R v Bertram

[1993] QCA 8

IN THE COURT OF APPEAL [1993] QCA 008

QUEENSLAND	C.A. No. 345 of 1992
Before the Court of Appeal

Chief Justice
President

Davies JA.

BETWEEN:

T H E Q U E E N

v.

JOSEPH FINIAN BERTRAM

(Applicant)

JUDGMENT OF THE COURT

Delivered the tenth day of February, 1993

M	INUTE OF ORDER:
C	ATCHWORDS
Counsel:	Mr R. Collins for the Applicant Mr B. Butler for the Respondent
Solicitors:	Legal Aid Office for the Applicant Director of Prosecutions for the Respondent
Hearing Date:	3rd February, 1993

IN THE COURT OF APPEAL

QUEENSLAND	C.A. No. 345 of 1992
BETWEEN:

T H E Q U E E N

v.

JOSEPH FINIAN BERTRAM

(Applicant)

Chief Justice
President
Davies JA.

Judgement of the Court delivered the tenth day of February, 1993

IN THE COURT OF APPEAL

QUEENSLAND	C.A. No. 345 of 1992
BETWEEN:

T H E Q U E E N

v.

JOSEPH FINIAN BERTRAM

(Applicant)

JUDGMENT OF THE COURT

Delivered the tenth day of February, 1993

Joseph Finian Bertram has applied for leave to appeal against a sentence imposed in the District Court on 13 November 1992 in respect of offences of breaking and entering a dwelling house with intent to steal, attempted breaking and entering a dwelling house, and stealing.
A co-offender, like Bertram eighteen years old at the time of the offences and with no prior criminal history, had earlier been placed on probation for one year by a different District Court judge. Bertram was placed on probation for three years and ordered to perform 240 hours community service.
Bertram consented to those orders and the sentence imposed was within the appropriate range. However, it is submitted for the applicant that the sentence is manifestly excessive principally because of the discrepancy with the sentence imposed upon his co-offender. The applicant seeks a sentence identical with that imposed upon his co-offender.

In R. v. Cox (C.A. No. 361 of 1990, unreported judgment delivered on 17th May 1991), the Court of Criminal Appeal referred in this context not only to Lowe v. The Queen (1984) 154 CLR 606 but also to the earlier decision of the New South Wales Court of Criminal Appeal in R. v. Tisalandis (1982) 2 NSWLR 430. However, it is by no means apparent that Tisalandis is fully consistent with Lowe, which established the principle to be applied at that time in these circumstances. Shortly stated, it is that a Court of Appeal will interfere to reduce a sentence, not in itself manifestly excessive, in order to avoid a marked discrepancy which would give rise to a justifiable sense of grievance, with a sentence imposed on a co-offender, at least where such reduction does not result in a sentence which is inadequate.

It is unnecessary in this case to decide what impact the Penalties and Sentences Act 1992 has upon the test propounded in Lowe. Disparity with a sentence imposed upon a co-offender may be a relevant circumstance within the meaning of sub-section 9(2)(p) of the Act, if not encompassed by other, more specific sections. However, there are a number of other provisions in the Act which may bear upon the effect of such a disparity in a particular case; for example, the specified purposes for which sentences may be imposed (sub-section 9(1)), the requirement that regard be had to the numerous matters prescribed by sub- section 9(2), and the limitations upon the sentencing discretion imposed by sub-sections 9(3) and (4). Potentially difficult questions might arise, although they do not do so at this time.

It was conceded for the Director of Prosecutions that the sentence imposed upon the applicant's co-offender was adequate for the misconduct in which both engaged. Further, it was accepted that there was not the slightest material distinction between the two persons in question or their conduct. Our attention was directed to no provision in the Penalties and Sentences Act which, in such circumstances, inhibits the implementation of the principles laid down in Lowe and, on the contrary, counsel for the Director of Prosecutions submitted that the test stated in Lowe should be applied.

However, it was submitted that Lowe does not require total conformity between the sentences imposed on co-offenders. While so much may be acknowledged, in circumstances such as the present there is no justification for the judge who sentences one co-offender not to impose a sentence identical to that given to another co-offender previously sentenced. Both as a matter of comity and to avoid any impression that justice has not been done and thus to advance the due administration of criminal justice, such a course should ordinarily be followed.

It was not submitted for the Director of Prosecutions that it was material that the applicant had consented to the sentence in respect of which application for leave to appeal is sought and the court is uninfluenced by that consideration since, in a practical sense, such a consent should be seen as coerced by the likelihood that, otherwise, a less favourable sentence would probably result.

The application for leave to appeal should be granted and
the appeal allowed and the applicant placed on probation for one
year on the ordinary conditions including that the appellant

report to an authorised Commission Officer at Brisbane within 72

hours.