Howard v The Queen

[2012] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0271

BRENDAN CHARLES HOWARD

Appellant

v

THE QUEEN

Respondent

---

JUDGES:	MAXWELL P, BONGIORNO JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 April 2012
DATE OF JUDGMENT:	26 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 83
JUDGMENT APPEALED FROM:	DPP v Morgan and Howard (Unreported, County Court of Victoria, Judge Howard, 3 October 2011)

---

CRIMINAL LAW – Appeal – Sentence – Parity – Judge identified material differences between co-offenders – Accepted that there should be ‘significant disparity’ between them – Identical sentences imposed – Not open to fail to differentiate – Appeal allowed – Resentenced – No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Marsh	Victoria Legal Aid
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. On 26 September 2011, the appellant pleaded guilty to a number of offences relating primarily to burglaries of various pharmacies in and around Melbourne.

1. Following a plea, he was sentenced on 3 October 2011 as set out in the following table:

Charge on Indictment	Offence	Sentence	Cumulation
39.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	Base
40.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
41.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
42.	Handling stolen goods [s 88(1) Crimes Act 1958 (Vic)]	12 months	45 days
43.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
44.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
45.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
46.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
47.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
48.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
49.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
50.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
51.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
52.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
53.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
54.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	2 years	30 days
55.	Theft [s 74 Crimes Act 1958 (Vic)]	12 months	20 days
56.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	6 months	10 days
Total Effective Sentence:		3 years imprisonment
Non-Parole Period:		2 years imprisonment
Pre-sentence Detention Declared:		354 days
6AAA Statement:		5 years imprisonment with a non-parole period of 3 years and 6 months

1. The Registrar’s Neutral Summary[1] helpfully summarised the offending:

   [1]See Supreme Court of Victoria, Court of Appeal, Practice Direction No 2 of 2011  - Court of Appeal: Applications for leave to appeal against conviction and sentence, 28 February 2011, section 17.

Charges 39 to 41: On 23 May 2009 at approximately 3:20am, the appellant, co-offender and an unidentified third person drove to a pharmacy in Cairnlea in a stolen Holden Calais. CCTV footage showed three men wearing balaclavas, repeatedly smashing a glass door of the pharmacy with a sledgehammer. Upon gaining entry (Charge 39), two of the men stole items of an unspecified value (Charges 40 and 41).

Charge 42: Between 23 May and 30 June 2009, the appellant used the stolen Holden Calais in the course of committing various offences. The vehicle was found by police on 2 July 2009 at St Albans, with a sledgehammer and a jumper inside. These items contained samples of DNA from the appellant and the co-offender, ultimately implicating them.

Charge 43 to 45: Between 11pm on 23 May 2009 and 6:20am the following day, the appellant and the co-offender gained entry to a pharmacy in Altona North by using a screwdriver to open the front glass (Charge 43). They then stole items worth $1000 (Charges 44 and 45).

Charges 46 to 48: On 25 May 2009 at approximately 1:05am, the appellant and co-offender broke into another pharmacy located in Altona North (Charge 46) and stole $500 worth of items (Charges 47 and 48).

Charges 49 and 50: Minutes after the previous offending the appellant and co-offender broke into a pharmacy in Kingsville (Charge 49). They stole a large number of packets of medication worth approximately $600 (Charge 50), however, none contained pseudoephedrine.

Charges 51 to 53: On 25 May 2009 at 11:25pm, the appellant and co-offender gained entry to a pharmacy in Yarraville by using a sledgehammer to smash a hole in the front glass door (Charge 51). They stole a number of items of unspecified value from the pharmacy, including items containing pseudoephedrine (Charges 52 and 53).

Charges 54 to 56: On 26 May 2009 at approximately 12:55am, the appellant and co-offender gained entry to a pharmacy in Keilor by forcing opening the rear door (Charge 54). They stole a number of items of unspecified value from the pharmacy, including items containing pseudoephedrine (Charges 55 and 56).

The appellant was arrested and remanded into custody on 14 October 2010, in South Australia. He was then extradited to Victoria where he was on remand until the date of his plea. 

In relation to the six burglaries that comprised joint offending, pseudoephedrine was stolen on five occasions. The value of pseudoephedrine was only specified for two of these occasions and amounts to $1500. This amount is therefore the total established value of pseudoephedrine stolen by the appellant. 

1. Each of the burglaries was carried out in company with a co‑offender, Morgan.  The sentences imposed on the co‑offenders for their joint offending were identical, that is to say, in respect of each common offence the head sentence and the amount of cumulation directed were the same.

1. The principal complaint which the appellant makes is that the imposition of identical sentences offended against the principle of parity.  It is submitted that, given the clear and material differences between the co‑offenders, it was not reasonably open to the sentencing judge to treat them identically.  Put another way, in the circumstances his Honour was bound to differentiate between them.  In my opinion that argument should be upheld.

1. The requirement that like cases be treated alike, and that there be appropriate differentiation between unlike cases, is fundamental to the criminal justice system and to the maintenance of public confidence in the system.[2]  As the High Court has noted more than once,[3] so fundamental is the requirement of appropriate relativities between offenders that it may be necessary to interfere with an otherwise appropriate sentence.

   [2]Teng v The Queen (2009) 22 VR 706, 723 [70].

   [3]See Lowe v The Queen (1984) 154 CLR 606, 612;  Postiglione v The Queen (1997) 189 CLR 295, 301; Green v The Queen (2011) 86 ALJR 36.

1. In this case the point is made the more stark, in my opinion, by the statement which the sentencing judge made in his sentencing reasons:

Finally, I accept that there is and should be a significant disparity between your position and that of Morgan.  First, you face 18 charges, whereas he is concerned with 55.  Next, there was a confined period of four days over which you offended, compared with the lengthy period concerning him. Importantly, you have a very different prior criminal history to your co-offender.  It was not argued by Mr Morgan that there should be parity, and, clearly, no such submission could be made. However, you are equally morally and legally culpable with Morgan for the joint offending. It was claimed that the age difference between you is relevant, but in all the circumstances I think that of little moment.[4]

[4]DPP v Morgan and Howard (Unreported, County Court of Victoria, Judge Howard, 3 October 2011) [53] (emphasis added).

1. In his characteristically careful and thorough sentencing reasons, the judge had set out at length both the personal histories of the co‑offenders and – of particular relevance to the task – their criminal histories. Clearly, his Honour viewed it as an important matter – justifying what he said should be a 'significant disparity' between them – that this appellant had 'a very different prior criminal history' from Mr Morgan. The differences in their criminal history are fully set out in the sentencing reasons and do not need to be repeated for the purposes of this appeal.

1. There was also a very significant difference between them in that the offences committed by Mr Morgan were committed in breach of his parole. That, on ordinary principles, aggravates the seriousness of the offending, and highlights the need for specific deterrence and protection of the community to be given particular attention as sentencing considerations. That aggravating factor had no application in the case of Mr Howard.

1. There were other differences, as counsel for the appellant pointed out in his helpful written case.  Mr Morgan was regarded as having poor prospects of rehabilitation, whereas the judge took a more favourable view of Mr Howard's prospects of rehabilitation.  He described them as 'reasonably good', albeit with the caveat that his prospects were contingent – as they so often are in cases such as this – on his being able to manage his drug addiction.  It is also pointed out, in support of the conclusion about rehabilitation, that the appellant had gained employment in South Australia between the commission of these offences and his eventual arrest.

1. Senior counsel for the Director conceded, properly in my view, that subject to one matter to which I will refer, the lack of differentiation between the offenders could not be reasonably justified in the circumstances.  He submitted, however, that an explanation for the identity of treatment could be found in the fact that Morgan was to be sentenced for a larger number of offences and also had served sentences in South Australia.  Both those matters affected the application to Morgan’s case of the principle of totality. 

1. Plainly enough, the judge was obliged to have regard to the principle of totality. But, on my reading of the reasons, that does not supply an explanation for what occurred.  Had it been the judge's view that considerations of totality for Morgan counterbalanced the matters which otherwise required ‘a significant disparity’ between them, his Honour would doubtless have said so.  As it is, Mr Howard is left in the unfortunate position of being unable to understand why the sentencing differential which his Honour so clearly identified as necessary did not eventuate.

1. It was further argued that the judge had incorrectly stated that the considerations of specific deterrence and protection of the community applied equally to the co‑offenders.  It follows from what I have already said that I would also uphold that ground.  The matters to which I have referred, concerning criminal history and breach of parole, precluded a conclusion that they were in exactly the same position in these respects. 

1. So to have concluded would have meant leaving out of account  the very significant feature that Morgan had breached his parole in committing the offences.  That, in my view, is properly regarded as a very serious aggravating factor, because it underlines the evident inability of the offender to appreciate either the obligation to comply with the law, or the very serious consequences of failing to do so.

1. Accordingly, in my view, on both the parity ground and the specific error in relation to deterrence and protection, the sentencing judgment was affected by error. 

The exercise of discretion should be set aside. 

1. There was a separate ground relating to what is known generally as Renzella time.[5]  It is unnecessary, in the circumstances, to deal with the question of whether that period of four months of so‑called dead time was or was not taken into account.

   [5]R v Renzella [1997] 2 VR 88.

1. It is necessary to resentence the appellant so as to secure appropriate differentiation between him and his co-offender. To that end, I propose that the appellant, whose earliest release date is a little under six months from today, be resentenced such that his non‑parole period will expire at the end of today, making him eligible for parole immediately.  I would so order.

BONGIORNO JA:

1. I agree.

COGHLAN AJA:

1. I agree.

MAXWELL P:

1. The orders of the Court are as follows: 

1.        The appeal is allowed.

2.        The sentences of imprisonment imposed below are quashed. In lieu thereof, the appellant is sentenced as follows:

Charge on Indictment	Offence	Sentence	Cumulation
39.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	Base
40.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
41.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months	10 days
42.	Handling stolen goods [s 88(1) Crimes Act 1958 (Vic)]	12 months	45 days
43.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	30 days
44.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
45.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months	10 days
46.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	30 days
47.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
48.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months	10 days
49.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	30 days
50.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
51.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	30 days
52.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
53.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months	10 days
54.	Burglary [s 76(1) Crimes Act 1958 (Vic)]	18 months	30 days
55.	Theft [s 74 Crimes Act 1958 (Vic)]	9 months	20 days
56.	Possession of a drug of dependence (pseudoephedrine) [s 73(1) Drugs, Poisons and Controlled Substances Act 1981 (Vic)]	3 months	10 days
Total Effective Sentence:		2 years 6 months imprisonment
Non-Parole Period:		561 days

3  It is declared that the period of 561 days, including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details. The intention is that the appellant be immediately eligible for parole.

4 All other ancillary orders of Judge Howard made 3 October 2011 are confirmed.

‑ ‑ ‑