Palmer v The Queen
[2007] NSWCCA 308
•30 October 2007
New South Wales
Court of Criminal Appeal
CITATION: Palmer v R [2007] NSWCCA 308
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 30/10/2007
JUDGMENT DATE:
30 October 2007JUDGMENT OF: Handley AJA at 1, 16; Hidden J at 14; Hoeben J at 15 EX TEMPORE JUDGMENT DATE: 30 October 2007 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL APPEAL - SENTENCE - NO QUESTION OF PRINCIPLE LEGISLATION CITED: Crimes Act 1900 s97(1)
Crimes (Sentencing Procedure) Act 1999 s21A(2)(n)CASES CITED: R v Henry (1999) 46 NSWLR 346 PARTIES: Matthew John Palmer v Regina FILE NUMBER(S): CCA 2006/5181002 COUNSEL: Ms April Francis (Applicant)
Ms Natalie J Adams (Crown)SOLICITORS: Mr Stephen E O'Connor for Legal Aid Commission (Applicant)
Mr Stephen C Kavanagh (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 06/11/0638 LOWER COURT JUDICIAL OFFICER: McGuire ADCJ LOWER COURT DATE OF DECISION: 3/11/2006
2006/5181002
Tuesday 30 October 2007HANDLEY AJA
HIDDEN J
HOEBEN J
1 HANDLEY AJA: The prisoner was charged on one count with an offence of robbery in company contrary to section 97(1) of the Crimes Act 1900. He pleaded guilty and was sentenced by Maguire ADCJ to a head sentence of four and a half years with a non-parole period of three years. The offence carried a maximum penalty of imprisonment for twenty years. In view of the plea of guilty, it is apparent that the sentencing judge adopted, as his starting point, a sentence of six years.
2 The applicant seeks leave to appeal on two grounds. The first is essentially a parity ground based on the sentence which a co-offender received from Berman DCJ some months later. In support of this ground it is submitted that in any event, the starting point of six years was excessive and outside the guideline in R v Henry (1999) 46 NSWLR 346. The second ground is that the sentencing judge wrongly treated his findings as establishing the existence of the aggravating factor in section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999, whereas his findings only established the absence of a mitigating factor.
3 The co-offender Simpson was sentenced by Berman DCJ, some five months after the applicant, for the same offence. He had pleaded not guilty. However there was a degree of cooperation with the prosecution and the whole of the Crown case was not in dispute. That co-offender offered to plead guilty to a charge of being accessory after the fact to a robbery but the plea was not accepted. However as I said, there was a measure of cooperation which limited the trial which entitled the co-offender to a modest discount.
4 Berman DCJ sentenced him to a head sentence of three years and a non-parole period of eighteen months. Thus he adopted a starting point of about three years four months in marked contrast to the starting point of six years adopted by the sentencing Judge.
5 There were significant mitigating factors in the case of the co- offender. He withdrew from the scene of the robbery when the knife was produced by the third participant, and waited outside for the others. Berman DCJ regarded that as a matter which was "very important when comparing the sentence which was imposed by Maguire ADCJ on Mr Palmer."
6 The other matter which distinguishes the sentences is that Berman DCJ held that Maguire ADCJ had sentenced the present applicant on the basis that he knew that the knife was going to be used in the course of the robbery.
7 Maguire ADCJ did not make that finding. He was not satisfied that the applicant was aware of the presence of the knife on the third participant with the likelihood that it would be produced during the robbery. He was not satisfied that the Crown had established this on the criminal onus as an aggravating factor. On the other hand, he was not satisfied on the civil onus that the applicant positively did not know that the third participant had a knife. The matter was left in that state of balance.
8 The co-offender Simpson had recently been released from full time custody but was not on conditional liberty when he committed the offence. The present applicant was then on a bond and on conditional liberty. This has always been considered to be a serious aggravating factor in sentencing. Both the applicant and the co-offender had significant criminal records for offences involving violence and robbery and no significant distinction can be drawn in favour of the applicant on that basis.
9 In these circumstances the basis for the significantly lower sentence on the co-offender Simpson is not relevant to the basis that the sentencing Judge was entitled to and did adopt in sentencing the applicant. Making allowance for the various positive and negative factors; the plea of guilty; the bond; and the other matters I have referred to, I have not been persuaded that the applicant has established a breach of the parity principle. I reject the first ground of appeal.
10 The second ground of appeal is that the sentencing judge treated the element of planning present in this offence as an aggravating factor within section 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. On page 11 of his remarks on sentence, he said:
"I simply do not believe that Mr Palmer had no knowledge that his co-offenders were to rob the store and that he impulsively joined in the venture. I am completely convinced that the offence involved planned criminal activity; that his conduct was premeditated and not spontaneous. It was not a simple impulsive participation in an unanticipated venture."
11 Subsequently his Honour said:
"I was urged to consider by way of mitigating factors that the injury and emotional harm caused by the offence was not substantial; that the offence was not part of a planned or organised criminal activity. As stated, I believe that the offence was part of a planned and organised criminal activity."
12 The solicitor for the applicant had asked the sentencing judge to find that the offence was spontaneous and there was no element of planning or premeditation, and that this was a significant mitigating factor. His Honour was entitled to reject that submission. The Crown, in their submissions on sentence, did not rely on subparagraph (n) as an aggravating factor, although it did rely for this purpose on other paragraphs of section 21A(2).
13 The sentencing judge was not bound by the Crown's submission to ignore what he considered was an aggravating factor. However I have not been persuaded that, fairly considered in the light of the conduct of the sentencing proceedings, his Honour held that the degree of planning in this case was an aggravating factor which attracted a higher sentence. Fairly read, his Honour was doing no more, in my opinion, than rejecting one aspect of a plea of mitigation on behalf of the applicant. In those circumstances, the appeal fails and although I would grant leave, I would dismiss the appeal.
14 HIDDEN J: I agree with the orders proposed by Handley AJA and with his Honour's reasons. This is not to deny that I would reject the ground based on disparity only after careful reflection. The disparity is admittedly marked. However, Judge Berman found that Simpson's culpability was very significantly less than that of the applicant. In so saying, I acknowledge, but am able to put to one side, Judge Berman's misapprehension that Judge Maguire had sentenced the applicant on the basis that he had full knowledge of the knife. Making all due allowance for that, it was open to Judge Berman to take the considerably more favourable view of Simpson's culpability that he did. That fact, together with the fact that the applicant was subject to conditional liberty at the time of the offence, justifies the significant disparity between the two sentences and I am not persuaded that the applicant has a legitimate sense of grievance. I agree with the orders proposed.
15 HOEBEN J: I agree with Handley AJA.
16 HANDLEY AJA: The orders of the Court will be leave to appeal granted. Appeal dismissed.
02/11/2007 - Typographical errors - Paragraph(s) 3, 13 07/11/2007 - Simple editing and typographical corrections - Paragraph(s) 14
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