Humphries v R; Ponfield v R

[2016] NSWCCA 86

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Humphries v R; Ponfield v R [2016] NSWCCA 86
Hearing dates:	5 February 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Before:	Hoeben CJ at CL at [1] Davies and Beech-Jones JJ [2]
Decision:	1. Leave to Mark Humphries to appeal. 2. In the appeal by Mark Humphries allow the appeal and quash the sentences imposed in the District Court. 3. In lieu, sentence the Appellant Mark Humphries to a sentence for each count comprising a non-parole period of three years nine months commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentences are to be served concurrently. 4. Otherwise dismiss the appeal by Mark Humphries. 5. Leave to Wade Ponfield to appeal. 6. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence – armed robbery – three co-offenders – parity – all offenders on conditional liberty at time of offences – offenders required to serve balance of parole for earlier offences – principle of totality in relation to earlier sentences – adjustment of commencement date for index offences to achieve parity – whether in the result any offender had a justifiable sense of grievance CRIMINAL LAW – armed robbery in circumstances of aggravation contrary to s 97(2) Crimes Act – robberies committed in company and with dangerous weapon – whether being armed with dangerous weapon aggravated the offence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Johnson v R [2004] HCA 15; 78 ALJR 616 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Lam v R [2014] NSWCCA 50 Loader v R; Dunn v R [2013] NSWCCA 215 Mill v The Queen (1988) 166 CLR 59 Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Saraya v Regina [2015] NSWCCA 63
Category:	Principal judgment
Parties:	Mark Wayne Humphries (Applicant) Wade Allan Ponfied (Applicant) Crown (Respondent)
Representation:	Counsel: P Segal (for the Applicant Humphries) W Hunt & J Paingakulam (for the Applicant Ponfield) H Baker (Crown)   Solicitors: Brock Partners (for the Applicant Humphries) Legal Aid NSW (for the Applicant Ponfield) Solicitor of Public Prosecutions (Crown)
File Number(s):	2013/181950 & 2013/187215
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 September 2014 Before: Arnott DCJ File Number(s): 2013/181950 & 2013/187215

Judgment

1. HOEBEN CJ at CL:      I agree with Davies and Beech-Jones JJ.   

2. DAVIES and BEECH-JONES JJ: Mark Humphries and Wade Ponfield (both Applicants for leave to appeal) and Jhy Wilson were tried together on two counts of robbery whilst being armed with a dangerous weapon being a small pistol contrary to s 97(2) of the Crimes Act 1900 (NSW). They were found guilty by the jury and came for sentence before his Honour Judge Arnott SC in the District Court on 15 September 2014. The maximum penalty for this offence is 25 years imprisonment. There is no standard non-parole period.

3. The sentencing exercise was not a straightforward one because each of the offenders was serving another sentence at the time each was sentenced for these two armed robberies.

4. In the case of Mr Humphries he had been sentenced in the District Court on 4 July 2014 for an aggravated break, enter and steal committed in July 2009. That sentence was a period of imprisonment with a non-parole period of three years six months commencing 19 October 2011 and expiring 17 April 2015 with a balance of term of two years and six months expiring 18 October 2017.

5. For the two counts of armed robbery Judge Arnott sentenced him to concurrent sentences of imprisonment consisting of a non-parole period of five years commencing 19 October 2013 and expiring 18 October 2018 with an additional term of two years and six months expiring 18 April 2021. By backdating the sentence as his Honour did the effective sentence for the two counts of armed robbery was a non-parole period of three years and six months with a balance of term of two years and six months. His overall sentence was seven years and six months. Mr Humphries was on bail for the aggravated break, enter and steal at the time of the commission of the present offences.

6. In the case of Mr Ponfield he had been sentenced in Goulburn Local Court on 23 May 2012 (the Sentencing Judge incorrectly said 14 May 2012) for being carried in a conveyance without consent. He was sentenced to a non-parole period commencing 14 May 2012 and expiring 13 April 2013 with a balance of term expiring 13 August 2013. He had also been sentenced in Wollongong Local Court on 17 July 2012 (the Sentencing Judge incorrectly said 16 May 2012) for drive while disqualified. He was sentenced to a non-parole period commencing 3 July 2012 and expiring 2 February 2013 with a balance of term expiring 2 May 2013. The armed robberies were committed whilst he was on parole for those offences. As a result his parole was revoked.

7. For the armed robberies he was sentenced by Judge Arnott to concurrent sentences consisting of a non-parole period of three years and nine months commencing 19 June 2013 (the day of his arrest) and expiring 18 March 2017 with a balance of term of two years and three months expiring 18 June 2019. His overall sentence was six years imprisonment. By backdating the sentence as he did the effective sentence for the armed robberies was three years and seven months with a balance of term of two years and three months.

8. The co-offender Wilson had been sentenced on 27 August 2010 in the District Court for two aggravated robberies committed on 14 February 2009. He was sentenced to a non-parole period of three years and six months commencing 18 September 2009 and expiring 17 March 2013 with a balance of term of one year expiring 17 March 2014. He was on parole for those offences at the time of the present offences. His parole was also revoked.

9. Judge Arnott then sentenced him for the two armed robberies to a non-parole period of three years and six months commencing 19 June 2013 and expiring 18 December 2016 with an additional term of four years expiring 18 December 2020. His overall sentence was seven years and six months. However, his Honour backdated the sentence to the time of Mr Wilson’s arrest on 19 June 2013 which was the date of his revoked parole. The result of that was an effective sentence for the present offences of a non-parole period of two years and six months with an additional term of four years. This was because his parole period in respect of the earlier offences did not expire until 5 May 2014.

10. Each of Mr Humphries and Mr Ponfield seeks leave to appeal on a parity ground. In Mr Humphries case the ground is:

The applicant has a justifiable sense of grievance in relation to his sentence because in nett terms it is approximately one year longer than the co-offender Wilson contrary to the learned Sentencing Judge’s stated purpose.

11. In Mr Ponfield’s case the ground is:

The applicant has a justifiable sense of grievance by virtue of the disparity been the non-parole period imposed on him and his co-offenders Humphries and Wilson.

12. Mr Humphries seeks leave to appeal on a separate ground as follows:

The Applicant has been sentenced on the basis that he was “in company” as an aggravating factor; whereas the fact of being “in company” was already an element of the offence.

Facts concerning the offending

13. On the late afternoon of Monday 29 April 2013 the three offenders burst through the door of the Steelworks Hotel in Port Kembla and robbed it. Mr Humphries had a pistol and Mr Ponfield had a knife. Ms Virgona was working behind the bar at the time of the robbery and Mr Campbell was the managing supervisor. Apart from them there were about eight to ten patrons in that part of the hotel.

14. Although each offender was convicted of two separate counts, one asserting Ms Virgona was robbed of cash, and the other asserting Mr Campbell was robbed of cash, it involved the one armed holdup of the Steelworks Hotel. The reason for the two counts was because two bundles of cash, having a combined total of about $37,000, were stolen - one from cash drawers and tills just behind the bar in the presence of or in immediate care or protection of Ms Virgona, and the other from a safe in a back office in the presence of Mr Campbell.

15. Mr Ponfield stayed on the customer side of the bar standing guard whilst the other two offenders went behind the bar. At that time Mr Campbell was down in the cellar changing the keg. Entrance to the cellar was through a hatch door in the floor behind the bar. Ms Virgona was serving drinks behind the bar.

16. The robbers behind the bar ordered Ms Virgona to open the cash drawers and till. The gun was pointed at her. They also demanded that she "get us into the safe". She told them that she could not get them into the safe and that Mr Campbell was downstairs and would be up soon. As soon as Mr Campbell came up the ladder from the cellar and opened the hatch the gun was pointed at his head. Mr Humphries ordered him to "take me to the safe". Mr Campbell led him into the back office where he opened the safe and Mr Humphries grabbed tins containing the money and then took off.

17. Witnesses gave evidence that whilst the offenders behind the bar were scooping the money, Mr Ponfield was getting nervous and had said "Hurry up" and he also mentioned "30 seconds".

18. The robbery occurred sometime before 5.25pm. It was captured on security CCTV cameras inside the hotel. The robbery took a few minutes. The time of 5.25pm was when Mr Campbell's telephone call to triple-0 was put through to the police. Although the hotel was not busy at that time there were a number of patrons present at the time. Some of them gave evidence in the trial. The pistol used in the robbery was a real one. The Sentencing Judge found it was a real pistol because one of the patrons in the hotel at the time was an experienced firearm handler who identified what type of pistol he believed it to have been.

19. The Sentencing Judge found also that the robbery was planned. Not only did the robbers come armed, they wore balaclavas covering their faces, and in the case of Mr Wilson, possibly a mask. Mr Humphries and Mr Wilson travelled down from western Sydney that day specifically to meet up with Mr Ponfield to commit the robbery.

20. At one point during the robbery Mr Wilson's face was uncovered and the rather distinctive angular features of his face were captured on film via CCTV camera.

21. Mr Humphries was arrested on 14 June 2013, and both Mr Ponfield and Mr Wilson were arrested on 19 June 2013.

Remarks on Sentence

22. The Sentencing Judge first noted that the indictment did not allege that the offenders were in company. Each count simply alleged that the particular offender committed the robbery “whilst being armed with a dangerous weapon, namely a small pistol”. His Honour said that a weapon could be both an offensive and a dangerous weapon, and because the small pistol was pleaded as a dangerous weapon it brought the count under the provisions of s 97(2) Crimes Act 1900 (NSW).

23. His Honour found that the offenders committed the offences in company with each other and that this was an aggravating factor.

24. His Honour then went on to consider the guideline judgment in R v Henry (1999) 46 NSWLR 346 and made a comparison of the facts in the present case with the matters discussed in Henry. The distinctions mentioned by his Honour were that there was not a limited degree of planning in the present case, that what was taken being $37,000 was more than a small amount, that no plea of guilty was entered and that none of the offenders could be described as "young with no or little criminal history”.

25. His Honour considered that the pointing of the pistol at both Ms Virgona and Mr Campbell was an aggravating factor. His Honour considered that there was no distinction amongst the roles of the three offenders.

26. The Sentencing Judge then considered the subjective features pertaining to each of the offenders. Because of the limited grounds of appeal it is not necessary to detail these subjective matters. It is sufficient to note that each of the offenders had come from exceedingly deprived backgrounds which had involved early introduction to, and continuing abuse of, illicit drugs. In each case his Honour found that their moral culpability was reduced by reason of the factors set out and that the principles in Bugmy v R [2013] HCA 37; (2012) 249 CLR 571 applied to each of them.

27. Each of the offenders had criminal records back to their teenage years when they were dealt with by the Children’s Court. His Honour found that none of the offenders was contrite or remorseful, that their prospects of rehabilitation were at best guarded or at worst poor, and that there was a risk of reoffending. His Honour thought that considerations of both general and specific deterrence should be given weight.

28. As noted earlier, each of the offenders was on a form of conditional liberty at the time of the robberies. In each case his Honour said that the commission of the present offences whilst on conditional liberty was an aggravating factor. The issue of parity on the appeal arises from the attempt of the Sentencing Judge to impose equal effective sentences on each of the co-offenders whilst accommodating the totality principle.

Appeal by Mr Humphries – section 97 Crimes Act

Submissions

29. Mr Humphries submitted that to be found guilty pursuant to s 97(2) an offender must first be guilty of an offence pursuant to s 97(1). An offence against s 97(2) already incorporates the commission of offences under sub-s (1). It is not incumbent on the Crown to plead which element of sub-s (1) is relied upon. It is sufficient that the facts of the case establish at least one of the sub-s (1) elements. Being in company was one such element.

30. The Crown submitted that it was open to it to rely upon the pistol as a basis for both the foundational offence and the aggravated offence because it was both an offensive and a dangerous weapon. The definitions in s 4 of the Crimes Act make that clear. The Crown submitted that the Sentencing Judge was well aware of the manner in which the Crown opened and ran the trial as well as the particulars in the indictment. Being “in company” was not an element relied upon to prove the offence.

Consideration

31. Section 97 of the Crimes Act provides:

97   Robbery etc or stopping a mail, being armed or in company

(1)   Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person,

robs, or assaults with intent to rob, any person, or

stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same,

shall be liable to imprisonment for twenty years.

(2)   Aggravated offence

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

(3)   Alternative verdict

If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

32. The indictment read as follows:

1.   On 29 April 2013 at Port Kembla in the State of New South Wales did rob Cleo Virgona of a sum of cash, the property of the Steel Works Hotel, whilst being armed with a dangerous weapon, namely a small pistol.

Section 97 (2) Crimes Act

….

2.   On 29 April 2013 at Port Kembla in the State of New South Wales did rob Dwayne Campbell of a sum of cash, the property of the Steel Works Hotel, whilst being armed with a dangerous weapon, namely a small pistol.

33. When discussing the seriousness of the offences the Sentencing Judge said this:

It should be noted at the outset that the counts in the indictment did not allege that the offenders were in company. Each count simply alleged that the particular offender committed the robbery "whilst being armed with a dangerous weapon, namely a small pistol". An armed robbery with "an offensive weapon" is one contrary to s 97(1). An armed robbery with "a dangerous weapon" is one contrary to s 97(2). A weapon can both be an offensive and a dangerous weapon. Because the small pistol was pleaded as a dangerous weapon it brought it under the provisions of s 97(2).

I find the offenders committed the offences in company with each other. Although this was not pleaded, I am entitled to take it into account as an aggravating factor. I also consider the presence of three offender worse than one where only two were present.

34. The Crown’s submission should be accepted. The pistol was both an offensive and a dangerous weapon. Counsel for Mr Humphries accepted that it could be both. Nothing in the indictment suggested that being in company was the basis for the foundational offence (as the Crown referred to it). Further, it may be accepted that the Sentencing Judge was well aware of how the trial had been run by the Crown. Mr Humphries fails to show on any material from the trial that being in company was the element relied on to ground the s 97(1) foundation for the offence charged.

35. I would reject this ground of appeal.

Appeals by both Applicants – parity

Submissions

36. The Applicants’ arguments essentially pointed to the difference in approach the Sentencing Judge adopted when sentencing Mr Wilson on the one hand and sentencing the Applicants on the other. In the case of Mr Wilson the Applicants submitted that the Sentencing Judge made clear that the approach he was adopting was to lower Mr Wilson’s sentence below what would otherwise be appropriate to take account of the sentence he was already serving. In relation to Mr Ponfield expressly, and in relation to Mr Humphries impliedly, the Sentencing Judge said that he was fully aware that he was sentencing the Applicant on top of an existing sentence.

37. The Applicants submitted that although his Honour had said he intended to bring about an equal result where each of the offenders would serve a non-parole period of about three years and six months, the effect of what was done with Mr Wilson was that he would serve only a non-parole period of about two years and seven and a half months referable to the index offences. That position resulted because Mr Wilson’s non-parole period was backdated to the date on which his revocation of parole was backdated, that is, 19 June 2013.

38. On the part of Mr Humphries, the argument was developed to submit that the imposition of a non-parole period of five years on Mr Humphries when the co-offenders received considerably shorter non-parole periods itself gave rise to a justifiable grievance. Although the five year period was effectively reduced by the backdating this was said to be contrary to the approach stipulated in Pearce. To the extent that this complaint concerned a disparity between his sentence and the sentence imposed on Mr Ponfield it travels beyond his grounds of appeal. Nevertheless no point was taken by the Crown in this respect and we will address it.

39. Mr Ponfield submitted separately that, in any event, his position differed sufficiently from the other offenders so that it was inappropriate for the Sentencing Judge to have aimed to bring about an equal result in the non-parole period. Mr Ponfield was considerably younger than the other offenders and although he had a lengthy criminal record it did not contain the serious offences that Mr Humphries and Mr Wilson had committed, particularly the prior armed robberies committed by Mr Wilson.

36. The Crown pointed to the fact that all three offenders had been sentenced by the same Judge who was mindful of the principle of parity and made clear that he was attempting to achieve proportionality between the offenders. That fact meant that this Court would be cautious before concluding that any one offender had a justifiable sense of grievance simply because there were differing sentence outcomes: Lam v R [2014] NSWCCA 50 at [42]; Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96].

37. The Crown further submitted that the way the Sentencing Judge approached Mr Wilson’s sentence resulted in an effective non-parole period that was well below that which could reflect the minimum period of custody to be served having regard to the criminality involved. That created a sentence that was “erroneously lenient”: Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [33]. Any reduction in the Applicants’ sentences would be disproportionate to the objective and subjective criminality involved in the offences.

Consideration

42. The Sentencing Judge was confronted with a difficult task in balancing questions of parity with totality when taking into account sentences being already served. However, all of the offenders were sentenced by the same Judge who was expressly conscious of the parity issue. The Sentencing Judge gave detailed reasons for the sentences imposed after having considered the separate subjective matters relevant to each of the offenders.

43. When sentencing Mr Humphries the Sentencing Judge said this:

I might add that, notwithstanding a submission by the Crown that there should be some partial accumulation of the sentences for the two counts for which he was found guilty by the jury, by reason of the fact that there were two separate victims, I consider that the sentence that I have imposed comprehends the criminality involved and is an appropriate sentence.

I propose adopting the same course with Mr Wilson and also with Mr Ponfield.

44. When sentencing Mr Wilson, the Sentencing Judge said:

I consider that Mr Wilson should receive the same effective non-parole period as that imposed upon Mr Humphries. I have come to that view notwithstanding the fact that he has past convictions for armed robbery, the past convictions of both Mr Wilson and Mr Humphries are serious. Because the sentences imposed upon Mr Humphries represented a non-parole period of 3 1/2 years specifically referrable (sic) to the present offences, this is the non-parole period I intend to impose upon Mr Humphries [scil. Mr Wilson].

45. When sentencing Mr Ponfield the Sentencing Judge said:

I have regard to the principles of totality and I am fully aware that I am sentencing him on top of an existing sentence. I am also mindful of achieving parity or proportionality with his co-offenders.

46. In all of those circumstances this Court will be cautious in concluding that one co-offender has a justifiable sense of grievance simply because there are differing sentence outcomes: Loader v R; Dunn v R at [91]-[95]. Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191 at [77]-[83]. Nevertheless, there are two matters of particular concern which embrace both Mr Humphries’ and Mr Ponfield’s grounds of appeal as expanded upon by their submissions. The first is that there needs to be some explanation why, in the result and in the face of what the Sentencing Judge said he intended, Mr Wilson’s effective non-parole period is almost a year shorter than that imposed on Messrs Humphries and Ponfield. The second is the apparent discrepancy between the non-parole period for Mr Humphries (five years) on the one hand and the non-parole periods for Mr Ponfield (three years nine months) and Mr Wilson (three years six months) on the other. We will deal with each in turn. (Mr Ponfield’s complaint that his circumstances were relevantly different to those of his co-offenders is addressed at [61] to [62]].)

47. When sentencing Mr Humphries the Sentencing Judge said:

Where an offender is serving an existing sentence the proper approach is to ask what would likely to have been the effective head sentence and non-parole period if the offender had been sentenced at the one time, Mill v R (1988) 1266 CLR 59 at 66 to 67. A Court must look at the totality of the criminality for all the offences. This principle needs to be applied here, and to achieve this I propose making the sentences partially concurrent with the existing sentence he is serving.

48. His Honour then imposed a non-parole period of five years with an additional term of two years and six months. As noted, his Honour backdated the sentence so that the effective non-parole period for the armed robberies was three years and six months, seemingly the period his Honour was trying to achieve for all three offenders.

49. In Mill v The Queen (1988) 166 CLR 59 at 66-67 the joint judgment said:

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of eighteen years. Yet that, it seems to us, is the practical effect of the sentence imposed by his Honour. On the other hand, the notional exercise which we have just described tends towards a conclusion that a sentencing court dealing with all three offences at the same time would have dealt with the third offence in a similar manner to that adopted when dealing with the second, namely, by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentences. The aggregate head sentence in that event would have been either twelve or thirteen years. An appropriate non-parole period may well not have been much more than the eight years actually imposed by the Victorian court. But, of course, it is not possible for a second sentencing court to impose a concurrent sentence of the kind we have contemplated in the absence of statutory provisions enabling the backdating of the new sentence (cf. Reg. v. Gilbert (1975) 1 WLR 1012; (1975) 1 All ER 742 and Reg. v. Garrett (1978) 18 SASR 308). Section 20 of The Criminal Code (Q.) does not allow such a course to be taken. Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.

50. In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ said:

[45]   To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen (1988) 166 CLR 59

51. This passage in Pearce describes the approach most commonly adopted when addressing questions of accumulation and totality namely, first identifying the appropriate sentence for the subject offence(s) and then considering questions of accumulation, concurrency as well as totality (the “Pearce approach”) often by reference to the commencement date of the sentence. The passage from Mill set out in [49] addressed the circumstance in which a sentencing Court is required to address questions of totality in the circumstance where another court has already imposed a sentence on the offender and the sentencing court is precluded from backdating the sentence. Hence the High Court referred to the sentencing court imposing a lower head sentence and aggregating it even though the sentence imposed may “fail to reflect adequately the seriousness of the crime” (the “Mill approach”).

52. In Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26] the High Court confirmed that, depending on the legislative context, both approaches were open to sentencing judges and, in particular, the adoption of the Mill approach is not confined to circumstances where the offender had already been sentenced by another court and the sentence to be imposed cannot be backdated:

“The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates …. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands.”

53. We have already addressed the aggravating factors and subjective features of Mr Humphries and Mr Wilson. We address Mr Ponfield’s circumstances below at [61]. Overall there was little to choose between the three offenders in terms of aggravating factors and subjective features, certainly nothing to the extent of an eighteen month difference in the non-parole period and, as a result, the overall sentence. Against that background the complaint of a lack of parity by reference to the effective sentence imposed on Mr Wilson can be addressed by considering Mr Wilson’s sentence and the the position of Mr Humphries.

54. The difference in the effective non-parole period for the index offences between Mr Wilson on the one hand and the other offenders on the other cannot readily be explained by Mr Wilson serving a prior sentence because Mr Humphries was in the same position. Mr Humphries had been sentenced some two months earlier (4 July 2014) for the aggravated break, enter and steal. That sentence had itself been backdated to commence on 19 October 2011. The non-parole period for that offence extended to 17 April 2015 but Judge Arnott backdated Mr Humphries’ sentence for the armed robberies to 19 October 2013, apparently to bring about an effective non-parole period of three years and six months.

55. When sentencing Mr Wilson Judge Arnott said in a passage following immediately what is set out above at [44]:

In Mill the High Court said the totality principle can be achieved by making sentences wholly or partially concurrent with an existing sentence. Or another, but the less preferred way, is to lower the individual’s sentences below what would otherwise be appropriate. Here, I am using the second way.

56. Thus a reading of this passage and that set out at [44] and [55] suggests that, were it not for Mr Wilson’s other sentence, Judge Arnott would have sentenced him to a longer non-parole period, but to achieve parity with Mr Humphries the non-parole period was to be reduced to three years and six months. To this extent, as the sentencing judge stated, His Honour adopted the Mill approach whereas it seems that with Mr Humphries his Honour adopted the Pearce approach.

57. However, his Honour made the sentence imposed on Mr Wilson concurrent with his existing sentence for a period of 11 months. This was inconsistent with His Honour’s stated intention to adopt the approach in Mill because that approach would entail aggregating the sentence for the offences the subject of this application upon Mr Wilson’s existing sentence. The effect of this was to negate the parity the Sentencing Judge said that he intended to achieve. Mr Wilson’s effective non-parole period for the armed robberies was two years and seven months. The end result was to produce a sense of grievance arising from the sentence imposed on Mr Humphries (and Mr Ponfield) on the one hand and the sentence imposed on Mr Wilson on the other. It is necessary, however, to consider whether that grievance is justifiable.

58. In Saraya v Regina [2015] NSWCCA 63 the Court said:

[11]   Whilst disparity between sentences may be an indicator of appealable (sic) error, it is the presence of unjustifiable disparity that is the ground for intervention: Lowe at 610, 613, 617, 623; Postiglione at 322; Green at [32]. Consistently with that being the position and as was the case in Lowe, the disparity may arise in respect of, and the principle apply to, the sentence imposed on the first of a number of co-offenders to be sentenced, as is the case on this application: Jones v The Queen (1993) 67 ALJR 376; R v Bellorini and R v Ruiz [2000] NSWCCA 50.

[12]   In Green, the majority considered, in accordance with the view expressed by Mason J in Lowe at 613 - 614, that in the exercise of the appellate discretion enlivened by unjustifiable disparity, a “sentence which would otherwise be appropriate can be reduced … to a level which, had there been no disparity, would be regarded as erroneously lenient”: [33]. At the same time it was recognised that the existence of a discretion to mitigate disparity by reducing a sentence to one which is otherwise inadequate does not amount to an obligation to do so; and would not require the reduction of a sentence to a level which could be characterised as “an affront to the proper administration of justice”: [33].

[13]   These observations of the majority do not squarely address whether a sentence imposed on a co-offender that is manifestly inadequate can give rise to unjustifiable disparity.

[14]   As is noted by Bell J in Green at [106], there is authority in this Court that the inadequacy of the sentence imposed on a co-offender may be of such a degree that any sense of grievance engendered in the offender sentenced more severely cannot be regarded as legitimate. That was also the view of Brennan J in Lowe at 617 - 618. In R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep) Hunt CJ at CL said at 5 (James J agreeing):

The sentence imposed … was, as I have said, appropriate and not excessive. That imposed by the Magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one.

See also per Howie J (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [69] and per Howie J (James and Davies JJ agreeing) in Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 at [65].

[15]   The decision in Diamond is also cited in support of the proposition that the discretion to mitigate disparity should not be exercised to reduce an otherwise adequate sentence to a level which would be an affront to the proper administration of justice: see Green at [33] fn 96; R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at [19]; R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300 at [289]; R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206 at [23] – [26].

[16]   The relevant principle is stated by R A Hulme J (Beazley JA and Hidden J agreeing) in Youkhana v R [2011] NSWCCA 37 at [49]:

… the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved".

[17]   In such a case the necessity to uphold public confidence in the administration of justice continues to prevail for the reasons given by Gleeson CJ in R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep), in the following passage which is extracted in R v Ismunandar at [38]:

The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice… . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

59. The principle is apposite in the present case particularly because the Sentencing Judge said that he was reducing Mr Wilson’s sentence below what would otherwise be appropriate.

60. The maximum penalty for the offences was 25 years imprisonment. As noted, the Sentencing Judge found that the robbery was planned, a real pistol was used, it was pointed separately at the two persons robbed, one of the offenders (Mr Ponfield) carried a knife, all of the offenders were on conditional liberty at the time of the offending and being in company was an aggravating factor. Although his Honour made no specific finding of the objective seriousness of the offences, his comparisons with the guideline judgment in Henry make clear that he regarded the offences as serious. Furthermore, the offenders were sentenced after being found guilty at trial with no discounts being accorded.

61. As to the separate position of Mr Ponfield and contrary to his submission, we do not consider that there is any material difference in Mr Ponfield’s position relative to that of his co-offenders. Whilst he was younger (24 at the time of the offending with Mr Humphries being 34 and Mr Wilson 31) the age difference is immaterial particularly having regard to Mr Ponfield’s criminal record. The Sentencing Judge summarised it as follows:

He has a criminal history dating back over 11 years to the Children's Court. He was dealt with in the Children's Court mainly for offences of take and drive conveyance, carried in conveyance taken without consent of owner, goods in custody, larceny, possess prohibited drug and driving offences. In 2004 he was dealt with for stalk, intimate with intent to cause fear or harm, in 2005 for a number of assaults and an offence of assault occasioning actual bodily harm, and in 2006 for malicious wounding.

As an adult, apart from driving convictions, he has convictions in 2007 for assault, in 2007 possess unauthorised firearm and ammunition, and fire firearm into building or onto enclosed lands, in 2008 carry cutting weapon upon apprehension, in 2008 aggravated (in company) break, enter and commit serious indictable offence, in 2009 affray, in 2011 possess housebreaking implements and means of disguising of face and goods in custody, in 2012 possess shorten firearm without authority, in 2012 being carried in conveyance taken without consent of owner.

62. Whilst that record does not include prior offences of armed robbery it includes serious property offences, offences of violence and firearm offences. The Sentencing Judge detailed Mr Ponfield’s background and his subjective matters. We have already noted that there was little difference in the deprived backgrounds of each of the offenders. As with the co-offenders the Sentencing Judge found that Mr Ponfield was not contrite and his prospects of rehabilitation guarded. There is nothing pertaining to Mr Ponfield that gives rise to a justifiable sense of grievance in relation to the sentence imposed on Mr Wilson and Mr Humphries.

62. In all those circumstances, we consider that any reduction of the sentences of Mr Humphries and Mr Ponfield to achieve parity with the effective sentence that Mr Wilson received would mean their sentences would be erroneously lenient. For that reason, their sense of grievance cannot be said to be justifiable.

63. There remains to be considered the alleged discrepancy between the sentences imposed on Mr Humphries on the one hand and Mr Ponfield (and Mr Wilson) on the other in terms of the length of the non parole period. As stated in respect of the offences the subject of this appeal, Mr Humphries received a total sentence of seven years and six months with a non-parole period of five years whereas Mr Ponfield received a sentence of six years with a non-parole period of three years and nine months. However, the sentence imposed on Mr Humphries was expressed to run concurrently with his existing sentence for eighteen months such that, if not interfered with, he will only serve three years six months in custody solely referable to the offences the subject of this appeal. The sentence imposed on Mr Ponfield was backdated to the date of his arrest, 19 June 2013, which was only two months prior to the expiry of his sentence for other offences such that he will serve three years and seven months in custody solely referable to the offences the subject of this appeal.

64. Clearly the sentences were imposed with an intention to achieve roughly equal treatment between Mr Humphries and Mr Ponfield in terms of the period to be served in custody solely referable to the offences the subject of this appeal. In circumstances where there was no relevant difference in their respective criminality and subjective circumstances such an approach was not erroneous per se.

65. However, his Honour did not explain the rationale for the differences in the structure of the two sentences. We have described the Pearce approach and the Mill approach above. As noted and although it was not expressly stated it seems that, given the length of the sentence and the substantial backdating that occurred, his Honour adopted the Pearce approach when sentencing Mr Humphries. Also as noted in the case of Mr Wilson his Honour expressly stated that he was adopting the approach in Mill although, as noted at [57], that approach was negated by making the sentence concurrent with the existing sentence. However, his Honour did not state which approach was being adopted in relation to Mr Ponfield. The length of the sentence suggests that it was the approach in Mill. An attempt to adopt the approach in Pearce in the case of Mr Ponfield while imposing a sentence of similar length to that imposed on Mr Humphries but preserving the intention of having them both serve the same period in custody solely referable to these offences could only have been achieved by backdating the sentence to a time prior to Mr Ponfield's arrest which, although permitted by s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), would have been unusual.

66. Nevertheless it was always open to His Honour to adopt the approach in Mill in respect of Mr Humphries or the approach in Pearce for Mr Ponfield (and Mr Wilson). If His Honour had done so then the objective of having both Mr Humphries and Mr Ponfield serve the same period in custody solely referable to the subject offences could still have been achieved and a correspondence in the actual sentences imposed would have been apparent. The present structure of the sentences gives the appearance that Mr Humphries was dealt with more severely and that appearance could become reality if for some reason his or Mr Ponfield's other sentences were set aside or interfered with for reasons unrelated to this appeal.

67. It was not contended on this appeal that, where the criminality and subjective circumstances of co-offenders is roughly equal, it is per se erroneous for a sentencing judge to adopt the Pearce approach for one co-offender and the approach in Mill for another. Given the multitudinous circumstances that can face sentencing judges such a contention seems unlikely to be correct. However, at the very least in a case such as this, sentencing judges should explain the basis for adopting different sentence structures imposed on co-offenders with equal culpability and similar subjective circumstances and, where the approach in Mill is adopted, the extent of the reduction that is applied. This will allow for transparency in sentencing, assist this Court in performing its appellate function and minimise "artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences" (Pearce at [48]). In this case as between Mr Humphries and Mr Ponfield no such explanation was proffered by the sentencing judge with the result that, on its face, there is an unexplained disparity between the sentence imposed on Mr Humphries compared with that imposed on Mr Ponfield. As a result Mr Humphries has established error.

Re-sentence

69. Error having been established, it is necessary for this Court to exercise afresh the discretion to re-sentence Mr Humphries: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42].

70. For the purpose of re-sentencing the findings made by the Sentencing Judge in relation to Mr Humphries are accepted. They are amply supported by the material available. There is, in addition, an affidavit of Mr Humphries filed in the appeal and read in case of re-sentence. In that affidavit Mr Humphries says that he has commenced an intensive learning course to bring him up to the standard of Year 10 at high school. He has completed level 1 and hopes to complete level 2 this year. Thereafter he wishes to undertake some other programs in relation to drug addiction and anger management. Nothing in that affidavit would cause us to differ from the Sentencing Judge’s conclusion that his prospects of rehabilitation remain guarded.

71. Consistent with our observations in [65] and to achieve consistency with the sentence imposed on his co-offenders the structure of the sentence imposed on Mr Humphries should reflect the approach in Mill even though the Pearce approach is the preferred one. Further parity warrants a sentence of approximately equal length to that imposed on Mr Ponfield. Had we not adopted that approach then we would have concluded that a sentence no shorter in length and no earlier in commencement date than that imposed by the sentencing judge was appropriate for Mr Humphries.

72. Having regard to the objective seriousness of the offending, Mr Humphries’ subjective matters and the sentences imposed on Mr Ponfield and Mr Wilson, we consider that the appropriate sentence for Mr Humphries for each of the offences is a non-parole period of three years and nine months commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentence on each of the counts should be served concurrently with the other. The effect of these sentences does not alter any of the minimum period that it is expected that Mr Humphries will serve solely referable to these offences, his expected release date or the date his sentence expires.

Conclusion

73. We propose the following orders:

1. Leave to Mark Humphries to appeal.

2. In the appeal by Mark Humphries allow the appeal and quash the sentences imposed in the District Court.

3. In lieu, sentence the Appellant Mark Humphries to a sentence for each count comprising a non-parole period of three years nine months commencing 19 January 2015 and expiring 18 October 2018 with an additional term of two years and three months expiring 18 January 2021. The sentences are to be served concurrently.

4. Otherwise dismiss the appeal by Mark Humphries.

5. Leave to Wade Ponfield to appeal.

6. Appeal dismissed.

**********

Amendments

16 May 2016 - 1. Order 3 in paragraph 73 and cover sheet amended to read "three years nine months".

2. Paragraph 5 - January 2021 amended to April 2021.

3. Paragraph 7 - June 2017 amended to March 2017

Decision last updated: 16 May 2016