At the time of the offence N was over 5 years younger than the applicant.
(b)N’s past criminal offending had far less significance than that of the applicant. There were no offences of violence against individuals nor of robbery. His offending principally involved driving offences, stealing and possession and possession of implements to steal cars or housebreak. They seem to have involved a binge of offending within a four month period, the bulk of which occurred when he was aged 13 years whereas the applicant’s offending extended over 3½ years to the date of the present offence.
(c)N had not previously been in custody.
(d)His guilty plea was entered four months earlier than that of the applicant
The age difference must be acknowledged and is significant. The applicant had learning difficulties from a very young age. He left school before completing his Year 9 studies. He has poor judgment and skills and his skills are seriously below average.
N appears to have been an adventurous lad. He had matters of driving a motor vehicle on the road while unlicensed and taking and driving a conveyance without the consent of the owner. He was dealt with for “drive vehicle recklessly/furiously or speed/manner dangerous.” The actions of N had the potential to cause harm to members of the public. The offence of break and enter with intent (steal) is a serious one.
The offences of N appear to have been committed within a confined period of some months and while there were many of them they were generally of a lesser order than those of the applicant. This armed robbery offence was the first such offence in which N had been involved. The Crown is correct in its submission that the offences of the applicant occurred over a period of 3½ years and involved a number of serious robbery offences.
N was not the subject of a control order involving fulltime custody until 28 September 2005. He was in custody on 2 December 2005 when sentenced for the instant offence. The control order made on 28 September 2005 takes effect from 4 August 2005. It does not appear why the control order took effect from that date.
The Children’s Court often deals with matters relatively soon after the commission of an offence and without more information I would not attach weight to the plea of guilty being entered by N at an earlier date in the Children’s Court where proceedings tend to be more informal.
The Crown tentatively accepted that there appeared to be an error of sentencing principle in the case of N in that he received no additional custodial time for the armed robbery due to the sentence for that offence being concurrent with the sentence for the serious unrelated offence of break enter and steal with intent (steal). The magistrate appeared to be influenced, at least in part, by what he regarded as the severe, if not excessive, sentence earlier imposed upon N.
The Crown submitted that there were significant differences between the cases of D and the applicant:
(a) D displayed strong indications of contrition both in words and actions. He made full admissions at the time of his arrest. His mother, with his assistance and information, recovered the Walkman and delivered it to the police.
(b) D had made strong steps towards rehabilitation. He had resumed his education being in the final year at school, was enrolled in a course at TAFE and had prospects of employment with a panel beating shop which he delayed pending the outcome of the proceedings. (If he obtained employment it may be doubted whether he would be at school). He appears to have stopped using drugs, financially organised himself, had a supportive girlfriend and to have had a highly favourable report from Juvenile Justice. By contrast, the applicant had shown little insight into his offending, was ambivalent about addressing his drug and alcohol abuse and lacked positive signs of rehabilitation. The reduction in the applicant’s non-parole period to fifty per cent of the head sentence resulted from his youth and the need for community based intervention.
(c) D’s past criminal offending had less significance than that of the applicant. It did not display as much moral culpability or continuing disobedience to the law. D’s offending extended over one year and there were less offences. There were a number of motor vehicle offences, for example, instances of being never licensed driving a vehicle on the road and using an unregistered vehicle. There was the offence of robbery in 2004 and the offence of break and enter building with intent (steal) in about July 2005. (It seems that he was in custody, bail refused from 24 November 2005 to 12 December 2005 on a charge of robbery in company, with conditional bail being granted on the last mentioned day.
(d) D was 2 years 2 months younger than the applicant.
(e) D had never before been in custody having been previously dealt with by way of a bond, probation or community service order.
The Crown submitted that there were a number of potential errors in sentencing D. The Crown submitted that:
(a)The lighter head sentence imposed upon him than that imposed upon his younger brother was hard to fathom.
(b)Whilst good reasons were available for the suspension of the sentence this resulted in an extremely lenient sentence to the point it was inadequate.
Any sense of grievance in these circumstances was, according to the Crown, not legitimate. The magistrate sentencing D took into account “the relatively short control order” imposed upon his younger brother. The Crown submitted that if there was any sentencing error with the younger brother this was potentially repeated in the case of D.
The Crown commented that the magistrate dealing with D appeared to have given no consideration whether to sentence him at law or under the Children (Criminal Proceedings) Act: s 18. The Crown submitted that irrespective of the regime chosen the penalty imposed was manifestly inadequate to punish adequately such a serious crime.
In Postiglione v The Queen (1997) 189 CLR 295 the High Court undertook a review of the principles of parity, paying due regard to the foundational decision of the Court in Lowe v The Queen (1984) 154 CLR 606. In Postiglione at 301-2 Dawson and Gaudron JJ said:
“The parity principle … is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. …
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co--offenders in question and their different degrees of criminality.”
(citations omitted)
Kirby J was the third judge in the majority. In a lengthy review of the principles he said at 338:
“The problem of disparity will ordinarily arise not so much out of a suggested departure from the requirement to punish equally like offenders convicted of like offences, as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison and contrast. It is in these cases, where discrimination has occurred in the sentences imposed on two or more offenders said not to be justified by the facts either of the offence or of the circumstances of the offender, that the problem of alleged disparity in sentencing presents itself in sharp focus. It is then that the appellate court must apply the tests which have been propounded and decide whether it should intervene. “ (citations omitted)
I do not understand Kirby J to be differing in substance from the views of Dawson and Gaudron JJ earlier quoted.
McHugh J dissented but primarily upon the substantive merits of the appeal. He concluded at p 314:
“Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a ‘justifiable sense of grievance’ where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle. “
Gummow J also dissented primarily on the substantive merits of the appeal. However, he accepted that significant differences in the antecedents of co-offenders resulted in the failure of an attack based upon disparity. (pp 324-325). Gummow J at 326 referred to the view of Badgery-Parker in the Court of Criminal Appeal in Postiglione thus:
“the foundation of the parity principle is ‘the existence of disparity when other things are equal, or, where other things are not equal, a relativity between sentences which does not properly reflect the extent of the inequality’.”
I do not understand Gummow J to be disagreeing with that statement of principle nor to be disagreeing with the statement of principle of Dawson and Gaudron JJ.
In addition to the differences in the sentencing regimes between that of the applicant and that of the co-offenders there were significant differences in their antecedents.
The approach cannot and should not be that different sentences on the co-offenders were not warranted but rather the differences lack due proportion. The necessary relativity did not exist.
All the offenders participated in the joint criminal enterprise and all followed and confronted SD late at night on her own in the railway station car park. As would be expected she was much affected by the armed robbery with an offensive weapon.
In R v Diamond NSWCCA, 18 February 1993, there was a marked disparity in the sentences imposed on co-offenders for the offence of armed robbery. The sentence imposed in the Children’s Court on one offender was so light as to be demonstrably erroneous and did not reflect the criminality of that offender. The District Court judge was troubled by the sentence imposed by the magistrate, which he described as being “too benign”.
The majority held:
The sentencing amoury available to the Children’s Court is quite different to that available to courts dealing with adults but the sentence on the co-offender by the Children’s Court could not be excused on that basis
even where disparity appears to exist, the decision whether to make a reduction in the greater sentence is a discretionary one
there is a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one. (The majority held that that stage had been reached in that case).”
In R v Govinden 106 A Crim R 314 there was a Crown appeal against the alleged inadequacy of the sentences imposed for robbery in company and accessory after the fact of armed robbery. Govinden was dealt with as an adult. He was aged about 18 years at the time of the commission of the two offences. Two of his co-offenders were dealt with in the Children’s Court.
At [36] Dunford J, with whom the other members of the Court agreed, stated that parity principles are not normally relevant to offenders who are dealt with under different regimes, but the sentences imposed on those dealt with in the Children’s Court are not, for that reason, entirely irrelevant; he referred to Broad, unreported, NSWCCA, 13 March 1984 per Street CJ, at p 3.
In Govinden the view was taken that he was not the instigator of the offence and that it was not irrelevant to have regard to the sentence imposed on the instigator, a classmate at school, in the Children’s Court. It was held that it would be difficult to justify a full time custodial sentence in an adult gaol for Govinden, when the instigator received a non-custodial sentence. The Crown appeal was dismissed.
In R v Colgan [1999] NSWCCA 292 Spigelman CJ observed at [15]:
“In R v Govinden (1999) NSWCCA 118, Dunford J who delivered the judgment of the Court referred to the authority in the Court to the effect that parity considerations do not arise, as such, when comparing a person dealt with in the Children’s Court and adults. Nevertheless as his Honour indicated at paragraph 36 of that judgment, that does not mean that the sentence imposed on a person in the Children’s Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes … This is important in a context where it may very well often be the case that a 16 year old is very much more mature than an 18 year old, as there is some reason to believe was the situation in the present appeal”.
Sully J at [11], after noting that one co-offender had been dealt with in the District Court and another co-offender who was probably the moving party, and a little more than 16 years at the time of the offences in the Children’s Court, said:
“It might very well be, as has been said in authorities to which the Court was referred, that what happens in such a context in the Children’s Court is not wholly irrelevant.”
The third member of the Court agreed with the Chief Justice and with Sully J.
In R v Boney [2001] NSWCCA 432, he was sentenced at law to imprisonment for three years with a non-parole period of 18 months for the offence of armed robbery, (s 97(2) Crimes Act 1900), taking into account a further offence of take and drive conveyance without consent. The co-offender was dealt with in the Children’s Court for armed robbery and other offences, receiving in relation to those offences concurrent sentences of 100 hours community service, after taking into account four months detention pending sentence. The co-offender was the applicant’s brother and 18 months younger.
Wood CJ at CL, with whom Grove J agreed, held:
(a)There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with – one in the Children’s Court and the other as an adult.
(b)While there are different sentencing objectives and considerations applicable in the Children’s Court which limit the worth of any such comparison it is appropriate to pay some regard to the sentence imposed in the Children’s Court.
(c)Where there is a degree of disparity as to invite a reduction in the sentence imposed, the Court does not do so if the result would produce a sentence disproportionate to the objective and subjective criminality involved.
(d)A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one.
(e)As a corollary to (d), where a co-offender has received a comparatively more lenient sentence then the co-offender whose case is before the Court, the Court may exercise its discretion by declining to interfere because it does not wish to duplicate a gross error in the sentencing of the applicant’s co-offender.
(f)If this Court does intervene, whatever sentence is imposed must significantly reflect the objective and subjective criminality involved. Thus the sentence imposed by this Court may not be comparable to that imposed upon the co-offender.
I respectfully agree.
Applying the principles that have been discussed and in the circumstances revealed in the evidence in the instant case, including the significant limitations and disabilities of the applicant and in the absence of any suggestion of limitations and disabilities of either co-offender, this is a case where the Court may have cautious regard to the sentences imposed on D, the co-offender.
This was a joint criminal enterprise where the three co-offenders worked closely together and all confronted the victim. At the sentencing hearing it was not thought profitable to endeavour to explore whether any of them had a greater moral culpability for the serious crime committed. However, their subjective circumstances and features differed.
As N was aged 13 (nearly 14) at the time of the offences and was some five years three months younger than the applicant, had no prior armed robbery or robbery offences, had a period of intense offending in 2005 limited to some months and generally his offences were of lesser gravity, parity considerations are minimal to non-existent. Despite N’s young age he received no effective additional custodial punishment for the armed robbery offence because the non-parole period of two months was made wholly concurrent with the non-parole period of an existing control order for an unrelated offence.
D was aged 17 at the time of the offence and 2 years 2 months younger than the applicant. There was no suggestion that he suffered from disabilities or limitations of the order of those of the applicant or any disabilities or limitations. His subjective features were more favourable than those of the applicant but seven months prior to the instant offence he was placed on a 12 months bond in the Children’s Court for the offence of robbery in company in mid-2004. There was the offence of break and enter a building with intent (steal) for which he was charged on 27 July 2005.
D’s punishment for the instant offence of a control order for 7 months with a 3 months non-parole period suspended subject to entering into a 7 months good behaviour bond was also demonstrably erroneous in that it does not reflect the criminality of the armed robbery offence. The personal circumstances and features of D do not warrant such a minimal sentence for so serious an offence.
Taking all the various matters and circumstances into account there is a marked and unjustifiable difference in the punishment imposed on the applicant and that imposed on D, even allowing for the different sentencing regimes and the more favourable subjective features and circumstances of D. A similar comment could be made about the sentence imposed upon N if parity considerations were important in his case. Making all necessary and generous allowances for the differences there is a lack of due proportion in the sentence meted out to D and that imposed on the applicant.
While this Court should intervene the sentence imposed on the applicant must reflect the objective and subjective criminality involved in the offence. That requires a substantial sentence.
There are special circumstances. Because of his limitations and disabilities the applicant is going to require supervision for an extended period. His drug and alcohol problems will continue to require attention. He will require more than conventional counselling. A great deal of work will have to be done with him and any recovery is likely to be slow and require persistence on his part and on the part of those who are helping him. He will need extensive preparation for employment. I do not overlook the steps taken while in custody.
On re-sentencing I have taken into account the material in two affidavits read on his behalf. He is on the waiting list for a drug and alcohol course. He is doing a TAFE course in horticulture and one for obtaining a forklift licence. He is also working in a sewing shop from 8am to 2.30pm five days per week. He is still having problems with his concentration and gets distracted very easily. He is waiting to see a psychologist. On his release he wants to go back and live with his cousin in Brisbane where he has been before. He hopes to obtain work doing metal house framing which he has done previously or use his forklift ticket to help him find a job. The Corrective Services documents reveal that the applicant has had a C2 Minimum Security classification since 28 September 2006. After being sentenced he sought help with his drug and alcohol problems, anger management and in being able to read and write properly.
I propose the following orders:
1.Leave to appeal against sentence granted.
2.Appeal against sentence allowed, sentence quashed.
3. In lieu of the sentence imposed, the applicant is sentenced to imprisonment comprising a non-parole period of 2 years 6 months commencing on 12 January 2006 and expiring on 11 July 2008 and a balance of term of 2 years 6 month commencing on 12 July 2008 and expiring on 11 January 2011. The applicant will become eligible for release on parole on 12 July 2008.
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LAST UPDATED: 19 June 2007
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