Landmark v The Queen
[2015] VSCA 178
•6 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0082
| WAYDE LANDMARK | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | No oral hearing requested |
| DATE OF JUDGMENT: | 6 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 178 |
| JUDGMENT APPEALED FROM: | R v Landmark [2015] VSC 103 (King J) |
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DETERMINED ON THE PAPERS
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CRIMINAL LAW – Sentence – Principal offender pleaded guilty to defensive homicide – Applicant and co-offender present at time deceased was shot and assisted principal offender in seeking to cover up crime afterwards – Applicant charged as accessory after the fact to intentionally cause serious injury pursuant to s 325 of Crimes Act 1958 – Sentenced to 2 years and 3 months’ imprisonment with non-parole period of 1 year and 8 months – Victim impact statements from deceased’s relatives admitted at plea – Whether statements inadmissible on basis that authors did not meet statutory definition of ‘victim’ – No reasonable prospect that Court would impose less severe sentence even if leave were granted – Leave to appeal refused – Criminal Procedure Act 2009 s 280(1)(a).
CRIMINAL LAW – Sentence – Whether judge impermissibly took into account circumstances surrounding shooting of deceased in sentencing applicant – Whether judge sentenced applicant on basis that he contributed to death of deceased – Ground not reasonably arguable – Leave to appeal refused.
CRIMINAL LAW – Sentence – Co-offender also charged under s 325 as being accessory after the fact but indictment specified ‘principal offence’ as murder – Charge carried higher maximum penalty (20 years) than charge brought against applicant (5 years) – Co-offender pleaded guilty and sentenced, over a year before applicant, to 18 month’s imprisonment with non-parole period of 12 months – After co-offender sentenced Crown determined that charge alleging principal offence of murder could not be sustained because deceased had not yet died at time applicant and co-offender carried out acts giving rise to accessory charge – Whether sentence imposed upon applicant offends principle of parity – Whether trial judge erred by failing to give weight to higher maximum penalty applicable to co-offender – No error established – Leave to appeal refused.
CRIMINAL LAW – Sentence – Whether sentence manifestly excessive – Ground not reasonably arguable – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No Appearances. |
WEINBERG JA:
On 17 December 2014, the applicant pleaded guilty in the Supreme Court at Warrnambool to one charge of assisting an offender believed to have committed the offence of intentionally causing serious injury for the purpose of impeding the apprehension, prosecution, conviction, or punishment of the offender. On 30 March 2015, he was sentenced to 2 years and 3 months’ imprisonment with a non-parole period of 1 year and 8 months.
A co-offender, Dylan Robertson, pleaded guilty to one charge of assisting an offender believed to have committed the offence of murder for the purpose of impeding the apprehension, prosecution, conviction, or punishment of the offender. He was sentenced on 6 November 2013, by a different judge, to 18 months’ imprisonment with a non-parole period of 12 months.
The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1:The learned sentencing judge erred in receiving and taking into account in sentencing the victim impact statements.
Ground 2:The learned sentencing judge erred in impermissibly taking into account as matters of aggravation the circumstances surrounding the offence.
Ground 3:The sentence imposed offends the principle of parity when compared to that imposed on the co-offender Robertson.
Ground 4:The sentence imposed was manifestly excessive in the light of the circumstances of the offence, the maximum penalty, the delay in the finalisation of the matter and the guilty plea.
Background facts
Both the applicant and Robertson were convicted of assisting the principal offender in this case, Leonard Sciascia, in relation to the death of a Mr Troy Hocking. Sciascia pleaded guilty to having killed Hocking by way of defensive homicide.
In the early hours of Sunday 14 October 2012, Sciascia and Robertson attended Hocking’s home. They took some property of his, including a television, X-Box, Playstation, and some jewellery, before leaving the premises. The property was purportedly taken in lieu of a debt that Hocking owed to Sciascia for drugs. Hocking was not present in the house at the time.
Later that afternoon, Sciascia and Robertson drove to the applicant’s home in Barkley Street, Portland. At about 9:00 pm that evening, Hocking, together with two associates of his, arrived at the house. Hocking had a baseball bat in one hand, and a hammer in the other. His two associates were armed with a cricket bat and fence paling, respectively. The applicant’s partner was in the house at the time, along with her five year old daughter.
The applicant, Robertson, and Sciascia exited the house to confront Hocking and his associates. The applicant was armed with a pole, Robertson a torch, and Sciascia was unarmed. One of Hocking’s associates struck Robertson to the leg with the fence paling. The applicant, Robertson and Sciascia then got into Robertson’s car and drove away. Hocking and his associates followed them in their own car. They rammed the rear of Robertson’s vehicle, and attempted to cut it off, before eventually driving away.
The following day, Robertson and Sciascia, along with another man, Michael Perry-Karaitiana, were at the applicant’s home. Sciascia and Hocking had earlier exchanged telephone calls and SMS messages during which they had agreed to ‘sort out their differences’ by way of a fight. The fight was to take place at 5:30 pm at Pivot Beach in Portland.
The four men subsequently drove to a house in Wilunga Street for the purpose of obtaining ‘back up’ for the fight. Pery-Karaitiana went inside the house, whilst the others remained in the car. In the meantime, Hocking and two other men pulled into the driveway of an adjacent house. It appears that they had observed Robertson’s car on the road, and followed it to the Wilunga Street location.
The applicant and Sciascia got out of their car. The applicant approached Hocking, who was seated in the passenger seat of his vehicle. He abused Hocking for having caused trouble at his home the previous day. The applicant then punched Hocking to the face. Hocking asked for his belongings to be returned, and an argument ensued about the alleged drug debt.
Sciascia then approached Hocking, who was still seated in the vehicle. He produced a .22 calibre homemade single-shot pistol. After further words were exchanged, Sciascia stepped back and discharged the firearm. The bullet travelled through Hocking’s left hand and into his lower chest area. The driver of the vehicle immediately drove away, and went directly to the Portland Hospital. Hocking was operated on, and the bullet was removed. He was then air lifted to the Royal Melbourne Hospital, where he underwent further surgery. He died the following day as a result of the gunshot wound to his abdomen.
After the shooting, the applicant and Sciascia ran back to Robertson’s vehicle and immediately drove away, leaving Perry-Karaitiana behind. Once in the car, the applicant handed Sciascia an implement from the backseat to enable him to remove the spent bullet shell from the gun. They then drove to a paddock directly opposite the applicant’s house in Barkley Street. Sciascia, in the presence of the applicant, hid the gun in some long grass.
The three men then returned to Wilunga Street to pick up Perry-Karaitiana, before travelling to the applicant’s house. Discussions took place between them as to what would happen if Hocking died. The applicant then permitted Sciascia to use his washing machine and have a shower in order to remove any evidence of gunshot residue from his clothes and body.
Not long afterwards, Hocking’s associates arrived at the applicant’s home armed with baseball bats. Sciascia told the applicant to go to the paddock in order to retrieve the gun. However, police arrived at the scene before the gun could be located.
As previously noted, Sciascia ultimately pleaded guilty to defensive homicide in relation to Hocking’s death. Both the applicant and Robertson pleaded guilty to being an accessory pursuant to s 325(1) of the Crimes Act 1958 (‘the Act’). That section is headed ‘Accessories’ and states:
Where a person (in this section called the principal offender) has committed a serious indictable offence (in this section called the principal offence), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence.[1]
[1]Emphasis original.
In the applicant’s case, the ‘principal offence’ in respect of which he was charged as an accessory was that of intentionally causing serious injury. The particular acts of the applicant upon which the Crown relied as comprising the offending were him having assisted Sciascia to remove the spent cartridge from the gun; assisted Sciascia to hide the gun; and allowed Sciascia to wash his clothes in order to remove evidence of any gunshot residue.
By contrast, the ‘principal offence’ in respect of which Robertson was charged as an accessory was that of murder. As a consequence, and pursuant to s 325(4) of the Act, the maximum penalty applicable to him was 20 years, whereas the maximum penalty applicable to the applicant was 5 years. It will be necessary to say more about this when dealing with ground 3.
Ground 1 — victim impact statements
At the applicant’s plea, victim impact statements were received from Hocking’s mother and girlfriend. The sentencing judge said the following in respect of those statements:
In this case, I have received two victim impact statements. One from Trudy Jeanette Steph, the mother of the deceased, Troy Hocking and another from Kelsey Albert, the partner of Troy Hocking. I have read each of those statements and it is most unfortunate that no matter what I do, no matter what sentence I impose, it will not return the son and the partner that they have lost.
Whilst the court attempts to understand the pain that people are suffering, it is in all probability impossible to fully gauge the extent of the pain that you have inflicted upon these people with your actions in supporting and assisting Sciascia. I can only say to them that I have read, I have heard and I have remembered what it was they said when determining the appropriate sentence to be imposed upon you. Equally they must remember that I am not sentencing you for the murder of their son and partner, but only for assisting an offender who had an intent to cause serious injury.[2]
[2]R v Landmark [2015] VSC 103 (King J), [40]–[41] (‘Sentencing Remarks’).
The applicant submitted that it was not open for her Honour to take the victim impact statements into account. He pointed to the definition of ‘victim’ under s 3 of the Sentencing Act 199, which is in the following terms:
Victim, in relation to an offence, means a person who or body that, has suffered injury, loss or damage (including grief, distress, trauma, or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender.
The applicant submitted that neither Hocking’s mother, nor his girlfriend, fell within that definition. That was said to be the case because any ‘injury, loss or damage’ that they had sustained was as a result of Hocking’s death. In other words, they were victims only of the offence of defensive homicide committed by Sciascia, an offence to which the applicant was not an accessory. The only way in which they could properly be seen as victims of the offence committed by the applicant was if it could be established that they were directly impacted by the particular assistance that he provided to Sciascia after the event, as distinct from any impact arising from the fact of Hocking’s death itself. The applicant submitted that no such direct impact could be established in this case.[3]
[3]The applicant contrasted the facts of this case from a situation where the actions of an accessory after the fact could be said to have caused a substantial delay to the apprehension of the offender, or the truth being discovered.
The Crown made two points in response. First, it noted that the applicant’s counsel at the plea did not take any objection to the admission by the Court of the victim impact statements. No submission whatsoever was made to the effect that the authors of those statements did not meet the statutory definition of a victim, nor did counsel seek a ruling under s 8L(3) of the Sentencing Act that the statements were wholly or partly inadmissible. In essence, the Crown contended that the applicant had therefore waived his right to object to the admissibility of the victim impact statements.[4] The Crown also relied upon what was said by Redlich JA in Romero v The Queen:[5]
In sentencing appeals, this court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[6]
[4]The Crown relied upon the decision of this Court in R v Clark (2005) 13 VR 75.
[5](2011) 32 VR 486.
[6]Ibid 489 [11].
Secondly, the Crown submitted that the victim impact statements were, in any event, properly received by the sentencing judge on the plea. It argued that although the applicant was not charged with the actual shooting of Hocking, his role was ‘allied’ to that offending. His actions in assisting Sciascia to avoid ‘apprehension, prosecution, conviction or punishment’ for Hocking’s death can properly be seen as having a direct impact upon Hocking’s loved ones. Moreover, it was clear that, in considering the content of the victim impact statements, her Honour was acutely aware that that the applicant was not to be held responsible for the death of Hocking, but only for assisting an offender who had an intent to cause serious injury.[7]
[7]Sentencing Remarks [41].
One might instinctively baulk at the proposition that the loved ones of a deceased are not properly to be regarded as having been affected by the conduct of a person who has rendered assistance to the perpetrator of the crime, essentially for the purpose of ‘covering up’ that offence. However, it may be that, having regard to the words of the statute, and the particular circumstances of this case, the applicant’s contention that the relevant persons do not meet the statutory definition of a victim is reasonably arguable.
Ultimately, however, it is unnecessary for me to decide this point. That is because, for the reasons set out in relation to ground 4 below, I have come to the view that there is no reasonable prospect that this Court would impose a less severe sentence than the one imposed by her Honour even if this point were to succeed.
Accordingly, pursuant to s 280(1)(a) of the Criminal Procedure Act 2009, I would refuse leave to appeal on ground 1.
Ground 2 — impermissible use of surrounding circumstances
The applicant contends that the sentencing judge impermissibly had regard to circumstances surrounding the shooting of Hocking which were not relevant to the offending for which the applicant fell to be sentenced. The applicant’s complaint is based upon the following passage from her Honour’s sentencing remarks:
The recitation of these events ought to cause you and everyone else involved in the matter to be deeply ashamed. You were grown men behaving like small children. Your behaviour and that of your co-offenders was lawless behaviour, reckless and indifferent to the laws of this State.
A belief that you can act like vigilantes in respect of a drug debt. A belief that you are entitled to punish someone for behaving in front of your child in a manner of which you do not approve. A belief that you can arrange and organise fights and participate in them because someone has done something you do not like. This sort of behaviour actually must stop.
We are not living in the fictional old Wild West. We are living in a society that is ordered, that has laws and applies them. You and your associates seem to be living like fringe dwellers, on the outskirts of society. A semi lawless life where you believed you could make up your own rules and apply your own justice. Well that will not be tolerated by the rest of our community.
The consequences of your behaviour is that a man of 20 is dead. Every life that is lost hurts us as a society and as a community. Although we have lost a life here, that is not, as a matter of law, the offence for which you are being punished.[8]
[8]Sentencing Remarks [31]–[34].
The applicant submitted that it was clear from these comments that her Honour sentenced him on the basis that he had acted like a ‘vigilante’ in pursuit of a drug debt, and that he had contributed to the death of Hocking. He argued that there was no basis in law for her Honour having done so.
In my view, this ground is devoid of merit.
It is trite law that a sentencing judge is entitled, indeed bound, to take into account all the surrounding circumstances relevant to an offence. The relevant principles were stated by Winneke P[9] in R v Newman:[10]
The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted:
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[11]
[9]Hayne JA and Crockett AJA agreeing.
[10][1997] 1 VR 146, 150.
[11]See R v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ).
Similarly, in DPP v McMaster,[12] Ashley JA[13] relevantly said:
This is one very important principle of sentencing: that a person is not to be sentenced for an offence with which he or she has neither been charged nor convicted.
There is another great principle: a sentencing judge or magistrate ‘is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged’.
Sometimes, the two principles collide. Then the latter must give way to the former. The giving way is, however, not always complete.
There are, I think, broadly four situations in which collision may occur. I set them out, together with the consequences in each instance.
First, at a time and in circumstances intimately connected with the commission of a charged offence, an offender may also commit a second offence, in respect of which no charge is laid. The circumstances of the uncharged offence cannot be taken into account as circumstances of aggravation of the offence charged if they would have warranted a conviction for a more serious offence. But if the circumstances reveal an uncharged offence which is less serious, it is open to the sentencing court to have regard to those circumstances as aggravating the charged offence if it considers that as a matter of degree and fairness it should do so. Examples of such circumstances being taken into account are R v Heblos and R v Birnie. Further, if the circumstances of the uncharged act represent the consequence of the charged offence, those circumstances can be taken into account in sentence passed on the charged offence …[14]
[12](2008) 19 VR 191.
[13]Neave JA and Lasry AJA agreeing.
[14]DPP v McMaster (2008) 19 VR 191, 200 (citations omitted).
In the present case, the events to which her Honour referred, including the circumstances surrounding the alleged drug debt, provided essential context for, and were obviously relevant to, the subsequent shooting for which Sciascia was convicted. The essence of the charge against the applicant was that he assisted Sciascia in attempting to ‘cover up’ that offence. It must follow that, in assessing the gravity of the applicant’s offending, the nature of the principal offence, including the circumstances in which it was committed, are relevant considerations. That conclusion is fortified by the fact that the maximum penalty prescribed under the Act for an offence against s 325 varies according to the penalty applicable to the principal offence.[15]
[15]Crimes Act 1958 s 325(4).
The applicant submitted that it was not open to the sentencing judge to find that he had acted as a ‘vigilante’ in respect of the drug debt. He submitted that the evidence did not establish that he had anything whatsoever to do with that matter.
The short answer to that complaint is that her Honour’s comments were properly founded in the matters set out in the Summary of Prosecution Opening tendered at the plea (to which no objection was taken), and the admissions that the applicant had himself made to police regarding his involvement in the relevant events. Those materials disclosed that:
·the applicant was aware that there as a dispute between Sciascia and Hocking in relation to an alleged drug debt;
·the applicant had been involved in a confrontation at his home between the two rival groups during which the he had armed himself with a pole;
·the applicant was aware that a fight had been arranged between Sciascia and Hocking the following day;
·the applicant had accompanied Sciascia and the other men to the Wilunga Street property for the purpose of obtaining ‘back up’ for that fight; and
·immediately before the shooting, the applicant had approached the car in which Hocking was sitting, punched him, and argued with him about the drug debt.
It should also be noted that, at the plea, the sentencing judge flagged with counsel for the applicant her view that she was ‘entitled to look at all of their behaviour over the period of time because it really is disgraceful’. Counsel responded ‘I do want to say a little about the context, it’s important, and I don’t cavil with what Your Honour says in a general sense about the lead up to it …’.
The complaint that her Honour sentenced the applicant on the basis that he contributed to Hocking’s death is similarly unfounded. Her Honour was plainly entitled to have regard to the fact that the events in respect of which the applicant was involved, and which he sought to assist Sciascia in covering up, had resulted in a person being killed. However, her Honour expressly stated, on more than one occasion, that the applicant was not being punished for Hocking’s death.
Accordingly, I would also refuse leave to appeal on ground 2.
Ground 3 — parity with Robertson
The applicant submitted that there was undue disparity between his sentence, and that imposed upon Robertson. There were essentially two factors upon which he relied in support of that submission.
First, he argued that Robertson had a greater degree of culpability because, in addition to assisting in the conduct which comprised the applicant’s offending, he had also ‘actively assisted Sciascia in attempting to create a false alibi’.
Secondly, he pointed to the fact that, as previously noted, Robertson was convicted of being an accessory to the principal offence of murder. That offence carried a higher maximum penalty than the offence for which the applicant was convicted (20 years as opposed to 5 years). The applicant submitted that the sentencing judge erred by failing to give appropriate weight to this difference.
Once again, I do not consider that there is any substance to this ground.
As to the first factor relied upon by the applicant, the ‘additional assistance’ said to have been given by Robertson to Sciascia related to him having, in the aftermath of the shooting, driven both Sciascia and the applicant to a drive-in bottle shop. The purpose of him having done so, apparently, was to enable Sciascia’s image to be captured on CCTV footage in order to establish an ‘alibi’.
It is impossible to see how this could provide a basis for concluding that Robertson’s conduct fell into a more serious category than that of the applicant. For one thing, the applicant was himself present in the car when Robertson drove Sciascia to the bottle shop.
All things considered, I would accept the Crown’s submission that there was very little to distinguish between the applicant and Robertson in terms of their respective roles in assisting Sciascia.
As to the second factor, the applicant relied upon the following passage from her Honour’s sentencing remarks:
Robertson pleaded guilty to and was sentenced for the offence of assisting an offender in relation to the offence of murder. It carried a maximum penalty of 20 years’ imprisonment and her Honour Justice Curtain described it as ‘a significant example of a serious offence.’ The situation is that Robertson is likely to feel a true sense of grievance, as he has pleaded guilty to assisting an offender in relation to the crime of murder and yet none of his co-offenders has been convicted of that crime.
You have waited a considerable time to enter your plea and the result is the maximum penalty you now face is a penalty of five years’ imprisonment compared to his maximum penalty of 20 years.[16]
[16]Sentencing Remarks [53]–[54].
In order to properly understand her Honour’s comments, it is necessary to say something of the circumstances in which the applicant and Robertson came to be charged with different offences.
Each of the applicant, Robertson and Sciascia were interviewed by police in the days after the shooting. Following those interviews, Sciascia and Robertson were both charged with murder. It appears that the applicant was initially charged, pursuant to s 325 of the Act, as an accessory in relation to the principal offence of murder.
On 30 April 2013, Robertson gave a statement to police in which he confessed his involvement in the relevant offending. He also indicated that he was willing to give evidence against the applicant and Sciascia. The murder charge against him was subsequently dropped.
On 13 May 2013, the first day of his committal, Robertson pleaded guilty to being an accessory in relation to the principal offence of murder. He was sentenced by Curtin J on 6 November 2013.
Sciascia subsequently pleaded guilty to defensive homicide. He was sentenced by Bell J on 25 June 2014.
The applicant, meanwhile, stood trial on 11 June 2014. The jury was discharged the following day, and a second trial commenced on 13 June. That trial also miscarried, and a third trial was scheduled for February 2015. However, prior to that trial commencing, the applicant pleaded guilty to the present offence.
It appears that at some time between Robertson’s sentence and the applicant’s guilty plea, the Crown came to the view that a charge alleging assistance in relation to the principal offence of murder could not be sustained. That was because at the time that the applicant carried out the relevant acts which formed the basis of the accessory charge, Hocking was still alive. It followed that he could not have committed those acts ‘knowing or believing’ Sciascia to be guilty of murder, as required under s 325 of the Act.
Of course, the question then arose as to how Robertson could have been convicted of that very offence. The sentencing judge put this question to counsel appearing for the Crown at the plea. The following exchange took place:
HER HONOUR: How do you maintain the conviction on Robertson?
COUNSEL:Your Honour, it’s difficult, I understand exactly what Your Honour says.
HER HONOUR: He shouldn’t be sentenced for that. He shouldn’t have that conviction. There is no — he can’t be. You have to have someone who has actually committed the offence, do you not, of murder?
COUNSEL:That’s not a matter that I have to deal with now.
HER HONOUR: No.
COUNSEL:With respect, Your Honour’s observations are correct.
When her Honour’s comments in the passage set out previously are understood against this background, the lack of merit in the applicant’s argument becomes obvious. Her Honour’s observation that the applicant faced a lower maximum penalty than Robertson only as a result of him having entered his guilty plea at a later stage was entirely understandable, and accurate. In that context, when it came to considering issues of parity, her Honour could scarcely be criticised for attaching limited weight to the fact that the charge for which Robertson was convicted technically carried a higher maximum penalty.
As the Crown pointed out, there were a number of significant differences between the applicant’s situation and that of Robertson which justified a higher sentence being imposed upon him. Those differences were summarised in the Crown’s written case as follows:
(a)[Robertson] pleaded guilty on the day of the committal vis. 13 May 2013;
(b)He made a statement implicating the other offenders on 13 April 2013 [sic];
(c)On his plea he gave evidence confirming the veracity of his statement and agreed to give evidence;
(d)As a result of his cooperation he was in protection in gaol;
(e)He had a reasonably good work record as a qualified boilermaker for the past nine years prior to the plea;
(f)He had shown remorse;
(g)Her Honour, Curtain J found that he had ‘favourable prospects of rehabilitation’;
(h)He had good family support;
(i) His prior convictions were far fewer than the applicant;
(j)He had a long period from 2001 to 2007 with no attention from the courts.
By contrast the applicant:
(a)Had entered a late plea of guilty following two aborted trials;
(b)His claimed cooperation, by making admissions to the police, was undone by ultimately contesting the charge and going to trial;
(c)He had accumulated a lengthy criminal history involving a variety of criminal offences;
(d)Many of his prior convictions showed a contempt for or total disregard of orders of the courts;
(e)Unlike the co-offender, the applicant could not rely upon a record of gainful employment; rather he had a lengthy history of illicit drug use interspersed with numerous periods of imprisonment.
Having regard to these differences, I do not consider it to be reasonably arguable that the level of disparity between the two sentences was unjustified. I would refuse leave to appeal on ground 3.
Ground 4 — manifest excess
The applicant submitted that the sentence imposed upon him was manifestly excessive. In his written case, the factors upon which he relied in support of that submission were set out as follows:
The sentence imposed was 45% of the maximum penalty in circumstances where:
(a) The applicant pleaded guilty.
(b)Although charged on the day of the offence, the applicant was not ultimately sentenced until 2 years 5 months later, a period which the applicant found very stressful.
(c) The applicant had readily admitted the conduct which constituted the offence when interviewed and, in respect of one aspect of that conduct, provided the only evidence of it by his admissions.[17]
(d)The conduct had occurred spontaneously in circumstances where Mr Sciascia was highly agitated and the applicant was afraid and where the assistance provided was unlikely to have hindered the investigation and prosecution to any significant degree.
[17]The ‘aspect’ to which the applicant referred was him having assisted Sciascia to remove the spent bullet from the gun.
The Crown submitted that the sentence imposed by her Honour was open having regard to the applicant’s lengthy criminal history, his poor prospects of rehabilitation, and the circumstances of the offending. As to the last point, the Crown submitted that the fact that the charge arose in the context of a disputed drug debt involving violence meant that general deterrence was an important consideration. Specific deterrence, too, was a significant matter given the applicant’s age (36 at the time of sentencing) and prior convictions.
In relation to the plea of guilty, the Crown noted that it was entered at a very late stage, after two aborted trials. In any event, despite its lateness, her Honour said that the applicant was ‘entitled to and will receive a significant discount’ for his guilty plea.
As regards the delay, the Crown submitted that this ultimately was attributable to the applicant having contested the charges at committal, and at trial, before eventually changing his mind and pleading guilty. It also submitted that the issue of delay was not a factor upon which the applicant relied at his plea.
Finally, in relation to the matters relied upon in paragraph (d) of the applicant’s written case, the Crown pointed out that the sentencing judge made no finding that the applicant had acted out of fear. It also took issue with the statement that the assistance provided by the applicant was ‘unlikely to have hindered the investigation and prosecution to any significant degree’. The Crown argued that that matter was not raised at the plea, and could have been the subject of evidence. For example, the washing of Sciascia’s clothes, and the removal of the spent bullet, were said to be potentially significant matters which may have denied the prosecution access to important items of evidence.
Having regard to all of the circumstances of this case, I do not think it could reasonably be said that the sentence imposed by her Honour was in any way excessive, let alone manifestly so.
The applicant was involved in an attempt to cover up a most serious offence, one that resulted in a person’s death. His conduct was designed to enable the perpetrator of that offence to avoid detection, and escape any punishment. The particular assistance he provided in that regard, contrary to the suggestion put forward on his behalf, was far from immaterial.
Conduct of this kind undermines and frustrates the proper administration of justice. As importantly, it has the potential to endanger members of the public by allowing violent offenders to remain on the streets. It must be discouraged and denounced in the strongest of terms.
For my part, I cannot see how a sentence of much less than what the applicant ultimately received could be regarded as sufficient to fulfil the purposes of general and specific deterrence in this case. Although Robertson did receive a shorter sentence, that was explicable by reference to a number of matters peculiar to his case. Chief amongst those was the fact that he provided frank admissions, and assistance to the authorities in relation to the prosecution of his co-offenders, at an early stage.
I would therefore refuse leave to appeal on ground 4.
It follows that the application for leave to appeal against sentence must be refused.
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