Ivory v R

[2014] NSWCCA 181

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Ivory v R [2014] NSWCCA 181
Hearing dates:	6 August 2014
Decision date:	12 September 2014
Before:	Hoeben CJ at CL at [1] Adamson J at [2] Bellew J at [3]
Decision:	1.The application for an extension of time is refused.
Catchwords:	CRIMINAL LAW - PRACTICE AND PROCEDURE - application for an extension of time in which to bring application for leave to appeal against sentence - whether period of delay adequately explained CRIMINAL LAW - sentence - where co-offenders separately sentenced - where more serious charge laid against one offender - where factual findings different between offenders - where disparity in sentence said to have arisen as a consequence of the exercise of prosecutorial discretion - whether open to the court to go behind the exercise of discretion to determine whether a justifiable sense of grievance is made out
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Abdul v R [2013] NSWCCA 247 Alpha v R [2013] NSWCCA 292 Black v R [2013] NSWCCA 265 Delaney v R; R v Delaney [2013] NSWCCA 150 Elias v R (2013) 248 CLR 483; [2013] HCA 31 Green v R; Quinn v R (2011) 244 CLR 262; [2011] HCA 49 Jimmy v R (2010) 77 NSWLR 540 Kentwell v R; O'Grady v R [2014] HCA Trans 113 Miles v R [2014] NSWCCA 72 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Nguyen [2003] NSWCCA 195 Winter v R [2013] NSWCCA 231 WA v R [2014] NSWCCA 92
Category:	Principal judgment
Parties:	Julian Ivory - Applicant Crown - Respondent (Crown)
Representation:	Counsel: Solicitors: Bilbie Dan Solicitors - Applicant S Kavanagh Solicitor for Public Prosecutions - Respondent (Crown)
File Number(s):	2010/127247
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2011-08-24 00:00:00 Before: Robison DCJ

Judgment

1. HOEBEN CJ at CL: I agree with Bellew J.

1. ADAMSON J: I agree with Bellew J.

1. BELLEW J: On 24 August 2011 Julian Ivory ("the applicant") appeared before his Honour Judge Robison in the District Court at Newcastle and pleaded guilty to the following offences:

(i)   on 3 May 2010, at Raymond Terrace in the State of New South Wales, whilst in company with Darren Delaney, he did demand money with menaces from NM with intent to steal that money (count 1);

(ii)   on 4 May 2010, at Raymond Terrace in the State of New South Wales, whist in company with Darren Delaney, he did demand money with menaces from NM with intent to steal that money (count 2);

(iii)   on 16 May 2010, at Minmi in the State of New South Wales, he did wound GS with intent to cause him grievous bodily harm (count 3).

1. The offending in each of counts 1 and 2 was contrary to s. 99(2) of the Crimes Act 1900 ("the Act") and carried a maximum penalty of 14 years imprisonment. The offending in count 3 was contrary to s. 33(1)(a) of the same Act and carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment.

1. His Honour imposed the following sentences:

(i)   in respect of each of counts 1 and 2, imprisonment for 2 years and 3 months commencing on 21 May 2010 and expiring on 20 August 2012;

(ii)   in respect of count 3, a non-parole period of 5 years imprisonment commencing on 21 August 2010 and expiring on 20 August 2015, with a balance of term of 3 years and 6 months imprisonment commencing upon the expiration of the non-parole period and expiring on 20 February 2019.

1. The total sentence was one of 8 years and 9 months, with a non-parole period of 5 years and 3 months.

1. The applicant now seeks an extension of time in which to seek leave to appeal against the sentences imposed. That application is opposed by the Crown.

THE APPLICATION FOR AN EXTENSION OF TIME

The facts

1. Two affidavits of the applicant's solicitor, Nicholas Paul Dan, sworn on 25 February 2014 and 5 August 2014 were read without objection in support of the application for an extension of time. Those affidavits, along with other material before this Court, establish the following facts relevant to the application.

1. The applicant was sentenced on 24 August 2011. On 16 September 2011 his then solicitors filed a notice of intention to appeal. In December 2011, the applicant made application for legal aid. It would appear that at that time, the proposed appeal was based on what was said to be the manifest excess of the sentences which were imposed. Counsel briefed by Legal Aid NSW ("Legal Aid") advised that in his opinion the proposed appeal did not have reasonable prospects of success. Accordingly, the application for legal aid was refused.

1. On 8 November 2012 Joshua Mark Wilson ("Wilson") and Darren John Delaney ("Delaney") each pleaded guilty before his Honour Judge Frearson SC to an offence contrary to s. 59(2) of the Act. The charge against each of them arose from the same circumstances which led to the charge in count 3 against the applicant. However, as discussed further below, the charge laid against each of Wilson and Delaney was different to that laid against the applicant, as were the facts relied on by the Crown for the purpose of sentence in each case.

1. On 14 December 2012 Delaney appeared before his Honour Judge Charteris in the District Court following an earlier trial in which his Honour, sitting without a jury, had found Delaney guilty of four further offences, two of which were the same as those in counts 1 and 2 against the applicant.

1. As discussed in more detail below, the sentences imposed on each of Wilson and Delaney were substantially less than those imposed upon the applicant. As a result, the applicant made a further application for legal aid in December 2012. Counsel was briefed to provide further advice specifically on the issue of parity, on the basis that if merit was found in an appeal based on that issue the application would be granted. However, Delaney lodged an appeal to this Court against the convictions recorded by Judge Charteris following his trial, and the Crown lodged an appeal against the asserted manifest inadequacy of the sentences which were imposed upon him. In these circumstances, counsel retained by Legal Aid advised that it was premature to provide any advice to the applicant, and that it would be necessary to await the outcome of the proceedings involving Delaney in this Court before doing so.

1. On 11 June 2013, this Court (Hoeben CJ at CL, Harrison and Beech-Jones JJ) heard the appeals brought by Delaney and the Crown. Judgment was reserved.

1. On 12 June 2013, the applicant requested that Legal Aid assign his proposed appeal to a private solicitor. That request was refused, following which the applicant made a complaint to the Legal Services Commissioner about what was said to be a failure on the part of Legal Aid to properly "attend" to his appeal. The Commissioner referred the complaint to Legal Aid, who responded to the applicant by letter of 24 June 2013 setting out the history of the matter as I have outlined above.

1. On 26 June 2013 this Court dismissed the appeal brought by Delaney, as well as the appeal brought by the Crown: Delaney v R; R v Delaney [2013] NSWCCA 150. As outlined in [12] above counsel briefed by Legal Aid was awaiting the delivery of that judgment before providing the advice which had been sought. However, at about the same time the applicant instructed his present solicitors, Bilbie Dan, to act for him in a private capacity.

1. After the applicant provided those instructions, the following occurred:

(i)   Legal Aid sent the file to Bilbie Dan on 1 July 2013;

(ii)   Mr Lowe of counsel was briefed on 26 July 2013;

(iii)   Mr Lowe provided advice to Bilbie Dan on 16 September 2013;

(iv)   Mr Lowe provided grounds of appeal, and submissions, to Bilbie Dan on 28 October 2013;

(v)   documents for filing with the Court, including an affidavit by Mr Dan, were prepared on 18 November 2013 and signed on 3 December 2013, but were not filed;

(vi)   the offices of Bilbie Dan were closed from 23 December 2013 to 6 January 2014;

(vii)   Mr Dan was absent from the office on leave from 27 January 2014 to 31 January 2014;

(viii)   the staff member who prepared the documents in (v) above was absent from the office on leave from 17 February to 3 March 2014;

(ix)   the applicant contacted Bilbie Dan by letter of 21 February 2014 enquiring about his appeal;

(x)   the notice of application for an extension of time was filed on 26 February 2014, following which the matter was listed for call-over and then for hearing.

1. The explanation for the failure to file the documents referred to in (v) above is contained in paragraph (13) of Mr Dan's affidavit of 5 August 2014 in the following terms:

"The documents listed in paragraph 12 were not lodged due to the undertaking of further research which indicated the content of the Affidavit was insufficient. Further advice in this regard was sought".

1. The nature of the "further research" was not identified, nor was there any identification of the "further advice" which was said to have been sought in order to allow the matter to proceed. There was no identification of the person from whom such "further advice" was sought, nor was there any indication whether such advice was actually provided, and if so, by whom and when.

The relevant principles

1. In Abdul v R [2013] NSWCCA 247 this Court said (at [53]):

"...When considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time."

1. Although this statement of principle was made in the context of determining an application for an extension of time where a "Muldrock error" was asserted (Muldrock v R [2011] HCA 39; 244 CLR 120) it applies to any case in which an extension of time is sought: Alpha v R [2013] NSWCCA 292 at [1]-[2], [15] and [80]-[81].

1. I note that in Kentwell v R; O'Grady v R [2014] HCA Trans 113, special leave to appeal to the High Court has been granted to challenge two decisions of this Court in which the statement of principle in Abdul (supra) has been applied. Nevertheless, for the reasons explained by Leeming JA in WA v R [2014] NSWCCA 92 at [14] the principle remains the settled approach of this Court at the present time, and should be applied.

Consideration of the application to extend time

1. The applicant relies upon the two affidavits of Mr Dan to explain what is, on any view, a significant delay of more than two years. In Winter v R [2013] NSWCCA 231, with the concurrence of Hoeben CJ at CL and Barr AJ, I observed (at [26]):

"In any case where an extension of time is sought ...there is an onus placed upon the applicant to adduce evidence which fully explains that delay. That explanation must necessarily include a clear articulation of the steps taken to prosecute the appeal, and a comprehensive explanation for any periods of apparent inactivity."

1. As noted, the overall period of delay in the present case is more than two years. The period between the date on which sentence was imposed on the applicant, and the time at which Mr Dan was retained, is adequately explained, given the circumstances in which the various proceedings against Wilson and Delaney evolved. However in my view, the 8 month delay which followed has not been adequately explained. It must be emphasised in this context that there is a considerable difference between an affidavit which simply sets out a chronology of events, and one which properly addresses, and explains, periods of delay. The affidavits filed in the present case do the former, but not the latter.

1. Quite apart from the fact that the delay has not been properly explained, there are two other considerations which mitigate strongly against granting an extension of time.

1. Firstly, the offences for which the applicant was sentenced involved two separate victims. When the applicant was sentenced, references were made by Judge Robison (at ROS 5) to the fact that the victim of counts 1 and 2 was fearful at the time of the offending about what would occur if he did not comply with the demands which were made of him. His Honour also referred (at ROS 8) to the fear expressed by the victim of the offending in count 3 of retribution from those who attacked him. The undesirability of denying an expectation on the part of those victims that the proceedings have been concluded tends against granting an extension of time: Miles v R [2014] NSWCCA 72 at [58] per Button J, Simpson and Harrison JJ agreeing). It is reasonable to infer that each of the victims of the applicant's offending would have such an expectation.

1. Secondly, the principle of finality tends against granting the application: Black v R [2013] NSWCCA 265 at [55] per Bellew J, Hoeben CJ at CL and Johnson J agreeing.

1. However notwithstanding these matters, it is necessary in accordance with the statement of principle in Abdul (supra) to consider the question of whether substantial injustice would result if an extension of time were not granted. That, in turn, requires an assessment of the strength of the proposed grounds of appeal. It is to that assessment that I now turn.

THE FACTS OF THE OFFENDING

1. A statement of facts was tendered before the sentencing judge. It was not signed by the applicant but counsel then appearing for him did not object to its tender. In these circumstances, his Honour observed (at ROS 2) that he considered it open to make findings based on the facts tendered by the Crown, unless they were entirely implausible.

Count 1

1. His Honour's findings in respect of count 1 were as follows:

"...As to the counts of demand money by menaces in company with the intent to steal, the facts commence with a reference to the victim opening a tattoo parlour named Ink Expressions Tattoo located in a shop in William Street, Raymond Terrace.

On 3 May 2010 at about 11am three so called "bikers" entered that shop. The facts reveal that they were all wearing, what the victim described as "biker clothing", namely black jeans, black sunglasses, jumpers or belt buckles bearing the "Rebels" logo. One of the males introduced himself as Julian and the other as D, the third did not introduce himself but Julian was clearly the offender who stands for sentence before me today.

The offender D approached the counter and the other two stood behind him and crossed their arms. The victim, not surprisingly, immediately felt intimidated. One of the males said "I am D, what right do you have to be opening a store here." The victim replied in these terms "What are you talking about, I have done everything legal here, I have council approval and everything." D persisted, he said "You haven't got approval from us, we need to make an appointment." A very threatening comment indeed.

The facts also reveal that D said "Do you know who we are?" Apparently D said "I am a tattooist and you have opened a shop where I was going to open a shop." The victim directed them to the walkway outside the store and as he had a client in the shop D stood beside him in his personal space and leant against the wall placing his hand on the wall next to the victim's head. This allowed the victim to see what he described as a heavy bladed knife up D's sleeve against his wrist. D said that he was a tattooist and what right did he, the victim, have to open a shop there. Used these words "Do you know who we are?"

The victim must have had an idea as to who they were because he said "I've got an inkling who you are." D said "We can shut you down and blow the shop up." He was talking in an aggressive manner and then turned and walked away and the other two followed. He stopped at the top of the stairs, leading back out onto the street and said, according to these facts "And by the way, you will be paying $200 a week, we can run you out of town if you don't pay."

The victim said to the offender, Julian Ivory, "What have I got to do." The offender said this "When I call you, you have got to come and meet us." Then they left.

The victim later told his wife what had happened. Not surprisingly she became very scared. Later that day uniform police came to see him. He later learnt that his stepson had contacted police after learning about what had occurred from his mother. The victim told police what had happened, but told them he just wanted to pay the protection money and not get police involved as he was fearful of damage to his shop."

Count 2

1. His Honour's findings in respect of count 2 were as follows:

"The facts in so far as the following day are concerned are these. The victim received a phone call that day at his shop. He recognised the caller as the person described as Julian who said "You have got to go down to the skate park, bring the money." The victim went down to the skate park and waited about five minutes before his wife rang him on his mobile and said that they wanted to meet him back at the shop. Once he returned to the shop he received a call from the offender again, who said "Come and meet us out at McDonald's at Heatherbrae."

The victim apparently complied. Not surprising due to the standover type tactics that were deployed by these individuals. In any event the facts indicate that the victim drove to McDonald's and parked his car near the driveway and got out of the car. Within a couple of minutes D turned up riding a Harley Davidson with the offender, Mr Ivory, on the back. They were wearing full Rebels colours consisting of leather vests, with the Rebels emblem on the back. The offender Ivory, walked towards the victim and the victim pulled out $200 cash and held it out so they could see. D shook his head and turned away and said "You have no right to open a shop in the Terrace." He pointed to his top left pocket where the words "Raymond Terrace" were sewn into the jacket. He said "See this, it says Raymond Terrace, we run this area and this is our town."

Apparently there was some small talk and then the victim tried to give the money to D and he turned away and kept his hands in his pockets. The offender, Ivory, came forward and took the money and said "Next time put the money in an envelope, it is going to be $200 weekly, what day suits you for us to come back and pick it up."

The victim said "Can you come Thursdays around twelve." Apparently the offender said "Yeah, righto, I will give you my number. If there are ever any problems ring me, we will protect the store."

The victim handed the offender Ivory a little black pocket diary and the offender wrote down his first name Julian and the phone number as revealed in these facts. The victim wrote down the words "Thursday" and "twelve" and D then shook the victim's hand and told him he was a "bro". They offered to buy him a coffee but the victim declined to do so, entered his car and returned to the store.

The facts reveal, and I have no reason to reject this at all, that the victim had to close for the day as he felt too ill to work and was shaking, no doubt due to all of these events.

The following day the police came to the shop and the victim told them he did not want police involvement, that he was very fearful about what would happen to his store and himself if he did not pay.

All of this reveals to me an insidious and threatening course of conduct on the part of those offenders who took part in these episodes. Clearly standover tactics must have been used. It almost can be compared to a Mafia style organisation of people who consider that they can enforce their will on others who would no doubt have been lawfully conducting their business."

1. His Honour's references to "D" both in respect of counts 1 and 2, and his references to "DD" in respect of count 3, were references to Delaney.

Count 3

1. His Honour's findings in respect of count 3 were as follows:

"The next matter which has been subject to these facts is the wound with intent to cause grievous bodily harm. The victim in this case was one GS, who had an association with the Rebels outlaw motorcycle club or group or however it may be described, and in May 2010 and was in the "hang about" stage of his bid for membership, whatever that means. In any event I move on with these facts.

At about 9.30pm on 15 May the victim picked up a male called "Lumpy" and took him to the Rebels clubhouse. The victim told "Lumpy" to tell "them" that he was with his father and his aunty was sick in hospital so he did not have to go in. Just before he arrived back home the victim received a phone call from "Lumpy" asking him to come back into the shed. He was told that they needed him there. The victim told "Lumpy" that he could not come and the offender then got onto the phone and told him to "get your fucken arse in here now, you've got fucken twenty minutes."

Apparently there is an office called "Sergeant at Arms" of the club. The offender, Mr Ivory, was that sergeant. And the victim knew that he had to do what he said. He went to the clubhouse and was met there by the offender, as well as JW and Dan, who is referred to in these facts as "the head nom" whatever that means, Lumpy and DD. The victim was asked to retrieve a firearm from his house that he was storing. He went back home, retrieved it and brought it back into the clubhouse. He was told that they were "going to take some fucking pills off this dude." The facts reveal that the victim waited downstairs in the clubhouse whilst the others talked upstairs.

About an hour later the victim and the offender and two others got into a white Commodore which the victim thought was the offender's car. The offender sat in the back with the victim. They drove to Stockton and into Cox Lane where there was a couple in a car. The offender said "No, look, go somewhere else, it's too red hot."

The facts reveal that one of the others made a phone call and organised a new location at Minmi Cemetery. The facts go on to say that they drove to a Shell Service Station at Wallsend where the driver went in to purchase some cigarettes. The unfortunate victim was not allowed out of the vehicle. On the way out to Cox Lane they had taken his keys, wallet and telephone from him and made sure he had nothing in his pockets. The victim says that the

offender smacked him in the mouth because he had some "speed".

Eventually they arrived at the cemetery at Minmi and it was completely dark. They all alighted from the car and all but the victim went in separate directions checking the area. The victim was standing with the offender who told him to "stand beside me and look staunch." With that the offender then hit the victim across the knees with something and the victim dropped to the ground. One of the others from the car then came running at him with abaseball bat and repeatedly hit the victim with it. The other male, according to these facts, from the car, started hitting him with a steel bar. All of them kicked and beat the victim, all over his body and head.

The offender, Ivory, according to these facts, had his fingers jammed in the victim's jaw so he could not scream and they had his face to the ground. According to the victim he must have lost consciousness and then awoke and he was alone. He sat there for some time in the dark before he got his vision back and he was able to crawl to a house near the cemetery. He knocked ona door and a male person assisted him and called the police and an ambulance. This apparently occurred at about 3am.

The victim suffered injury. He suffered facial bone fractures which were surgically repaired and various bruises and lacerations to his body and head. A wound on his head apparently required sutures. The police visited the victim in hospital, on the morning of 16 May 2010 and he nominated Julian, W and D as his attackers. He said that the car which was used was a white Commodore, "normally used by Julian" and often parked outside the address in Thorsby Street, Wickham.

The victim declined to give a statement then, due to the fear of retribution from his attackers. The police attended the address in Throsby Street, Wickham and located the vehicle thought to be used in the offence.

Whilst they were out the front of that address, the offender and D exited the property. The offender approached the vehicle and removed two P plates from that vehicle and placed them onto a green Ford Festiva, parked behind the Commodore. The Commodore was registered to one, NB who was in custody at the time of the offence. The victim's vehicle was also out the front of the clubhouse.

The facts go on to say that the police received a phone call from the victim later that day, who indicated that he did wish to make a statement about the matter. A recorded interview was conducted with him from his hospital bed. W and D were both arrested in May last year and each declined to participate in an interview.

A search warrant, however, was executed at 22 Throsby Street,Wickham on 18 May 2010. Personal items belonging to the victim were located in the clubhouse. The offender, Ivory, was arrested on 21 May 2010 and declined to participate in an interview and I accept that he has been in custody since that time, bail refused.

Apparently money continued to be collected on a weekly basis from the unfortunate Mr M until further arrests were made on 7 September 2010. I note the facts reveal that the offender Ivory was formally arrested on 13 September while in custody for his involvement with Mr M and declined to be interviewed.

I have spent some time dealing with those facts because of the nature of the tender of those facts and noting that there has been no objection to those facts being tendered. But after reading all of those facts it is clear to me that they are not implausible and I am satisfied beyond reasonable doubt that what the Crown asserts that took place on those days in fact did take place."

THE APPLICANT'S SUBJECTIVE CASE

1. His Honour found (at ROS 9) that although the applicant had a criminal history it was not an extensive one, and that he was a person who had otherwise been of good character. He took into account (at ROS 10) the contents of a Pre-Sentence Report which set out the applicant's background and upbringing. He made reference (at ROS 11) to evidence which had been given in the sentence proceedings by the applicant's mother, before finding (at ROS 11) that there were "some prospects" for the applicant's future. However, his Honour expressed (at ROS 12-13) what was, in my view, justifiable concern at the applicant's reported intention to resume his affiliation with the "Rebels" Outlaw Motorcycle Gang upon his release from custody. Finally, his Honour found (at ROS 14) that there was no evidence of the applicant having any remorse or contrition.

1. His Honour concluded that notwithstanding the reference in the Pre-Sentence Report to the availability of community based sentencing options, the nature of the offending was such that a full time custodial sentence was the only available option. He then proceeded to impose the sentences previously set out.

THE PROCEEDINGS AGAINST DELANEY AND WILSON

1. On 8 November 2012 Delaney and Wilson appeared before his Honour Judge Frearson in the District Court. Each pleaded guilty to an offence of assault occasioning actual bodily harm in company, contrary to s. 59(2) of the Act. The offending which was the subject of those charges arose from the same circumstances as those which formed the basis of count 3 against the applicant. However, the applicant was charged with, and pleaded guilty to, an offence contrary to s.33(1)(a) of the Act in respect of that offending. That offence carried a maximum penalty of 25 years imprisonment, with a prescribed standard non-parole period of 7 years. The offence to which each of Wilson and Delaney pleaded guilty carried a maximum penalty of 7 years imprisonment with no prescribed standard non-parole period. In this regard, when sentencing Wilson and Delaney Judge Frearson noted (at ROS 1):

"The plea eventuated upon trial. There had been originally a different charge but the plea eventuated the first time it was offered as I understand it".

1. The "different charge" to which his Honour referred was not specified although it seems likely that it was a charge contrary to s.33(1)(a) as had been laid against the applicant.

1. Importantly, Judge Frearson also noted (at ROS 4):

"Ivory pleaded guilty to wounding with intent to cause GBH and was sentenced to a non-parole of five years with an additional term of three and a half years, which seems appropriate. Of course he was charged with an entirely different offence to the current offenders."

1. In sentencing Wilson and Delaney, Judge Frearson noted (at ROS 1) that an agreed statement of facts had been tendered, by reference to which he found (inter alia at ROS 2-4) that:

(i)   the applicant was the "sergeant at arms" at the "Rebels";

(ii)   the applicant had given the direction to drive to Minmi cemetery;

(iii)   the applicant retrieved a shotgun and struck the victim with it;

(iv)   the victim dropped to the ground, following which the applicant had his fingers jammed in the victim's jaw and had the victim's face pushed to the ground, in order to prevent him from screaming;

(v)   neither Wilson nor Delaney took part in the physical assault of the victim;

(vi)   the participation of Wilson and Delaney, and therefore their culpability, stemmed from their willingness to assist the applicant.

1. It will be noted that the factual findings of Judge Frearson differ in a number of material respects from the facts determined by Judge Robison when sentencing the applicant in respect of count 3. In particular, Judge Robison found, on the basis of the statement of facts which was before him, that all three offenders struck the victim.

1. Ultimately, Judge Frearson sentenced Wilson to 200 hours of community service, and Delaney to a fixed term of imprisonment commencing on 2 August 2012 and expiring on 7 December 2012. The latter date was that on which Delaney was required to appear before another judge of the District Court, Judge Charteris.

1. Delaney's appearance before Judge Charteris followed his Honour finding him guilty of four further offences after a trial without a jury. The first two of those offences corresponded to counts 1 and 2 against the applicant. The third offence alleged that on the same date as the offending in count 2 Delaney received a sum of money which was the proceeds of crime knowing that the money was the proceeds of crime. The fourth offence alleged that Delaney demanded money with menaces on 13 May 2010.

1. In sentencing Delaney, Judge Charteris referred to the sentences imposed upon the applicant (commencing at ROS 10):

"Judge Robison in August 2011 sentenced Julian Ivory. Mr Ivory was charged effectively with two counts relating to the matter that I have to deal with. Firstly that on 3 May he was in the company of "DD" - I accept that DD was the offender, Darren Delaney. Mr Ivory pleaded guilty, his counsel consented to the tender of the asserted facts relied upon by the Crown but did not go so far as to say that the facts were agreed. I gather no submissions were made to the contrary of those facts and the judge sentenced on the basis that on 3 May 2010 Mr Ivory had, in the company of Mr Delaney, demanded money with menaces. The second count was also demanding money with menaces in relation to the events at McDonald's on 4 May 2010. No doubt there was some negotiation of the charges that Mr Ivory faced but he faced certainly the equivalent of counts 1 and 2 that this offender, Mr Delaney, is to be sentenced upon today. Whether I assume by way of plea negotiation, however, Mr Ivory was not charged with receiving the proceeds of crime being the $200 handed over at McDonald's (Count 3). Mr Ivory was not charged in relation to the events of 13 May.

What overshadowed, however, the sentencing exercise in relation to Mr Ivory was that he had pleaded guilty to a third count on his indictment, namely that on 16 May he wounded a person with intent to cause grievous bodily harm. That person's initials are GS, his name was mentioned during the trial before me. He was at one stage said to be a person who was associated with the Rebels motorcycle club but not a member. His Honour described the third count as the most serious count - it attracted a standard non-parole period of seven years and a maximum penalty of twenty-five years. His Honour dealt also with the circumstances of the factual consideration upon which he would sentence the offender Mr Ivory. He noted the offender did not sign the statement of facts but that there were apparently no matters put in contradiction of the facts relied upon by the prosecution. His Honour found those facts were established. It is of interest that Mr Ivory pleaded guilty to being in company with Mr Delaney on 3 and 4 May 2010. Mr Delaney maintained in his evidence before me that he was not with Mr Ivory at the relevant time on 3 May.

1. In terms of the facts of Delaney's offending in respect of the first two offences, his Honour said (commencing at ROS 11):

"In any event the allegations concerning the events of 3 May are inaccordance broadly with the evidence given by (NM) before me. The facts found by Robison DCJ as regards the second count to which Mr Ivory pleaded guilty, are broadly consistent with the evidence given by (NM) before me and which I have found to be established. Those facts include an acknowledgement that it was Mr Ivory who required the complainant to come to meet "us when I call you". That also confirms that it was Mr Ivory who made the direction to the victim on 4 May to go to the skate park. It was Mr Ivory who directed the victim to go to McDonald's. At McDonald's Mr Delaney did not say much; Mr Ivory did most of the talking and also received the money. Mr Ivory had also said, as his Honour observed, "Next time put the money in an envelope. It's going to be $200 weekly. What date suits for us to come back and pick it up?" It was Mr Ivory who wrote his own name and telephone number in the diary of the victim. Mr Ivory, I observe, was very much senior in the Rebels Motorcycle Club hierarchy; and that is consistent with how he conducted the extraction of the what was said to be the protection money from the victim. His Honour observed the offender Ivory, in matters on 3 and 4 May, had engaged in "standover tactics" and compared it to a mafia style organisation."

1. His Honour then made reference to the applicant's sentence in respect of count 3 before stating (at ROS 13):

"I have taken into account (Judge Robison's) approach when I deal with matters of parity."

1. Ultimately, in respect of each of the offences corresponding to counts 1 and 2 against the applicant, Judge Charteris sentenced Delaney to a non-parole period of 10 months imprisonment with an additional term of 14 months imprisonment. Taking into account the sentences imposed in respect of the two further offences, his Honour imposed a total effective sentence of 2 years imprisonment, with a non-parole period of 10 months.

1. As I have noted, Delaney appealed to this Court against the convictions recorded by Judge Charteris, but not against the sentences which were imposed. The Crown appealed against the sentences and asserted (inter alia) that they were manifestly inadequate. The Crown submitted, essentially as a particular of manifest inadequacy, that his Honour had failed to have regard to principles of parity.

1. In dismissing both appeals, Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) said (commencing at [68]):

[68] The Crown submitted that by reference to the sentence imposed on Mr Ivory by Robison DCJ, it was clear that the appellant's sentence was out of proportion and inadequate in that the punishment for the same offending was not equal. The Crown submitted that as a result the parity principle had been offended.

[69] This submission is misconceived. The parity principle is one of amelioration designed to benefit offenders. It was not developed as a means by which the Crown could have sentences increased. It is for this reason that seminal cases such as Lowe v R [1984] HCA 46; 154 CLR 606 express the parity principle as follows:

"3 ... It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. ..." (Gibbs CJ at 610, see also Mason J at 612, Wilson J at 616 and Dawson J at 623.)

[70] In any event, the submission does not accurately reflect the basis upon which Mr Ivory was sentenced. The most serious charge to which he pleaded was wounding with intent to cause grievous bodily harm. That charge related to the beating which he gave to Mr Stolzenberg. The sentence imposed by Robison DCJ in respect of the two counts of demand money with menaces was almost entirely concurrent with the sentence for the more serious offence. The effective period, which Mr Ivory was required to serve for the offences committed with the respondent, was 3 months.

THE GROUNDS OF APPEAL

Ground 1 - There is an unjustifiable disparity between the sentence of the applicant and the sentence imposed on his co-offenders, Delaney and Wilson, in relation to the offence involving the victim "GS".

Submissions of the applicant

1. Counsel for the applicant acknowledged that the factual basis upon which Judge Frearson sentenced Delaney and Wilson for the offence involving GS was different to that in respect of which the applicant was sentenced. In particular, counsel accepted that Judge Frearson had found that neither Delaney nor Wilson took part in the physical assault of the victim. Counsel also acknowledged that the charge to which Delaney and Wilson had each pleaded guilty was not just different, but substantially less serious, than that to which the applicant had pleaded guilty, and accordingly carried a maximum penalty which was substantially less.

1. Notwithstanding these matters, counsel submitted that it was as a consequence of the exercise of prosecutorial discretion that the applicant had been charged with a far more serious offence, and that this gave rise to a disparity in the sentences imposed. It was submitted that as a consequence, the applicant had a justifiable sense of grievance which warranted the intervention of this Court.

1. Counsel for the applicant submitted that parity principles are not confined to persons who are strictly regarded as co-offenders, and that they apply to offenders involved in the same common criminal enterprise. In advancing this submission, he placed significant emphasis upon the following passage from the decision in Green v R; Quinn v R (2011) 264 CLR 262; [2011] HCA 49 at [30]:

"In Lowe v R and in Postiglione v R, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with difference crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."

1. Counsel for the applicant submitted that this passage was to be construed as authority for the proposition that in a case such as the present, where the Crown had chosen in the exercise of its discretion to bring different charges arising out of the one set of circumstances, this Court should examine the exercise of that discretion to determine whether a justifiable sense of grievance had arisen. In the course of oral argument, counsel for the applicant submitted that it was incumbent upon this Court to (at T8-9):

".... lead by example and indicate to the Crown that the norm of equal justice embraces not only consistency in sentencing but consistency in the exercise of prosecutorial discretion in relation to all co-offenders in a joint criminal enterprise".

1. In advancing this argument, counsel for the applicant submitted that one of the reasons why it was incumbent upon this Court to examine the exercise of the prosecutorial discretion in the present case was because its exercise had amounted to an abuse of process. In particular, counsel for the applicant said (at T7-8):

"...its obvious why the Crown did not take steps to have these co-offenders sentenced by the same sentencing Judge because they realised that their contradictory position about categorisation of injuries and also their conception, differing conceptions of joint criminal enterprise or common criminal enterprise were significantly different".

1. When asked to articulate the evidentiary foundation for the submission that an abuse of process was made out, counsel pointed to nothing more than the fact that the present applicant was sentenced before Wilson or Delaney, and by a different sentencing judge.

1. Whilst the exercise of prosecutorial discretion was necessarily a matter which was relevant to the argument advanced by counsel, the submission that the Crown had exercised that discretion in a way which amounted to an abuse of process had no proper basis. That this is so is evident from the fact that when asked to explain the basis upon which the submission had been put, counsel could point to nothing more than the order in which the proceedings against the applicant, Wilson and Delaney were dealt with.

1. The fact that the proposition advanced by counsel had no proper basis is evident from counsel's own written submissions which included the following (at [15]):

"Due to an act of prosecutorial discretion, for reasons which are as inscrutable as they are unknown, the Crown accepted in full satisfaction of the indictment a plea of guilty by Messer Delaney and Wilson to an offence of assault occasioning actual bodily harm in company. That was a significant advantage to those offenders as the maximum penalty was 7 years imprisonment" [emphasis added].

1. The written submissions expressly acknowledged that the reason(s) for the way in which the Crown had exercised its discretion in the present case were not known. To submit, in those circumstances, that the exercise of discretion amounted to an abuse of process was, to say the least, inappropriate. Indeed, it was entirely inappropriate to make such a serious allegation in the absence of any proper basis upon which it could be supported.

Submissions of the Crown

1. The Crown submitted that it was not this Court's role to go behind the Crown's exercise of its discretion and that once this fundamental proposition was accepted, the applicant faced a number of practical difficulties in seeking to rely upon parity principles. It was submitted that these difficulties included the difference in the charges, the resulting difference in the applicable maximum penalties, and the differences in the factual findings reached by Judge Frearson on the one hand, and Judge Robison and the other, regarding the involvement of the three co-offenders.

1. The Crown also pointed to the significant differences in the findings which had been made regarding the subjective cases of each of the offenders, and the prospects of rehabilitation.

1. Finally, the Crown relied upon the structure of the sentences imposed in each case. In doing so, the Crown pointed to the fact that the applicant was sentenced in respect of two other matters in addition to count 3 and that accordingly, the sentencing judge was required to take into account considerations of totality in structuring the overall sentence which was to be imposed.

Consideration and conclusion

1. Fundamental to the applicant's argument is the proposition that where an offender has already been sentenced, it is open to this Court to examine the exercise of prosecutorial discretion in order to determine whether a legitimate sense of grievance has been made out. In my view, there are a number of difficulties with that approach.

1. Firstly, and contrary to the submissions made by counsel for the applicant, no part of the judgment of the High Court in Green (supra at [30]) is authority for the proposition that after a person is sentenced this Court is able to go behind, and examine, the exercise of prosecutorial discretion. In Green, their Honours recognised the practical difficulties, in terms of the application of parity principles, which can arise when a comparison is sought to be drawn between the sentences imposed on co-offenders who are charged with different offences. Their Honours did not make any reference at all to the issue of prosecutorial discretion. Nothing in the judgment suggests, even remotely, that the approach which was urged on this Court is open.

1. Secondly, the fact that such an approach is not open to this Court is evident from the more recent decision in Elias v R; Issa v R [2013] HCA 31; (2013) 248 CLR 483 where the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said (at [30], citations omitted):

"Parity is concerned with the equal treatment of co-offenders. As Green v R explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v R is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct."

1. The Court then said (at [35]):

"Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the Court has the power to relieve against the resulting abuse of process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentenced by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged" [emphasis added].

1. In the present case, no issue was raised by the applicant at the time of being sentenced about the Crown's decision to charge him with an offence contrary to s. 33(1)(a). The approach now urged on this Court on behalf of the applicant would clearly run the risk of compromising the impartiality and independence to which the High Court referred in Elias. It should be noted that in the course of oral argument counsel for the applicant was invited to refer the Court to any authority which supported the approach which was being advanced. No authority was provided.

1. Once it is accepted that this Court cannot go behind the exercise of prosecutorial discretion in the manner for which counsel for the applicant contended, the proposed ground 1 falls away. There were, as I have pointed out, fundamental differences between the position of the applicant on sentence on the one hand, and the position of Wilson and Delaney on the other. They included, fundamentally, a difference in the charges and a corresponding difference in the prescribed maximum penalties. They also included the fact that the offence with which the applicant was charged carried a prescribed standard non-parole period, as well as differences in the factual findings of the respective sentencing Judges.

1. In these circumstances, there is no basis on which the applicant could be said to have a justifiable sense of grievance, bearing mind that the relevant test in an objective one: see R v Chandler; Chandler v R [2012] NSWCCA 135 at [88] to [92] per Hoeben CJ at CL, Bathurst CJ and Basten JA agreeing.

1. Quite apart from these matters the applicant's argument is met with a further practical difficulty. The applicant's submissions were based, at least in part, upon the proposition that the Crown had exercised its discretion for some improper purpose which amounted to an abuse of process, and that this Court should go behind the exercise of discretion and intervene to relieve against that abuse. As I have already noted there was no evidence to support the proposition that anything done by the Crown amounted to an abuse of process. Leaving aside the fact that the authorities do not support the applicant's approach, its adoption would be a completely futile exercise in circumstances where there is no evidence to support the existence of the reason why this Court's intervention is said to be necessary.

1. For these reasons, the proposed ground 1 is not made out.

Ground 2 - There is an unjustifiable disparity between the sentence of the applicant and the sentence imposed upon Delaney in relation to the offence involving the victim "NM".

Submissions of the applicant

1. In support of this ground, and in addition to the matters advanced in support of the proposed ground 1, counsel for the applicant relied upon a comparison between the sentences imposed upon him in respect of counts 1 and 2, and those imposed on Delaney in respect of the first two offences for which he was sentenced by Judge Charteris. It was pointed out (inter alia) that Delaney had pleaded not guilty, yet was sentenced to a lesser term of imprisonment than the applicant.

1. It was further submitted that in sentencing the applicant, Judge Robison must have started with a head sentence of approximately 3 years to which a discount of 25 percent was then applied. It was submitted that such a starting point was a further reflection of the unjustifiable disparity which existed.

1. Counsel for the applicant acknowledged that even if this proposed ground could be made out, any potential re-sentence may not affect the overall structure of the sentences imposed. It was nevertheless submitted that taken together with the asserted disparity in respect of the proposed ground 1, the intervention of this Court was warranted.

Submissions of the Crown

1. The Crown relied on its submissions in respect of ground 1 in relation to the practical difficulties involved in relying on parity principles in the circumstances of the present case, and submitted that such considerations were sufficient to support a conclusion that the proposed ground 2 was not made out.

1. Finally, and in the event that either ground was made out, the Crown submitted that no lesser sentence was warranted in law and should have been passed: Criminal Appeal Act 1912 s. 6(3).

Consideration and conclusion

1. The gravamen of the applicant's complaint in support of this proposed ground (leaving aside the matters advanced in support of the proposed ground 1 which were also relied upon) is that Delaney, having pleaded not guilty, was sentenced to a period of imprisonment in respect of the first and second offences which was only 3 months greater than that imposed upon the applicant in respect of counts 1 and 2.

1. In my view, the applicant's complaint overlooks the fact that Judge Robison was sentencing him for a number of matters including, importantly, the more serious offence contained in count 3 which was committed only a short period after the offending in count 2. In doing so, his Honour was necessarily required to take into account considerations of totality in imposing an overall sentence.

1. For these reasons, the proposed ground 2 is not made out.

ORDERS

1. I propose the following order:

1.   The application for an extension of time is refused.

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Decision last updated: 12 September 2014