Glover v The Queen

[2015] NSWCCA 293

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Glover v R [2015] NSWCCA 293
Hearing dates:	28 October 2015
Decision date:	27 November 2015
Before:	Macfarlan JA at [1] Button J at [2] Fagan J at [47]
Decision:	(1) Leave to appeal against sentence granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – conspiracy to commit an act with intent to pervert the course of justice – co-offenders – principle of parity – whether the sentence imposed on the applicant demonstrates erroneous disparity when compared with the sentence imposed upon his co-offender
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) ss 14, 15 Crimes Act 1900 (NSW), s 319 Crimes (Appeal and Review) Act 2001 (NSW), s 59
Cases Cited:	Glover v R; Stuart v R [2015] NSWCCA 285 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Category:	Principal judgment
Parties:	Laurence Kwadjo Glover (Applicant) Regina (Respondent)
Representation:	Counsel: T Quilter (Applicant) H Baker (Respondent)   Solicitors: B Duchen (Applicant) C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/91536
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 August 2014 Before: Phegan ADCJ File Number(s): 2010/00091536

Judgment

1. MACFARLAN JA: I agree with Button J.

2. BUTTON J: This is an application for leave to appeal against a sentence imposed upon Laurence Kwadjo Glover (the applicant) by Acting Judge Phegan in the District Court of New South Wales on 26 August 2014. The single ground of appeal asserts that the sentence imposed upon the applicant demonstrates erroneous disparity when compared with the sentence imposed by his Honour on the same occasion upon Paul Christopher Geeves (the co-offender).

Background

3. The background to the imposition of sentence may be shortly stated. The applicant and the co-offender stood trial jointly, each having been arraigned on a count of conspiring to commit an act with intent to pervert the course of justice. The dates within which it was averred that the conspiracy was on foot were from 2 February 2010 until 21 July 2010.

4. The substantive offence of doing an act with intent to pervert the course of justice is contained in s 319 of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for 14 years, and has no standard non-parole period. In the absence of a statutory offence of conspiracy to commit a particular offence (for example, conspiracy to murder, pursuant to s 26 of the Crimes Act), a conspiracy to commit an offence against the law of New South Wales is a common law offence, the maximum penalty of which is at large. It is well established, however, that it would only be in rare cases that a sentence for a conspiracy to commit a substantive statutory offence would be greater than the maximum penalty applicable to that substantive offence.

5. At the end of the trial, the jury returned verdicts of guilty against both men (a verdict on an alternative count was not taken, and it need not be discussed further).

The offence

6. It is appropriate to state the objective features of the offending very succinctly. That is because his Honour drew no real distinction between the two men in that regard, and that approach at first instance is not impugned in this application.

7. In short, in 2009 the brother of the applicant had been charged with a number of armed robberies, and was refused bail. Whilst he was in custody, and at his request, both the applicant and the co-offender threatened a man who was to be a witness against the brother of the applicant in an effort to have him change the version of events that he had given to the police. Instead, the witness alerted the police, and an investigation was commenced into the conspiracy. In the remarks on sentence, his Honour rejected the proposition that either offender had believed that he was merely assisting an innocent man by pressuring a dishonest person to tell the truth. His Honour also found that there were some threats of violence made that were “very real and direct”.

Subjective features of the applicant

8. In the proceedings on sentence, no evidence was tendered on behalf of the applicant that revealed anything of his life history or personality. That meant that only two pieces of evidence about subjective matters were placed before his Honour in the proceedings on sentence: the criminal record of the applicant, and a pre-sentence report (PSR), each of which was tendered by the Crown.

Criminal record of the applicant

9. The criminal record of the applicant showed that he was born in June 1987, and accordingly was aged 27 years as at the date of sentence. It also showed the following.

10. In June 2003, the applicant drove unlicensed, and was fined.

11. Later in the same month, whilst a learner driver, he refused to produce his licence, failed to display L plates, and was a learner driver unaccompanied by a licensed driver. Again, for those offences he was fined.

12. In November 2004, he was placed on two bonds by the Children’s Court for offences of possessing housebreaking implements and carrying a cutting weapon (a foreshadowed submission to this Court that it was contrary to ss 14 and 15 of the Children (Criminal Proceedings) Act 1987 (NSW) for the sentencing judge to receive evidence of the Children’s Court matters in the proceedings on sentence was abandoned at the hearing). Subsequently, in September 2005, those two bonds were called up, but each call-up was dismissed by way of a caution only.

13. Later in November 2004, he was placed on probation for 18 months by the Children’s Court for an offence of possessing implements with which he could enter or drive a motor vehicle. Again, that probation was called up in September 2005, and again the call-up was dismissed by way of a caution only.

14. On 3 February 2014 (that is, well after the commission of the conspiracy, but some months before he was sentenced for it) in the District Court of New South Wales at Sydney, the applicant was sentenced for nine counts of robbery in company whilst armed with a dangerous weapon. It seems that the first of those offences was committed on 4 May 2011. He received an aggregate head sentence of imprisonment of 11 years six months to commence on 12 September 2011 and conclude on 11 March 2023, with an aggregate non-parole period of 7 years 2 months to commence on 12 September 2011 and conclude on 11 November 2018.

Pre-sentence report about the applicant

15. The PSR was dated 15 August 2014. It focused very much on the progress of the applicant in custody whilst serving his sentence for the armed robberies.

16. With regard to the upbringing and background of the applicant, it simply stated that he was a single man who was living in the inner west of Sydney with his mother before his incarceration. It recorded that the applicant had left school in year 10, after having been expelled for fighting. He had had periods of short-term casual employment, along with periods of unemployment.

17. The PSR stated that the applicant accepted that he had become involved with friends of his brother who were “antisocial”.

18. The applicant expressed his remorse to the author about the conspiracy, and his mother reported that the attitude of the applicant had changed for the better, and the applicant had “learned his lesson”.

19. The applicant told the author of the report that he accepted that he had had a problem with prohibited drugs and alcohol at the time of the commission of the offence. His position was that he had been able to stay free of both since being incarcerated. He had tried to get help with his drug problem in custody, but had been told that his release date was too far away for him to enrol in a particular course.

20. Whilst in custody, the applicant had been dealt with for five offences against prison discipline. Three of them involved the use of physical violence; another related to failing to supply a sample for drug testing. There had also been an incident in which the applicant had set fire to his own cell, because he felt that his concerns about an event in the prison were not being adequately addressed by the authorities.

21. As I have said, those two documents were the extent of the subjective evidence pertaining to the applicant placed before his Honour in the proceedings on sentence.

Subjective features of the co-offender

22. The absence of evidence provided to his Honour on behalf of the applicant was in stark contrast to the evidence tendered on behalf of the co-offender. A great deal of documentary material was tendered on his behalf. It included: a psychological report; documents pertaining to the co-offender’s automotive repair business; the co-offender’s curriculum vitae; 12 character references from a variety of sources, including immediate family members and business associates; a letter of apology written by the co-offender; and a medical report relating to the health of his mother. As well as that, the co-offender gave evidence on oath.

23. I turn now to summarise the subjective findings of his Honour about the co-offender, who is five years older than the applicant.

24. His Honour found that he was very remorseful.

25. He had no criminal record whatsoever, whether before or after the commission of the offence.

26. He had been subject to reasonably onerous bail conditions for quite some time before the trial.

27. The co-offender had also spent 17 days in custody after bail was refused, an experience that his Honour found was “relatively short, but nonetheless very salutary”.

28. He had sound educational and employment histories; indeed, he had been running a successful family business with his brother.

29. In 2013, the co-offender had been stabbed and robbed at gunpoint, and developed post-traumatic stress disorder as a result.

30. Separately, his mother had been disabled by a stroke, and she depended on the co-offender and his brother for her care.

31. Finally, his Honour found that the co-offender was unlikely to reoffend, and had good prospects of rehabilitation. In fact, with regard to the latter, his Honour remarked that it was “difficult to know what he is being rehabilitated from”, on the basis that the applicant had led a “perfectly law abiding and socially responsible life” before involving himself in the conspiracy.

Aspects of the remarks on sentence

32. In discussing the objective features of the offence, his Honour spoke of an initial informal “starting point” of a head sentence of three years with regard to both offenders. In light of the lack of favourable subjective material placed before him, his Honour was content to impose that head sentence upon the applicant, and to maintain the statutory ratio between the non-parole period and the head sentence. That led to a non-parole period of two years three months.

33. However, that sentence was expressed to commence on 12 November 2017, with the head sentence expiring in its entirety on 11 November 2020, and the non-parole period expiring on 11 February 2020. Bearing in mind that the pre-existing aggregate non-parole period of the applicant expired on 11 November 2018, it can be seen that the practical effect of the imposition of the sentence by the learned sentencing judge was no extension of the pre-existing head sentence, and an extension of the pre-existing non-parole period by one year three months.

34. In the case of the co-offender, his Honour expressed the view that the powerful subjective features should lead to a head sentence of no more than 18 months. Subsequently, his Honour considered the option of an intensive correction order, but ultimately rejected it in favour of a suspended sentence of eighteen months’ duration.

35. In short, the sentencing judge was quite aware of the differentiation in the sentences that he was imposing upon the two offenders, and gave detailed reasons for that differentiation by way of his Honour’s findings about subjective matters.

Ground of appeal

36. A single ground of appeal was notified and pressed:

The applicant suffers a justifiable case of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Mr Paul Christopher Greeves.

Submissions of the applicant

37. In oral submissions, counsel for the applicant accepted that it was quite open to his Honour to draw a distinction between the applicant and the co-offender in their sentences, bearing in mind the equivalence of the objective features, and the differentiation in the subjective features. With appropriate conciseness, he simply submitted that the difference in the sentences actually imposed – not only in terms of length, but also in terms of the mode of their service – went beyond appropriate reflection of the differences in the subjective features.

38. In particular, he submitted that it could not be within the sentencing discretion that two men of roughly the same age; who committed the same offence; in the same way; and each of whom was found guilty at the end of a joint trial; ended up with sentences whereby the length of the sentence imposed on one of them was precisely double the length of the sentence imposed upon the other.

39. In short, he submitted that erroneous disparity was demonstrated when one considers all of the findings of his Honour, and that there should be some adjustment by this Court of the sentence imposed upon the applicant.

40. As an ancillary matter, he noted that the applicant had also appealed against at least some of the convictions for armed robbery that underpinned the pre-existing aggregate sentence. We were informed at the hearing that judgment in that appeal was reserved by another bench of this Court. The position of counsel was that, if the pre-existing aggregate sentence were altered, then there should be a commensurate alteration of the commencement date of the sentence for the conspiracy, pursuant to s 59 of the Crimes (Appeal and Review) Act 2001 (NSW).

Determination

41. I consider that the resolution of this matter can be concise as well. To my mind, there were ample bases upon which it was open to the sentencing judge to draw a sharp distinction between the sentence to be imposed upon the applicant and the sentence to be imposed upon the co-offender. And I do not consider that the distinction ultimately drawn by his Honour is so sharp as to be beyond the legitimate bounds of the exercise of the sentencing discretion in the circumstances of this case. In particular, I do not consider that there is any basis upon which the applicant, when comparing his sentence with the sentence of the co-offender, could experience (objectively speaking) a justifiable sense of grievance: see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [105] (French CJ, Crennan and Kiefel JJ).

42. There were inevitable contrasts to be drawn between the applicant and the co-offender with regard to many matters. They were: their prior criminality as at the date of sentence (extremely grave in the case of the applicant, non-existent in the case of the co-offender); their educational and work records (poor in the case of the applicant, very sound in the case of the co-offender); the evidence from others about their character (non-existent in the case of the applicant, fulsome in the case of the co-offender); the effect of incarceration upon them (unimpressive – on the evidence of the offences against prison discipline – in the case of the applicant, very salutary in the case of the co-offender); their family circumstances; their emotional health; their prospects of reoffending; and, finally, their prospects of rehabilitation generally.

43. The combined effect of those matters formed a sound basis upon which it was open to his Honour to impose upon the applicant a short sentence of imprisonment that in reality extended his period of mandatory incarceration by no more than one year three months, and to impose upon the co-offender a reasonably short suspended sentence.

44. In short, I do not consider that the applicant has established erroneous disparity between the sentence imposed upon himself and the sentence imposed upon the co-offender. To the contrary, I consider that the differentiation in the sentences imposed was well within the discretion reposed in the sentencing judge.

45. Finally, this Court recently resolved the pending appeal with regard to the convictions underpinning the aggregate sentence by dismissing it: see Glover v R; Stuart v R [2015] NSWCCA 285. In those circumstances, there is no occasion for the adjustment of the sentence imposed for the conspiracy.

46. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

47. FAGAN J: I agree with Button J.

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Decision last updated: 27 November 2015