Munro v The State of Western Australia - [2005] WASCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MUNRO -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 31

CORAM: MALCOLM CJ
STEYTLER P
ROBERTS-SMITH JA

HEARD: 1 FEBRUARY 2005

DELIVERED : 4 MARCH 2005

FILE NO/S: CCA 54 of 2004

BETWEEN: ERROL MUNRO
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
Citation  :R -v- LEHMAN & ORS
File No  :INS 95 of 2002

Catchwords:

Criminal law and procedure - Extension of time to bring appeal and leave to appeal sentence - Aggravated burglary, unlawful detention and armed robbery - Whether sentencing Judge failed to take proper account of parity principle - Whether sentencing Judge sentenced on wrong factual basis - Turns on own facts

Legislation:

Criminal Code (WA), s 689(3)

Result:

Application for extension of time dismissed

Category: B

Representation:

Counsel:

Applicant: Mr H C Quail
Respondent: Mr D Dempster

Solicitors:

Applicant: Hylton Quail
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Cheung v The Queen (2001) 209 CLR 1
Goddard v The Queen (1992) 21 WAR 541
Isaacs v The Queen (1997) 41 NSWLR 374
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Reardon (1996) 89 A Crim R 180

Case(s) also cited:

Ahmad v The Queen [2003] WASCA 234
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 6116; 2 December 1985
Langridge v The Queen (1996) 17 WAR 346
R v Azaddin (1999) 109 A Crim R 474
Snider v The Queen [2004] WASCA 204

MALCOLM CJ: In my opinion, this application for an extension of time within which to make an application for leave to appeal against sentence should be dismissed. I have reached that conclusion having had the advantage of reading in draft the reasons to be published by Steytler P. There is nothing which I could usefully add.
STEYTLER P: On 15 October 2003 the applicant and three others were convicted, after a trial by jury in the Supreme Court, of aggravated burglary, unlawful detention and aggravated armed robbery. The applicant was sentenced on 27 November 2003 to terms of imprisonment of 1 year and 4 months for each of the aggravated burglary (count 1 on the indictment) and unlawful detention (count 2 on the indictment) and 4 years and 8 months for the aggravated armed robbery (count 3 on the indictment). The term imposed in respect of count 2 was ordered to be served concurrently with that imposed in respect of count 3. That imposed in respect of count 1 was ordered to be served cumulatively upon that imposed in respect of count 3. The applicant was consequently required to serve a total period of 6 years' imprisonment. He was declared to be eligible for parole. He seeks leave to appeal against the sentences imposed upon him. Because his application for leave to appeal was brought some five months late, he also seeks an order extending the time fixed for the bringing of that application.
The offences, particularly those the subject of counts 2 and 3, were serious.
The complainant on each count was Mr George Separovich. He owns a store in Spearwood known as "George's Handy Foods" or "George's Deli". The deli was open seven days a week, from 6 am until midnight. At night Mr Separovich used to sleep at the deli. Before closing down each night he would put the day's takings into a safe in the corner of the kitchen in the deli. He banked the takings on Tuesdays and Fridays. He held a firearms licence for an air rifle and kept two air rifles at the deli.
On the night of 1 February 2001 Mr Separovich went out to dinner. He returned to the deli at about 1 am on 2 February 2001. The lock on the back door of the deli had been broken, but Mr Separovich believed that this had been done by children and thought no more about it. In fact, the deli had been burgled by two men and the two air rifles had been stolen. This gave rise to count 1 on the indictment.

A few days later, on 5 February 2001, Mr Separovich heard a knock on the deli door shortly after midnight. He opened the door. Two people wearing balaclavas and gloves entered, pushing him into the kitchen of the deli and up against the safe. Both men were carrying firearms. He was ordered to open the safe. He told the two men where the combination to the safe lock might be found. The safe was opened and $30,000 in cash was taken. The two men tied Mr Separovich up and put "something sticky" around his head, making it difficult for him to breathe. They left through the back door. Mr Separovich was able to free himself after some 15 to 20 minutes.
The prosecution case was that the burglary was committed by the applicant and three other men, Shane Lehman, Theodore Snider and Simon Jones. The two later offences were also said to have been committed by those men, but this time with the involvement of a fifth man, Vance Jones. The applicant, Lehman, Snider and Simon Jones were convicted. Vance Jones was acquitted.
I have said what were the sentences imposed on the applicant. Lehman was sentenced to terms of imprisonment of 1 year and 4 months for each of the aggravated burglary and unlawful detention and to a term of 2 years' imprisonment for the aggravated armed robbery. The three terms were ordered to be served concurrently. He was declared to be eligible for parole. Snider, too, was sentenced to terms of 1 year and 4 months' imprisonment for each of the aggravated burglary and unlawful detention. He was sentenced to a term of 4 years' imprisonment for the aggravated armed robbery. The term of imprisonment imposed in respect of the unlawful detention was ordered to be served concurrently with that imposed in respect of the armed robbery. That imposed in respect of the aggravated burglary was ordered to be served cumulatively upon that imposed in respect of the armed robbery. He was declared to be eligible for parole. Jones was sentenced to a term of 8 months' imprisonment in respect of each of the aggravated burglary and unlawful detention and to a term of 2 years and 8 months' imprisonment in respect of the aggravated armed robbery. The term imposed in respect of the aggravated burglary was ordered to be served cumulatively upon that imposed in respect of the armed robbery but that imposed in respect of the unlawful detention was ordered to be served concurrently. He, too, was declared to be eligible for parole.
The solitary ground of appeal is that the total term of 6 years' imprisonment with eligibility for parole imposed upon the applicant was manifestly excessive in all of the circumstances. However, that ground is broken down into three particulars, as follows:
"1.1The Learned Trial Judge erred in failing to take proper account of parity in sentencing the applicant to a greater sentence than the co‑offenders.
1.2The Learned Trial Judge erred in finding that the applicant was more culpable than the co‑offenders in relation to the commission of the offences.
1.3The Learned Trial Judge erred in finding the factual basis upon which the applicant was to be sentenced for robbery, namely said 'I must give some weight to the fact that the Crown case and related evidence did not rule out your direct involvement' in the robbery."
I will deal with each of those particulars in turn, starting, for the sake of convenience, with ground 1.2.

Ground 1.2 - Level of the applicant's culpability

The applicant was plainly more culpable than his co‑offenders in relation to the commission of the offences. It is common cause that he was the ringleader of the persons concerned in the offences. The sentencing Judge found that he played a leading role in formulating the plan to rob the deli. He also said that, having regard to telephone intercepts which had been the subject of evidence at the trial, and related evidence, the applicant was the leader of the group and his co‑offenders had looked to him for guidance.
These findings were undoubtedly open on the evidence. The telephone intercepts demonstrate that it was the applicant who gave instructions and who required the others to adhere to "the plan" which had been formulated. They also demonstrate, beyond any question, that the applicant was regarded and treated by his co‑offenders as the leader of the group.
In these circumstances it was entirely appropriate for the sentencing Judge to find, as he did, that the applicant "must be dealt with more severely than … [his] co‑offenders".
There is consequently no substance to this ground.

Ground 1.1 - Parity

The parity principle is, as Dawson and Gaudron JJ pointed out in Postiglione v The Queen (1997) 189 CLR 295 at 301, based upon the notion of equal justice, which requires that like should be treated alike. Of course, if there are relevant differences, then allowance must be made for them. Their Honours went on to say (ibid):
"In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
In this case, counsel for the applicant contends that there is a disparity, in particular, as between the total sentence imposed upon the applicant and that imposed upon Lehman, although he complains, also, of a general disparity as between the sentences imposed on the four offenders.
It is true that there is a substantial difference between the total sentence imposed on the applicant and that imposed upon Lehman. However, there were substantial differences in the considerations affecting each.
I have already said that the applicant was the ringleader who gave instructions to the others. Indeed, it seems from the evidence that most of the instructions were given to Snider who, in turn, appears to have given instructions to others, including Lehman. I have already said that the applicant was consequently more culpable than the others.
Next, it is plain from the transcript of the sentencing proceedings involving Lehman, and from the documents tendered in the course of those proceedings, that there were very substantial matters in mitigation, in his case, that were not applicable to the applicant. Those matters, which it is unnecessary to detail in these reasons, plainly led to a substantial reduction in sentence. The sentencing Judge acknowledged, in his sentencing remarks, that, were it not for those factors, the sentences imposed by him on Lehman would have been less than appropriate.
Counsel for the applicant acknowledged that the substantial matters in mitigation which were available to Lehman were not available to the applicant. He also acknowledged that these matters entitled Lehman to a significant reduction in the sentence imposed upon him. However, he contended that the discount given to Lehman was too great and that the resulting disparity gives rise to a justifiable sense of grievance on the part of the applicant (as to which see Lowe v The Queen (1984) 154 CLR 606 at 610, per Gibbs CJ).
It has been accepted that courts may intervene in the event of there being a manifest disparity in the sentences imposed upon co‑offenders, notwithstanding that one sentence might be within the range of the exercise of a sound discretionary judgment and the other inadequate: Goddard v The Queen (1992) 21 WAR 541 at 554 ‑ 555. However, this does not mean that the former sentence must be reduced so as to equate to the inadequate sentence, thereby creating a situation where there are two inadequate sentences. As Gleeson CJ said in R v Reardon (1996) 89 A Crim R 180 at 182:
"[J]ustice does not require that the court should seek, so far as possible, to match the sentence imposed upon the appellant with that imposed upon [the co‑offender]. Rather, it is a matter to be taken into account in a broader discretionary exercise."
It is true that Lehman was given a very substantial discount for the mitigatory factors applicable to him. However, as I have said (and as has been conceded), these factors were very substantial and I am not prepared to find that the discount was so great as to exceed the bounds of a reasonable discretion. In those circumstances, and given that it is conceded that no similar mitigation applied to the applicant (and also that Lehman's role in the offending was less culpable than that of the applicant), I am not persuaded that the applicant has any justifiable sense of grievance arising from the disparity.
As to Snider, there is little disparity as between the sentences imposed upon him and those imposed upon the applicant, the difference being one of only 8 months' imprisonment. That disparity is adequately justified by the sentencing Judge's reference to the applicant's more culpable role in the commission of the offences, given that he was the ringleader of the group and that he took the lead role in planning the offences.
That leaves Jones. In his case, the sentencing Judge found that he had played a less active role than had his co‑offenders. His role in respect of the armed robbery was found to have been limited to providing information. He had been a "lookout" during the earlier burglary. Also, the sentencing Judge found that Jones had good prospects of rehabilitation. Jones, who was 30 years old at the time of sentencing (Munro was 38, Lehman was 28 and Snider was 31), had, unlike the others (particularly Munro and Snider) no prior record for offences involving dishonesty, such as burglary or stealing. His criminal record consisted primarily of traffic offences, although, from 1994 onwards, there had been convictions for assault and assaults occasioning bodily harm, all of which were dealt with in Petty Sessions. The sentencing Judge accepted that Jones' offences of violence could be traced back to his abuse of alcohol, amphetamines and steroids, combined with a self‑confessed anger management problem. Jones had voluntarily started counselling some four months previously and was addressing his anger management and alcohol problem. The pre‑sentence report indicated that he had made substantial progress, that he was motivated, that he attended as directed and that he was able to make connections between his substance abuse and problematic behaviour.
Once again, it seems to me, the difference in degrees of culpability and circumstances as between Jones and the applicant was such as to justify the differences in the sentences imposed on the two men. There is nothing in the disparity which should, in my opinion, give rise to any justifiable sense of grievance on the part of the applicant.
It follows that I am not persuaded that there is substance to this ground.

Ground 1.3 - Wrong factual basis

In the course of his sentencing remarks, the sentencing Judge said that he could not safely find that the applicant had been one of the two masked men who entered the deli in the course of the aggravated armed robbery. As has been alluded to in ground 1.3, he went on to say:
"However, unlike Lehman and Simon Jones who the crown conceded were not on the premises on the second occasion, I must give some weight to the fact that the crown case and related evidence did not rule out your direct involvement on that occasion."
If, by that, his Honour was saying that the applicant should be given a greater sentence than would otherwise have been the case simply because the evidence had not ruled out his direct involvement on the occasion referred to, then, in my respectful opinion, he fell into error. If it was suggested that the applicant had played a more serious role than others in a particular respect, then this was for the prosecution to prove and not for him to disprove: Isaacs v The Queen (1997) 41 NSWLR 374 at 378 and Cheung v The Queen (2001) 209 CLR 1 at 12 ‑ 13.

However, when his Honour came, later in the course of his sentencing remarks, to consider the circumstances of the offences, his only references to the role of the applicant were to the effect that he was "the mastermind, planner or director of these offences" and hence a level above his co‑offenders in terms of culpability, that his co‑offenders were working to a plan put together by him and that they had looked to him for guidance as the leader of the group.
Consequently, it is by no means clear, notwithstanding his earlier comment about the need to "give some weight" to the fact that the applicant's "direct involvement" in the offences committed on 5 February 2001 could not be ruled out, that the sentencing Judge did, in fact, give any weight to that fact for the purpose of sentencing the applicant.
However, if it be assumed that the sentencing Judge did err in that way, it seems to me that, given the seriousness of the offences in question, particularly those committed on 5 February 2001 (which, as will be apparent, involved careful planning, the use of firearms and the physical handling of the elderly victim), the applicant's role as ringleader and the absence of any weighty mitigatory factors (the applicant has a lengthy criminal record), the sentence imposed upon the applicant was appropriate (even given the sentences imposed on his co‑offenders) and I do not consider that any different sentence should have been passed: see s 689(3) of the Criminal Code (WA). Consequently, no purpose would, in my opinion, be served by granting leave to appeal on this ground.

The application for an extension of time

It was common cause that, if the Court should conclude that the appeal had no prospect of success, the time for bringing the application for leave to appeal should not be extended, as a refusal to extend time would not then result in any miscarriage of justice. Because I have arrived at that conclusion, I would consequently refuse the application for an extension of time, notwithstanding that an explanation for the delay has been offered.
ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of Steytler P. I respectfully agree with his Honour's reasoning and conclusions and would make only the following additional brief observations.
The sentences imposed on the applicant bore a certain relativity to those imposed on his co‑offenders. It is apparent the learned sentencing Judge took a starting point based upon the seriousness of the particular

offences. He then took into account matters personal to each offender, both as to their respective roles and the extent of their criminal culpability, and as to circumstances of mitigation particular to them and to their personal antecedents. This "tailoring" of sentences to the circumstances of the offences and the individual offenders was the process which his Honour was obliged to undertake and which, in the end, produced differential sentences. The notion of equal justice was not thereby violated (Postiglione v The Queen (1997) 189 CLR 295, per Dawson and Gaudron JJ at 301).

All of the considerations which led the learned sentencing Judge to impose the different sentences were apt. The individual sentences reflect a proper assessment of relevant considerations and do not lead to a result which is obviously incongruous. There is no basis upon which the applicant could have a justified sense of grievance arising from a comparison of his sentences with those of his co‑offenders.
So far as the applicant's role is concerned, not only was it open on the evidence for the learned sentencing Judge to find he was the ringleader and driving force behind the commission of the offences, but that conclusion was inevitable. And it was one which necessarily justified his Honour in dealing with the applicant more severely than his co‑offenders.