Kelso v The Queen
[2010] NSWCCA 34
•2 March 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Kelso v R [2010] NSWCCA 34
FILE NUMBER(S):
2008/14420
HEARING DATE(S):
4 February 2010
JUDGMENT DATE:
2 March 2010
PARTIES:
Andrew John Kelso (applicant)
The Crown
JUDGMENT OF:
McClellan CJatCL Howie J Harrison J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/14420
LOWER COURT JUDICIAL OFFICER:
English DCJ
LOWER COURT DATE OF DECISION:
16 December 2008
COUNSEL:
G Turnbull SC (Applicant)
L Lamprati SC (Crown)
SOLICITORS:
Stacks Goudkamp Lawyers (Applicant)
Director of Public Prosecutions (Crown)
CATCHWORDS:
CRIMINAL LAW
appeal
appeal against sentence
grounds for interference
judge act on wrong principle
sentence manifestly excessive or inadequate
CRIMINAL LAW
sentence
relevant factors
nature and circumstances of offender
LEGISLATION CITED:
Crimes Act 1900
CATEGORY:
Principal judgment
CASES CITED:
England & Phanith v R [2009] NSWCCA 274
Lowe v R (1984) 154 CLR 606
Postiglione v R (1996-1997) 189 CLR 295
R v Henry (1999) 106 A Crim R 149; (1999) 46 NSWLR 346
R v Murchie (1999) 108 A Crim R 482
TEXTS CITED:
DECISION:
1. Leave to appeal granted, the appeal upheld and the sentence imposed in the District Court is quashed.
2. The applicant is sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months commencing on 16 December 2008 and expiring on 15 June 2010 with a further period of 18 months expiring on 15 December 2011. The applicant is eligible for release to parole on 15 June 2010
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2008/14420
McCLELLAN CJ at CL
HOWIE J
HARRISON JTUESDAY, 2 MARCH 2010
KELSO, Andrew John v R
Judgment
McCLELLAN CJ at CL: The applicant pleaded guilty to one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. The sentencing judge imposed a sentence of imprisonment comprising a non-parole period of 2 years with a total term of 4 years.
The applicant was convicted together with his co-offender Luke Bancroft. Bancroft also pleased guilty to the offence of robbery in company. However, he pleaded to a separate offence of armed robbery with which the applicant was not involved. Bancroft was sentenced for the armed robbery to a non-parole period of 2 years with a total term of 4 years 6 months. On the robbery in company charge he was sentenced to a non-parole period of 2 years with a total term of 4 years being the same sentence as the applicant. Bancroft’s sentences were partly accumulated by 6 months.
The facts
On 3 April 2008 at about 10.25 pm, the victim arrived at Fassifern Railway Station to catch a train home from work. He had with him his customised Dunlop brand mountain bike. The applicant and the co-offender were also on the station platform.
At about 10.40 pm the train arrived en route to Newcastle and all three boarded. Moments before the train arrived at Cockle Creek Station, Bancroft approached the victim and said to him: “Give me whatever is in your pockets and we’re going to take your bike. If not, we’re going to belt the fuck out of you”. The victim stood up and made efforts to escape but was restrained by Bancroft who punched him three times to the face.
The victim saw the applicant near the bike rack and noticed that his bicycle had been removed from the rack. He continued to resist and felt punches to the back of his head. He recognised the applicant as having punched him. The victim was restrained and his legs were kicked. Fearing for his safety, he took his mobile phone from his pocket, threw it at Bancroft and managed to escape. After getting to another area of the train, he saw Bancroft had left the train at Cockle Creek railway station. Both his bicycle and his phone had been stolen. He reported the matter to the police.
Closed-circuit television surveillance was collected from Fassifern and Cockle Creek railway stations. Based on the victim’s descriptions and the CCTV footage, the police were able to identify the offenders. The applicant was seen leaving the train at Cockle Creek railway station in the possession of the victim’s bike, and in company with Bancroft.
On 8 May 2008, the applicant was arrested at Port Macquarie police station. He made partial admissions to the commission of the offence and implicated Bancroft. He informed the police that he was influenced by his co-offender, denied assaulting the victim and said he only assisted in the commission of the offence by stealing the bicycle. The applicant admitted that he was fully aware before he boarded the train that his co-offender was intending to “roll” the victim on the train.
Subjective features of the co-offender and the applicant
At the time of sentence, Bancroft had just turned 26. He was the father of 6 children aged 5 and under. He had been using ice, marijuana, speed and alcohol on a daily basis for months leading up to the commission of the two offences for which he had been charged. He grew up in a stable family environment. However, he had learning difficulties at school and had been diagnosed with ADHD. He left school when he was 14, and had a sporadic work history.
Since he has been in custody, Bancroft has undergone drug and alcohol counselling, an anger management course and a faith-based self-help course, and volunteered to carry out maintenance and yard work. He has taken up reading, weight training and jogging. He accepted responsibility for his actions.
Bancroft has criminal antecedents dating back to when he was 17 when he appeared before the Children’s Court for offences of possessing prohibited drugs and malicious damage. As an adult, he has convictions for possession of a knife in a public place, common assault, drug possession, intimidation and contravening an apprehended violence order. He has received fines, community service and supervised bonds requiring him to submit to psychiatric or psychological counselling.
The sentencing judge found that Bancroft was truly remorseful and contrite, had taken steps to rehabilitate himself, had used his time in custody productively and had insight into his offending behaviour. His criminal antecedents disentitled him to a finding of good character, but were not such as to disentitle him to any leniency at all. A 25% discount was given for his guilty pleas.
The applicant at the time of sentencing was almost 22 years of age. He was brought up in a close-knit family leading a normal life. He was diagnosed with ADD as a child. At the time of the offence he was involved in a tumultuous relationship. Drugs and alcohol were not a problem for him. His mother gave evidence that she had noticed since his arrest and subsequent counselling a change for the better in the applicant. He was associated with a job-seeking group at Wallsend and had been attending courses to enhance his prospects of obtaining employment.
The sentencing judge commented that the applicant had “one minor matter on his criminal antecedents, a driving offence for which he was fined and disqualified from driving for twelve months. He is a person of otherwise good character.” An offence of common assault dealt with at Port Macquarie Local Court on 23 October 2008 by way of fine had not appeared on the antecedents tendered during proceedings. As did Bancroft, the applicant received a discount of 25% for his plea. He was found to have good prospects of rehabilitation.
Some remarks of sentencing judge
The sentencing judge found that the applicant played an active role in the robbery and in taking the victim’s bike, and that contrary to his denial to police, he did in fact assault the victim. He knew of the intention of his co-offender to commit the offence and was a willing participant. He was not affected by drugs or alcohol and was not mentally impaired. Her Honour said that his culpability was “on a par with his co-offender despite the disparity in age and criminal antecedents.” This statement was not correct. The applicant’s age and criminal record are not relevant to the issue of culpability for the offence.
The sentencing judge found that any sentence imposed on the offenders must attract a significant component for general deterrence. Her Honour considered the guideline judgment in R v Henry (1999) 106 A Crim R 149, in particular the features common to robbery offences, and the possible range of sentence.
Her Honour concluded that the offence had the characteristics of an offence considered in Henry: the offenders were young, there was a limited degree of planning; there was actual violence and the victim was vulnerable, being a train traveller, late at night, alone on a train. Her Honour found that the victim’s bicycle was not of great monetary value but it was significant to him as he used it to transport himself to and from work. His phone was also taken.
Her Honour found that the emotional and/or physical harm suffered by the victim was not substantial.
The applicant advances two grounds of appeal.
Ground 1: the applicant suffers a justifiable sense of grievance when comparing the sentence imposed on him with the sentences imposed on his co-offender Luke Bancroft
Under this ground of appeal, the applicant submitted that there were three matters which justified a lesser sentence for the applicant than for Bancroft. It was firstly submitted that at the time of the offence the applicant was 21 years of age, making him five years younger than Bancroft. The applicant complained that the sentencing judge failed to give any weight to this factor.
Secondly, it was submitted that whereas Bancroft had a criminal record dating back to when he was 17 years of age and, more particularly as an adult had convictions for the custody of a knife in a public place, common assault, drug possession, intimidation, and contravening an apprehended violence order, the applicant was of good character and had no prior criminal history of any relevance. Although the offences which Bancroft had previously committed did not result in him receiving a sentence of full time custody, he had been placed on community service orders and bonds. It was nevertheless submitted that the criminal history of Bancroft was of such significance that it should have resulted in a greater sentence for Bancroft than that which was imposed on the applicant.
The third matter raised by the applicant was that as compared with Bancroft, his role in the offence was less. It was submitted that the applicant’s immaturity had made him vulnerable to being led by others and that this was the case with the present offence.
The principles must be considered when complaint is made of disparate sentences are well understood. It is not enough that there is disparity in the sentences. Some disparities are inevitable. In Postiglione v R (1996-1997) 189 CLR 295 at 301 Kirby J at 338 remarked that “mere disparity is not enough to justify intervention by an appellate court.” Before this Court will intervene, the disparity of the sentences must be such “as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.” Lowe v R (1984) 154 CLR 606.
The principles were recently reviewed by Howie J in England & Phanith v R [2009] NSWCCA 274 at [62] where his Honour said:
“It should be borne in mind that the High Court’s decisions on this area of appellate intervention speak of ‘gross’, ‘marked’, ‘glaring’, or ‘manifest’ disparity. These terms are used throughout the judgment in Lowe v R. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done per Gibbs CJ at 610 and Dawson at 623.”
In the present case consideration of the sentencing judge’s remarks confirms that her Honour was careful to identify the factors relevant to each offender. It is apparent that her Honour was mindful of the fact that she was obliged to ensure that the sentence imposed on the applicant was appropriate bearing in mind the sentence she imposed upon Bancroft.
However, her finding that the applicant and Bancroft were equally culpable was informed, inter alia, by considerations relevant only to the subjective circumstances of each offender. To my mind this led to problems that are ultimately reflected in a failure to appropriately distinguish between the personal circumstances of each offender. Because of the difference between Bancroft’s age and his antecedents compared with the applicant, I am satisfied that the applicant should have received a lesser sentence than Bancroft.
To my mind the sentence imposed on Bancroft was lenient. However, there is no Crown appeal and the appropriateness of the applicant’s sentence must be considered by having regard to the sentence which was imposed. The applicant had been previously convicted. One conviction was for a traffic offence and the other was for a minor assault. The course of criminal conduct which Bancroft had previously engaged in was far more serious than that of the applicant. The applicant was a number of years younger than Bancroft, the early twenties being a significant period in the maturation of young adults. In my judgment the applicant was justifiably entitled to expect that he would have received a lesser sentence than Bancroft.
Ground 2 – manifest excess
This was a serious offence committed on an innocent person travelling in the late evening on public transport. Although no weapon was used, there was actual violence inflicted on the victim by both offenders who acted in company. The offence carries a maximum penalty of 20 years imprisonment which emphasises the legislature’s concern that the law should do what it can to protect those who travel on public transport from attack by persons intent upon robbery.
The applicant submitted that when consideration was given to the guideline judgment in R v Henry (1999) 106 A Crim R 149; (1999) 46 NSWLR 346 at [162] the sentence imposed on him was manifestly excessive. In R v Murchie (1999) 108 A Crim R 482 this Court held that the Henry guideline was equally applicable to the offence of robbery in company for which the same maximum penalty is prescribed. However, the applicant stressed that whereas he had entered an early plea the guideline in Henry was referrable to a late plea of guilty..
To my mind consideration of the Henry guideline does not lead to the conclusion that the sentence was excessive. In that case this Court said that where an offence of armed robbery is characterised by the following features the sentence imposed should fall within the range of 4 to 5 years imprisonment. Those features are:
(i) young offender with no or little criminal history
(ii) weapon like a knife capable of killing or inflicting serious injury
(iii) limited degree of planning
(iv) limited, if any, actual violence but a real threat thereof
(v) victim in a vulnerable position such as a shop keeper or taxi driver
(vi) small amount taken
(vii)plea of guilty, the significance of which is limited by a strong Crown case;
The applicant may be appropriately described as a young offender, although he was 21 at the time of the offence. He plainly knew that what he was doing was a serious breach of the law and carried the risk, if apprehended, of incarceration. Although there was no weapon used the offence was committed in company upon a person who was vulnerable, travelling on public transport late in the evening. The offenders had entered the train with the intention of committing the offence which could not be described as spontaneous. Items of relatively modest value, apart from the bicycle were taken. I accept that the applicant was entitled to a greater discount for his early plea than the 10% contemplated in Henry but that would not in my opinion lead to the conclusion that the sentence imposed was erroneous.
Conclusion
Notwithstanding that the sentence was not erroneous because of manifest excess, as I have indicated, the applicant was justifiably entitled to expect that because of the subjective matters to which I have referred he would receive a lesser sentence than Bancroft. I would intervene and resentence. It is appropriate to maintain her Honour’s finding of special circumstances. The non-parole period should be eighteen months with a total sentence of three years.
I propose the following orders:
1.Leave to appeal granted, the appeal upheld and the sentence imposed in the District Court is quashed.
2.The applicant is sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months commencing on 16 December 2008 and expiring on 15 June 2010 with a further period of 18 months expiring on 15 December 2011. The applicant is eligible for release to parole on 15 June 2010.
HOWIE J: I agree with McClellan CJ at CL.
HARRISON J: I agree with McClellan CJ at CL.
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LAST UPDATED:
5 March 2010
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