Perez v The Queen
[2012] NSWCCA 167
•02 July 2012
Court of Criminal Appeal
New South Wales
Case Title: Perez v R Medium Neutral Citation: [2012] NSWCCA 167 Hearing Date(s): 2 July 2012 Decision Date: 02 July 2012 Jurisdiction: Before: Basten JA at [1];
Harrison J at [23];
Beech-Jones J at [25]Decision: (1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal - sentence - robbery in company - seriousness of involvement in offence - sentencing judge found that both offenders planned offence - whether co-offender planned the offence - whether appellant became involved after offending conduct commenced - whether number of discrete acts done by each offender relevant to seriousness of respective conduct - whether relevant error demonstrated
CRIMINAL LAW - appeal - sentence - robbery in company - parity - whether disparity in roles of appellant and co-offender warranted departure from equal sentences
Legislation Cited: Crimes Act 1900 (NSW), s 97 Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v Henry [1999] NSWCCA 111; 46 NSWLR 346Texts Cited: Category: Principal judgment Parties: David Patrick Suturino Perez (Appellant)
Crown (Respondent)Representation - Counsel: Counsel:
Mr G Brady (Appellant)
Ms M M Cinque (Respondent)- Solicitors: Solicitors:
Conaghan Lawyers (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)File number(s): CCA 2010/44742 Decision Under Appeal - Court / Tribunal: District Court - Before: English DCJ - Date of Decision: 16 September 2011 - Citation: - Court File Number(s) DC 2010/44742 Publication Restriction:
JUDGMENT
BASTEN JA: The application for leave to appeal against sentence in this matter was heard on 2 July 2012. At the completion of the hearing, the Court made the following orders:
(1) Leave to appeal granted.
(2) Appeal dismissed.
The Court reserved its reasons.
Sentence appealed from
The appellant was charged by the Director of Public Prosecutions with one offence, namely that on 3 February 2010 at Pitt Town, being in company with a co-offender, did rob Matthew Britton of a sum of $3,200, contrary to s 97(1) of the Crimes Act 1900 (NSW). He entered a plea of guilty to the charge and was sentenced by English DCJ to imprisonment for four years, commencing on 2 September 2011, with a non-parole period of two years. The non-parole period is due to expire on 1 September 2013.
The plea was entered on 14 March 2011 and the hearing on sentence was held on 2 September 2011. Having previously been on bail, the appellant was remanded in custody on the latter date, judgment being delivered on 16 September 2011.
The notice of appeal, filed on 23 March 2012, contained two grounds, alleging that the sentencing judge:
(1) failed to assess, or adequately assess, the appellant's role in the offending and therefore failed to assess the seriousness of the offence; and
(2) erred in imposing a sentence that, when compared with the sentence imposed on his co-offender and giving due allowance for their differing roles and antecedents, gave rise to a justifiable sense of grievance.
It may be noted, for the purpose of the second ground, that the co-offender, Reece Manihera, was sentenced at the same time as the appellant and received an identical sentence.
Factual background
On 10 January 2010 the victim and the co-offender attended a social gathering; they were known to each other prior to that time. During the evening, the victim told the co-offender that his father was interested in buying a campervan. Some minutes later, the co-offender told the victim that he knew of a campervan which a friend wished to sell.
Over the next few days the victim discussed the possible purchase with his father and, on 2 February 2010, the victim sent the co-offender a text message asking for further details. The co-offender responded saying the van was still for sale at a price of $3,000-$3,200. Arrangements were made for the victim to inspect the van and the victim told the co-offender that he would bring the money in case he decided to buy it. The money was provided to the victim by his father.
At around 5pm on 3 February 2010 the co-offender arrived at the victim's home and the victim entered the front passenger seat of the car. The co-offender then drove to a nearby service station where the appellant got in to the back seat of the vehicle, behind the victim. The co-offender then drove to Pitt Town, where he asked the victim if he had brought the $3,200. On receiving an affirmative answer, the co-offender brought the vehicle to a sudden halt, struck the victim in the face with a closed fist and snatched the money from his grasp. He told him to get out of the car.
At about the same time, the victim felt pain at the back of his right shoulder and turned to see the appellant holding a homemade "taser" device.
The victim then opened the car door and fell out, but apparently stood by the car to plead for the return of his father's money. The appellant then wound down his window and moved the "taser" device in the direction of the victim, which caused him to step further away from the vehicle. The car drove off, the victim having left his bag, jacket and mobile phone in the vehicle.
The matter was immediately reported to the police, who searched the co-offender's home and the vehicle later that evening. The victim's bag and jacket were found in the vehicle but the mobile phone was not recovered. Attempts to locate the appellant and the co-offender were unsuccessful. However, the appellant presented himself at Windsor police station on 12 February 2010 and his co-offender presented himself four days later.
Judgment on sentence
The factual background set out above was derived from a statement of facts tendered for the purposes of sentencing. They were recounted by the judge, together with a summary of the pre-sentence reports in respect of the appellant and the co-offender. Neither gave evidence.
The personal circumstances of the appellant, as accepted by the sentencing judge, may be briefly stated. At the time of the offence, the appellant was 21 years of age. He had a record involving minor damage to a railway carriage which was of no consequence in respect of the present offending. He had been suspended from school for smoking and fighting. He admitted to the probation and parole officer in April 2011 that he spent approximately $200 a week on cannabis and gambled approximately $400 per month. The sentencing judge noted that the probation and parole officer described the appellant, when interviewed, as displaying "neither contrition nor victim empathy" and as demonstrating "a surprising lack of insight into the impact of abusing illicit substances and the link between his drug addiction and his criminal behaviour". She also noted, however, that a psychologist, to whom he had been referred by his solicitor, had taken a more positive view of his prospects. The sentencing judge said in respect of both the appellant and the co-offender that each had "good prospects for rehabilitation and are unlikely to re-offend": Judgment, p 10.
Her Honour noted, correctly, that guidance as to the appropriate range of sentencing for the offence was to be obtained from the judgment of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. That judgment required that in all but exceptional cases, a custodial sentence was required and a benchmark term of four to five years was considered appropriate. Her Honour did not think that this was an exceptional case warranting other than a custodial sentence, a conclusion not challenged on appeal. Her Honour summarised the circumstances of both offenders, whom she noted were relatively young, in the following terms (Judgment, p 9):
"There was, I find, a considerable degree of planning to entice the victim into their company on a false pretence and to ensure that he had a large sum of cash on him. Actual violence was perpetrated upon him by both offenders, a punch to the face by Manihera and an electric shock administered by Perez. He was taken by the two offenders in a vehicle and driven around before being assaulted and robbed and then left by the roadside. No doubt a very frightening experience for him. In addition to the loss of $3,200, he also had his phone taken. ... $3,200 is a significant sum of money compared to the relative small amounts considered in the guideline judgment. The motivation of Mr Manihera was to prove his worth to his negative peers and the motivation of Mr Perez was purely financial gain."
On the basis that each had good prospects for rehabilitation and that each was facing his first time in gaol, there was a finding of special circumstances, resulting in a lengthier than normal period of eligibility for parole and supervised release.
Ground 1: role of appellant
Much was sought to be made by the appellant of the evidence that the whole event was planned by the co-offender, commencing with the conversation at the social gathering on 10 January. The appellant submitted that, on the evidence, he had no involvement in the matter until the day of the offence and that he had no involvement in the offence itself until after the co-offender had assaulted the victim and taken his money.
There are two difficulties with this approach. First, it relies upon an inference that the co-offender was involved in planning the robbery from the initial social contact with the victim on 10 January. However, there was no finding to that effect and the inference is implausible as the co-offender made no attempt to contact the victim thereafter, it being the victim who raised the matter again by contacting the co-offender the day before the offence. Whether the plan to meet the following day to inspect the campervan involved a plan to "rip off" the victim, devised by the co-offender to which the appellant merely adhered the following day, is unclear. The appellant did not so describe it to the probation and parole officer. The officer noted in a report of 28 April 2011 (page 2):
"Mr Perez said that on the day of the offence he met the co-offender in the afternoon after work. He said they smoked cannabis at his home and at the home of the co-offender prior to the incident. He said the idea to undertake the offence was conceived at the co-offender's home.
The offender's account of the offence, to this Service, was not completely consistent with the Full Facts. Mr Perez said that he and the co-accused had initially arranged to meet the victim with the intention of acquiring marijuana for the $3,200, not a campervan. Mr Perez also said that the item he used to create an electric current was not a Taser but was electrodes attached to a camera. He said that he had learned how to make and use the device whilst at school.
Mr Perez described his behaviour as 'pretty stupid' and that he made a 'big mistake'. He said that he had never intended to obtain the marijuana and that $3,200 was not enough money to acquire the quantity of marijuana arranged to be supplied."
The critical issue for present purposes was the concession by Mr Perez to the parole officer that he was involved in planning the offence. The suggestion that he only became involved after the attack by Mr Manihera ignores the fact that he was picked up by Mr Manihera after the victim, so that he sat in the back seat and had with him the homemade taser device, which he later used in apparent pursuit of the common purpose. The appellant also described the co-offender as "his best friend" at the time. There was no relevant error demonstrated by the sentencing judge in concluding that each was involved in the planning of the offence.
Ground 2: parity
The assumption underlying ground 2 was that there was such a marked disparity in the culpability of each that the imposition of equal sentences amounted to a disproportionate response calculated to erode confidence in the integrity of the administration of justice: see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 (Mason J).
Again, the factual premise underlying the appellant's submission was the supposed disparity in the roles played by the co-offender and the appellant.
The submission ignores the fact that this was a common purpose offence carried out in company. Although the contact between the victim and the pair was with the co-offender, who knew him better than the appellant did, collected the victim in his car, assaulted him and grabbed the money, it was the appellant who came armed with a weapon, which he used. The failure to distinguish the culpability of the co-offender from that of the appellant demonstrated no error warranting intervention by this Court. The imposition of identical sentences did not, therefore, constitute manifestly disproportionate sentencing, as contended.
Conclusion
For these reasons, the grounds of appeal were not made out and the appeal was properly rejected.
HARRISON J: I agree that the judgment of Basten JA accurately records the basis upon which the Court earlier indicated that the appeal should be dismissed. I wish only to add the following short remarks.
In the course of his submissions in this Court, counsel for the applicant sought to compare the things done by the applicant with those done by his co-accused, in an attempt to establish that the (arguably) smaller number of discrete acts performed by the applicant favoured him in an assessment of the role that he played in the commission of the offence. That type of analysis may sometimes, even often, be helpful in delineating the respective roles of numerous participants in a single criminal exercise. I do not think it could ever be of much assistance in circumstances such as this case, where the applicant's participation included coming armed with a homemade taser device and using it with the apparent intention of overcoming or subduing the victim of the crime.
BEECH-JONES J: I agree with Basten JA.
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