Hudson v The Queen

[2001] TASSC 72

[2001] TASSC 72

CITATION:              Hudson v R [2001] TASSC 72

PARTIES:  HUDSON, Sean Timothy
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 67/2000
DELIVERED ON:  4 July 2001
DELIVERED AT:  Hobart
HEARING DATE:  22 May 2001
JUDGMENT OF:  Cox CJ, Slicer J and Evans J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - Disparity - Whether, where significant differences in co-offender's circumstances existed, the disparity in sentences was still manifestly excessive - Whether due discrimination made where other things not equal.

Lowe v R (1984) 154 CLR 606; R v Kite (1971) 2 SASR 94, followed.

Aust Dig Criminal law [1005]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  C J Rheinberger
Solicitors:
           Appellant:  In person
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [2001] TASSC 72
Number of paragraphs:  14

Serial No 72/2001
File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
SLICER J
EVANS J
4 July 2001

Order of the Court:

1. Appeal allowed.

1. Sentence of four years' imprisonment from 28 August 2000 quashed and sentence of four years' imprisonment from 4 December 1999 substituted therefor.

Serial No 72/2001
File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
4 July 2001

1. The appellant's sole ground of appeal is that he received an unjustifiably disparate sentence from that imposed on his co-offender on their conviction after trial for aggravated armed robbery.  The two offenders had placed improvised masks over their faces and entered a newsagency at Ravenswood on 4 December 1999 where the proprietor and his staff were robbed of $7,240 at knifepoint.  The knife was a large kitchen knife and was wielded by one of them, although the learned trial judge was unable to determine which of the two had held it.  A threat was made to use it and it was waved around.  It brushed against the hand of one of the employees, but did not injure him.  The learned trial judge described the offenders' actions as follows:

"What you did was dangerous, terrifying for the men you robbed, the newsagent's wife and probably also a customer in the store, and stupid.  Your getaway arrangements were particularly stupid.  You fled on foot in broad daylight, and were followed by the newsagent's wife and a passing truck driver.  As a result, you were located and arrested.  All but $210 of the stolen money was recovered and eventually returned to the newsagent. 

The men you robbed have all received psychological counselling.  The newsagent lost the use of his money for some months, and suffered financially as a result.  He has decided to take greater precautions for security at his shop, and some of these are costing him money.

You both have appalling records.  Neither of you has shown any remorse.  Substantial prison sentences are therefore called for."

1. The appellant was in custody from the date of the offence until he was sentenced on 28 August 2000, a period of almost 9 months.  His co-accused Porter was placed in custody on 17 August 2000.  The appellant was sentenced to imprisonment for a term of four years from the date of sentence, the trial judge taking into account the 9 months in custody already served by him in calculating the sentence.  His co-offender, on the other hand, was sentenced to three years' imprisonment dating from the time he was taken into custody, 11 days earlier, and the execution of 18 months of that term was suspended on condition that for a period of two years from his release from prison, he commit no crime involving violence or dishonesty and not carry a knife.

1. Clearly there was a significant difference in the penalty imposed on each man.  The failure to backdate the sentence in the appellant's case means that his head sentence is nearly two years greater than that of Porter and he will not be eligible for parole until 28 August 2002.  Had he received a sentence of five years' imprisonment backdated to the date he was taken into custody, he would have been eligible for parole on 4 June 2002, nearly three months earlier.  In addition, his co-accused has the benefit of the suspension of the execution of 50 per cent of his sentence, whereas the appellant is required to serve the entirety of his sentence.

1. The principles upon which a Court of Criminal Appeal will intervene in a case of disparity are clear and have been stated authoritatively in Lowe v R (1984) 154 CLR 606. At 623 - 624, Dawson J made the following observations:

"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.  … the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice."

In the present case, some differentiation in treatment was clearly justified because of the different antecedents of each offender.  Although both men were about the same age (middle 20s), in the appellant's case he had a very extensive criminal record which the trial judge observed had led to him being sentenced to imprisonment by various courts on 11 previous occasions.  In 1995 he had been sentenced to 18 months' imprisonment for causing grievous bodily harm and wounding, while in 1996 he was sentenced to four months' imprisonment for an assault committed upon a passing motorist who had looked at him in a way which he did not like.  In 1997 he was sentenced to 3 years' imprisonment for aggravated armed robbery after robbing a service station attendant at knifepoint.  He had been out of prison for only 7 weeks when he committed the crime in respect of which sentence was then passed.  The co-offender Porter also had previous convictions, although his record was not as extensive.  However, he had two previous very relevant convictions, one for robbery and the other for armed robbery committed within 16 days of each other in 1996 and he had served sentences of 6 months' imprisonment cumulative upon each other for those offences.  They were his only prior sentences of imprisonment.  On each occasion he had been very drunk and had threatened to use a knife on his victim.  In the first case he robbed a pizza delivery woman of $221 by the use of such a threat, although he was not in fact armed, while in the second, he produced a knife in a bottle shop and when the attendant retreated, seized a bottle of whisky and ran off with it.

1. Although some differentiation in penalty was justified having regard to the differences in background of each offender and the clear need to impose a significant deterrent penalty in respect of the appellant, the marked disparity of treatment, even making allowance for those differences, remains considerable.  In R v Tiddy [1969] SASR 575 at 577, the Court said:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

Two years later, in R v Kite (1971) 2 SASR 94, the South Australian Supreme Court (In Banco) had occasion to reaffirm this statement (at 95) when considering a complaint of disparity between a sentence of three years' actual imprisonment imposed on one offender with a lengthy record who had served previous sentences of imprisonment and one of one year's imprisonment wholly suspended on conditions of good behaviour, the latter sentence being imposed on an offender with a shorter list of convictions who had not been previously imprisoned. The court noted that there was no basis for discrimination in respect of the roles each had played in the joint offences (as is the case here). Likewise, it would not appear that any difference in age was a factor justifying any disparity in sentence. At 96 the court said:

"If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.

On the other hand, we agree that it is important that as far as possible convicted persons should not be left with a sense of injustice or grievance, at least if there are reasonable grounds for such a feeling (R v D'Ortenzio and Burns [1961] VR 432, at p 433; R v Tiddy (supra) at p 579). There are exceptional cases where the court has reduced the sentence of an appellant because of excessive disparity between the sentence and the sentence passed on a co-defendant, even though if both sentences had been the same, or approached each other more nearly, the court would not have interfered (R v Richards (1955) 39 Cr App R 191; R v Goldberg [1959] VR 311).

We think this is such a case.  The sentence imposed on the applicant cannot be said to be manifestly excessive in itself, looked at apart from the sentence imposed on [the co-offender], in view of his record and the circumstances of the crime, and it is right that there should be some discrimination between the two; but we think the difference here is great enough to justify our interference in the special circumstances of this case.  In our view, the application for leave to appeal against sentence should be granted and the sentence reduced to a sentence of two years imprisonment with hard labour on each count, the sentences to be served concurrently."

1. In the present case it is my view that the sentence imposed on the appellant was not manifestly excessive in itself, although of considerable severity.  However, the difference between the punishment meted out to each offender was great enough to warrant this Court's intervention in the circumstances.  The appellant cannot complain that he failed to persuade the learned trial judge that rehabilitative measures of the kind adopted in respect of Porter were appropriate for him.  His record demonstrates not only a propensity for recidivism, but a lamentable failure by the appellant to utilise such measures in the past, a fact which is borne out by the frequency of breaches by him of previous suspended sentences.  Nevertheless, at the end of the day, the difference between an actual sentence of four years nine months' imprisonment with a non-parole period which is calculated by reference to the length of the sentence from when it was imposed rather than from when the appellant first went into custody and a three year term, the execution of one-half of which was suspended, is manifestly excessive having regard to all the circumstances and in my view calls for the intervention of an appellate court in the interests of justice.

1. The appellant deserves a lengthy deterrent sentence and has no claim on rehabilitative measures.  In my opinion, due discrimination between the two offenders will be achieved if this Court substitutes a sentence of four years' imprisonment, but backdates the commencement of it to the date on which the appellant went into custody.  His effective head sentence would then be reduced by almost nine months and he will be eligible for parole that much earlier than under the original sentence.

   File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
4 July 2001

1. The appellant seeks review of a sentence of imprisonment on the ground of disparity.  He was sentenced to a term of imprisonment of four years to commence as and from the date of sentence.  The learned primary judge stated that he had taken into account the time (nine months) spent in custody.  The co-offender was sentenced to a term of imprisonment of three years, eighteen months of which was suspended.  The co-offender had spent eleven days in pre-sentence custody.

1. The sentences were imposed following conviction after trial for the crime of aggravated armed robbery.  The circumstances of the crime were such as to warrant a sentence of imprisonment as that effectively imposed on the appellant, namely, five years' imprisonment. 

1. The sentence imposed on the co-offender reflected the principles stated by the High Court in Dinsdale v R (2000) 74 ALJR 1538, and its components must be considered in their totality. Thus, the effective terms of actual imprisonment are relevant to the issue of parity. Parity should be considered in the following terms:

   Total Sentence           Actual Imprisonment          Parole Eligibility
            Appellant                   4 years 9 months          4 years 9 months                  2 years 9 months
            Co-Offender               3 years  18 months  9 months
            Ratio  1.6  3.2  3.6

2. There were reasons which justify disparate sentences as between the two offenders.  However, for reasons consistent with those stated by the High Court in Lowe v R (1984) 154 CLR 606 the present disparity is such as to give rise to "a justifiable sense of grievance" on the part of the appellant. A primary consideration of sentencing is consistency and the actual sentences imposed on the two offenders did not meet this criteria.

1. Eligibility for parole is calculated by reference to the date of sentence and not time spent in custody.  Consistency of sentence can be achieved by the reimposition of the original sentence of four years' imprisonment to commence as and from the date of initial custody.  The warranted parity can be seen to be:

   Total Sentence           Actual Imprisonment          Parole Eligibility
            Appellant                   4 years  4 years  2 years
            Co-Offender               3 years  18 months  9 months

   Ratio  1.3  2.6  2.6

1. I would propose that the appeal be allowed and a substituted penalty of four years' imprisonment to commence as and from 4 December 1999.

   File No CCA 67/2000

SEAN TIMOTHY HUDSON v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J
  4 July 2001

1. Like Cox CJ and Slicer J whose reasons for judgment I have had the advantage of reading, I consider that the appeal should be allowed and a substituted penalty of four years' imprisonment to commence as from 4 December 1999 should be imposed.