Haydon v The Queen

[2012] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Haydon v R [2012] NSWCCA 151
Hearing dates:	18 June 2012
Decision date:	16 July 2012
Before:	McClellan CJ at CL Price J Button J
Decision:	1. Leave to appeal granted. 2. Appeal dismissed. 3.The commencement date of the sentence imposed by McLoughlin DCJ for the aggravated break and enter contrary to s 113(2) Crimes Act be varied pursuant to s 52 Crimes (Sentencing Procedure) Act so that the sentence is imprisonment for 3 years 3 months consisting of a non-parole period of 2 years 2 months commencing on 25 June 2012 and expiring on 24 August 2014 with a balance of term of 1 year 1 month expiring on 24 September 2015.
Catchwords:	CRIMINAL LAW - appeal - sentencing - parity - application of s 52 Crimes (Sentencing Procedure) Act to correct commencement date of sentence.
Legislation Cited:	Crimes Act 1900 s 112(1)(a), s 113(2), s 154A(1)(a), s 189, Crimes (Sentencing Procedure) Act 1999 s 52(1) Road Transport (Vehicle Registration) Regulation 2007 s 85(2)(a)
Cases Cited:	Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Ilbay [2000] NSWCCA 251 R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 R v Kollas and Mitchell [2002] NSWCCA 491
Category:	Principal judgment
Parties:	.
Representation:	Ms A Francis (applicant) Mr R Herps (respondent) B Sandland (applicant) S Kavanagh (Solicitor for Public Prosecutions)
File Number(s):	2010/249099
Decision under appeal	Citation: R v Haydon Date of Decision: 2010-12-17 00:00:00 Before: McLoughlin DCJ File Number(s): 2010/249099

Judgment

1. McClellan CJ at CL: I agree with Price J.

1. Price J:  Matthew Haydon seeks leave to appeal against the sentence imposed upon him in the District Court on 17 December 2010.

1. The applicant had adhered in the District Court to a plea of guilty entered in the Local Court to a charge of aggravated break and enter with intent to commit a serious indictable offence, namely larceny, on 27 May 2010 contrary to s 113(2) Crimes Act 1900. The circumstances of aggravation were that he was in company with the co-offender David Davis. The maximum penalty for such an offence is 14 years imprisonment.

1. Three matters on a Form 1 were taken into account by the Judge on sentence for the s 113(2) offence, being:

(i)take and drive a white Toyota Hilux on 27 May 2010 without the consent of the owner contrary to s 154A(1)(a) Crimes Act, the maximum penalty for which is 5 years imprisonment;

(ii)receiving a bullbar between 10 April 2010 and 14 April 2010 knowing it to have been stolen contrary to s 189 Crimes Act, the maximum penalty for which is 3 years imprisonment and;

(iii)display altered number plate on 27 May 2010 contrary to s 85(2)(a) Road Transport (Vehicle Registration) Regulation 2007. This offence is punishable by 20 penalty units.

1. The applicant was sentenced to imprisonment with a non-parole period of 2 years 2 months commencing on 25 July 2012 and expiring on 24 September 2014 with a balance of term of 13 months expiring on 24 October 2015.

1. A plea of guilty had also been entered by the applicant to a charge of break and enter and commit a serious indictable offence, namely larceny on 27 May 2010 contrary to s 112(1)(a) Crime Act. The maximum penalty for the offence is 14 years imprisonment. For this offence, a non-parole period of 1 year 10 months commencing on 25 June 2011 and expiring on 24 April 2013 with a balance of term of 8 months expiring on 24 December 2013 was imposed. Davis was not involved in the s. 112(1)(a) offence.

1. Davis was sentenced on the same day as the applicant for the s 113(2) offence by the Judge to imprisonment with a non-parole period of 13 ½ months commencing on 27 September 2010 and expiring on 12 November 2011 with a balance of term of 4 ½ months expiring on 26 March 2012.

1. The sentencing proceedings for the applicant and the co-offender had been heard together and Davis was sentenced after the applicant. An agreed statement of facts for the s 113(2) offence had been tendered, which was recounted by the Judge in his sentencing remarks for each offender.

1. The agreed facts are as follows:

"Aggravated (in company) break and enter with intent to commit a serious indictable offence (steal)

At about 9am on Thursday 27 May 2010, the offender Matthew HAYDON and the co-offender David DAVIS arrived at the Surfside Motel Ocean Drive, Lake Cathie. The offender HAYDON and co-offender DAVIS were in a white Nissan Patrol. A witness wrote down the registration of the vehicle (as they were acting suspiciously) and had a conversation with the co-offender DAVIS.

The witness walked away from the vehicle and looked back a short time later. The witness could no longer see either the offender HAYDON or the co-offender DAVIS. The witness observed that the front registration number plate had been altered by using black electrical tape (see below and contained on a Form 1).

The witness then observed the offender HAYDON in the rear yard of the adjoining semi rural property being the premises 1355 Ocean Drive, Lake Cathie.

The offender HAYDON was observed near the rear shed and had a metal object in his pocket. The witness contacted Police.

Entry was forced to the shed through a rear window. Once inside the shed a padlock and chain securing four motor bikes was cut. The motorbikes were 3 Honda CRF 250's and a Yamaha YZ 250. One of the Honda CRF 250 bikes was rolled towards the colourbond entry doors. A number of tools were also laying outside the shed.

At about 10.25 am a police officer arrived at the premises. At the time the offender HAYDON was seen to be unscrewing the colourbond panels of the shed doors. On seeing the police officer, the offender HAYDON ran and jumped over the bonnet of a parked motor vehicle, back towards the Surfside Motel. The offender HAYDON was chased on foot by Police. The offender HAYDON then ran to the parked motor vehicle and drove away from the location at a high speed."

1. The sole ground of appeal is that the sentence imposed upon the co-offender Davis has engendered a justifiable sense of grievance in the applicant.

Argument

1. The applicant complained that for the offence contrary to s 113(2), he is to serve an effective non-parole period of 2 years 2 months whereas the co-offender's non-parole period was 13 months. The applicant's head sentence is 3 years 3 months as against 18 months for Davis. It was contended that this considerable difference in penalty is not justifiable on account of the Form 1 matters or for any other reason.

1. The applicant submitted that the agreed facts did not differ in any material respect and the objective criminality of each offender was indistinguishable. The Judge had not endeavoured in his sentencing remarks to distinguish their objective criminality. The applicant argued that the disparity in the respective sentences could not be explained by the different subjective features or criminal histories of the offenders.

1. It was contended that the sentence imposed upon Davis was not ameliorated by totality principles, as the Judge declined to accumulate his sentence upon either Davis's balance of parole or the period to be served on account of the revocation of the s 12 bond. By contrast, the applicant's sentence was accumulated upon an effective 13 months imprisonment for a break and enter offence committed later on the same day of the common offence, and that sentence was in turn entirely accumulated but for one month, upon various Local Court sentences for driving matters committed on the day of the break and enters. The sentence imposed in the Local Court amounted to an effective non-parole period of 14 months. Having regard to the successive accumulation of sentences imposed in both the Local and District Courts, the effective period that the applicant must serve in continuous custody is 5 years 5 months with a non-parole period of 4 years 4 months.

1. Ms Francis, who appeared for the applicant, in oral submissions said that the applicant did not complain about the accumulation of the applicant's sentence, but the Judge's attention in his sentencing remarks to the facts of the offence of dangerous driving for which he had been sentenced to imprisonment in the Local Court, appeared to have "clouded the proper assessment of the relative culpabilities confined to the facts in relation to the common offence": T 7.45-50

1. The Crown submitted that the agreed statement of facts clearly demonstrated that the applicant had played a more active role in the common offence. The Crown contended that it was not necessary for the Judge to endeavour to distinguish each offender's criminality, as their criminality was obviously and easily distinguishable from the agreed facts. When the Judge's remarks for each offender are considered in their entirety, it was clear that the Judge considered the applicant's objective criminality to have been greater than the co-offender's. The Crown pointed out that, when sentencing the applicant for the common offence, the Judge took into account the offences on the Form 1. There were also some differences in their subjective cases. The Crown argued that an effective non-parole period that is 13 months greater than that imposed on his co-offender was just and proper having regard to their respective roles and the Form 1 offences. As to the accumulation of sentence, the Judge was entitled to impose a period of custody that adequately and fairly reflected the totality of criminality involved in all of the offences.

Decision

1. The appeal raises the issue of parity between the applicant's sentence and the sentence imposed on Davis, his co-offender for the aggravated break and enter contrary to s 113(2) Crimes Act. As Ms Francis pointed out, the applicant's head sentence of 3 years 3 months is more than 100 per cent greater than Davis's head sentence of 18 months and the non-parole period of 26 months is "just shy" of 100 per cent greater than the co-offender's non-parole period of 13 ½ months.

1. A marked disparity between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 said at [31]:

"The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted)

1. Any dissimilarity in the subjective cases of the co-offenders is slight and could not justify the difference in sentence. When the offence was committed, the applicant was 25 years old and Davis was 29 years old. Both offenders had unattractive prior criminal histories. The applicant was on parole for an offence of break, enter and steal whereas Davis committed the offence whilst subject to a s 12 bond for a charge of intimidation and malicious damage and was on parole for an offence of break, enter and steal. Both had pleaded guilty and 25 per cent discounts on sentence had been allowed for the pleas. The Judge did not make positive findings on the prospects of rehabilitation for either offender nor did he find special circumstances in either case.

1. The applicant and Davis were parties to a joint criminal enterprise to break into and steal from the shed. Differences in the relative conduct of co-offenders may lead to greater objective criminality being reflected in a lengthier sentence. However, there are limits to which a differential role might impact upon the sentence of offenders who have agreed to perform a joint criminal enterprise because of the common purpose to commit the crime: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 per Spigelman CJ at [166].

1. The Judge did not characterise the role of either offender in his separate sentencing remarks nor did he refer to the principle of parity. Although it would have been preferable that his Honour had done so, it is plain from the agreed facts and his Honour's remarks that the applicant's level of culpability was more than that of Davis. The agreed facts identified the applicant as being "observed near the rear shed" and having a "metal object in his pocket". At the time police arrived, the applicant "was seen to be unscrewing the colourbond panels of the shed doors". On the other hand, Davis was not described as having taken an active role in the offending nor was he seen in the rear yard of the premises.

1. During his evidence in the sentence proceedings, the applicant told the Judge that he "had an idea that the bikes were there before", that he got that idea from a trailer that he had seen "in the side yard" a couple of days before, that he broke into the premises by getting under the front door of the shed and the only reason he did not take the motorbikes or any other equipment was because the police arrived. When sentencing the applicant, the Judge said (ROS at 3):

"On inspection by police of the Nissan Patrol driven by the offender, it was evident that black electrical tape had been used in an attempt to alter the registration plates of the vehicle to avoid the vehicle being identified as that owned by the offender as being used in the offence at Lake Cathie."

And (ROS at 4):

"These matters are serious and prevalent and attended to with organisation, as the offender had obviously recognited (sic) the area before in Lake Cathie and knew what he was after, and where it was to be stolen from, at the time of the commission of the offence. The offender having formed a view that the premises may well contain bikes because he had observed trailers, hence it was organised and pre-arranged and there is a degree of criminal activity involved in it and a matter of some aggravation."

1. Davis did not give evidence before the Judge. A submission was made on his behalf that "he went along for the ride". When sentencing Davis, the Judge did not refer to planning or organisation. There was no evidence that Davis had participated in a reconnaissance of the premises with the applicant nor had engaged in the preparation for the crime. The Judge observed that the Nissan Patrol, the registration number plate of which had been altered by the use of black electrical tape was owned by the applicant. The Judge accepted that Davis was easily led.

1. It is evident that the Judge considered that the applicant played a more prominent role in the offending than Davis. In my opinion, his Honour was entitled to reflect that greater objective criminality in the applicant's sentence. As both offenders were participating in a crime they had agreed to commit, I do not think that the differentiation in their roles by itself justifies the significant difference in sentence. However, that was not the only matter of distinction between the applicant and Davis.

1. When sentencing the applicant, the Judge took into account, as he was required to do three matters on the Form 1. Two of these matters were punishable by imprisonment. The agreed facts recounted that the offender stole a white Toyota Hilux from a premises at Rawdon Island, whilst the owner of the vehicle was on the roof of the premises painting at the time. He drove the vehicle to Wauchope where it was later found by police. This offence contrary to s 154A(1)(a) Crimes Act is punishable by imprisonment for 5 years. The other matter was an offence of receiving a stolen bullbar that had a previous number plate burnt into it which was unable to be removed or polished out. The applicant admitted purchasing the bullbar for $400 at a time he thought that it may have been stolen. The applicant returned the bullbar to the owner when he was asked to do so. This offence contrary to s 189 Crimes Act is punishable by imprisonment for 3 years.

1. The Judge was entitled to increase the penalty for the common offence (the s 113(2) Crimes Act offence) because of the Form 1 offences. There were no matters on a Form 1 to be taken into account when Davis was sentenced.

1. I am not persuaded that the Judge's assessment of the relative culpabilities of the co-offenders for the common offence was clouded by attention given to the dangerous driving offence. Both the applicant and Davis came before the Judge for sentence on 9 December 2010. His Honour recognised that a Magistrate had inappropriately committed the applicant for sentence for the offence of dangerous driving which he then remitted to the Local Court for sentence, together with two charges of driving whilst disqualified. The sentencing proceedings were adjourned to 15 December 2010. At the outset of the proceedings on the adjourned date, the Judge was informed that terms of imprisonment had been imposed in the Local Court for the offences that had been returned to the Magistrate. Although the facts of the offence of dangerous driving remained in the agreed statement of facts which the Judge recounted, his Honour made no other reference to this offence, other than to detail the sentences that had been imposed in the Local Court.

1. Finally, I do not think that there is any merit in the applicant's complaint that the Judge accumulated his sentence for the common offence upon the sentence for the s 112(1)(a) offence and Local Court sentences for driving offences, whereas Davis's sentence was not accumulated either upon his balance of parole or the period to be served on account of the revocation of the s 12 bond. Davis neither stood for sentence for the s 112(1)(a) offence nor had he been sentenced for other offences in the Local Court. Different considerations of totality, accumulation and concurrence arose when the Judge came to sentence the applicant and his co-offender.

1. All matters are not equal. In my view, the Judge made due allowance for the different roles which the co-offenders played in the common offence and the Form 1 matters that were singular to the applicant. These differences justify the disparity in sentence. The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified.

1. I would grant leave to appeal, but I would dismiss the appeal.

1. The Court was informed that one of the Local Court sentences was corrected by the application of the "slip rule" in the Local Court so as to result in an effective non-parole period of 13 months which expired on 24 June 2011. This correction was made after the applicant had been sentenced in the District Court.

1. As a consequence of the correction, the concurrency of one month (from 25 June 2011 to 24 July 2011) that the Judge thought appropriate with the Local Court sentences has been extinguished. Both the applicant and the Crown ask that the applicant's sentence be backdated by one month so as to preserve the concurrency that had been intended.

1. It seems to me that the Court's powers under s 52(1) Crimes (Sentencing Procedure) Act may be used to vary the non-parole period to correct this unintended result. To use s 52 in this facultative way assists the efficient administration of justice, rather than returning the sentences to the District Court for correction. The desired result may be achieved by bringing forward the commencement date of the non-parole period for the s 113(2) offence by one month.

1. Accordingly, I propose the following orders:

1.Leave to appeal granted.

2.Appeal dismissed.

3.The commencement date of the sentence imposed by McLoughlin DCJ for the aggravated break and enter contrary to s 113(2) Crimes Act be varied pursuant to s 52 Crimes (Sentencing Procedure) Act so that the sentence is imprisonment for 3 years 3 months consisting of a non-parole period of 2 years 2 months commencing on 25 June 2012 and expiring on 24 August 2014 with a balance of term of 1 year 1 month expiring on 24 September 2015.

1. The applicant is eligible to be released on parole on 24 August 2014.

1. Button J: I agree with Price J.

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Decision last updated: 01 August 2012