Fletcher v The Queen

[2011] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0745

JUSTIN FLETCHER	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 January 2011
DATE OF JUDGMENT	20 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 4
JUDGMENT APPEALED FROM	R v Fletcher & Or (Unreported, County Court of Victoria, Judge Wilmoth, 13 July 2009)

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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant pleaded guilty to intentionally causing serious injury, armed robbery and unlawful imprisonment – Total effective sentence of six years and nine months’ imprisonment with non-parole period of three years and nine months – First co-offender initiated offending and more actively involved in commission of offences – First co-offender received same sentence as applicant – Second co-offender, who, unlike applicant, had no prior convictions, sentenced to three years detention in youth justice centre – Whether sentencing judge erred in application of parity principle – First co-offender able to rely upon R v Verdins (2007) 16 VR 269 – Parity argument in relation to first co-offender rejected – Crown concession that applicant had justifiable sense of grievance based upon undue disparity with sentence imposed upon second co-offender – Applicant re-sentenced to five years and nine month’s imprisonment with non-parole period of three years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M D Hallowes	James Dowsley & Associates
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

1. The applicant, Justin Fletcher, pleaded guilty in the County Court at Melbourne to a series of offences, all of which took place on 8 October 2007. A co-accused, Sean Leroy, pleaded guilty to the same offences before the same judge.  The six counts to which both offenders pleaded guilty were one count of attempting to possess a drug of dependence, namely, methylamphetamine, one count of intentionally causing serious injury, one count of armed robbery, one count of theft of a motor vehicle and two counts of unlawful imprisonment. 

1. The applicant was sentenced, in respect of the six individual counts, as follows:

COUNT	OFFENCE	SENTENCE	CUMULATION
1	Attempt to possess a drug of dependence	3 months	-
2	Intentionally cause serious injury	5 years	Base
3	Armed robbery	3 years	6 months
4	Theft of motor vehicle	2 years	3 months
5	Unlawful imprisonment	1 year	6 months
6	Unlawful imprisonment	1 year	6 months
Total effective sentence: 6 years and 9 months Non-parole period: 3 years and 9 months

1. Leroy received exactly the same sentence on each of these six counts.  In addition, however, he was dealt with for other unrelated matters involving handling stolen goods and being a prohibited person in possession of a firearm  He received a total effective sentence of seven years and six months with a non-parole period of four years and six months. 

1. A third offender, James Dale, pleaded guilty on a separate date, but before the same judge, to a series of counts arising out of the same incident.  However, Dale did not face a count of attempting to possess a drug of dependence, and whereas both the applicant and Leroy each pleaded guilty to one count of armed robbery and one count of theft, Dale pleaded guilty to two counts of armed robbery.  Dale received a sentence of three years detention in a youth justice centre. 

1. The applicant’s plea of guilty came after a contested committal hearing.  The sentencing judge described the plea as having been entered at a ‘late’ stage but observed that it nonetheless had utilitarian value.  Her Honour was prepared to treat the plea as some indication of remorse. 

1. The applicant had previously been sentenced in respect of other matters on 22 July 2008.  On that day he was sentenced to a term of 18 months’ imprisonment with a non-parole period of 12 months.  He had also been previously sentenced for other matters on 26 August 2008.  On that occasion, he was sentenced to six months’ imprisonment, four months of which were to be served cumulatively upon the sentence of 18 months that he was then undergoing.  His non-parole period in respect of those offences expired on 29 December 2008. 

1. The applicant was bailed in relation to the present matters on 5 February 2009.  In all the circumstances, there was no period of no pre-sentence detention for which he could be credited in respect of the current offences.  That formed the basis of one of the applicant’s complaints before this Court regarding the alleged failure of the sentencing judge to give proper weight to the principle of totality.

1. The applicant was born on 15 July 1988 and was aged only 19 at the time of the commission of these offences.  Leroy was some five years older, having been born on 24 June 1983.  Dale was the youngest of the three, some nine months younger than the applicant.

1. The applicant had sustained a large number of prior convictions.  These dated back to January 2004.  Many, but not all, of these convictions were recorded at the Children’s Court at Dandenong.  Some, however, were adult convictions recorded at the Melbourne Magistrates’ Court. 

1. The applicant’s prior convictions included theft, wilful damage, making threats to kill, assault with a weapon, destruction of property, unlicensed driving, breach of an intervention order, obtaining property by deception, and failing to answer bail.  Importantly, for present purposes, he had also previously been convicted of attempted robbery and attempted armed robbery.  In summary, he had been given numerous opportunities by the courts, having been put on good behaviour bonds, youth attendance orders, youth supervision orders, and finally, sentenced to detention in a youth training centre.

1. Eventually, as we have indicated, the applicant was sentenced to be imprisoned for a series of very serious offences. 

1. The circumstances surrounding the present offending were somewhat complex and could be described as entirely bizarre.  On the night in question, the applicant and Leroy had discussed with two other men and a woman the possibility of purchasing from them a quantity of methylamphetamine.  Shortly thereafter the applicant accompanied one of the men to a hotel room so that he could sample the drugs that the man was selling.  Having done so, the applicant returned to meet with Leroy.  Leroy then handed the man about $10,000 in cash as the price for the drugs.  That conduct gave rise to count 1. 

1. Subsequently, it became clear that the dealers had along planned a ‘rip off’.  When Leroy discovered this he reacted angrily and produced a machete.  Moments later, both the applicant and Dale entered the hotel room.  The applicant was armed with a pump action .22 rifle and a knife and Dale with a sawn-off shotgun and a knife. 

1. As it became increasingly clear that the drugs would not be supplied, both Leroy and, it seems, the applicant became agitated.  One or other of them, most likely Leroy, then struck one of the drug dealers on the head with the stock of a rifle.   He also threatened to kill him.  Leroy then slashed that dealer with his machete, and with a piece of broken glass slashed his head.  Both of the men were forcibly detained for several hours. 

1. The applicant forced the woman to undress, ostensibly to check whether she was ‘wired’.  While she was in the bathroom, she heard the man who had previously been struck and cut on the head scream in agony.  At that time, Leroy was engaged in pouring boiling water on the man’s genitals and upper legs.  He also used a cigarette lighter to burn the man’s pubic hair and the tip of his penis.  Leroy then poured lemon juice and peroxide on the man’s body and face. 

1. The woman was then threatened and told she had to sign over to Leroy ownership of her motor vehicle.  She was told that her children would be harmed if she refused to do so.  While she was ostensibly carrying out that demand, Leroy stabbed the man he had previously injured in the arm, and on the hand, with a knife.  He then stabbed the same man in the shoulder with a ball point pen.  He did so with such force that the pen broke.

1. Throughout this entire incident, the applicant and Dale were present, encouraging and facilitating Leroy’s acts.  Thereafter, the three offenders left the hotel. 

1. The injured man was found to have sustained a fully penetrating stab wound to the hand, cuts to the ribs, wrist, shoulder and thigh from a  machete, a stab wound to the shoulder, head cuts, and burns to his penis, testicles and upper legs. 

1. When the applicant was later interviewed by the police, he readily admitted his involvement in these offences.  He sought, however, to play down his own role in what had taken place.  He blamed Leroy for the entire incident, claiming that Leroy had ‘gone psycho’. 

Grounds of appeal

1. The applicant initially relied upon four ground in support of his application for leave to appeal against sentence.  These were:

1.The learned sentencing judge erred in her application of the principle of parity having regard to the sentence she imposed on the applicant and to the sentences she imposed on the co-offenders.

2.The learned sentencing judge erred in failing to give any, or sufficient, weight to the principles of totality.

3.The learned sentencing judge erred in failing to give sufficient weight to the youth of the applicant.

4.In all the circumstances the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. 

1. Ground 3 was formally abandoned during the course of argument.

Consideration

1. There is obviously no merit whatsoever in relation to ground 4.  The sentences imposed upon the applicant were, if anything, lenient. 

1. Likewise, there is no substance to ground 2.  The sentencing judge took into account not only the total criminality of the offences for which the applicant was being sentenced, but also the sentences which had been imposed upon him for other offences at an earlier stage.  As we have indicated, the applicant had been released on parole some months before he was sentenced for the current matters.  The sentencing judge commented specifically upon that fact.

1. It is true that her Honour did so only in the context of providing an explanation as to why there was no pre-sentence detention to be declared.  Nonetheless, the leniency of the sentences imposed for these offences makes it plain that totality must have featured to some degree in her Honour’s consideration. 

1. The fact that, after the commission of these offences, the applicant spent nearly 19 months in custody for which he was not entitled to have  any declaration of pre-sentence detention, is little more than an indication, in our view, of just how serious his offending happened to be.  That is not just in relation to these matters, but also in relation to the others for which he had previously been sentenced.  If, as the applicant contends, it is theoretically possible that he will remain in custody for a period of anything up to eight years, that simply reflects the gravity of his overall offending.  We are not persuaded that the sentencing judge failed to give sufficient weight to the principle of totality. 

1. That takes us to ground 1, which concerns parity.  As we have previously said, the sentencing judge imposed exactly the same sentence on each count for both the applicant and Leroy.  Dale, on the other hand, who pleaded guilty to essentially the same offences, and was certainly as culpable as the applicant, received a sentence of only three years’ detention in a youth justice centre.  Importantly, Dale was sentenced to only two years’ detention in respect of the base count of intentionally causing serious injury, for which both the applicant and Leroy were sentenced to five years’ imprisonment.

1. The applicant submitted that he had a justifiable sense of grievance on the basis that his sentence was unduly severe when compared with that of Dale, and ought to have been significantly lighter than that imposed upon Leroy.  He submitted that Leroy had clearly played the dominant role in what took place on the night in question.  It was Leroy who had been the main perpetrator of the violence that was inflicted.  It was also Leroy who had uttered the majority of the threats that were made.  The applicant’s role was said to have been not dissimilar to that played by Dale. 

1. It was acknowledged on behalf of the applicant that there were some important differences between his situation and that of Dale that could justify Dale being treated more leniently.  Dale, for example, had no prior convictions, while the applicant had accumulated a formidable list of such convictions for one still so young.  Dale was slightly younger than the applicant, and had indicated a willingness to plead guilty at an earlier stage. 

1. It was further submitted that, taking into account all relevant factors, the applicant should have received a significantly lighter sentence than that imposed on Leroy.  Counsel referred to R v Postiglione[1], where Dawson and Gaudron JJ observed:

The parity principle upon which the argument in this Court was mainly based 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 … equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to “a justifiable sense of grievance”.  If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options[2]

[1](1997) 189 CLR 295.

[2]Ibid 301 (citations omitted).

1. One question not specifically addressed in Postiglione, or indeed in the High Court’s earlier decision in Lowe v The Queen[3] is what should happen where one offender has been given a wholly inadequate sentence, and a co-offender appeals against his own sentence on the ground of disparity.  The dilemma which confronts the court is that the sentence imposed upon the applicant may be entirely appropriate, but there has, nevertheless, been a breach of the principle of equal justice.

   [3](1984) 154 CLR 606.

1. According to Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria,[4] that dilemma is generally resolved by recognizing that the principle of parity does not require a court sentencing an offender to impose what, in its view, is a manifestly inadequate sentence merely because such a sentence has been imposed upon a co-offender.[5] 

   [4]2^nd edition (1999).

   [5]R v D’Ortenzio [1961] VR 432, 433 and R v Charles [1979] VR 8. See also R v Tisalandis [1982] 2 NSWLR 430, 439, where Moffitt P observed, in effect, that a single error should be corrected, not doubled. To the same effect is R v Cox (1991) 55 A Crim R 396, 401 which held that an appeal court will not interfere where the consequence of reducing a higher sentence is that there will be two inappropriately low sentences rather than one. Again, see R v Reardon (1996) 89 A Crim R 180.

1. Nonetheless, even a manifestly inadequate sentence imposed upon a co-offender should not be entirely ignored.  Where the disproportion between the sentences is manifestly, and not merely arguably, excessive, the sentence, though otherwise within range and appropriate, may be reduced to avoid the feeling of injustice felt by the co-offender.  It should never be reduced, however, to a point where the new sentence is itself manifestly inadequate.[6]

   [6]R v Goldberg [1959] VR 311; R v D’Ortenzio [1961] VR 432, 433; R v Mitchell [1974] VR 625 and R v Pecora [1980] VR 499, 502-3.

1. It is of some interest that the Director of Public Prosecutions, in this case, initially instituted an appeal against the leniency of Leroy’s sentence.  That appeal was subsequently abandoned, probably because counsel who appeared for the Crown on the plea expressly submitted that both Leroy and the applicant should be sentenced to essentially the same terms. 

1. The sentencing judge was aware of the need to ensure appropriate parity.  It is clear from her sentencing remarks that she significantly moderated the sentence imposed upon Leroy based upon the severity of his various mental problems.  She noted that Leroy had a long history of mental illness, aggravated by poly drug abuse throughout his teenage years, and later on into adulthood.  He suffered from Attention Deficit Hyperactivity Disorder (ADHD) but did not respond to conventional medication.  He also suffered from acute paranoia.  He had, for many years, been under the care of medical practitioners.  He was described as suffering from a chronic severe mixed anxiety/depressive disorder with perhaps bipolar disorder as well.  He was said to have a psychotic illness which, in its manic phase, led to lack of judgment and an inability to engage in rational decision making.  He behaved in am uninhibited manner, and sometimes conducted himself in a way that was dangerous to others.

1. By the time Leroy came to be sentenced, he was being regularly treated with antidepressants and sedatives.  There were signs of improvement in his ongoing psychiatric condition.  Her Honour found that, at the time of the offending, Leroy was, at the very least, under the influence of both alcohol and drugs.  She found that, when combined with his psychiatric problems, this played an important role in impairing his capacity to make rational choices.  She characterised his mental condition as ‘severe’.  On that basis her Honour applied both limbs of Verdins[7] in significantly moderating his sentence. 

   [7]R v Verdins (2007) 16 VR 269.

1. The applicant presents a different set of personal circumstances.  Although he played what her Honour readily accepted was ‘a lesser role’ in the offending than did Leroy, and notwithstanding the applicant’s youth, he had accumulated a significant criminal record, one much worse than that of Leroy. 

1. Her Honour said that the principle of parity would play a part in the sentence she imposed upon the applicant, but added that ‘each of [the offenders] is in a different situation’.  The applicant aided and abetted the commission of the crimes by his presence, and by holding a firearm (which her Honour described as ‘facilitation’ and not just mere encouragement).

1. Like cases must, so far as possible, be treated alike.  That does not mean that material differences are to be ignored.  Nor does it mean that a sentence which is already lenient, having regard to the gravity of the offending, is to be still further reduced to the point where the ultimate result is a sentence that is manifestly inadequate.

1. The applicant consciously, voluntarily and deliberately participated in, and facilitated, what can only be described as a series of horrendous offences.  His moral culpability was great.  His criminal record is such that his prospects of rehabilitation can only be described as problematic.  Importantly, unlike Leroy, he could not call in aid the principles of Verdins.[8] 

   [8]Ibid.

1. There are, in our view, sufficient differences between the applicant’s situation, and that of Leroy, to enable us to say that any sense of grievance that the applicant harbours as a result of having received the same individual sentences as did Leroy is not relevantly ‘justifiable’.

1. The position regarding parity with Dale is different.  Counsel who appeared for the Crown on the appeal to this Court expressly conceded that the disparity between Dale’s treatment and that of the applicant was excessive.  That concession seems to us to have been both fair and proper.

1. It follows that the applicant must be re-sentenced.  The fact that the sentence imposed upon Dale seems to us to have been clearly inadequate does not mean that it can be ignored for parity purposes.  At the same time, this Court will not impose upon his co-offender a sentence that it regards as wholly inappropriate merely to give effect to the principle of parity.

1. In our view, the applicant should be granted leave to appeal, and the appeal allowed.  The sentences imposed below should be set aside.  In lieu thereof, the applicant should be sentenced as follows.

Count 1–     attempt to possess a drug of dependence, three months’ imprisonment.

Count 2–     intentionally cause serious injury, four years’ imprisonment.

Count 3–     armed robbery, two years and six months’ imprisonment.

Count 4–     theft of a motor vehicle, 18 months’ imprisonment.

Count 5–     unlawful imprisonment, nine months’ imprisonment.

Count 6–     unlawful imprisonment, nine months’ imprisonment.

1. The base sentence is the four year period fixed in relation to count 2.  Six months of the sentence imposed on count 3, three months of the sentence imposed on count 4 and six months of the sentence imposed on each of counts 5 and 6 are cumulated upon each other and upon count 2.  That makes a total effective sentence of five years and nine months.  We fix a non-parole period of three years.

1. All other ancillary orders made below are confirmed.

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