Nicolle v the Queen
[1988] TASSC 35
•22 July 1988
Serial No 24/1988
List “A”
CITATION: Nicolle v The Queen [1988] TASSC 35; [1988] Tas R 78; A24/1988
PARTIES: NICOLLE, Peter Rex
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 34/1988
DELIVERED ON: 22 July 1988
JUDGMENT OF: Nettlefold, Cosgrove and Underwood JJ
Judgment Number: A24/1988
Number of paragraphs: 74
Serial No 24/1988
List "A"
File No CCA 34/1988
PETER REX NICOLLE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
COSGROVE J
UNDERWOOD J
22 July 1988
ORDERS OF THE COURT:
Leave to appeal granted.
Appeal dismissed.
Serial No 24/1988
List "A"
File No CCA 34/1988
PETER REX NICOLLE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
22 July 1988
Application for leave to appeal against an order made the 2 February 1988 by which order a sentence of two years' imprisonment was imposed upon an indictment dated 28 January 1988 containing (a nolle prosequi having been entered on counts 10 and 11 therein) five counts of burglary and four counts of stealing, which sentence was ordered to take effect from the 2 February 1988. The grounds contained in the application are the following:
"1THAT the sentence imposed upon the Applicant is unjustifiably disparate from the sentence of nine months imprisonment with three months thereof suspended imposed upon the co–offender, one Ian Robert Jones convicted of burglary and four counts of stealing on the same charges by the Court of Petty Sessions at Burnie.
2THAT the sentence of two years imprisonment imposed upon the Applicant is manifestly excessive in all the circumstances.
3THAT the Learned Trial Judge erred in law by ignoring and refusing to take into account when sentencing the Applicant the sentence imposed upon the co–offender Ian Robert Jones."
The applicant entered a plea of guilty.
The prosecutor advised the Court that the crimes charged were committed between on or about the 18 April and the 24 April 1987. He told the Court that the applicant was interviewed on 28 April 1987. During that interview a record of interview was compiled, accepted as correct by the applicant and signed by him.
Counts 1 and 2 in the indictment charged the applicant with the crimes of burglary and stealing on or about the 18 April 1987 in respect of a service station at Devonport the property of Mr Dudley John Godrich. A bin and a quantity of cigarettes to a total value of $407.90 were stolen. During the interview the applicant informed the police that entry was effected on the Saturday night through a back window. He said he was not alone but declined to give any names. The window was forced open with a jemmy bar. He said that the burglary was committed to get the cigarettes. They knew that there was no money available.
The third and fourth counts charge the applicant with the crimes of burglary and stealing in respect of a pharmacy at Deloraine. These crimes were said to have been committed on a day unknown between on or about 22 April 1987 and on or about 23 April 1987. The property stolen consisted of two bottles of wine, a watch and approximately $705 in money.
In the interview the applicant admitted having broken into the promises with two other people. The purpose was to steal money. The three persons involved had entered through a roller door at the side of the premises. As the shop itself was lit up they did not go in there but they did go into the offices at the back of the shop. They found some money in a drawer of a desk. He had received and equal share of the money taken. He did not have any of the money left.
The complaint of the proprietor of these premises did not accord with the record of interview. He complained that approximately $705 in banknotes was taken. In addition a man's chrome watch with leather band was taken and two bottles of wine. The value of the watch was $140 and the wine $15. The proprietor found that a roller door had been forced open and drawers and desks had been ransacked and papers scattered over the floor of the office.
Counts 5 and 6 charged the applicant with the crimes of burglary and stealing committed on or about 24 April 1987 against a workshop at Ulverstone belonging to a Mr P R Dobson. The property stolen consisted of a spray gun, a grinder and a quantity of other tools. Entry was gained through a roller door at the rear of the building. The complainant estimated the cost of repairing the door at about $100 and the value of the property stolen at $350. All the property stolen was recovered.
In the record of interview the applicant told the police that it was not his idea to commit this crime. The proposal to commit it came from the other party to the crime who asked for the applicant's assistance. They drove to Ulverstone from Devonport late on the Friday night. They entered by opening the roller door. They looked around for money but did not find any. The applicant claimed that he did not get anything from these premises although he conceded that the other party may have done.
Count 7 charged the applicant with the crime of burglary of a workshop at Ulverstone belonging to a Mr C D Stuart committed on or about 24 April 1987.
The complainant complained that entry had been gained by prising open a roller door and drawers and cabinets had been searched but nothing had been taken.
According to the record of interview this crime was committed immediately after the crimes alleged in counts 5 and 6. Once again, the applicant asserted that he became involved in this crime following a request by the other party to it. The applicant admitted that he had made a search for money but without success.
Counts 8 and 9 charged the applicant with the crimes of burglary and stealing committed on or about 24 April 1987 at Devonport, the premises concerned being a store belonging to a Mr Campbell. The property stolen was a quantity of assorted tools valued at $2,236.09. The entry was made through the roof skylight. Entry was at night. Two other people were involved. In the record of interview the applicant admitted the he "lifted the sky light off the mountings, and cut the wire mesh with bolt cutters". The bolt cutters used did not belong to him but he refused to name the owner. The applicant admitted that, after cutting the mesh, he lowered himself into the shop and turned off the alarm system. Three tool boxes and a spray gun were taken. He and one of the others got the tool boxes out through the window at the front of the shop. The tools were taken to a waiting car which was parked half a block away. The applicant claimed that the only reason they got in there was to get money. He did not want the tools. According to the record of interview the applicant offered to take the police to a place where all the stolen tools would be located. However, the learned prosecutor informed his Honour that the value of the tools later recovered was $990 only.
The learned prosecutor informed his Honour that, in respect of the whole indictment, the total value of the property stolen was $3,854 and the total value of the property later recovered was $1,340. The learned prosecutor then tendered a list of prior convictions of the applicant dating back to 10 August 1972 when the applicant was then under 10 years of age. The list discloses a very large number of prior convictions for crimes involving dishonesty, other property offences, breaches of suspended sentence, escape, resist arrest and many other offences.
Counsel for the applicant informed his honour that the applicant was 25 years, born on 15 December 1962, a single man, unemployed and residing at Torquay Road, East Devonport.
Counsel informed his Honour that the applicant finished his schooling at age 14 years as a result of being placed first in Wybra Boys' Home and then in Ashley Boys' Home. After that admission the applicant returned to his parents' home on the north west coast of Tasmania. The family consisted of his parents and a sister who was younger than he. After staying at his parents' home for six to eight months he was returned to Ashley because he committed some stealing offences. Thereafter, for a number of years, the applicant had very little to do with his parents. Counsel described the last 10 or so years of the applicant's life as a vicious circle of crime and imprisonment. Periods of freedom in that period were described as "short, sharp bursts".
Counsel said that his instructions were that the applicant had "no great interests, no time for hobbies or long term sporting interests". Prison held no fear for him, he felt more secure in prison, it was "simply an occupational hazard". Counsel submitted that his instructions were that the motivation for the crimes which appeared in the applicant's list of prior convictions was that they "produced an adrenalin flow".
Counsel submitted that the crimes for which the applicant was then before the court were no different to those committed in the last ten years, in that there was no rationale behind them, they have been committed in the company of others and the applicant has shared little in the proceeds.
It is clear that counsel's purpose in emphasising the applicant's bad record and background was to highlight a change in the applicant's circumstances which, it was claimed, had produced a strong desire to remain out of gaol and, consequently, a resolve to stay away from crime. It was asserted that an important milestone in the applicant's life was when he developed a relationship with a young lady in late 1986 or early 1987. It was noted that the lady was in court while the submissions were being made. The relationship was described as "the first permanent relationship that Mr Nicolle had ever had". In April or May 1987 the applicant discovered that this lady was pregnant to him. The prospect of being a father pleased the applicant. However, in September 1987 he was convicted on a number of charges of burglary, stealing an forgery and sentenced to imprisonment again. These crimes were committed with a person he had met in prison. However, he was released from prison in time for the birth of the child on 10 January last.
It was submitted that, because of his new ties, the applicant dreaded a return to prison as he would miss the early part of his child's life. It was put that, as a result of these new relationships, he seemed to have gained some responsibility, had reconciled with his family and had made some legitimate attempts to obtain employment, the first time in a number of years that he had made any real attempt to obtain long term employment. As a result of his efforts there was a real chance of employment at a Devonport sawmill.
It was put that he had seen the futility of following "blindly" the criminal suggestions of others with little gain to himself. During the month since his last release from prison he had kept away from these acquaintances and taken an interest in his child.
Counsel informed his Honour that the applicant was regarded as a model prisoner.
The second ground of the application attacks the sentence of two years on the basis that it is manifestly excessive in all the circumstances. However, that ground can be rejected immediately as it its plain that the sentence is not manifestly excessive. Mr Hay appeared for the applicant before this Court. He had not represented him below, although Mr Hay did not abandon this ground he refrained from making any submission in support of it. Clearly, that was the correct course for him to take as the sentence is plainly within range.
The facts concerning the co–accused, Ian Robert Jones, must now be considered. The applicant and Jones were jointly charged on Complaint No. 1389A87 with six charges, three of burglary and three of stealing charges 1 and 2 were charges which subsequently became counts 10 and 11 in the indictment against the applicant, the two counts in respect of which a nolle prosequi was entered. Charges 3 and 4 on the complaint correspond with counts 8 and 9 in the indictment. Charges 5 and 6 on the complaint correspond with counts 3 and 4.
The applicant and Jones were charged on Complaint No 1415B87 sworn 5 May 1987 with two charges of burglary and one of stealing, those charges corresponding with counts 5, 6 and 7 in the indictment. The crimes involved in those charges were the crimes committed in Ulverstone. The position is, therefore, that the applicant and Jones were sentenced for the same crimes, except that Jones was not involved in the burglary on or about 18 April 1987 of a service station at Devonport and stealing therefrom a bin and cigarettes to a total value of $407.90, those crimes being charged against the applicant in counts 1 and 2 of the indictment. Jones pleaded not guilty to charges 1 and 2 on Complaint No 1389A87 and they were allowed to stand adjourned sine die.
Jones elected proceedings before a magistrate. He came before the Court of Petty Sessions at Devonport on 20 July 1987. On that day the prosecutor stated the basic facts to the learned magistrate with little by way of detail. In a plea in mitigation Mr Jones' counsel made the following points:—
(1) That the defendant was aged 22 years and resides at Penguin with his brother.
(2) He is unemployed and receives $198 per fortnight.
(3)Mr Jones had instructed him that he was a qualified panel beater and wished to commence his own business. He has been offered work since the offences.
(4)That the defendant had prior convictions and the list was before the learned magistrate. The list of prior convictions shows a number of prior convictions for dishonesty commencing on 4 November 1982. A group of youths was involved in those matters. Counsel advised the learned magistrate that, as a result of a conviction for stealing on 17 February 1983, Jones was sentenced to one month's imprisonment. As a result of that sentence and a sentence for breaches of the conditions of suspended sentences imposed on 4 November 1982, Jones served a period of almost eight months in prison.
(5)When he was released from prison he was collected by a number of youths who had been involved in the matters in November 1982. He got into trouble again with the youths who had collected him at the prison gates. The result of this trouble was that on 30 November 1983 he was convicted on one charge of burglary and one charge of stealing and sentenced to two months' imprisonment from 11 November 1983 and two months' imprisonment concurrent. In March 1984 there were convictions in the Supreme Court at Hobart on one charge of burglary and one charge of stealing and the sentence was 12 work orders. Counsel said he was instructed that those convictions related to the stealing of a motor cycle, Jones having played a minor role. Jones was treated as having aided and abetted the crime of burglary in the transaction in which the motor cycle was stolen. Counsel informed the learned magistrate that the co–offenders in those crimes received substantial terms of imprisonment.
Counsel pointed out that Mr Jones was before the court again on 10 July 1984 charged with three charges of burglary and three of stealing. A total of six months' imprisonment was imposed wholly suspended for two years on condition that Mr Jones did not commit any crime or offence of dishonesty.
(6)Mr Jones had not been before the court for a crime or offence of dishonesty since July 1984 and that was due largely to the efforts of Mr Jones' parents as well as himself. The suspended sentence had played an important role in achieving that result. Counsel submitted that the gap was substantial given his earlier history in relation to offences of dishonesty.
(7)Counsel said that he was instructed that, after Mr Jones' release from prison and the suspended sentence, he decided to reside again with his parents. He had found it difficult to control the urge to break into premises and he was associated with a group of youths who seemed to derive their thrills from going into premises belonging to others and removing property. His parents encouraged him to stay at home during the evening and he did that for a period of eight or nine months. During that period he would not purchase a motor vehicle because he feared that would lead to associating with old friends and further offences.
After 12 months of living with his parents and not being in trouble for offences of dishonesty it was decided, perhaps as a reward for him, that he would be helped to purchase a car. His father helped him to get the car. Then it was decided that he ought to try and live away from home. He began boarding at East Devonport. Another boarder was in the same house who was a heavy rum drinker. This association led to Mr Jones drinking rum to excess. Because Mr Jones had an ulcer, which was being aggravated by excessive drinking, he changed his place of abode to live with a person in Devonport. After he moved in he became aware that the owner was growing cannabis. He helped the owner grow the plants and, as a result, suffered a conviction for cultivating a prohibited plant on 30 September 1986 and was fined $150 with costs $15.10. After committing that offence he went to Queensland for a period of three months during which time he kept out of trouble.
(8)After the court proceedings in respect of the cannabis he took up residence again with his parents for about five months. Everything was quite alright during that period as his parents helped him stay away from people thought to be a bad influence on him.
(9)He decided to try living away from home again. He moved into a flat and then a house in William Street, Devonport, in March 1987.
(10)While he was living there the co–defendant visited him and spoke about committing a burglary. After several discussions Mr Jones was tempted and eventually went along with the co–defendant with the offences in the complaints before the court.
(11)Counsel submitted that Mr Jones was easily led. When subject to favourable influences, such as his parents, he does not get into trouble. At home he is a willing worker. In bad company he follows the leader and has a problem saying "no". That is the source of his problems. Counsel said that he was instructed that Mr, Jones had not committed a burglary or stealing offence on his own.
(13)Counsel's instruction, were that Mr Jones wished to see someone who was able to suggest ways and means for avoiding getting into trouble with people of his own age group.
(14)The defendant had not been in trouble since bail conditions had been imposed. The principal reason why he was living with his brother was so that his old associates could not approach him.
(15) The offences were all committed within a short period of time, about one week.
(16)Someone was going to be used to assist the co–defendant in committing these burglaries. It happened that Mr Jones was the person who succumbed to the pressure.
(17)Counsel submitted that if Mr Jones was sentenced to a term of actual imprisonment the whole cycle would begin again. There is hope for the defendant. He has tried over a period of three years and that is a significant gap.
(18)Mr Jones has been on probation before and, even when the probation term expired, he continued to visit the probation officer.
(19)All the property, apart from the property taken from the chemist shop in Deloraine, was recovered.
(20) Mr Jones is maturing and endeavouring to be responsible.
The learned magistrate then ordered a probation report and remanded the accused in custody to appear again on 10 August 1987.
The learned magistrate was supplied with two probation reports, one dated 13 March 1984, supplied to his Honour Mr Justice Neasey, and one dated 4 August 1987. The report of 13 March 1984, expressed in summary form, stated:—
(a)Mr Jones is the youngest son of Walter and Marjorie Jones, the family consisting of four sons and one daughter. The defendants eldest brother is mentally retarded. The second brother is married, employed and resides in Ulverstone. The third brother lives in Devonport and is known to the Probation Service having been imprisoned after a conviction for dangerous driving. But that brother has now assimilated into the community and had not come under notice again. The defendant's sister was 13 years of age and attending school.
(b)Mr Jones' parents lived at Latrobe, the father was employed by a local paper mill and the mother had held a position with a local school for some four years.
(c)Mr Jones' had left Reece High School mid year while in third year. He was a non–achiever. His lack of ability often resulted in behavioural problems as subjects failed to hold his interest.
(d)Since leaving school his only period of employment was at an Ulverstone supermarket where he left after approximately four months due to a back injury sustained at work.
(e)As a result of family problems Jones left the family home some two years ago and has resided in several short term situations, including the Devonport Youth Shelter.
(f)Mr Jones' parents had afforded him accommodation since his release from prison on 10 January 1984. It appeared that old wounds have healed and Mr Jones has the total support of his parents and is abiding by the house rules and curfew. A great deal of compassion was evident "on the part of both parties".
(g)In the interim he has responded favourably to probation, has commenced paying fines and an indication of his current attitude lies in the fact that he recently found $100 cash in the street and handed it in to the police station.
(h)Mr Jones has made several job applications. He chose to enlist with the local volunteer fire brigade in order to be of some service in the community and to meet people and enhance job prospects.
(i) Mr Jones was in poor financial circumstances.
(j) Mr Jones is a non–smoker and a light drinker. There is some evidence of a stomach ulcer.
(k)"Supervision has achieved little for the offender to date in that he has spent broken periods totalling some 8½ months in prison, and as a result not formed a settled routine whereby probation may have proved beneficial."
(l)Mr Jones must take stock and develop the ability to critically evaluate the suggestions of others.
(m) The conclusion was as follows:—
"Mr Jones has seen the error of his ways and should Your Honour choose to sentence with leniency it is felt that he would respond to any opportunity given."
The substance of the later report is as follows:—
(1)As a result of the court appearance for which the original pre–sentence report was prepared Mr Jones received 12 work orders and he completed those on 9 July 1984.
(2)In June 1984 he received $6,172 compensation out of which $3,462 was used to settle his outstanding debts and to purchase a motor vehicle. The balance was banked with his father as co–signatory. However, by October 1984 the money was gone.
(3)Mr Jones' period of supervision expired in November 1985 and comments on his Terminal Report are "Immature, irresponsible young man who refuses to accept authority and restrictions. He gets odd days casual labour only when pressed for cash – is basically lazy. Was at an earlier time labelled a walking disaster – little has changed."
(4)Since 1985 Mr Jones has been in receipt of unemployment benefits supplemented by spray painting. Although unqualified in this field he displays a talent for this type of work. At the time of his arrest Mr Jones' income was $229 per fortnight out of which $106 per fortnight went towards living expenses. He has a car valued at $1,500 with $1,191 owing on it. He has fines totalling $1,546.50 and no worthwhile attempt has been made at meeting this debt. He suffers from an ulcer complaint and seeks medical treatment from time to time .
(5)Jones senior is supportive and said that when his son stays in the parental home he is not a problem and keeps out of trouble.
(6)The Evaluative Summary stated "Obviously this offender cannot handle finance. He seems to waste any money he obtains and a $6,000 settlement has gone in four months. Perhaps another period of supervision, together with any other penalty imposed, may be more successful than in the past."
On 10 August 1987 the learned magistrate proceeded as follows:—
(1) He stated what the charges were and the facts.
(2) He stated that he took into account the following:—
(a)Your age, you are 22 years.
(b)That the other person may well have been the leader.
(c)not overly optimistic probation report.
(d)Not the first time you are in court for offences of dishonesty, you have been in prison before. A summary was given of Mr Jones' record.
(e)The offences are serious ones and valuable goods were stolen. You cannot blame others all the time. It may be if you were not up there the leader would not have committed these offences. I do take into account you have made the effort to stay away from offences of dishonesty. And that these offences were committed after you had left home and were approached by your co–offender. These factors will go as to the length of the sentence I intend to impose.
His Worship then imposed the following sentences:—
Complaint No 1389A/87
Charge 3 – Burglary – Three months' imprisonment as from 20 July 1987.
Charge 4 – Stealing – Two months' imprisonment concurrent.
Charge 5 – Burglary – Two months' imprisonment cumulative.
Charge 6 – Stealing – Two months' imprisonment concurrent.
Total imprisonment five (5) months of which three months suspended on condition he commit no offence or crime of dishonesty for two years.
Complaint No 1415B/87
Charge 1Two months' imprisonment cumulative to term imposed on Complaint No. No. 1389A87
Charge 2 One month's imprisonment concurrent.
Charge 3 Two months imprisonment cumulative. Probation order for two years.
It is necessary to look more closely the comparison between the records of the applicant and the co–offender.
Analysis of the applicant's record of prior convictions produces the following result from and including his first. conviction on 10 August 1972:—
BBOTDH or Burglary 22 convictions
Attempted Burglary 1 "
Stealing (including motor vehicle
stealing) 45 "
Attempted stealing (including motor
vehicle stealing) 2 "
Receiving 1 "
Other offences of dishonesty 32 "Attempting to commit the crime of
uttering 2 "Damage or destroy property 7 "
Injuring property 1 "
Unlawfully setting fire to property 1 "
Trespass 2 "
Escape from lawful custody 2 "
Resist arrest 1 "
Breach of suspended sentence 5 "
Breach of bail conditions 1 "
Breach of Probation Order 1 "
Making False ambulance calls 2 "
Drunk and Incapable 1 "Miscellaneous convictions for traffic
offences 24 "Total convictions 153
The analysis of Jones' record of prior convictions produces the following from and including his first appearance in the Children's Court on 9 September 1981:—
Burglary 17 convictions
Stealing (including motor vehicle
stealing 23 "Damage to property 5 "
Injure property 1 "
Trespass to Lands 7 "
Commit a nuisance 1 "
Breach of suspended sentence 1 "
Cultivate prohibited plant 1 "
Miscellaneous Traffic convictions 43 "
Total convictions 99 "
The position then is that over a period of approximately 15½ years from an age of a little under 10 years the applicant accumulated 105 convictions for offences involving an element of dishonesty and 48 other convictions. Over a period of approximately six years Jones accumulated 40 convictions for crimes involving an element of dishonesty and 59 other convictions. The gap of three years approximately from 10 July 1984 in Jones' record for offences of dishonesty has already been mentioned.
Ground 1
In considering this ground of appeal this Court is exercising the power given to it by s402(4) of the Criminal Code which provides:—
"On an appeal against a sentence, the Court if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
Therefore, the Court, in considering this ground, has a discretion to exercise. "The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal" (Lowe v The Queen (1984 CLR 606 at 610 per Gibbs CJ).
There is no rule of Law which requires co–offenders to be given the same sentence for the same offence even if no distinction can he drawn between them (Lowe v The Queen (supra) at p 623 per Dawson J).
It follows from the above propositions that this Court is not bound to intervene. It may decline to intervene if the protection of the public may require the higher sentence to stand or if a lowering of the sentence is seen as contrary to the public interest (see the Queen v MacGowan (1986) 42 SASR 580 at 583).
In view of the circumstances about to be mentioned, on balance, justice requires that the Court exercise the discretion against the applicant.
Jones was not a party to the crimes alleged in counts 1 and 2 of the indictment. Consequently, when making a comparison between the sentence imposed on Jones and the sentence imposed on the applicant, regard must be had to what period represents a just sentence for those crimes Having regard to the applicant's record and character he would have no just complaint against a quite substantial sentence in respect of those crimes.
The applicant's record of prior convictions and character strongly suggest that the sentence imposed by the learned judge was required in the public interest. Any substantial reduction of that sentence could give rise to a legitimate complaint based on the public interest. That being so, the court is not required to allow such a reduction and should not do so. What the applicant's counsel put to the learned judge who sentenced him has been set out in detail and I shall not repeat it. Obviously, counsel had an unenviable task. The applicant was presented as an habitual offender who, until he met a young woman about 12 months before the sentence was imposed, lacked any positive influence in his life, led an aimless, useless existence and achieved "an adrenalin flow" by committing crimes of dishonesty. The picture painted was that of a person highly likely to commit further crimes of dishonesty unless he found himself in a position where he could not commit them. The relationship with the young woman and the birth of his child were put as factors which had changed his outlook and, now, he was a person who would not offend again. The difficulty in the way of that submission was that he had been convicted and sentenced on 10 September 1987 in respect of a large number of crimes of dishonesty. Consequently, his Honour was entitled to be very skeptical about the suggested change of attitude.
The submissions made to the learned judge on behalf of the applicant should be contrasted with the submissions made by counsel for Jones to the learned magistrate and the probation reports concerning Jones. The learned magistrate was entitled to take the view that there were prospects of reform which should lead to a sentence at the lower end of the range of appropriate sentences and a probation order. A feeling that Mr Jones got an excellent result from some very good advocacy, having regard to all the relevant circumstances, does not lead to the conclusion that this ground should succeed. The applicant has reached the stage where he cannot complain if nothing is taken off for mitigation (cf Thomas: Principles of Sentencing, 2nd ed, p198).
Ground 3
With respect, established sentencing practice did require the learned judge to consider the sentences imposed on Jones. It was apparent that he was dealing with circumstances where the applicant was not the sole perpetrator of the crimes (as to this practice see Pecora [1980] VR 499 at 523; Riley v The Queen, CCA, 73/1986; The Queen v MacGowan (supra) at p583). However, because of the reasons I have given for rejecting ground 1, I would not allow the appeal on this ground. The error on a point of practice has not produced an injustice. I am not of the opinion that some lesser sentence should have been passed.
For these reasons the Court should make the following orders:
1 Leave to appeal granted.
2 Appeal dismissed.
List "A"
File No CCA 34/1988
PETER REX NICOLLE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
COSGROVE J
22 July 1988
I have perused in draft form the Reasons for Judgment prepared by Underwood J, including the orders which he proposes. I agree with them and have nothing to add.
List "A"
File No CCA 34/1988
PETER REX NICOLLE v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
22 July 1988
The applicant and a co–offender were charged with four crimes of burglary and three crimes of stealing. In addition, the applicant was charged with a further crime of burglary and a further crime of stealing.
The co–offender elected to have the charges against him determined in the Court of Petty Sessions and, upon his guilty plea was sentenced to an effective term of nine months imprisonment, three months of which was suspended upon condition that he commit no of fence of dishonesty for two years. A two year probation order was also made. The applicant pleaded guilty in the Supreme Court and was sentenced to two years imprisonment. He now seeks leave to appeal against the severity of that sentence upon three grounds:—
1It was "unjustifiably" disparate from the sentence imposed upon the co–offender.
2It was manifestly excessive.
3The learned sentencing judge erred "in law by ignoring and refusing to take into account" the sentence imposed upon the co–offender.
With respect to the commission of the crimes (apart from the two in which the co–offender was not involved) no distinction can be drawn between the two offenders. Four separate business premises were broken into between the 22nd and the 27th April 1987. Goods and money to a total value of $3,854.00 were stolen; goods to the value of $1,340.00 were recovered, resulting in a nett loss from the crimes of $2,514.00. Although some attempt was made by each offender to assert that the other was the leader there was nothing in the material before the sentencing judge to indicate anything other than that each played an equal part.
In addition to the crimes involving the co–offender, the accused pleaded guilty to the burglary of a service station on the 18 April 1987 and the stealing of cigarettes to the value of $407.90 and a bin to carry them away in.
When the applicant's plea was taken before the learned sentencing judge the facts were outlined by the Crown Prosecutor and reference made to the applicant's record of interview. In it, the applicant admitted that the crimes were committed by him in the company of one, and in some cases two others, but he refused to identify any of the co–offenders. Apart from the reference to the record of interview, the learned Crown Prosecutor did not mention any of the co–offenders, one of whom had been sentenced in the Court of Petty Sessions approximately six months earlier.
Counsel for the applicant only referred to the co–offenders by saying that the crimes were committed in the company of others and that the applicant "shared little in the proceeds". Consequently, although the record of interview informed the learned sentencing judge that the accused committed all the crimes in the company of one or more other persons, there was nothing in the material placed before him to indicate:—
1Whether the same co–offender or co–offenders were involved in all the crimes in respect of which the applicant appeared for sentence.
2Whether any one or more of the co–offenders had been charged with one or more of the crimes in respect of which the applicant appeared for sentence.
3 Whether sentence had been passed on any one of the co–offenders.
In considering an appeal against sentence it is trite law to observe that, as the appeal is against the exercise of a judicial discretion, the court will not interfere unless it appears that the sentencing judge has:—
1 Made a mistake as to the facts.
2 Acted upon an erroneous principle of law.
3 Taken into account matters which should not have been taken into account.
4 Failed to take into account matters which should have been taken into account.
5 Clearly given insufficient or excessive weight to a matter taken into account, or
the sentence is manifestly excessive or lenient as the case may be.
See for example, House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509; R v Taylor [1958] VR 285; Reynolds v The Queen CCA 46/74.
Ground 3 of the notice of appeal raises the proposition (albeit somewhat obliquely) that an error, vitiating the exercise of the sentencing discretion, occurred because the sentencer failed to ascertain "what was done" to a co–offender. In support of this proposition reliance was placed on the reasons for judgment of Neasey J in Prestage v The Queen [1979] Tas SR 270 at p274 (a decision of the Court of Criminal Appeal) where his Honour said:
"... It is the duty of the trial judge who finds himself in the relevant situation to make sufficient enquiry into the circumstantial material which the previous judge had before him when he sentenced the co–offender to enable him to avoid unjustified disparity in the later sentence."
His Honour based the existence of this duty upon the judgments of the Victorian Full Court in R v Goldberg [1959] VR 311 and R v D'Ortenzio & Burns [1961] VR 432.
In the former case, the judgment of the court contained the following passage, (obiter dicta) at p312:—
"We think this is an occasion on which we ought to draw attention to the desirability, where there has been a separation of trials of men who were jointly charged with the same offences, of the judge who deals with each informing himself of the way in which the other has been dealt with so that a disparity such as we have to deal with in this case may be avoided." [my emphasis]
This passage was referred to in R v D'Ortenzio (supra) at p 433 in the following terms:—
"One of the things which was said in Goldberg's case was that where a judge is sentencing a man who has committed a crime in association with some other man, and that other man has already been dealt with by another judge, the judge who is dealing with the later sentence should make himself aware of what was done to the other man in order that it may guide him as to what is the appropriate thing to do in the case before him." [my emphasis]
I do not understand the expression in D'Ortenzio, "should make himself aware" based upon the passage cited from Goldberg, to mean that there is a judicial duty to enquire and that a failure to do so will constitute an error in the exercise of the sentencing discretion.
In Cleaver v Powell [1979] Tas SR 134 (decided five months before Prestage) Green CJ did not consider there was such a duty. At p135 his Honour said:—
"The materials before the learned magistrate as to Wright's personal circumstances and his involvement in the crimes were simply insufficient to enable the learned magistrate to make any comparison between them. I do not think that the fact that the learned magistrate did not enquire further into the circumstances of Wright's case vitiated the exercise of his sentencing discretion: he was not asked to enquire further, it was open to either party to furnish him with further particulars and he obtained a pre–sentence report."
His Honour referred to the passage cited above from Goldberg and said at pp136 to 137:—
"The court went on to draw attention to the desirability of a sentencing judge informing himself of the way in which any co–offenders have been dealt with, but it does not appear that the court regarded the trial judge's failure to do so in that case as an error which would have justified its interference".
In Prestage v The Queen (supra) Nettlefold J expressed no view on this question. Cosgrove J pointed out that, as the sentencing judge had conducted the trials of both offenders, he was fully informed about "what was done" to the co–offender. He went on to say at p278:—
"[The sentencing judge] was under no duty to conduct an investigation into the background and the character of Stevens. If that were necessary in every case, it would seriously hinder the administration of criminal justice."
However, Cosgrove J was of the opinion that the appeal should be allowed because the learned trial judge deliberately chose to ignore the sentence passed on the co–offender.
In Mihailoff v Huffa (1974) 10 SASR 66 Bray CJ referred to R v D'Ortenzio & Burns (supra) after saying at p70:
"The whole thing shows how desirable it is that joint offenders should always, if possible, be jointly charged, and, whether jointly charged or not, dealt with by the same court." [my emphasis]
His Honour did not suggest that the failure of the magistrate to enquire about "what was done" to the co–offender constituted an error which tainted the sentencing discretion. In R v Charles [1979] VR 8, Young CJ at p11 referred to R v Goldberg (supra) and said, "so far as possible a sentencing judge should ascertain when one of two offenders had already been sentenced what sentence was imposed, in order to avoid disparity." His Honour did not suggest that a failure to do so constituted an error.
In Lowe v The Queen (1984) 154 CLR 606, the High Court authoritatively stated the law in cases of disparity between the sentences of co–offenders. The majority held that a manifest disparity between the sentences imposed upon comparable co–offenders, such as to engender a justifiable sense of grievance is a ground for intervention even though each sentence, when considered alone, could not be regarded as manifestly excessive or inadequate. Gibbs CJ and Mason J clearly expressed the view (pp.610 and 613) that such manifest disparity was, of itself, a ground of appeal and not indicative of error in the sentencing process. Brennan J (p. 618) did not agree with this approach. Dawson J did not directly address this question. He referred to the different approach taken by the English and Australian courts when considering disparate sentences and said at pp623 to 624:—
"... but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora [1980] VR at p504: Tisalandis [1982] 2 NSWLR at p438."
The only reference in Lowe's case to the duty of a judge passing sentence on a co–offender appears in the judgment of Dawson J at p622 where his Honour said:
"No explanation was given us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co–offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J was so informed in this case."
I do not construe that passage, any more than the passage referred to in R v Goldberg (supra), as being authority for the proposition that there is a legal duty to enquire although it is a desirable rule of practice which should be followed to avoid unnecessary appeals.
In the passage cited above from the judgment of Neasey J in Prestage v the Queen (supra) , his Honour spoke of a duty to enquire in a "relevant situation". In that case, the relevant situation, which is set out in his Honour's judgment, was that the learned sentencing judge was told that the co–offenders had been sentenced and was offered particulars of their prior convictions, but declined to accept the offer. I doubt if Neasey J intended his observations about a duty to enquire to have general application and, when considered in the light of the decisions before and after Prestage, it is clear that the passage referred to does not warrant the construction claimed by counsel for the applicant that, when sentencing a co–offender, a failure to make enquiry bespeaks specific error in the exercise of the sentencing discretion.
Following Lowe's case, in R v MacGowan (1986) 42 SASR 581, the Court of Criminal Appeal in South Australia set out principles "derived from Lowe's case and decisions of this Court" the second of which states at p583:—
"Sentences imposed by different Judges on co–offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co–offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co–offender previously sentenced."
That passage also is advisory in nature. It is obviously desirable that, where co–offenders appear for sentence in different courts or before different judges, the materials presented include sufficient information about the circumstances of a co–offender and any sentence imposed upon him in order to avoid infringement of the manifestly disparate sentence principle. To present those materials is the duty of counsel. Where the material is inadequate no doubt it would be wise for the sentencer to make some enquiry but he is under no duty to embark upon an inquisition. In the end, sentence must be passed upon the material put before the court. See s386(7) of the Code. A failure to make enquiry will not per se, invoke appellate intervention. In my judgment ground two fails.
Counsel for the applicant did not make a submission that the sentence of two years imprisonment imposed on the applicant, viewed alone, could be categorised as manifestly excessive so it remains to consider whether the disparity between the two sentences was so manifest as to engender a justifiable sense of grievance.
The applicant was sentenced for five crimes of burglary and four crimes of stealing, but the co–offender's sentence of nine months' imprisonment (3 suspended) was imposed in respect of four crimes of burglary and three crimes of stealing. To compare the two sentences it would not be unreasonable to allocate a notional three months for the crimes in which the co–offender played no part and consider whether a sentence of twenty one months is unjustifiably disparate from the co–offender's sentence. As each played an equal part in the commission of the crimes, the disparity can only be justified on the basis that there was a sufficient dissimilarity between the personal circumstances of the two offenders.
There was nothing in the material before the learned sentencing judge to mitigate the imposition of a proper penalty for the commission of the crimes. The applicant was correctly categorised by his counsel as a "classic recidivist". At the time the crimes were committed he was 25 years old. Charged with offences of dishonesty, his first appearance in a court was at the age of 9. Thereafter his record discloses that on 15 occasions prior to the commission of the present offences, he appeared in a court and was convicted of offences of dishonesty. In addition, the applicant has two convictions for escape and has been sentenced on five occasions for a breach of suspended sentence. There was nothing to suggest that this pattern of anti–social behaviour would alter in the future.
The co–offender is nearly three years younger than the applicant., Although he has prior convictions for dishonesty they are not so numerous as those of the applicant. His first conviction for such offences was in 1982 when he was almost 18. Between then and July 1984 he was sentenced on six occasions for multiple offences of dishonesty and once for a breach of suspended sentence. Significantly, he was not convicted of any offence of dishonesty after July 1984 until he pleaded guilty to the crimes he committed with the applicant. From the pre–sentence report and submissions of counsel for the co–offender, it was clear that, after July 1984, the co–offender had made sustained efforts to rehabilitate himself. His father was supportive and when the co–offender lived at home he managed to stay out of trouble. Although the probation report was not overly optimistic, there appeared a real prospect that the co–offender would renew his past efforts to rehabilitate himself.
All these matters can be and were taken into account in mitigation of penalty. The co–offender's age and personal circumstances are quite different from those of the applicant. The sentence imposed by the learned magistrate could not be described as manifestly inadequate and, in my opinion, the dissimilarity between the circumstances of the two offenders was such that it cannot be said that the disparity between the two sentences is such as to engender a justifiable sense of grievance. I would grant leave to appeal but dismiss the appeal.
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