Hudson v Regina
[2007] NSWCCA 302
•5 November 2007
New South Wales
Court of Criminal Appeal
CITATION: Hudson v Regina [2007] NSWCCA 302
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 22 October 2007
JUDGMENT DATE:
5 November 2007JUDGMENT OF: Mason P at 1; Hidden J at 2; Harrison J at 25 DECISION: Leave to appeal granted; appeal allowed. Sentences passed in the District Court quashed. Applicant sentenced on each count to imprisonment for five years, comprising a non-parole period of two-and-a-half years. Partial accumulation of the sentences leading to overall sentence of five years and nine months with an effective non-parole period of three years and three months. (see par [24]) CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - robbery while armed with a dangerous weapon (four counts) - same incident - disparity from sentences passed on co-offender LEGISLATION CITED: Crimes Act 1900 s97(2)
Crimes (Sentencing Procedure) Act 1999 s21A-subs (2)(g) and (3)(a)CASES CITED: R v Henry (1999) 46 NSWLR 346
Pearce v The Queen (1998) 194 CLR 610
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996-7) 189 CLR 295
R v Kelly (2005) 155 A Crim R 499
R v Kollas & Mitchell [2002] NSWCCA 491PARTIES: Imraaz Hudson (applicant)
Regina (respondent)FILE NUMBER(S): CCA 2006/5170 COUNSEL: H Dhanji (applicant)
M Hobart SC (Crown)SOLICITORS: Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0185 LOWER COURT JUDICIAL OFFICER: Nield DCJ
2006/5170
5 November 2007MASON P
HIDDEN J
HARRISON J
1 MASON P: I agree with Hidden J.
2 HIDDEN J: After a trial in the District Court before Nield DCJ and a jury, the applicant, Imraaz Hudson, was found guilty of four charges of armed robbery with a dangerous weapon, an offence under s97(2) of the Crimes Act which carries a maximum sentence of twenty-five years imprisonment. The four charges arose from the same incident, in which four young people were robbed.
3 He was later sentenced on each count to imprisonment for six years, comprising a non-parole period of three years and a balance of term of three years. The sentences on each of the second, third and fourth counts were accumulated by three months, so as to produce an overall sentence of imprisonment for six years and nine months with a non-parole period of three years and nine months. That aggregate sentence commenced on 15 May 2006, the day of the jury’s verdicts. He seeks leave to appeal against those sentences.
4 The offences were committed with a co-offender, Shaun Crompton. He had pleaded guilty to the same four charges before McLoughlin DCJ, and had been dealt with prior to the applicant. He was sentenced on each count to imprisonment for four years, comprising a non-parole period of two years and three months and a balance of term of one year and nine months. Each of the sentences on the third and fourth counts was accumulated by three months, producing an aggregate sentence of four-and-a-half years with a non-parole period of two years and nine months.
5 The facts as Judge Nield found them can be summarised briefly, which is not to deny their gravity. The incident occurred at about 11pm on 28 March 2005. The four young victims were together in a car, parked near Shelley Beach on the Central Coast, when the two offenders confronted them. Mr Crompton brandished a replica pistol, threatened them and demanded that they hand over their wallets, which they did. No doubt, it was a frightening experience for all of them. One of them, Ms Collins, provided a victim impact statement from which it appears that it has left her with serious and enduring psychological effects.
6 The applicant was twenty-three years old at the time of the offences and is now twenty-five. He has a minor criminal history, comprising driving offences only, which his Honour disregarded for the purpose of sentence. His Honour considered his prospects of rehabilitation to be reasonable and, in the light of his youth and the fact that he faced his first custodial sentence, found special circumstances.
7 His Honour referred to the familiar guideline in R v Henry (1999) 46 NSWLR 346 at [162] – [165], where a range of four to five years imprisonment for a typical offence of armed robbery was propounded. He noted that Henry dealt with armed robbery under s97(1) of the Crimes Act, carrying a maximum sentence of twenty years imprisonment, whereas the applicant was to be dealt with for the more serious offence under subs (2) of robbery while armed with a dangerous weapon, carrying a maximum of twenty-five years. That being so, he considered that the starting point of sentence should be above the guideline and arrived at the sentence of six years.
8 Although the four charges arose from the same incident, he concluded that partial accumulation, albeit modest, was called for. No complaint is made about this in the present application.
The application
9 Mr Dhanji, for the applicant, argued the application on two grounds. The first was that Judge Nield failed to determine a sentence for each offence individually, in accordance with the familiar principles enunciated in Pearce v The Queen (1998) 194 CLR 610. This arose from his Honour’s approach to the aggravating and mitigating factors in s21A of the Crimes (Sentencing Procedure) Act.
10 In respect of the count relating to Ms Collins, his Honour found the aggravating factor in s21A(2)(g), that is, that the emotional harm caused by the offence was substantial. On the other hand, as to the other three counts he found the mitigating factor in subs(3)(a), that the resultant emotional harm was not substantial. Mr Dhanji argued that there should on that account have been some distinction between the sentence for the count involving Ms Collins and the sentences for the other counts, and that the sentencing process had, accordingly, miscarried.
11 However, all four offences arose out of the same incident and were committed in the same circumstances. They were all serious. Evidence of the emotional effect of the offences upon the victims was but one of a number of factors to be taken into account in determining the appropriate sentence for each count. The fact that one of them had sequelae for the victim which invoked s21A(2)(g), while the others did not, does not necessarily mean that that count should have been visited with a heavier sentence than the others.
12 That said, I find it unnecessary to express a concluded view about this ground, because I am persuaded that the second ground is made out and that this Court should intervene.
13 That ground is that the applicant has a justifiable sense of grievance because of the disparity between the sentences imposed upon him and those passed upon Mr Crompton. The principles governing this aspect of sentencing, examined by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996 – 97) 189 CLR 295, are familiar and need not be repeated. A recent summary of them is to be found in the judgment of Johnson J in R v Kelly (2005) 155 A Crim R 499 at [9] ff.
14 Judge Nield had before him the remarks of Judge McLoughlin when sentencing Mr Crompton. Judge McLoughlin considered that each count called for an undiscounted sentence of five years and four months. His Honour arrived at the sentence of four years after allowing a twenty-five percent discount for the pleas of guilty. As is apparent from the relationship of that sentence to the non-parole period of two years and three months, he also found special circumstances.
15 In the result, the applicant’s head sentence on each count exceeded that imposed upon Mr Crompton by two years and his non-parole period on each count exceeded Mr Crompton’s by nine months. Looking at the aggregate sentence for each man after partial accumulation, the applicant’s head sentence exceeded Mr Crompton’s by two years and three months and his effective non-parole period exceeded Mr Crompton’s by one year.
16 Although Mr Crompton appears to have played the more active role in the offences, Judge Nield saw the involvement of the two men as equal. Mr Dhanji did not challenge that finding. However, there were differences in their subjective cases which led his Honour to conclude that he was not bound to sentence the applicant to the same or similar terms as the co-offender. Mr Crompton is almost three years younger than the applicant and, as I have said, pleaded guilty.
17 On the other hand, unlike the applicant, Mr Crompton had a significant criminal record. He had previous convictions for assault occasioning actual bodily harm and threatening to destroy or damage property. At the time of the offences with which we are concerned, he was subject to a good behaviour bond for the first of those matters and a community service order for the second. It is, of course, well established that it is a serious aggravating factor that an offence is committed while subject to conditional liberty.
18 The Crown prosecutor before us argued that it was open to Judge Nield to have approached the matter as he did. He pointed out that this Court’s intervention to correct disparity is discretionary and that, in any event, it would intervene only where there was a marked disparity such as to give rise to a justifiable sense of grievance: R v Kollas & Mitchell [2002] NSWCCA 491, per Wood CJ at CL at [45].
19 However, as Mr Dhanji rightly submitted, his Honour’s task was to achieve appropriate relativity between the applicant’s sentences and those of Mr Crompton. In my view, there is marked disparity such as to engender in the applicant a justifiable sense of grievance. Mr Dhanji pointed out that Judge McLoughlin’s starting point before the discount for Mr Crompton’s pleas of guilty was a head sentence of five years and four months on each count. Judge Nield’s head sentence was six years. In achieving relativity between the head sentences, the fact that Mr Crompton is a younger man than the applicant is outweighed by his unfavourable criminal record and his conditional liberty at the time of these offences.
20 In my view, the starting point of sentence for the applicant should have been a little less than Mr Crompton’s. There must also be some adjustment of the applicant’s non-parole period, although I acknowledge that his Honour’s finding of special circumstances led to a non-parole period on each count which is only half of the head sentence. The adjustment which I propose would lead to a modest, but significant, reduction of the effective non-parole period. The resultant sentences, individually and in the aggregate, would maintain a distinction recognising the leniency to which Mr Crompton was entitled because of his pleas of guilty.
21 I see no discretionary reason why this Court should not intervene to correct the disparity. The sentences passed by Judge McLoughlin were entirely appropriate, and to reduce the applicant’s sentences in the light of them would not produce an overall sentence in his case which is inadequate.
Resentence
22 On resentence, I would adopt his Honour’s finding of special circumstances, and I would maintain his approach to partial accumulation of the sentences. I do not think it necessary to distinguish between the count involving Ms Collins and the other counts. I have had regard to some material which we received on affidavit, attesting to the applicant’s continuing good relationship with his family and his satisfactory behaviour while in prison, including his attendance at drug and alcohol courses, his employment and his pursuit of trade courses.
23 I would sentence the applicant on each count to imprisonment for five years, comprising a non-parole period of two-and-a-half years and a balance of term of two-and-a-half years. Partial accumulation of the sentences would lead to an overall sentence of five years and nine months with an effective non-parole period of three years and three months.
24 I would grant leave to appeal and allow the appeal. I would quash the sentences passed in the District Court and, in lieu, I would sentence the applicant as follows:
- On the first count, a non-parole period of two-and-a-half years, commencing on 15 May 2006 and expiring on 14 November 2008, with a balance of term of two-and-a-half years, commencing on 15 November 2008 and expiring on 14 May 2011;
- On the second count, a non-parole period of two-and-a-half years, commencing on 15 August 2006 and expiring on 14 February 2009, and a balance of term of two-and-a-half years, commencing on 15 February 2009 and expiring on 14 August 2011;
- On the third count, a non-parole period of two-and-a-half years, commencing on 15 November 2006 and expiring on 14 May 2009 and a balance of term of two-and-a-half years, commencing on 15 May 2009 and expiring on 14 November 2011;
- On the fourth count, a non-parole period of two-and-a-half years, commencing on 15 February 2007 and expiring on 14 August 2009, and a balance of term of two-and-a-half years, commencing on 15 August 2009 and expiring on 14 February 2012.
The applicant would be eligible for release on parole on 14 August 2009.
25 HARRISON J: I agree with Hidden J.
07/11/2007 - Crown Prosecutor should read M Hobart SC - Paragraph(s) 0
6
2