Little v The Queen; Holt v The Queen
[2011] VSCA 155
•27 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0946
| STEPHEN JAMES LITTLE | Appellant |
| v | |
| THE QUEEN | Respondent |
S APCR 2009 0957
| JAMIE HOLT | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | WEINBERG JA and KING AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 May 2011 |
| DATE OF JUDGMENT | 27 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 155 |
| JUDGMENT APPEALED FROM | R v Ciavarella & Ors (Unreported, County Court of Victoria, Judge Allen, 9 December 2009) |
---
CRIMINAL LAW – Sentence – Robbery, armed robbery and theft – Appellants jointly presented with co-offender – Parity with that co-offender – Sentencing judge justified in differentiating between appellants and co-offender – Sentence not manifestly excessive – Appeals against sentence dismissed.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant Mr Little | Mr S Holt with Mr C Farrington | Victoria Legal Aid |
| For the Appellant Mr Holt | Ms S Moglia | Chris McLennnan & Co |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
KING AJA:
These appeals against sentence have been heard together. The offences to which the appellants pleaded guilty, and the sentences respectively imposed upon them, together with those imposed upon one Michael Ciavarella who was sentenced by the same judge on the same day (but who has not appealed against sentence), are set out in the following table.
Ciavarella Holt Little Count 1
Theft of motor vehicle - six months’ imprisonment(two months cumulative)
Count 3
Robbery – three years’ imprisonment
(12 months cumulative)Count 4
Armed robbery – four years’ imprisonment
(base sentence)Count 5
Robbery – two years and six months’ imprisonment
(nine months cumulative)Count 6
Theft – three months’ imprisonment
(one month cumulative)Total effective sentence: six years
Non-parole period: three years
Count 2
Attempted robbery – two years’ imprisonment
(12 months cumulative)Count 5
Robbery – three years’ imprisonment
(base sentence)Count 6
Theft – four months’ imprisonment
(two months cumulative)Count 7
Theft of motor vehicle – eight months’ imprisonment
(four months cumulative)Total effective sentence: four years six months
Non-parole period: three years
Count 3
Robbery – three years and six months’ imprisonment
(18 months cumulative)Count 4
Armed robbery – four years’ imprisonment
(base sentence)Total effective sentence: five years six months
Non-parole period: three years
It may be seen from the table that the appellant Little has two offences in common with Ciavarella (counts 3 and 4). So too does the appellant Holt (counts 5 and 6). Neither Little nor Holt have any offences in common with each other. The only reason they were jointly presented was because each of them was a co-offender with Ciavarella.
Each appellant complains of an error on the part of the sentencing judge in his application of the parity principle. Little says that both his individual sentences and his total effective sentence were excessive having regard to the punishment meted out to Ciavarella. He notes in particulars that Ciavarella had committed a greater number of offences over a longer period of time, but received only six months more by way of total effective sentence, and had the same non-parole period of three years fixed. Holt says that both his individual sentences and his total effective sentence were excessive for much the same reason. He also complains of having been given the same non-parole period as both Ciavarella and Little, notwithstanding the fact that he received a significantly lower total effective sentence.
Little’s offending
On the afternoon of 14 March 2009, Little and Ciavarella entered a take-away food store in Armstrong Street, Middle Park. There were no other customers present. Little ordered a hamburger. As he was handing over the money to pay for the hamburger, Ciavarella walked around to the other side of the counter, put one of his hands in his jacket pocket, and said to the shop assistant, ‘this is a hold-up’. Ciavarella then used his hip and shoulder to push the shop assistant out of the way, and removed the till from the cash register. They took approximately $1,000 from the till. They then left the premises, and drove away in a motor vehicle driven by an unknown third person. This offending gave rise to count 3, the count of robbery.
On the same afternoon, about an hour or so later, Little and Ciavarella entered a convenience store in Inkerman Street, North Caulfield. On this occasion Little went to the counter and asked the shop assistant if he had any cans. At that stage there were other customers in the store. After those customers had left, Ciavarella went around to the other side of the counter. He said to the shop assistant, ‘this is a stick up’, and threatened him with a wooden baseball bat. He pushed the shop assistant out of the way and grabbed the till from the cash register. The shop assistant ran to the rear of the premises and raised the alarm. Little and Ciavarella ran out of the store with approximately $500 in the till. This offending gave rise to count 4, the count of armed robbery. They then drove off in a motor vehicle. The theft of that vehicle was the subject of counts 1 and 7. Little was not charged with either of those offences.[1]
[1]Counts 1 and 7 involved the theft of a Ford station wagon. The sentencing judge found that it was not known who exactly had stolen the car initially, but that Ciavarella and Holt were present in that vehicle on 14 March and 15 March respectively, each being aware that it had been stolen. This gave rise to count 1 (Ciavarella) and count 7 (Holt).
Holt’s offending
On 12 March 2009, Holt and Ciavarella, accompanied by two young women, were in St Kilda. At about 6:00 pm, the female victim was walking along the street when the two women ran towards her yelling. One of the women punched the victim in the cheek. The victim turned and ran away. The two women caught up with her, and attempted to snatch her shoulder bag. There was a struggle, and Holt, who was the boyfriend of one of the two women, came up to the victim and said, ‘if you don’t give her the bag you’ll regret it. We’ll find you, we’ll beat you up’. Holt’s girlfriend then handed him a pair of scissors so that he could cut the straps of the victim’s handbag. He attempted unsuccessfully to do so. He then ran away. This gave rise to count 2, the count of attempted robbery.
Some three days later, on 15 March 2009, Holt and Ciavarella entered a florist shop in Port Melbourne. The proprietor was otherwise occupied at the rear of the premises. When he looked to the front of the shop, he saw the two offenders attempting to take the cash register from the counter. They were carrying the till when they were stopped by a bystander who grabbed Holt and wrestled him to the ground. Another co-offender, a man called Williams, ran into the store and threatened the bystander with a wooden stake. Holt was released, and the three men drove off in a motor vehicle. This offending gave rise to count 5.
Approximately 45 minutes later, Ciavarella and Williams were in Richardson Street, Albert Park. They approached a man who was sitting at a café having a drink. Williams engaged him in conversation. Ciavarella grabbed the man’s wallet from the table, and he and Williams both ran away. They drove off in the stolen motor vehicle. Holt was the driver of that vehicle, and that offending gave rise to count 7, theft of a motor vehicle. The theft of the wallet gave rise to count 6.
Grounds of appeal
Counsel for Little relied upon a single ground of appeal, namely that the sentence was manifestly excessive. However, under the general rubric of that ground, his argument was essentially one of parity.
Counsel for Holt relied upon three grounds of appeal. These were in the following terms:
1.The Learned Sentencing Judge erred in his application of the parity/disparity principle.
2.The Learned Sentencing Judge erred in taking into account the conviction and findings of guilt sustained by the Appellant in the Children’s Court.
3.The sentence imposed was manifestly excessive.
Principles governing parity
In R v Goodwin[2] Eames JA summarised the principles that govern parity in this State. His Honour said:
The Court would only intervene on grounds of disparity where the disparity, or, as may be more appropriately expressed for this case, where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done: see R v Taudevin, Lowe v R. Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: see Wong v R. Where such disparity was disclosed the Court may intervene even though the sentence does not otherwise disclose error in the sentencing process: see R v Wilson.[3]
[2][2003] VSCA 120.
[3]Ibid [21] (footnotes omitted).
In other words, mere disparity between the sentences imposed on co-offenders is not of itself any basis upon which this Court will intervene. The difference between the sentences must be ‘manifestly excessive’, or ‘marked’, to the point that it gives the appearance that justice has not, in the particular circumstances, been done.[4]
[4]See generally Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ). See also Kelly v The Queen [2011] VSCA 10, [5]-[6].
Personal circumstances of each appellant
Both Little and Holt had a number of prior convictions. So too did Ciavarella. Little, who was aged 32 at the time of sentencing, had 114 prior convictions from 26 court appearances between 1996 and 2008. Holt, who was also aged 32 at the time of sentencing, had 65 prior convictions from 11 count appearances between 1995 and 2005. Ciavarella, who was 28 at the time of sentencing, had 14 prior convictions from three previous court appearances between July 2000 and July 2003.
Holt’s counsel drew attention, on the plea, to the fact that, in addition to his client’s prior convictions Holt had previously appeared in the Children’s Court on at least 11 separate occasions between 1991 and 1995.
Although Ciavarella had a far less imposing criminal record than either of the appellants, he did have one conviction in Western Australia for aggravated armed robbery. Little and Holt had both been convicted of offences involving violence, but neither had ever been convicted of any offence of that gravity.
Little had been addicted to heroin from a very young age. Holt too had also had a significant drug problem for many years.
Little’s parity ground
Little’s parity argument was based essentially upon the fact that he had committed only two offences, on a single day, whereas Ciavarella had committed five offences over a period of several days.
Little also submitted that in relation to counts 3 and 4, the two counts that he and Ciavarella had in common, Ciavarella had played a more active role in the offending, and had therefore been the more culpable of the two.[5] It was Ciavarella who had on each occasion threatened the shop assistant. In relation to count 4, it was Ciavarella who had been armed with a baseball bat. It was submitted that Little had been present, assisting, but had played a lesser role.
[5]In Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ), the ‘part which [an accused] played in the commission of the offence’ was identified as an important factor in dealing with questions of parity. See also R v Taudevin [1996] 2 VR 402, 403 (Hampel AJA).
It was submitted that Little should not have been given a heavier sentence than Ciavarella in relation to count 3, and should have been given a lighter sentence than Ciavarella in relation to count 4.
It was further submitted on behalf of Little that there was insufficient disparity between the total effective sentence of six years that Ciavarella received, and the total effective sentence of five years and six months that had been imposed upon Little.
Finally, it was submitted that Little should have received a lower non-parole period than Ciavarella rather than the same three year period.
The difficulty with this parity argument is that, although Ciavarella had a prior conviction for aggravated armed robbery whereas Little had never been convicted of any offence of that kind, Little’s criminal record was nonetheless significantly worse than that of Ciavarella. While it was true that Ciavarella was being sentenced for a greater number of offences than Little, his prospects of rehabilitation were regarded as better than those of Little.
The sentencing judge addressed the issue of parity in his discussions with counsel during the course of the plea. The transcript reads as follows:
His Honour: [Referring to Ciavarella] He’s had I think three previous court appearances at the age of 30-odd. You could only describe, and both the counsel have emphasised it, the other two [referring to Little and Holt] as tragic recidivists, both of them spending most of their lives in jail since they were boys, and that in itself, in my view, justifies some disparity.
[Counsel]: The only issue that I would raise.
His Honour: So you don’t dispute that.
[Counsel]: No I don’t dispute that on the one hand, but on the other hand your Honour I would raise if anyone analyses the counts against Mr Ciavarella.
His Honour: Because there are more counts against Mr Ciavarella, he may end up getting a total effective sentence about the same as the other two anyway, I haven’t worked that out yet. I’m saying when one looks at a question of parity count by count, on each count where he is respectively charged together with Mr Holt or Mr Little, it may be for the same level of culpability he nevertheless receives a slightly lower sentence.
His Honour went on to say, also during the course of the plea:
It might be - on consideration, I think it’s probable that the principles of parity would not prevent me from considering slightly lower sentences in relation to Mr Ciavarella on the basis that clearly he has better prospects of rehabilitation both in relation to his criminal history and his family circumstances. That would justify some disparity, minimal but some disparity.
The sentencing judge returned to the issue of parity during the course of discussion with the prosecutor:
[Counsel]: Indeed, yes. Your Honour clearly from the exchange I don't need to revisit the submission in relation to the relevance of the prior matters, particularly of Mr Holt and Mr Little.
His Honour: Holt and Little, which was what justifies a measure of disparity on individual counts.
[Counsel]: Yes, and does therefore…
His Honour: The need for community protection is clearly greater in their case.
[Counsel]: Indeed, specific deterrence in their case as well.
His Honour: And specific deterrence, yes.
When his Honour came to sentence each of the three offenders he said:
I stop there to interpolate, consistent with the observation I made at the outset, that there is a vast disparity between you three offenders in terms, not only of the number of prior court appearances, but also in the number of convictions and the number of years over which those prior convictions have spanned.[6]
[6]R v Ciavarella & Ors (Unreported, County Court of Victoria, Judge Allen, 9 December 2009) (‘Sentencing Remarks’), [4].
It is clear from both the transcript of the plea, and from his Honour’s sentencing remarks, that he gave careful consideration to the question of parity as between each of the accused. He did not focus solely upon the length of their respective criminal records. He had regard to their individual prospects of rehabilitation, the need to protect the community, and the importance of specific deterrence in relation to each offender. He also took into account the role played by each of them, as well as their individual circumstances.
In relation to Little, his Honour had this to say to Little’s counsel on the plea:
[Counsel]: … Basically sir, I’ve already put my submission in terms of adopting what [the psychologist] suggested. That, that is that your Honour, impose an appropriate head sentence, give this man a lengthy period of time on parole. And in order to achieve that of course Your Honour, has to impose a slightly shorter than usual non-parole period.
His Honour: And you would say that despite what you’ve already candidly conceded to be guarded prospects of rehabilitation, that in the last nine months he has, as he puts it, turned over a new leaf. And demonstrated that by engaging in a 13 week parenting course, all the other courses and employment.
[Counsel]: Yes, and indeed.
His Honour: Is that different from previous periods of imprisonment.
[Counsel]: Well the real difference your Honour, is this, and that’s [Little’s son]. He’s got something to focus upon. Becoming a father may well be the making of this man, but he’s not out there doing the hard yards day in day out at the moment. He sees the child once a week, but that is the most significant difference between this time in prison than any other time that he’s been. He’s got something to focus on, something to live for, a goal to achieve. And knowing that he is going to spend a number of years separated from his child plays heavily upon his mind.
His Honour appears to have accepted counsel’s submission that Little should be given a somewhat shorter non-parole period than would normally be the case in an effort to see whether he could ‘turn over a new leaf’. The non-parole period of three years is only just over half of the head sentence of five years and six months. It is true that the ratio between Ciavarella’s non-parole period and his total effective sentence was marginally lower than that fixed for Little. However, both are in the lower range of minimum terms that could be imposed. The fact that Ciavarella did marginally better than Little in that regard is explained by his Honour’s finding that Ciavarella’s ‘prospects of rehabilitation are positive’, a finding that was not made in relation to Little.
In our view Little’s parity submission should be rejected.
Holt’s parity ground
At first glance, Holt’s parity submission might be thought to have some substance, at least as regards the non-parole period. His non-parole period of three years is fixed at two thirds of his total effective sentence of four years and six months. That is to be compared with the ratio of the non-parole period to the total effective sentence that was fixed in relation to Ciavarella, namely half.
On closer examination, the explanation for this disparity can be found in the sentencing judge’s assessment of Holt’s prospects of rehabilitation, as compared with those of Ciavarella. His Honour said, in relation to Holt:
As far as your prospects of rehabilitation are concerned, they are clearly problematic. However you’re still aged only 32 and you do need intensive programs there is no doubt about that. I can only hope that now, at this stage of your life, in your early 30s, with intensive programs and supervision upon your release on parole, assuming you will be deemed to be eligible for early release on parole, that you will take the opportunity to commence a course of real rehabilitation. I am told that you have the support of your family and that some of them are present here today. Of course, that is an important factor in your rehabilitation. I have taken all these matters into account.[7]
[7]Sentencing Remarks, [47].
The difference between this assessment of Holt’s prospects of rehabilitation and that in relation to Ciavarella was obviously of some importance when his Honour came to consider the length of each offender’s non-parole period. However, it was not the only factor. Holt’s criminal record was significantly worse than that of Ciavarella. In addition, Ciavarella had very strong family support. Holt too had some level of family support, but clearly, in his Honour’s view, less than that of Ciavarella.
We reject Holt’s parity argument.
Holt’s grounds 2 and 3
Ground 2 in support of Holt’s appeal against sentence was effectively abandoned during the course of the appeal. Nothing need therefore be said about it.
Holt’s ground 3 was that of manifest excess. That contention is ordinarily expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the particular circumstances of the case. The ground is a stringent one, difficult to make good.[8] Taking into account the fact that Holt’s offences involved ‘soft targets’, his extensive criminal history, his ‘problematic’ prospects of rehabilitation, and the fact that he is what the sentencing judge described on the plea as a ‘tragic recidivist’, it cannot be said that either the total effective sentence or the non-parole period is manifestly excessive. Ground 3 must therefore fail.
[8]Director of Public Prosecutions v Karazisis [2010] VSCA 350, [127] (Ashley, Redlich and Weinberg JJA).
Conclusion
Each appeal against sentence must therefore be dismissed.
- - - - -
0
4
0