Peters v The Queen - [2000] WASCA 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PETERS -v- THE QUEEN [2000] WASCA 28

CORAM: MALCOLM CJ
PIDGEON J
WHITE J

HEARD: 1 DECEMBER 1999

DELIVERED : 21 FEBRUARY 2000

FILE NO/S: CCA 190 of 1999

BETWEEN: BENJAMIN ASHLEY PETERS
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal Law and Procedure - Sentence - Co-offenders - Parity Principle - Kidnapping Robbery and Stealing by two offenders - Both offenders sentenced to 9 years imprisonment - Applicant 20 years of age - Co-offender 40 years of age with worse antecedents - Whether offence so serious as to render antecedents of no significance - Sentence upheld

Legislation:

Nil

Result:

Leave refused

Representation:

Counsel:

Applicant: Mr J D Allanson
Respondent: Mr S E Stone

Solicitors:

Applicant: J J Scudds & Associates
Respondent: State Director of Public Prosecutions

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

Lovelock v The Queen (1978) 33 FLR 132
Postiglione v R (1997) 189 CLR 295

Case(s) also cited:

Australian Coal v Commonwealth (1953) 94 CLR 621
Hall v The Queen [1999] WASCA 176
House v The King (1936) 55 CLR 499
Lowe v The Queen (1984) 154 CLR 606
Miles v The Queen (1997) WAR 518
R v Peterson [1984] WAR 329
R v Weng Keong Chan (1989) 38 A Crim R 337
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

MALCOLM CJ: I would refuse this application for leave to appeal against sentence for the reasons to be published by Pidgeon J.
PIDGEON J: The appellant is seeking leave to appeal against a total effective sentence of 9 years imprisonment imposed on him for offences of kidnapping, robbery and stealing. The principle ground of appeal is limited to a short but important point. It was not an issue that the offences were of the utmost seriousness but it was submitted that the marked difference in the antecedents and circumstances between the applicant and his co-offender should have resulted in the applicant receiving a lesser sentence than that received by the other offender.
The applicant was born on 19 May 1978. He was, after leaving school, apprenticed as a boilermaker but did not complete the apprenticeship as his employer went bankrupt. He obtained an AUSTUDY grant and was enrolled in an Art and Design Course when he was arrested on his present offences. He had only one conviction in the Children's Court of reckless driving. However, during 1998, he appeared on three occasions in the Court of Petty Sessions. The first was on the 20 July 1998, not long after his twentieth birthday, when he was convicted of his second offence of reckless driving. On 19 November 1998 he was fined $100 for the possession of a smoking implement. This may have been an indication of a problem with drugs he was then having. Within the month he was again in the Court of Petty Sessions and convicted of a charge of stealing from the person. He was placed on a Community Based Order and required to perform 75 hours of community service work. The position in respect of his use of drugs was that he commenced to use marijuana at the age of 15 years. A year later he experimented with LSD and ecstasy. He then developed a heroin habit for which he reported on his own volition to the Palmerston Centre and received counselling. This was before he committed the offences the subject of this appeal.
The co‑offender, Richard Gordon Lyons, was born in London in 1958. He arrived in Australia in 1968 at the age of 10 years and lived in the Eastern States. His antecedent report shows that he came to live in Western Australia in 1993, but his list of convictions shows that he had been here earlier by reason of convictions in this State prior to that. He has an extensive record of convictions in the Children's Court and Courts of Petty Sessions of at least three States. He had not previously been convicted on indictment nor been convicted of any offences of violence. His record commenced in the Children's Court in New South Wales in 1972 at the age of 14 when he was committed to an institution on charges of breaking, entering and stealing. Following that, he was convicted of a

number of offences of stealing and this continued in Courts of Petty Sessions. It would appear that in 1985 he received his first prison sentence when he was sentenced to a term of 4 months for taking a motor vehicle and for breaching an earlier bond in which he entered for stealing electrical equipment. In 1986 he was sentenced to a total term of 10 months imprisonment for administering a drug of addiction and possessing amphetamine and cannabis. In this State, in 1994, he was placed on probation for fraud and stealing including a charge of stealing a motor vehicle. The probation was breached a month later and he received a total term of 1 year's imprisonment. He gave to the officer preparing his pre‑sentence report a history of having abused drugs at least from the age of 17 and the drugs range from cannabis, heroin, LSD, amphetamines and cocaine.

The circumstances of the offences committed by Lyons and the applicant were that on 4 January 1999 the victim, a 72‑year‑old man, drove his motor vehicle to a car park in May Drive, Kings Park around 2 pm. He was alone in the vehicle and parked it in order to remain in the driver's seat and read a book. The driver's window was down about six inches and the remaining windows were up. All the doors were locked. He noticed two persons standing at the driver's window looking at him. They were strangers to him, but the description he gave showed that they were the applicant and Lyons. Lyons reached into the car through the partially open window and unlocked the driver's door. He opened it and dragged the victim out by the arms and then started to push him into the back seat. The applicant then assisted Lyons to push the victim on to the back seat. The applicant then got into the back with the victim while Lyons went into the driver's seat and started the car with the key which was still in the ignition. He drove the car slowly through the park heading towards the Queen Elizabeth II Medical Centre where there was an automatic teller machine. The applicant remained in the back seat keeping the victim under restraint while the car was started and driven away. The applicant did this by forcing the victim's head on to the applicant's lap with the applicant's left arm. The applicant hit the victim about the face and head with his right arm. The victim was having trouble breathing and said, "Just let me breathe." The applicant replied, "Shut up, shut up or I'll stab you." He also said, "You can suck my cock like my girlfriend does." Lyons said, "Keep him down, keep him quiet, shut up or I'll kill you, I've done three before so another won't matter. Shut up or we'll put you in the boot. I did not come all the way from Tasmania to have to deal with a whinging bastard like you." The applicant then said, "I've got a blood‑filled syringe and I'll use it." The applicant also said, "I live with a 68‑year‑old woman, I know what I am doing is wrong but I need money, I'm desperate." The victim said that the applicant said several times that he would stab the victim and smash his face in. Lyons also at some stage said, "Go on smash his face in, kill him." The victim pleaded several times saying, "Please let me up I cannot breathe, I cannot breathe - - -I am going to vomit, let me up, let me up." The applicant replied, "Don't vomit on me, do it on the floor." It is not clear at what stage Lyons put the vehicle into motion, but while the vehicle was moving Lyons asked the victim if he had a wallet. The applicant replied "Yes he does in his back pocket I saw it." The applicant then took the wallet from the victim's pocket. At some stage they removed $200 from it. Lyons asked for the pin number for a card taken from the wallet and the victim gave it to him. He said that he was scared for his life and thought they were going to kill him. He was concerned about the fact that he had an abdominal operation. Lyons told the victim that he would kill him if the pin number was incorrect. The vehicle stopped at the Queen Elizabeth Centre. The applicant said to the victim, "We're outside a hospital so you'll be okay." The applicant then asked Lyons how long was he going to be. Lyons said, "Only about a minute" and Lyons left the car. At this stage the victim managed to get out of the applicant's lap but kept down facing the passenger side rear door. Lyons went to the automatic teller machine and removed $1,000 from the victim's account. He then returned to the vehicle, got into the driver's seat and started the vehicle again. The applicant asked Lyons, "How did you go?" and Lyons replied, "I got it." Lyons then drove the vehicle to the car park at the back of the Subiaco Markets. Lyons and the applicant then alighted from the car on the driver's side and ran away towards the markets. The victim got out and spoke to two ladies who called the police. The police arrived a short time later and conveyed the victim to a police station where he made a statement. The victim, when spoken to by the police, was in a disoriented state. At 6.30 pm that day he was examined by a doctor. He was bleeding from injuries to the face and head. He suffered cuts, abrasions and bruising to his face and head which required medical treatment. He subsequently suffered panic attacks and other anxieties associated with what happened.
As could be anticipated, there was considerable publicity in respect of the incident. The applicant, shortly after the offence, confided in at least two friends that he was involved. One of these persons made the decision to inform the police. On 8 January the applicant voluntarily surrendered to the police and admitted his part in the offence. The applicant made a full confession and pleaded guilty on the fast track. Lyons also voluntarily surrendered to the police and he too made a full confession and pleaded on the fast track.
Lyons first appeared in the Court of Petty Sessions on 18 January 1999 and on that date pleaded guilty and was committed to the Supreme Court at the April sittings for sentence. At these sittings he obtained an adjournment so he could consider changing his plea. He did not do so and pleaded guilty before Wheeler J on 4 May 1999.
The applicant appeared in the Court of Petty Sessions on 9 January. Bail was refused and he was then remanded on a number of occasions for reasons we do not know. He pleaded guilty in the Court of Petty Sessions on 19 May and was committed for sentence. It was treated as a fast track plea. The result of this history of appearances was that they that they were each on separate indictments.
They were each charged with three offences being the same in each case, namely kidnapping, stealing a motor vehicle and robbery with a number of circumstances of aggravation. These were firstly being in company, secondly, pretending to be armed with offensive weapons, namely a knife and blood‑filled syringe and thirdly with using actual personal violence. Lyons was presented to Wheeler J on 4 May 1999. Her Honour considered that the starting point in respect of the totality of the offences was 12 years imprisonment, but said that Lyons should receive a substantial discount because of his early plea of guilty causing her to reduce the overall sentence to one of 9 years. Her Honour said to Lyons in sentencing him "Viewing the videotaped record of interview in which you refer to an elderly gentleman in fear of his life as 'whinging' and in which you appear to regard the callous and offensive remarks of your co‑offender as entertaining does not suggest that you appreciate the seriousness of this offence." Her Honour then referred to the fact that this was the first violent offence and that this was a new and serious departure for him. She said that he had a lengthy history of substance abuse and was addicted to heroin at the time of these offences. Her Honour also said that Lyons had a number of psychiatric conditions which could benefit from treatment. She said that in the past he had not carried through to completion any form of treatment or counselling. Her Honour said to Lyons, "It is said that you are remorseful", but her Honour said nothing more in respect of remorse other than making this remark. The applicant appeared before Wallwork J on 2 August 1999 and pleaded guilty to the identical offences and received the same sentence.
The depositions and information provided to each of the sentencing Judges do not show the circumstances in which the offenders made the decision to carry out the offence. Lyons' counsel, when speaking in mitigation, said that Lyons had not received his dole cheque and consequently had no money to buy heroin. He had known the applicant for only a couple of weeks and they decided to go to Kings Park to try and break into some cars. They were unsuccessful in finding a suitable car and waited in the park until only one car was left, that being the car they took. He said there was no prior discussion between them as to the method that they would use. The applicant's counsel, when speaking in mitigation confirmed that the applicant had not met Lyons until shortly before the incident. He said that Lyons dressed "in a young way to make himself appealable to the youth around him" and he boasted to them about being in prison. As his counsel put it, Lyons told "war stories" of his terms in prison. The plea was that the applicant was vulnerable to coming under the influence of a person of this type. I consider the matter must be judged on the basis that they made the joint decision to carry out the offence with nothing more being known and this was the basis on which each were judged.
The thrust of the submission made to the sentencing Judge on behalf of the applicant was that he should receive a lesser sentence than Lyons by reason of the difference in age and background and by reason of this lesser record. The submissions on behalf of the Crown were that on the facts of what happened, each were equally culpable and that the offence was so bad that it becomes very difficult to give much in the way of credit for good antecedents. Wallwork J, in his sentencing remarks, summarised the offence and gave the following reasons for imposing the sentence he did: (AB28)
"It is said that what you did on this occasion was totally out of character and I accept that. It is said that you are normally a shy, caring and sensitive young man when not under the influence of drugs.
You pleaded guilty at the first opportunity and you are entitled to a reduction in your sentence because of that. A person whom you told of the offence had told the police about it on 7 January. You surrendered yourself without them coming to you on 8 January. I accept the police knew you had committed the offence before you surrendered but I don't know whether or not you knew of that. However, I take into account that you did voluntarily surrender yourself to the police. It was submitted by the crown that whilst the aggressive instructions were coming from the co‑offender the actual physical violence was inflicted by you. It was submitted on behalf of the crown that the two of you were equally culpable for this offence and equally involved and deserving of exactly the same punishment. It was said that you both participated equally in the spending of the money. Even though your co‑offender had previous offences of dishonesty, stealing and fraud you both should be treated the same. I must accept those submissions on behalf of the crown.
It was submitted on your behalf that your co‑accused had all the money, whereas you only obtained drugs which were bought with the stolen money. You got no other money. I take into account that you previously voluntarily engaged in treatment for drugs problems and I note that you are keen to undergo counselling. You are said to be insightful about the nature of the drug problems you have.
…
You have previously been convicted of stealing from a person. That was on 10 December 1998… I note you were said to be normally an honest and caring person. I accept that you are completely remorseful for the offence. I note that your co-accused has prior convictions in other places and has previously been sent to prison in this state.
I am satisfied from both the victim impact statement and from the other information I have been given that the leader of this very serious offence was the co-accused who was nearly twice as old as you who had a criminal record. However, the fact is that you were both involved in these offences. You were old enough to make your own decisions and because of all the circumstances I cannot see that you could be sentenced to less than the same sentence as he received which was a total term of 9 years' imprisonment. This is because the episode was so extremely serious and it cannot otherwise be regarded."
The grounds on which the applicant is appealing are:-
"1.The learned sentencing Judge, having found that the co-offender was the leader of the offence, was nearly twice as old as the applicant, and had a criminal record including prior imprisonment, erred in holding that the Applicant should be treated the same as his co-offender because of their equal involvement in the offence when the different circumstances of the Applicant called for the imposition of a lesser sentence than that imposed on the co-offender.
2.The sentence of 9-years imprisonment was excessive in all the circumstances having regard to the age, character and antecedents of the applicant, his voluntary surrender to the police, complete remorse and plea of guilty at the first opportunity."
The principles relating to parity of sentence in respect of co-offenders has recently been re-stated by the High Court in Postiglione v R (1997) 189 CLR 295. Dawson and Gaudron JJ said at 301:
"… Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. 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."
It is necessary for the sentencing Judge to take into account the antecedents and circumstances relating to the particular offender to see if that requires a lesser sentence to that imposed on a co-offender. The case of Lovelock v The Queen (1978) 33 FLR 132 appearing on the applicant's list of authorities was an instance of the Full Court of the Federal Court altering a sentence on the basis that insufficient weight had been given to the different circumstances of the appellant. Brennan J (as he then was) said at p 137 that according to the circumstances of the case, it may be inferred that insufficient weight had been given to the differentiating circumstances, and in such a case, the appellate court determines for itself the appropriate sentence which ought to be imposed upon the appellant, and intervenes by imposing that sentence.
Wallwork J did not in any way suggest that he was bound by law to impose the same sentence. His Honour referred to and examined carefully the personal circumstances and antecedents of the applicant. He reached the view on the facts before him that the sentences should be the same. The question to be examined is whether his Honour made any error in making the assessment he did.
His Honour reached the view that the co-accused, Lyons, was the leader. His Honour had before him the victim impact statement of the victim as well as his deposition of the facts. The deposition supported the facts in the victim impact statement. The victim said that Lyons' face was the one he first saw at the window. Lyons dragged him out of a car but the two then started to push and punch him and throw him into the back seat. The applicant put him into a headlock and pushed his face into his groin. Lyons was in the front and drove the vehicle. The victim said that Lyons "kept telling the young one in the back to hit me and shut me up". The victim said the applicant would not let him go and told him that he had a blood filled syringe. The victim said that the applicant seemed very nervous and seemed to do what Lyons said. The applicant kept hitting the victim every time the victim attempted to lift his head. However, the victim said in respect of the applicant "He didn't frighten me as much as Lyons, who appeared to enjoy terrorising me". The victim said that Lyons seemed to be very calm and drove slowly as if he knew exactly what he was doing. Lyons threatened to put the victim in the boot if he did not "Shut up". The victim also said:
"Despite what was happening to me and what Peters himself was doing to intimidate me, I feel that I also have to say that I was not as afraid of Peters as I was of Lyons. Peters seemed to show an element of concern when he realised how terrified I was."

His Honour was aware of this but his Honour was also aware of the fact that the applicant, by himself, had in a headlock a 72-year-old man and was continually punching him and in particular, kept punching him every time the victim attempted to lift up his head. He refused the victim's requests to be allowed up and continued to punch and abuse him. His Honour reached the view that it required the same punishment by reason of the extreme seriousness of the conduct and of the applicant being of an age to know how wrong his conduct was.
Had there been no age difference I do not consider it could have been said that there was a difference in culpability or participation of the two offenders. They were acting as a team to carry out the same common goal. The factor of Lyons giving orders, which the applicant so willingly executed, would not, on the facts of this case, be a factor to affect culpability. The applicant was of an age to know how wrong the orders were and was aware and that they were coming from a man who had been in gaol. The applicant well knew how criminal it was to be carrying them out. The applicant was, in any event, to a large extent using his own initiative in determining the method and degree of force to be used in restraining the victim. Their participation must be seen as being equal. The question which arises is as to whether the difference in age and in the antecedents of the two is a factor to reduce culpability and to reduce the appropriate punishment.
Certain offences are so bad that previous good character has little or no effect. I would see the general principle in this area as being stated by Fox and Freiberg Sentencing State and Federal Law in Victoria (2nd ed) 272 par 3.707. The authors state that the absence of a criminal record is not always mitigatory. There are two situations where this is so. "The first is where the gravity of the immediate offence is so great as to overwhelm any benefit claimed for prior good character. The need to deter others takes precedence over minor adjustments in sentence on account of the offender's record. This is especially so where there are co-offenders.". The second situation, which refers to the absence of a criminal record being crucial to the commission of the offence, is not applicable to this case. The offences being considered in Lovelock were offences of the type where more weight is given to previous good character and were not offences of violence.
In my view this is a case where the gravity of the immediate offence is so great as to overwhelm any benefit claimed for the applicant's antecedents and the sentencing Judge saw it that way. The applicant was of an age where he must have appreciated the inherent wrongness of a sustained attack on an elderly and defenceless man and must have appreciated the wrongness of the encouragement he was receiving from a man he knew had been in gaol. The applicant willingly and with some initiative carried out his part of the offence.
This is not the case of the applicant being a first offender. The applicant was before the Court of Petty Sessions a month previously on a serious offence of stealing from the person. He was given the opportunity of a work release order. It is implicit that when giving this option that he not commit any further offence and the order made it clear he would be liable for sentence if he did. Within a month of his so appearing he committed offences as serious as the present ones. He did it on the day he was due to start to perform the community service work he had undertaken to perform. A month earlier he had been before the courts for possessing a smoking implement. When one has regard to the age the applicant, who was nearly 21 years old together with the type of conduct involved, I do not consider the difference in age between the two would be of significance in respect of the sentence. I do not consider it has been shown that the sentencing Judge was in any way in error and there is much present to support the decision he arrived at.

The second ground was argued on the basis of its being a subsidiary of the first ground and on this basis is dealt with in the preceding reasons. It could not succeed in its own right. The sentence was discounted by reason of the plea of guilty and could not in any way be seen as being excessive having regard to its serious nature
I would refuse leave.
WHITE J: I have read the reasons to be published by Pidgeon J. I agree with those reasons and have nothing further to add.