Lang, Dylan Craig v The Queen

[2013] NSWCCA 29

Court of Criminal Appeal

New South Wales

Case Title:	LANG, Dylan Craig v R
Medium Neutral Citation:	[2013] NSWCCA 29
Hearing Date(s):	12 December 2012
Decision Date:	19 February 2013
Before:	McClellan CJ at CL at 1 Rothman J at 2 Adamson J at 54
Decision:	(1) Leave to appeal granted; (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - manifestly excessive; whether - parity between co-offenders - mistaken view of concurrency in applicant's sentence in setting co-offender's sentence relied on for disparity - justifiable sense of grievance - appeal dismissed
Legislation Cited:	Crimes Act 1900
Cases Cited:	Dinsdale v R [2000] HCA 54; (2000) 202 CLR 231 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Johnson [2004] NSWCCA 76 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584
Category:	Principal judgment
Parties:	Dylan Craig Lang (Applicant) Regina (Respondent)
Representation
- Counsel:	Counsel: K Averre (Applicant) P G Ingram SC (Respondent)
- Solicitors:	Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2010/420036
Decision Under Appeal
- Before:	Blanch CJDC
- Date of Decision:	21 September 2011
- Court File Number(s):	2010/420036

JUDGMENT

1. McCLELLAN CJ at CL: I agree with Rothman J.

2. ROTHMAN J: Dylan Craig Lang (hereinafter, "the applicant") seeks leave to appeal (and if leave were granted, then appeals) the sentence imposed upon him in the District Court in Newcastle on 21 September 2011.

3. The applicant was sentenced by his Honour Justice Blanch, Chief Judge of the District Court, for one count of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900, and two counts of aggravated break and enter with intent to commit serious indictable offence, contrary to s 112(2) of the Crimes Act.

4. Further, two charges were notified on a Form 1, being for a break, enter and steal committed on 23 August 2010 and a conspiracy to commit break, enter and steal committed on or about 3 September 2010.

5. The learned Chief Judge imposed a sentence, for each offence of break and enter to commit serious indictable offence, of a fixed term of imprisonment of 2 years, commencing, in relation to Count 2, on 2 June 2011 and, in relation to Count 3, on 2 June 2012. In relation to Count 1, the robbery armed with an offensive weapon, the Chief Judge imposed a term of imprisonment of 7 years, with a non-parole period of 3 years, commencing on 2 June 2013. The overall sentence imposed was a non-parole period of 5 years, as part of a head sentence of 9 years' imprisonment.

Grounds of appeal

1. The applicant raises two grounds of appeal to justify the grant of leave and any subsequent appeal. Those grounds are:

   (i)The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Mr Bonifasous Reuter;

   (ii)The sentence imposed was, in all the circumstances, manifestly excessive.

2. If the sentence imposed were manifestly excessive, then the sentence would need to be corrected and the ground relating to disparity of sentence with the co-offender would need to relate to any corrected sentence. As a consequence, I will deal with the second ground before dealing with the allegation that there exists a justifiable sense of grievance. It is necessary to summarise the circumstances of the commission of the offence and the role of the applicant and Mr Reuter.

Circumstances of offences and offenders

1. The robbery occurred on 25 March 2010, when the applicant and three others entered the garage of a Caltex Service Station at Maryland. They were wearing hoods and had their faces covered. Mr Reuter (hereinafter, "the co-offender") was holding a fake pistol and the applicant was holding a machete. They asked where all the money was and, once told a location, put the money in a bag.

2. The applicant asked where the cigarettes were and the staff told him that the cigarettes were locked in a cabinet and access could not be gained to them. The applicant and his co-offenders left with $511.85 in cash.

3. The first of the charged aggravated break and enter offences occurred on 26 August 2010 at a store in Rutherford. The applicant and two others had previously been to the store to examine its layout. At 11.56pm, the applicant and the two others smashed a glass panel and entered the store. They proceeded to smash cabinets and they took a variety of electrical items. Prior to the offence occurring, the applicant had contacted a number of people by telephone for the purpose of seeking to sell the items to be stolen.

4. The second of the charged aggravated break and enter offences occurred on 27 August 2010. The applicant smashed a glass front door and a number of cabinets in a store. Items, including clothing, sunglasses and a small amount of cash, were stolen.

5. The first matter notified on the Form 1 was an aggravated break, enter and steal committed on 23 August 2010. In that offence the applicant, with a number of others, entered premises by forcing the front door. That conduct triggered the security alarm. The applicant and others forced an internal door and removed a safe containing a number of banking documents.

6. The second matter notified on the Form 1 involved the applicant telephoning another person and agreeing with that person to commit a break, enter and steal at Kawasaki Motorcycles in Broadmeadows.

7. Because one of the grounds of appeal alleges a justifiable sense of grievance arising from the disparity in the sentences imposed upon the applicant and the co-offender, it is also necessary to look at the comparative subjective circumstances of the applicant and the co-offender. It is sufficient to summarise that comparison by a table that forms part of the written submissions of the applicant before the Court.

Summary of facts and findings for the applicant and Mr Reuter

Facts and finding for the applicant

Facts and finding for the co-offender

DOB: 22 February 1991

Age: 19 years at the time of offences [Approximately 7 months older than the co-offender]

DOB: 9 October 1991

Age: 18 years at the time of the offences

Indictment:
Robbery with an offensive weapon
Two counts of aggravated break, enter and steal
Form One:
Break, enter and steal

Conspiracy to commit break, enter and steal

Indictment:
Robbery with an offensive weapon
Two counts of aggravated break, enter and steal
Form One:

Two offences of break, enter and steal

Overall effective sentence:
Head sentence: 9 years

Non-parole period: 5 years

Overall effective sentence:
Head sentence: 3.5 years

Non-parole period: 1 year and 9 months

Plea of guilty at the earliest convenience and "full reduction of sentence"

Accepted regret for the offending and victim empathy

Plea of guilty at earliest available opportunity with a "full discount"

Accepted regret, profound remorse, insight and full responsibility

In custody as at the date of sentencing

On bail as at the date of sentencing

Lengthy criminal record with priors of similar kind

Had been called-up for breach of a suspended sentence and the sentences subject to appeal were cumulative on the 6 month non-parole period for that matter

No criminal record

Otherwise of good character

Drug use was the reason for the offence

Motivation for the offence was a lack of money and inability to get a job that earned decent money

First time in adult prison

First time in adult prison

1. While the sentencing judge's Remarks on Sentencing contain significant detail in relation to the foregoing subjective circumstances, the above summary is sufficient to understand the differences between the applicant and the co-offender upon which the applicant relies to submit that he has a justifiable sense of grievance at the disparity in the sentences imposed.

Manifest excess

1. There are aspects of each of the grounds of appeal that overlap. Nevertheless the submissions that were made that rely upon a justifiable sense of grievance may, when so confined, be dealt with separately. Those submissions should be dealt with once it has been established that the sentence suffers from no other defect.

2. In Dinsdale v R [2000] HCA 54; (2000) 202 CLR 231 at [6], Gleeson CJ and Hayne J said:

   "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

3. Essentially the applicant seeks to utilise a number of tools to persuade the Court that the sentence imposed was manifestly excessive. First, the applicant relies upon the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. Secondly, the applicant relies upon sentencing statistics.

4. The guideline judgment of the Court in Henry envisages a head sentence that should generally fall between 4 to 5 years, allowing for a late plea and discount for plea. Nevertheless, there are a number of aspects of the Henry guideline which should be noted.

5. First, a guideline judgment is to be used by sentencing judges as a factor that allows sentences to be fixed, bearing in mind the need for consistency in sentencing. It is not a mandated outcome from which sentencing judges subtract or to which they add in a mathematical exercise. It is a "check" or "guide", not a "rule" or "presumption": R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.

6. The starting point (before applying a discount for the plea of guilty) that the sentencing judge used, without being precise, was significantly higher than the guideline judgment in Henry. Nevertheless, the circumstances of the offence and the circumstances of the offender were significantly more serious than those envisaged in Henry as the circumstances to which the guideline was to apply.

7. The maximum sentence for the offence in question was 20 years' imprisonment and the Legislature set a standard non-parole period of 5 years' imprisonment for the aggravated break and enter, of which there were two counts. No standard non-parole period was set for the armed robbery. Yet the sentence imposed derived from a starting point of approximately 10 years' imprisonment for the armed robbery. Further, the armed robbery sentence expressly took into account a further break, enter and steal and a conspiracy to commit break, enter and steal on the Form 1. Given the objective seriousness of the robbery, while armed with an offensive weapon, taken by itself, this sentence was not manifestly excessive.

8. Further, the two counts of aggravated break and enter were the subject of fixed terms of 2 years' imprisonment accumulated by 12 months (i.e. a total of 3 years' imprisonment for both offences). Likewise, the armed robbery sentence was accumulated on the sentences imposed for the two counts of aggravated break and enter in circumstances where the effect of the two sentences for aggravated break and enter was an additional imprisonment period of 2 years.

9. In those circumstances, the overall sentence was not manifestly excessive. This ground of appeal should fail.

10. The applicant also relied on statistics to further the submissions on manifest excess. As has been previously noted by the High Court and this Court, one must be very careful in utilising statistics for offences: Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584 at [59]; Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520. Such statistics are useful for the purpose of showing trends in sentencing, but each sentence must be imposed on the basis of the sentencing principles and not on the basis of an adherence to statistical averages; Hili at [54].

11. Even on the statistics presented, the sentence imposed is within range, albeit at the higher end of the range, as is appropriate given the findings on objective criminality. Each offence (and the circumstances of the offender) is different.

12. Moreover, to follow statistical ranges blindly would be to constrain inappropriately the exercise of discretion reposed in a sentencing judge and render statistics a self-fulfilling limit on the intuition to be exercised in sentencing. Nothing in the statistical material contradicts the view otherwise reached.

Justifiable sense of grievance

1. There are differences in the circumstances applicable to the applicant as against the co-offender. The conduct of each in the charged offences is similar and the differences, if any, in their conduct does not support a basis for a difference in the sentence.

2. Further, each of the applicant and the co-offender were sentenced, in relation to the robbery, taking into account two offences notified on the Form 1. The difference in the offences notified on the Form 1 is not significant.

3. However, without repeating each of the differences outlined in the table reproduced above, there are two significant differences that ought to be emphasised. Firstly, the applicant committed the armed robbery whilst on conditional liberty for two earlier aggravated robbery offences and an aggravated break and enter offence.

4. Secondly, and most importantly, the applicant had a significant criminal history, including similar offences. The co-offender had no criminal history and, necessarily, was not on conditional liberty at the time of the commission of these offences.

5. Further, the applicant was older than his co-offender. The sentencing judge, in sentencing the co-offender, described the applicant as "the main leader" in each of the offences (Co-offender's ROS, 15 February 2012, [25] at page 9).

6. Each of the foregoing differences is significant and would have a substantial effect on the sentences to be imposed upon the applicant and the co-offender.

7. The fact that the applicant had a record of prior convictions of the same kind as those for which he was charged and for which he was sentenced is not itself an aggravating feature in determining the sentence to be imposed. However, the nature and extent of the criminal history gives rise to the conclusion to which the High Court referred in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

8. In that respect, the criminal history for similar offences does not increase the objective seriousness of the offence committed but mean that "retribution, deterrence and protection of society may indicate a more severe sentence is warranted": see also R v Johnson [2004] NSWCCA 76; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566.

9. On the other hand, the co-offender's lack of prior convictions disclosed a hitherto good character, which the co-offender was entitled to have taken into account in determining an appropriate sentence. Further, as has been made clear by the High Court in Veen (No 2), supra, the absence of a prior record entitled the sentencing judge to give significant leniency in the sentence to be imposed on the co-offender.

10. The sentencing judge was entitled, in relation to the co-offender, to take into account the lack of any criminal history to show that the offence in question was an uncharacteristic aberration and that there was little or no requirement for retribution, deterrence (specific or general) and protection of society.

11. On the other hand, in the case of the applicant, the prior criminal record, for offences of the same kind, showed that retribution, deterrence and protection of society were significant factors to be taken into account in determining an appropriate sentence.

12. In those circumstances, a significant discrepancy between the applicant and the co-offender is appropriate. Those factors alone would deny to the applicant an objectively determined justifiable sense of grievance with the disparity in sentences imposed.

13. The applicant relies upon what is alleged to be an error in the understanding of the sentencing judge of the sentence imposed on the co-offender.

14. In sentencing the co-offender, the sentencing judge, it is alleged, fixed the parity with the applicant on the basis that the applicant had been sentenced to the armed robbery offence to be served concurrently with the other offences.

15. In sentencing the co-offender, the judge said:

    "In Mr Lang's case his Honour ... imposed, for each of the two offences of break, enter and steal, fixed terms of 2 years imprisonment. The two fixed terms were partly accumulated so that, in effect, there was a sentence of 3 years for the break, enter and steal. Taking into account the other matters in sentencing Mr Lang for the armed robbery, his Honour sentenced him to 7 years imprisonment with a 3 year non-parole period. It is, as I said, important to take into account that Mr Lang [the applicant] had a very serious criminal record." (Co-offender's ROS, 15 February 2012, [21] at page 8).

16. His Honour then imposed the sentences and made the robbery offence wholly concurrent. In so doing, his Honour accumulated the two break, enter and steal offences by one month only (and did so deliberately) and imposed the sentence for the robbery so that it was wholly concurrent with the armed robbery offences. His Honour explained that approach when he said (ROS, [30] at page 11):

    "I take into account, in making the aggravated break enter and steal sentences concurrent with the armed robbery offences, that Blanch J did the same in respect of the offender Lang."

    Later, after imposing the sentences, the sentencing judge addressed the co-offender in the following terms (ROS, [34] at page 12):

    "Mr Reuter, you have got a gaol term as Mr Bruce realistically acknowledged. It is 3 ½ years, it is for the armed robbery and it takes into account the other break and enters and there is two sentences for the Joyce Mayne and the Switchboard. They run at the same time as that because the Judge sentencing Lang did the same so I have done the same there but I have given you a gaol term for the armed robbery because it is so serious and that gaol term is 3 ½ years and your minimum term is 1 year and 9 months which is half that. Normally a standard one would be 2 years and 7 months that you would have to stay in gaol but because of your age and your prospects of rehabilitation, then I have adjusted that to half so you will be eligible to be released in 1 year and 9 months from 27 January which, as I repeat, you will be eligible on 26 October 2013 do you understand that?"

17. The applicant submits that the co-offender's sentencing judge fixed the co-offender's sentence on the basis of parity with the applicant on a basis which was mistaken, namely, that the robbery sentence was to be served concurrently with the two sentences for break, enter and steal. As a consequence, there is a disparity in the sentence.

18. Sentencing is not a mathematical exercise. Properly understood, the applicant's submission is that he has a justifiable sense of grievance because the co-offender was sentenced, mistakenly, proportionate to a sentence that was not imposed upon the applicant. The effect of the applicant's submission is that he asks this Court to adjust his sentence so that, in effect, it would reflect the sentence that was mistakenly thought, by the co-offender's sentencing judge, to have been imposed on the applicant.

1. The co-offender's sentencing judge overstated the level of concurrence in the applicant's sentence when he was dealing with the comparison. Nevertheless, there was still a significant degree of concurrence.

2. As earlier stated, the accumulation as between the two aggravated break, enter and steal sentences was 12 months. Of the 3 year sentence imposed for the two break and enter offences, only 2 years of it was served cumulatively on the armed robbery offence, so that the overall sentence was for a period of 5 years non-parole period and a further period of 4 years in which he was eligible for parole. The sentence imposed on the applicant was cumulative on the 6-month sentence that he had been serving up until 1 June 2011.

3. The co-offender was deliberately sentenced to a significantly less severe sentence than the applicant. That significantly less severe sentence was imposed for good reason.

4. It is not clear, from the passage recited, that the sentencing judge, in sentencing the co-offender, misunderstood the overall sentence imposed on the applicant. He certainly misunderstood the degree of concurrency of individual sentences.

5. Assuming, without deciding, that the sentencing judge, in sentencing the co-offender, misunderstood the overall sentence, it does not necessitate a finding that there is a justifiable sense of grievance or a breach of the parity principle.

6. Sentencing is an intuitive process. The sentencing judge is required to synthesise a number of factors, some of which relate to goals that pull in different directions. Further, there is no one correct sentence and sentencing judges will differ as to the sentence to be imposed. Ultimately, the question must be whether the difference in sentence between the applicant and the co-offender gives rise, objectively, to a justifiable sense of grievance. The fact that the sentence was based on an incorrect understanding of the sentence imposed on the applicant does not alter the task of this Court.

7. In my view, for the reasons I have already explained, and particularly for the leniency that was appropriate to be shown to the co-offender and the degree to which retribution and deterrence were significant factors in the case of the applicant, I do not consider that the applicant has a justifiable sense of grievance.

8. For the foregoing reasons, I would propose that the Court makes the following orders:

   (1)Leave to appeal granted;

   (2)Appeal dismissed.

9. ADAMSON J: I agree with Rothman J.

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