Holden v R
[2008] NSWCCA 100
•9 May 2008
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Holden v R [2008] NSWCCA 100
FILE NUMBER(S):
2007/3059
HEARING DATE(S):
23 April 2008
JUDGMENT DATE:
9 May 2008
PARTIES:
Craig Leslie Holden
Regina
JUDGMENT OF:
Basten JA Barr J Buddin J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
07/11/0039
LOWER COURT JUDICIAL OFFICER:
Woods DCJ
LOWER COURT DATE OF DECISION:
9 March 2007
COUNSEL:
T Gartelmann (Applicant)
Ms J Dwyer (Crown)
SOLICITORS:
SE O'Connor (Applicant)
S Kavanagh (Solicitor for Director of Public Prosecutions (Crown)
CATCHWORDS:
Criminal law - sentencing - offence of maliciously inflicting grievous bodily harm in company - Form 1 matters - parity - assertion of lack of due proportion with sentences imposed on other offenders
LEGISLATION CITED:
CATEGORY:
Principal judgment
CASES CITED:
Attorney-General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Leach v The Queen [2007] HCA 3; 230 CLR 1
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Formosa [2005] NSWCCA 363
R v Hammoud (2000) 118 A Crim R 66
R v Howard (1992) 29 NSWLR 242
R v Jones (1993) 67 ALJR 376
R v MSS [2005] NSWCCA 227
R v Spinks [2007] NSWCCA 52
R v Storey [1998] 1 VR 359
Veen v The Queen [No2] (1988) 164 CLR 465 at 477
TEXTS CITED:
DECISION:
Leave to appeal granted. Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/3059
BASTEN JA
BARR J
BUDDIN JFRIDAY 9 MAY 2008
CRAIG LESLIE HOLDEN v R
Judgment
BASTEN JA: For the reasons given by Buddin J, leave to appeal should be granted in this matter, but the appeal dismissed. I would add some further observations in relation to the principle of parity, relied on by the applicant.
The statement of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 at 609, set out below at [23] states that “persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence”. However, it is not necessarily the case that each person engaged in a single joint enterprise will be sentenced on the same factual basis. That is because the sentencing court is able to sentence only on the basis of facts agreed or found by the court. When determining the facts as to the involvement of a particular offender, the court must be satisfied beyond reasonable doubt as to any aggravating circumstances: see Leach v The Queen [2007] HCA 3; 230 CLR 1 at [23] (Gleeson CJ) and [40]-[47] (Gummow, Hayne, Heydon and Crennan JJ). The criminal standard does not apply to mitigating or exculpatory circumstances, which may be proved on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) approving R v Storey [1998] 1 VR 359 at 369. Accordingly, one offender may be sentenced on a different basis to his or her co-offenders.
This consideration could have affected the outcome in the present case. Thus it appears that in sentencing the applicant the trial judge was not satisfied to the requisite degree that he was the ringleader and had struck a blow to the victim’s head with a broken bottle: see [27]-[29] below. The more serious the role played by one offender, the less the culpability of the co-offenders. When sentencing co-offenders, the trial judge may be able to take into account a circumstance of aggravation against another offender in diminution of their culpability, even though the circumstance of aggravation had not been proved against the other offender beyond reasonable doubt. It appears that in the present case the trial judge acted on this basis. Any disparity thereby achieved would be based on inconsistent findings of fact, but the inconsistency would be justifiable.
The inconsistency may mean that the applicant should be sentenced on the same basis as his co-offenders. That is in substance the complaint of the applicant in the present case. The trial judge not being satisfied that he was the person who struck the victim the blow with a broken bottle, he contends that he should not have received a significantly more severe penalty than his co-offenders. However there are two responses to this submission. The first is that the trial judge was entitled to treat the involvement of the applicant as more serious than that of his co-offenders, even if he were unable to make a finding as to the specific act of violence, referred to in sentencing the co-offenders. Secondly, as amply demonstrated by Buddin J, there were other considerations which warranted the imposition of the more severe sentence on the applicant.
It not being demonstrated that the sentence was outside a permissible range, or that the trial judge has otherwise erred in applying appropriate principles, the appeal must be dismissed.
BARR J: I agree with Buddin J.
BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court following his plea of guilty to an offence of maliciously inflicting grievous bodily harm in company. At the relevant time, that offence attracted a maximum penalty of 10 years imprisonment. The applicant asked that two further offences on a Form 1 document, namely an offence of assault occasioning actual bodily harm in company, which attracts a maximum penalty of 7 years imprisonment, and an offence of common assault, which attracts a maximum penalty of 2 years imprisonment, be taken into account on sentence. The applicant received a sentence consisting of a non-parole period of 2 years 6 months, which expires on 8 August 2008, and a total term of 4 years imprisonment.
In reciting the factual background against which the applicant stood to be sentenced, I have relied heavily upon the agreed statement of facts which was before the sentencing judge.
The factual background
The first offence in time occurred on 7 April 2006 and involved the first of the matters on the Form 1 document, namely an offence of assault occasioning actual bodily harm in company. At the time, the applicant was sharing a room with four other men in a three bedroom house in Manly which was owned by the victim. The applicant had been living there for about three months. The premises were located above some shops. In order to gain access to the premises, one had to go through a timber gate and then up a flight of stairs. Four other men shared the room with the applicant and each of them was paying rent of $100 per week to live there.
At about 10.45 pm on the night in question, the applicant returned to the premises with a number of his friends. The victim, who also resided at the premises, had told the applicant that morning that he did not want to have a large number of people in the premises. An argument ensued and the victim asked the applicant’s friends to leave. The applicant then punched the victim very hard with a closed fist to his left eye. The force of the blow caused the victim to fall over. The victim then walked down the hallway in an endeavour to leave the premises. The applicant approached him and swung a fist at him. As a consequence, the victim went into a bedroom and closed the door behind him. The applicant repeatedly kicked at the door which had no lock on it. The victim attempted to hold the door closed but eventually it was forced open causing the victim to fall backwards. The applicant and his friends entered the bedroom where they proceeded to kick the victim at least a dozen times in the head and legs. Someone also stomped on the victim’s face. Eventually another occupant of the premises entered the bedroom and the attack came to an end. The victim went to the nearby police station and reported the incident, although he had been warned against doing so.
Police observed that the victim was bleeding from his left eye, from the left side of his nose and from the left side of his chin. He had a swollen left eye, a small cut to his left hand and a graze on his right foot. He also had what appeared to be a footprint on his forehead. Ambulance officers arrived and attended to the victim’s injuries. Police obtained an interim apprehended violence order against the applicant but were unable to serve it upon him at the time.
As a result of this incident, the applicant, along with the four men with whom he shared the room, being his co-offenders Linton Moore, Kentaro Dunphy, Craig Steel and a man known only as Jordy, were evicted from the premises the following day.
On 9 April at around midday the victim went with a friend to a hotel which was located near his premises. As they were about to enter the hotel, the applicant approached the victim from behind and attempted to “king hit” him. The victim was able to deflect the punch, whereupon the applicant said to him “I’m going to get you”. That conduct, which constituted a common assault, gave rise to the second matter on the Form 1 document.
The incident which gave rise to the offence to which the applicant pleaded guilty, occurred sometime after the victim returned home from the hotel. At about 3.15 pm that afternoon the victim was sitting in his loungeroom with three friends. From a monitor positioned in the loungeroom, the victim’s friends were able to see the co-offender Steel climb over the timber gate. A number of other males were then observed to kick open the locked gate. Between 4 and 7 males then entered the premises. The victim ran to close a rear sliding glass door in an attempt to keep the intruders out, but was confronted by the applicant and his co-offenders, Steel and Moore. They forced him down the hallway towards the loungeroom. As this was happening, his head was banged against the wall. At the time, the applicant and Steel were holding empty glass bottles. A number of other males, including the co-offender Dunphy, also entered the loungeroom. Some of them were also holding glass bottles. The men were saying words to the effect of “We want our rent money. This is what you deserve”.
The victim was then punched and kicked and dragged into his bedroom, which was adjacent to the loungeroom. The applicant smashed the bottle he was carrying on a table in the loungeroom. With the broken bottle in hand, he then followed the other men into the victim’s bedroom. Steel then said “Where’s our $600?” To which the victim replied “where’s my computer, television and Foxtel box”?
One of the men then struck the victim over the head with a bottle. The victim was then punched and kicked all over his body. As this was happening, the men continued to yell out “Give us the $600 you owe us”. The victim cried out in pain and pleaded with the men to stop attacking him. In due course the assault ended and the victim was able to get up off the floor. He then ran into the loungeroom and from there he was able to jump out the window and run along the awning to the window of the flat next door. He was then able to speak to a neighbour who made an emergency ‘000’ call. Obscenities were yelled at the victim whilst he was speaking to his neighbour. There were also further acts of aggression directed towards the victim’s friends who had observed the entire incident. The applicant, together with his co-offenders Moore and Steel, were arrested a short time later. All three participated in electronically recorded interviews but gave contradictory accounts of what had occurred.
The victim was taken by ambulance to Royal North Shore Hospital. He was observed to have lacerations to his nose, left eyebrow and to the left side of his scalp, as well as swelling around the left eye and bruising to his body. X-rays and a CT scan revealed that he had sustained a fracture to the little finger of his left hand, a fracture of the left orbital floor and left medial orbital wall as well as bleeding into the left cheekbone area. The laceration to the scalp was sutured under local anaesthetic. On 12 April further surgical procedures were performed under general anaesthetic in respect of the injuries to his left little finger, his left eye, his left eyebrow and his nose. On 13 April the victim was discharged from hospital. The sentencing judge remarked that the photographs taken of the victim revealed that he had been given “a thorough belting”.
The applicant was, as I have said, interviewed by police. He denied having assaulted the victim or indeed having even been in his premises. He did however concede that he was aware that there had been an altercation at the victim’s premises. His position became untenable however when DNA, which was recovered from two stained areas on his shirt, was found to have the same profile as that of the victim.
In the light of that material, the sentencing judge concluded that the applicant had been actively involved in the brutal assault upon the victim. The sentencing judge also found that the attack upon the victim had been motivated by a disagreement over the rent and that the applicant felt “some justification albeit not proper justification” for his actions. The sentencing judge was prepared to find that the applicant had expressed a measure of remorse for his actions in a letter which he had written to the court. That was despite the fact that the applicant had attempted, in both the letter and in a pre-sentence report which was in evidence, to minimise his role in the offence. His Honour accepted that although the applicant had had a turbulent family background, he nonetheless retained the support of his mother. His Honour also accepted that the applicant’s background explained, to a significant degree, his dependency upon illicit drugs and alcohol, each of which featured prominently in the commission of the present offences. It was for that reason that the sentencing judge made a finding of “special circumstances” which had the effect of altering the statutory proportion between the head sentence and non-parole period that would otherwise have applied. In that context, his Honour observed that “[t]here is a very strong need for this man to deal with the drug problem that he has been failing to grapple with”.
The ground of appeal
The sole ground of appeal is a contention that “the sentence is excessive in comparison with the sentences imposed on the applicant’s co-offenders”. As I have said, the co-offenders are Linton Moore, Kentaro Dunphy and Craig Steel. As was the case with the applicant, the co-offenders Moore and Dunphy, were sentenced by Judge Woods. They were each sentenced to a term of imprisonment of 18 months which was wholly suspended. Each of them pleaded guilty to the same offence as the applicant. Following his plea of guilty to an offence of assault occasioning actual bodily harm in company, the co-offender Steel was placed upon a bond to be of good behaviour for a period of 3 years by Justice Blanch. In his case a further offence of common assault was taken into account on a Form 1 document.
The applicant acknowledges that “a greater sentence was required in [his] case than in the case of each of the co-offenders, as a result of significant differences in their respective cases”. The applicant submits however “that the disparity between the sentence imposed on [him] and the sentences imposed on the co-offenders is disproportionate to the differences between their respective cases”. As I understand the submission, it was contended that Judge Woods failed to maintain a “due proportion” between the sentence which he imposed upon the applicant and the sentences which he subsequently imposed upon the co-offenders Moore and Dunphy. The same complaint is made in respect of the sentence imposed upon the co-offender Steel. In advancing this submission, I take the applicant to have been relying upon the frequently cited passage in Postiglione v The Queen (1997) 189 CLR 295 in which Dawson and Gaudron JJ said:
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. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that 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.
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. (footnotes omitted) (at 301-2)
Before turning to consider the ground of appeal, two preliminary matters should be mentioned. First, it was expressly conceded on behalf of the applicant that, putting to one side the argument raised in respect of the issue of parity, the sentence imposed upon him was otherwise not open to challenge upon the basis that it exceeded the legitimate range of the sentencing discretion. Secondly, it is to be observed that each of the co-offenders had served periods of pre-sentence custody which were expressly taken into account in determining their sentences. Both Moore and Dunphy had spent about 15 months in custody prior to sentence. About six months of that period was in each case attributable to other offences. Accordingly, it is common ground that in each case about 9 months was solely referable to the present offence. The co-offender Steel had spent 3 months and 11 days in pre-sentence custody. Counsel for the applicant submitted, correctly in my view, that it was necessary to have regard to the periods of time actually spent in custody by the various offenders in respect of these matters as being the appropriate yardstick against which “the assessment of the proportionality of the respective sentences” was to be made.
In Lowe v The Queen (1984) 154 CLR 606 Gibbs CJ said that:
[it] is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. (at 609)
It is convenient to deal first with that part of the argument which concerns an assertion that the sentence imposed upon the applicant was disproportionate to the sentences imposed upon the co-offenders Moore and Dunphy. In doing so I will refer, as counsel did, to the various matters identified by the Chief Justice in Lowe (supra).
First, and it is recognized by the applicant that it is a matter of some significance, is the fact that the applicant, unlike Moore and Dunphy, had the matters on the Form 1 to be taken into account: see Attorney-General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. An increase in penalty was thus called for in the applicant’s case, particularly as the first of those offences was not only a very serious offence of its kind but because it, and the other Form 1 offence, provided the setting in which the final offence occurred. Moreover, the sequence of events, to which I earlier referred, reveals that the applicant was engaged in an on-going campaign of escalating violence against the victim over several days.
Although counsel for the applicant acknowledged the force of those considerations, it was nevertheless submitted that there needed to be some amelioration of that increase in penalty in order that proper account could be taken of the principle of totality. In that context reference was made to what were said to be a number of “common features involved in all the offences”: see R v Hammoud (2000) 118 A Crim R 66 per Simpson J at par 12. The common features were said to be the fact that the offences all arose from the one dispute and the fact that it was the same victim who had been assaulted on each occasion. When pressed in oral argument by the presiding judge, counsel for the applicant repeated the submission that the fact that the same victim, rather than several victims, was involved would suggest that a lower sentence was called for. Although a submission was advanced that support was to be found for that proposition in Hammoud, I am unable to discern that there is. Nor am I otherwise attracted to the proposition and particularly not in the circumstances of the present case.
The second matter to be considered involves a comparison of the respective roles of the various offenders. I have already referred to what Judge Woods said when sentencing the applicant. When sentencing the co-offenders, his Honour concluded that the applicant was “the ringleader” in this enterprise whilst they were “followers of [his] influence”. Moreover, it is reasonable to infer from all the circumstances that there was a not insignificant measure of premeditation involved in the conduct upon which the applicant embarked, particularly in relation to the offences which occurred on 9 April 2006.
Counsel for the applicant did not challenge the sentencing judge’s characterisation of the roles of the various offenders, but he did place some emphasis upon an aspect of his Honour’s findings, made whilst sentencing the co-offenders Moore and Dunphy, which was said to reveal a not unimportant inconsistency. His Honour said that “[t]he photographs in evidence indicate that [the victim] was severely bashed”. He must have been cut by the bottle [the applicant] had, it would seem.” A little later his Honour said that “[t]he two offenders are before this court on a proper plea of guilty, based on a notion that those who join in a common purpose are responsible for the actions of others. It would seem, however, that [the applicant] is the one who used the bottle. … Precisely who did what to whom is not clear but the law is structured as it is so that problems of attributing precise movements to one or other among a multiplicity of offenders does not inhibit the legal process.” It was submitted that that conclusion was inconsistent with what his Honour had said when sentencing the applicant. On that occasion, concerning this aspect of the incident, his Honour had remarked that the victim “was then belted on the head by a bottle by one of the males.” His Honour also had said, “I have no doubt that [the applicant] was inside the house and that he participated in threatening and bashing [the victim]. Precisely what he did is not clear, but in any event, he was there encouraging others in what they did.”
The inconsistency is said to arise from the fact that in sentencing the applicant, his Honour did not make a finding that the applicant was the person who had struck the blow to the victim’s head. In light of that consideration and, as counsel put it, “given the somewhat speculative terms in which his Honour made the finding during the course of sentencing the co-offenders” it was submitted that “his Honour’s comment would not amount to a finding capable of giving rise to a legitimate differentiation in the sentences to be imposed on the applicant on the one hand and the co-offenders on the other”.
The Court was provided with the statement of facts which was tendered in the proceedings involving Moore and Dunphy. The only material difference between what it discloses and what was contained in the document tendered in the proceedings involving the applicant is that there was no reference in the facts tendered in the applicant’s case to the fact that there was DNA material implicating both Steel and Dunphy in the commission of the offence. The statement of facts was the only material from the sentence proceedings of Moore and Dunphy that was provided to the Court. For example, the records of interview of the co-offenders were not made available. In those circumstances it is not clear what other evidence, if any, was before Judge Woods which may have shed light on this issue. Nor does the court have the benefit of the submissions which were advanced during the sentencing proceedings of Moore and Dunphy. It is tolerably clear however that the issue of parity loomed large. The issue of parity was not, of course, an issue with which Judge Woods was concerned when he sentenced the applicant because he was the first in point of time to be sentenced. That consideration does not of course disentitle the applicant from relying on the principle of parity: R v Jones (1993) 67 ALJR 376.
In my view, it is neither possible nor necessary to determine the issue which has been raised. It is quite impossible, given the state of the material before the Court, to determine the question of whether the sentencing judge’s somewhat equivocal finding that the applicant struck the victim over the head was one that was properly open upon the material which was before his Honour in the sentencing proceedings against Moore and Dunphy. Nor is it necessary to determine the issue because, as I have said, the applicant does not challenge the finding that he was “the ringleader” and that the co-offenders were “followers”. That being so, and given the other inferences which are properly available as to their respective roles, an entirely legitimate basis existed for drawing a clear distinction between the position of the applicant and that of the co-offenders on that basis. In any event, the existence of an inconsistency in the fact-finding process of the kind which is presently asserted does not, of itself, mean that error has been established.
Thirdly, the applicant had a rather more extensive criminal record than either of his co-offenders. Indeed Judge Woods described it as being “not insignificant”. In 1996 in the Local Court he was placed on a recognisance for an offence of aiding and abetting an offence of break enter and steal. In 1999 in the Local Court he was fined in respect of two counts of assaulting an officer in the execution of his duty and one of larceny. In 2001 in the Local Court he was fined for contravening an apprehended domestic violence order. In 2002 in the Local Court he received a bond for contravening an apprehended violence order and at the same time was ordered to perform 60 hours of community service for an offence of assault. In 2002 he was sentenced in the District Court for supplying a prohibited drug. The sentence was reduced by this Court to one of 3 years imprisonment with a non-parole period of 18 months. In the same year he received a sentence of imprisonment for 1 month for malicious damage to property. In 2004 in the Local Court he was twice placed on a bond for separate offences of malicious damage to property. In 2005 in the Local Court he was placed on yet three further bonds for offences of malicious damage to property, resisting arrest and for contravening an apprehended domestic order. In February 2006 he was called-up for breaching those bonds. He received the benefit of yet further bonds. When he committed the present offences, the applicant was on conditional liberty because each of those bonds was still current. It appears that each of the co-offenders was also on conditional liberty at the time of the offence.
Although the Court was not provided with the details of the prior convictions of the co-offenders Moore and Dunphy, it was informed that Moore had been convicted of two offences of malicious damage in 2005 and an offence of assault occasioning actual bodily harm in 2006 whereas Dunphy had been convicted of two offences of common assault in 2005, of an offence of occasioning actual bodily harm in the same year, of offences in 2005 and 2006 of assaulting an officer in the execution of his duty together with other offences of obstructing and resisting an officer in the execution of his duty. It was submitted, at least so far as offences of violence were concerned, that the differences between the applicant’s history and that of his co-offenders were not particularly significant. Be that as it may, Judge Woods observed, correctly in my view, when sentencing Moore and Dunphy, that the applicant “has a significantly longer background in offending than these two, and it is not necessary to punish them as severely as [him]”. Indeed, counsel for the applicant appeared to accept that the applicant had “manifested in his commission of the instant offence a continuing attitude of disobedience to the law [such that] retribution, deterrence and protection of society may all indicate that a more severe penalty was warranted”: see Veen v The Queen [No2] (1988) 164 CLR 465 at 477.
Fourthly, Judge Woods considered it to be a relevant factor that the applicant was aged 29 at the time of the offences whilst Moore was 21 and Dunphy 22.
Fifthly, Judge Woods assessed that each of the co-offenders Moore and Dunphy had “reasonable prospects of rehabilitation” by reason of their age and the strong family support that each enjoyed. His Honour was unable however to express the same degree of optimism in respect of the applicant. The evidence indicated, for example, that he had not worked for a number of years although he was said to be providing assistance, from time to time, to his mother who was in poor health.
There is however one factor to be weighed in the balance that is in the applicant’s favour. He pleaded in the Local Court and, as a consequence, received a discount of 20% from the sentence which would have otherwise been imposed upon him. On the other hand, Moore and Dunphy did not plead guilty until the day of their trial. Although Judge Woods did not quantify the discount which he extended to them, it is reasonable to assume that they were not afforded the same measure of leniency on account of this factor as was the applicant.
Conclusion
The applicant has not, in my view, demonstrated that he has a justifiable sense of grievance by reason of the sentences which were imposed on the co-offenders Moore and Dunphy. In reaching that conclusion, I have borne steadily in mind the various features of the respective cases which I have just identified. Although there is a degree of overlap between some of those considerations, the combination of those factors is a powerful indication that the applicant’s complaint should be rejected and that is the conclusion which I favour.
That leaves the argument concerning the sentence imposed upon the co-offender Steel. It is to be recalled that he was dealt with for a rather less serious offence. That of itself, as counsel for the applicant recognised, means that considerations of parity assume rather less significance: R v Howard (1992) 29 NSWLR 242; R v MSS [2005] NSWCCA 227 at par 18. Indeed the extent to which the principle of parity operates in such circumstances is still open to debate: see, for example, R v Formosa [2005] NSWCCA 363 at par 40; R v Spinks [2007] NSWCCA 52 at pars 28-31.
It is not in issue that the factual basis upon which the co-offender Steel was sentenced was significantly different from the basis upon which the applicant stood for sentence. Furthermore, the statement of facts which were presented in the proceedings against Steel suggested that his role was considerably more benign than the facts presented in the case against the applicant would suggest it had been. For example, there is no reference in the statement of facts presented in the proceedings against Steel to his having done anything at all whilst he was in the premises. Even the victim’s injuries are described in the statement of facts presented in the proceedings against Steel in a much less graphic fashion than they had been in the material presented against the applicant. Be that as it may, Steel’s role, on any assessment of the situation, was properly to be regarded as being less significant than that of the applicant. Although Steel had an unrelated matter on the Form 1 document, there was nothing to suggest that it assumed anything like the seriousness of the matters on the Form 1 with which the applicant was confronted. Nor was he encumbered, as the applicant was, with a lengthy criminal record. Despite the fact that Steel was aged 40 at the time of the offence, he had only a minor record which consisted solely of offences of dishonesty. There was an offence in 2004 for which he was fined and a matter in 2005 in respect of which he was placed on a bond, albeit that it was current at the time of the present offence. Finally, his plea of guilty was treated by the sentencing judge as having been entered at the first available opportunity, thus entitling him “to the full benefit of that plea.”
After having carefully considered each of the matters which serve to distinguish Steel’s case from the applicant’s case, I have reached the conclusion that the applicant has also failed to demonstrate that he has a justifiable sense of grievance in respect of the sentence imposed upon that offender.
Accordingly I would reject the ground of appeal which has been propounded. I propose that leave to appeal be granted but that the appeal be dismissed.
**********
LAST UPDATED:
9 May 2008
4
12
0