Farrugia v The Queen
[2011] VSCA 24
•11 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ADAM WILLIAM FARRUGIA | S APCR 2010 0099 |
| v | |
| THE QUEEN |
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| JUDGES | REDLICH and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 January 2011 |
| DATE OF JUDGMENT | 11 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 24 |
| JUDGMENT APPEALED FROM | DPP v Farrugia [2010] VCC 268 (Judge Wood) |
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CRIMINAL LAW – Sentence – Multiple robberies of a single victim by brothers who were not co-offenders – Whether parity principle applied – Whether appellant and brother were involved in a common criminal enterprise – Jimmy v R (2010) 269 ALR 115 considered – Whether the broad principle of equal justice required some relativity between the sentences imposed on the appellant and his brother – Relevance of brother’s sentence to re-sentencing of the appellant where brother’s sentence was inadequate – Appellant re-sentenced
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Appellant | Mr G Hughan | Casey Criminal Law |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
BONGIORNO JA:
The appellant pleaded guilty in the County Court to one rolled up count of robbery involving five instances of robbery (count 1), one count of false imprisonment (count 2), and one further count of robbery (count 3). He was sentenced to two years’ imprisonment on count 1, one year’s imprisonment on count 2 and 18 months’ imprisonment on count 3. Four months of the sentence imposed on count 2 and eight months of the sentence imposed on count 3 were ordered to be served cumulatively on the sentence imposed on count 1 and on each other, making a total effective sentence of three years’ imprisonment. The sentencing judge fixed a non-parole period of 21 months.
The appellant, having been granted leave, appealed against the individual sentences imposed on counts 1 and 3, the orders for cumulation and the non-parole period fixed, in strict accordance with the approach now laid down in Ludeman v R.[1] His primary argument was that these sentences were not sufficiently disparate from the sentences imposed on his brother Matthew for similar offending involving the same victim.
[1][2010] VSCA 333.
Circumstances of the offending
The facts of the appellant’s offending are not in dispute, and need only be briefly stated. The victim of all of the offences was one PG, a man introduced to the appellant (and his brother Matthew) by the appellant’s father. On five occasions between 16 February 2006 and 27 September 2007 the appellant robbed PG of his ATM card and withdrew various amounts from ATMs and, on one occasion, used the card to pay for a taxi. The total amount stolen over these five occasions was $3935.70,[2] and this was the conduct the subject of count 1. The sentencing judge acted upon the victim’s statement that the appellant would raise his voice, yell at him, make threatening gestures with a clenched fist and raise his arms as though he was going to hit him.[3]
[2]The total amount that the Prosecution informed the sentencing judge had been taken over those five occasions was $4037, which was accepted by his Honour. However on appeal counsel informed the Court that the sum of the individual amounts stolen on each of the five occasions totalled $3935.70.
[3]DPP v Farrugia [2010] VCC 268, [9].
On 7 March 2007 the appellant forced PG to accompany him on a drive from Avenel and Seymour and back in the middle of the night. This is the conduct the subject of count 2. In the course of the false imprisonment, the appellant forced PG to hand over his ATM card and the appellant made six withdrawals at Seymour, totalling $900. This was the conduct the subject of count 3. No detail of this offending was provided in the sentencing remarks. On the plea the prosecutor had in opening simply informed the sentencing judge that the appellant had ‘falsely imprisoned and robbed’ the victim.
Ground 1: Sentences imposed on counts 1 and 3 and order for cumulation in relation to sentence imposed on count 3 offended the parity principle
Under cover of ground one, the appellant submitted that he should have been given lesser sentences in light of the sentences imposed on his brother by the same sentencing judge on the same day. Matthew Farrugia had robbed PG numerous times between 11 June 2002 and 26 April 2007. These incidents of robbery were separate from those committed by the appellant. Matthew pleaded guilty to one rolled up count of robbery which represented 18 occasions on which he had gone to PG’s home and forced him to give him cheques, totalling $142,000. The victim had described the threats and intimidation of Matthew in identical terms to that of the appellant. Matthew also pleaded guilty to a count of armed robbery when, within the same period covered by the rolled up count, he threatened PG with a meat cleaver before taking five cheques from him. He pleaded guilty also to one count of indecent assault during the same period when he ordered PG to take his clothes off and took photos of the complainant naked which he threatened to, and did, distribute to businesses in the local area accompanied by assertions as to the victim’s sexual proclivities.
Matthew Farrugia was sentenced to three years’ imprisonment on the rolled up count of robbery, three years and six months’ imprisonment on the count of armed robbery, and two years’ imprisonment on the count of indecent assault. One year of the robbery count and six months of the sentence on the count of indecent assault were cumulated upon the armed robbery sentence, making a total effective sentence of five years’ imprisonment.
The appellant submitted that the sentencing judge should have directly compared the sentences for robbery imposed on the appellant with that imposed on Matthew for the rolled up count of robbery. The appellant submitted that his sentence of two years’ imprisonment on count 1, and the cumulation of eight months’ imprisonment of the sentence on count 3, were not sufficiently disparate from the sentences imposed on his brother as they did not adequately reflect the differences in the gravity or duration of each brother’s offending.
Application of parity principle to persons who are not co-offenders
The principle of parity invoked on appeal is conventionally applied where there is a marked disparity in sentences imposed on co-offenders, whose circumstances are comparable, which engenders a justifiable sense of grievance in a co-offender.[4] Dawson and Gaudron JJ explained in Postiglione v R that this principle is an aspect of equal justice, which requires that generally like cases should be treated alike, but ‘if there are relevant differences, due allowance should be made for them’.[5] Their Honours emphasised that
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.[6]
[4]Lowe v R (1984) 154 CLR 606, 610 (Gibbs CJ, with whom Wilson J agreed), 611 and 613 (Mason J), 623 (Dawson J, with whom Wilson J agreed).
[5](1997) 189 CLR 295, 301.
[6]Ibid 301–2.
The basis upon which this Court will interfere on appeal in cases where the disparity between the sentences imposed on co-offenders is ‘marked’ or ‘manifestly excessive’[7] was explained in these terms in the recent case of Kelly v R:
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co‑offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.[8]
[7]Kelly v R [2011] VSCA 10, [5] (citations omitted).
[8]Ibid [6] (citations omitted).
The appellant conceded that he and his brother were not co-offenders in the strict sense as they did not commit the self-same crime or unlawful act, nor were they complicit in each other’s acts. But the appellant submitted that because of the common factors present in each of their offending, the principle of parity applied. Alternatively he submitted that, even if the principle of parity was inapplicable, the broad concept of equal justice, which underpins the principle of parity, required that there be an appropriate measure of parity, in terms of due proportion, between their sentences.
We turn first to the contention that the parity principle applied directly to the brothers as they were involved in ‘a common criminal enterprise.’ That description is drawn from the judgment of Campbell JA in Jimmy v R,[9] who undertook a comprehensive analysis of ‘between whom does the principle of parity apply’. His Honour’s examination of authority revealed:
there is a stream of authority of intermediate courts of appeal recognising that, within limits, it can have a role to play in comparison of sentences for different crimes committed by people involved in a common criminal enterprise. Outside its proper scope of application it cannot apply at all.[10]
[9](2010) 269 ALR 115.
[10]Ibid 148.
Jimmy concerned an appellant who was one of three offenders, each of whom had separately deposited amounts of cash into Hong Kong bank accounts upon instructions from the same individual (Mr Chen) who had organised a large money laundering operation. All three offenders were charged with money laundering offences, but the appellant was charged with a less serious offence under a different section than the other two offenders. None of the three offenders knew of the existence of the others, or that Chen had engaged others to also launder amounts of money. The amounts laundered by the appellant where quire different to those handled by the other offenders, and the period when he did so did not coincide with the periods when the other offenders did so. The appellant appealed against his sentence on the basis of the parity principle.
Though the offenders had not committed the same crime, Campbell JA, with whom Howie and Rothman JJ agreed, concluded that the parity principle applied. Each of the offenders were involved as part of an enterprise encompassing the repeated commission of crimes of a similar character, which sufficed to make them participants in a common criminal enterprise. Howie J agreed with Campbell JA’s analysis that the principle of parity should not be confined to a consideration of the sentences imposed upon persons involved in and charged with the very same crime. His Honour said:
The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment.[11]
[11]Ibid 170.
Rothman J also agreed. He considered that the rationale of equal justice which informs the principle was such a fundamental and important aspect of the exercise of judicial power that the courts should not prohibit reference to a justifiable sense of grievance, simply because the offenders are not strictly co-offenders involved in and charged with the very same crime.[12]
[12]Ibid 172.
The Crown submitted that the parity principle should not extend beyond persons who are not strictly co-offenders. That submission must be rejected. In Victoria the parity principle has been applied in a variety of circumstances which did not involve co-offenders in the strict sense but fell within the description of a common criminal enterprise. The parity principle has not uncommonly been applied by Victorian courts to multiple street traffickers and distributors who have dealt with the same supplier or the target of a particular investigation, though they are not co-offenders, and are in no sense complicit.[13] The decision of the Victorian Court of Criminal Appeal in Sumner v R[14] is another example of the parity principle being applied to an offender who had not committed the self-same crime but who was involved in a connected criminal scheme.[15]
[13]See for example R v Bernath [1997] 1 VR 271, 276 (Callaway JA); R v McEwan [2005] VSCA 202, [42]; R v Koumis (2008) 18 VR 434.
[14](1985) 19 A Crim R 210.
[15]Jimmy v R (2010) 269 ALR 115, 132–3.
An instance of a common criminal enterprise which attracted parity reasoning, though not in the strict sense, was R v Brincoveanu.[16] There the appellant had prepared foils of heroin and placed them in a jar which was hidden in the Botanic Gardens. The appellant plead guilty to one count of trafficking in heroin and one count of possessing heroin. Another offender had picked up the heroin in the jar and was later arrested by police with it in his possession. He pleaded guilty to two counts of possessing heroin. Another two offenders who had supplied the drugs to the appellant pleaded guilty to attempting to possess, and possessing, heroin. All four offenders were sentenced on the same day. The appellant on appeal complained about the disparity between his sentence and that imposed on the three other offenders.
[16](Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Hampel and Smith JJ, 31 March 1995).
Crockett J (with whom Hampel and Smith JJ agreed), after stating that, when looked at in isolation, the appellant’s sentence was within the range available to the sentencing judge, considered whether the disparity between the appellant’s sentence and those sentences imposed on the other offenders was manifestly excessive. His Honour acknowledged that the disparity was between different offenders who had been charged with different offences and ‘does not arise from a comparison of like against like’.[17] However, his Honour stated:
I am of opinion that the circumstances to which I have referred may, and indeed ought, be taken into account upon the exercise of the sentencing discretion. Comparison of the sentences of all offenders may sometimes be necessary, even though a strict parity point has not arisen, in order that justice and fairness in all the circumstances attends the sentencing process and is seen to do so. This approach to sentencing accords with what I would apprehend is the broad policy of the law. Principles of sentencing cannot be seen to be rigid and unyielding in the particular circumstances of a given case. Sentencing certainly is a principled process. That is not to say that those principles are always to be inflexibly applied.[18]
[17]Ibid 8.
[18]Ibid 9 (emphasis added).
The appeal was allowed on the basis of the disparity and the appellant was re-sentenced to a lesser sentence.
Both Campbell JA and Rothman J in Jimmy referred to OM v R,[19] a case upon which the appellant placed particular reliance. It was an appeal against sentence by four of a group of six teenage boys who had committed a series of sexual assaults against the same teenage girl on the same day, and had each been charged with the same offence. Five of the boys had each committed an assault against the girl in each other’s presence, and two of those five had then taken the complainant to a different location, where the sixth boy, OM, arrived and sexually assaulted the girl. Fullerton and McCallum JJ allowed the appeals (including that of OM) on the basis of the disparity between the boys’ sentences, apparently proceeding on the assumption that all of the boys were co-offenders. Basten JA who agreed in the result addressed the question whether the boys were rightly characterised as co-offenders. His Honour concluded:
It thus appears that the disparity principle operates with respect to persons who may not have committed the same offence, but have been involved in a course of criminal activity through some kind of association over a limited
period of time. It would require a departure from that approach…to avoid the application of the principle in the present case.[20]
[19]Jimmy v R (2010) 269 ALR 115, 172.
[20]OM v R [2009] NSWCCA 267, [12].
The appellant pointed to a number of common features of his and Matthew’s conduct which it was said supported the characterisation of their offending as a common criminal enterprise. Both brothers committed the same type of offences against the same victim using a similar modus operandi; they were associated with one another and had been introduced to the victim as a potential target by their father who, as the sentencing judge found, embedded in them the notion that the victim was an ‘easy touch’; they had the same type of relationship with the victim; they offended against the victim during the same period and the victim did not distinguish between them in terms of their threats and intimidation or its effect upon him.
Further, the appellant submitted that the manner in which the brothers were treated by the criminal justice system suggested that their offending was intimately linked. The appellant and his brother Matthew were originally charged on a joint presentment, demonstrating the prosecution’s (initial) view that the brothers’ offending had so many common features as to appear to be a single series of offences of the same or similar character.[21] Although the brothers were subsequently charged on separate presentments, their separate pleas were heard together, and they were sentenced together.
[21]On the appeal, however, counsel for the appellant rightly conceded that on reflection, the separate offences committed by each brother, independently of the other, at different times, could not accurately be characterised as constituting a single series of offences of the same or similar character.
The commonality of features between the brothers were such, the appellant submitted, that they fell within the description of offenders involved in a common criminal enterprise. The appellant thus submitted that he had a justifiable sense of grievance in being given a sentence that was disproportionate to the sentence imposed on his brother for what was more serious and prolonged offending.
We reject that contention. None of the features relied upon bring the appellant within the concept of a ‘common criminal enterprise.’ Such an enterprise involves a course of criminal activity usually encompassing multiple unlawful acts which may be of the same or a similar nature, but each of which is related to the same criminal purpose. Each of the offenders will have participated in the enterprise at some stage, though not as co-offenders,[22] thereby establishing the necessary association or relationship between the offenders. There need be no coincidence as to the time of their involvement, or knowledge that others are participating in similar acts. At least one of the offenders will ordinarily have been a continuous participant throughout the period of that enterprise.
[22]They will have participated in different acts, otherwise they would be co-offenders in a joint criminal enterprise.
Although the appellant’s conduct cannot be characterised as part of a common criminal enterprise, it is necessary to consider whether the fundamental principle of equal justice, from which the parity principle derives, nonetheless requires some proportionality between the brothers’ sentences.
Whether the broad principle of equal justice requires some relativity between the sentences imposed on the appellant and his brother
The appellant’s alternate argument was that, even if the brothers were not in a common criminal enterprise, there was a sufficient nexus between, and such important common features of the brothers’ offending that the principle of equal justice required that Matthew’s sentence should have been given significant weight in fixing the appellant’s sentences.
There is considerable force in that submission. While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable,[23] the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender.[24] But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime.[25] Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case.[26]
[23]Hudson v R [2010] VSCA 332, [28]–[34].
[24]Kelly v R [2011] VSCA 10, [6]–[7].
[25]See Jimmy v R (2010) 269 ALR 115, 173 (Rothman J).
[26]R v Engert (1995) 84 A Crim R 67, 68 (Gleeson CJ); Republic of Croatia v Sneddon (2010) 265 ALR 621, 639.
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.
The common features of the brothers’ offending and their connection required the sentencing judge to achieve an appropriate relativity between their respective sentences. The appellant had committed six robberies over one and a half years using the same threats and intimidation as his brother. He had stolen a total of $3935.70. Matthew had robbed the same victim on 18 occasions over a period of five years, and stolen $142,000. There was no material difference in their personal circumstances save that Matthew had a history of non-compliance with court orders. Yet the appellant received a sentence only four months less than Matthew for the robberies each had committed.
The Crown accepted that there was no discernible rational explanation[27] for what otherwise appears to be a lack of due proportion between the sentences passed on the appellant and his brother. The appellant has a justified sense of grievance arising out of the disparity between his sentences and that of his brother. The fundamental principle of equal justice that inheres in the exercise of judicial power required some relativity between the sentences imposed upon them.
[27]R v Tien & Ors[1998] VSCA 6 (Tadgell JA).
The Crown described the appellant’s sentence as at the top of the range of sentences available to the sentencing judge. The appellant, rightly in our opinion, did not press a separate ground that the sentences were manifestly excessive. The Crown, while acknowledging the need to make some adjustment to the appellant’s sentence, submitted that Matthew’s sentence was very low, if not manifestly inadequate, and for that reason should be given less weight as a relevant sentencing factor.
Where the principle of parity is enlivened, or as in the present case, the principles of consistency of sentencing and parity coalesce, the Court’s discretion is not fettered so as to require it to impose a sentence on an offender which exactly equates with the sentence imposed on the other offender.[28] Where the co-offender’s sentence is inappropriately low, the appellant’s sentence is not to be reduced to the point where it too is manifestly inadequate.[29] The Crown’s submission accords with the well settled principle that where one co-offender has been given a manifestly inadequate sentence, that sentence cannot be ignored for the purpose of sentencing the other co-offender, but it should only be given such weight as is appropriate in the circumstances.[30] Although the appellant and his brother are not co-offenders, the same principles apply to them. Accordingly, to address the injustice engendered by the discrepancy between the brothers’ sentences without creating further injustice by imposing on the appellant an inappropriately low sentence, the appellant should be re-sentenced, taking into account Matthew’s sentence as a relevant factor but only giving it such weight as is appropriate, given the inadequacy of that sentence.[31]
[28]Kelly v R [2011] VSCA 10, [7] (citations omitted).
[29]Fletcher v R [2011] VSCA 4, [31]-[32].
[30]R v Pecora (1980) VR 499, 503; R v Wilson (2000) 116 A Crim R 90.
[31]R v Wilson (2000) 116 A Crim R 90, 96 (Chernov JA).
The Crown having submitted that it would be appropriate to reduce the appellant’s sentence by as much as six months, and there being no demur to that suggestion from the appellant, we would re-sentence the appellant on count 1 to 18 months’ imprisonment. The new sentence creates an appropriate disparity between the brothers’ sentences which reflects the relative seriousness of each of their offending. We would confirm all other sentences and the orders for cumulation, making a total effective sentence of two years and six months’ imprisonment. We would fix a non-parole period of 18 months.
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