R v Boney - [2001] NSWCCA 432

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Boney [2001] NSWCCA 432

FILE NUMBER(S):
6001/2001

HEARING DATE(S): 19 October 2001

JUDGMENT DATE: 19/10/2001

PARTIES:
Regina
Trevor Boney

JUDGMENT OF: Wood CJ at CL Grove J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/61/0056

LOWER COURT JUDICIAL OFFICER: Black DCJ

COUNSEL:
C: Ms D Woodburne
A: Mr R J Button

SOLICITORS:
S E O'Connor

SRALS

CATCHWORDS:
CRIMINAL LAW - appeals - appeal against sentence - whether sentence manifestly excessive - parity - whether justifiable sense of grievance - where co-offender sentenced in Children's Court to 100 hours community service after four months detention pending sentence - applicant had long criminal history while co-offender also had blemished record - offence committed while applicant on parole and co-offender subject to conditional liberty - applicant had long history of substance abuse while co-offender had minor record of recreational use - 18 months difference in age - would have been appropriate for sentencing Judge to pay some regard to co-offender's sentence - appropriate to intervene to limited extent.

LEGISLATION CITED:
Crimes Act 1900 ss 97(2), 154A

DECISION:
Sentence below quashed. Applicant re-sentenced

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60011/00

WOOD CJ AT CL
GROVE J

FRIDAY 19TH OCTOBER 2001

REGINA V TREVOR BONEY

Judgment

WOOD CJ AT CL: The applicant seeks leave to appeal from the sentence imposed upon him by his Honour Judge Black QC in the District Court at Bourke on 1 November 2000, following his plea of guilty to an offence of armed robbery (s 97(2) Crimes Act 1900 - maximum penalty imprisonment for twenty years). When sentencing the applicant his Honour took into account, on a form 1, a further offence of take and drive a conveyance, an offence for which the maximum penalty under s 154A of the Crimes Act is imprisonment for five years. The sentence imposed was one of imprisonment for three years with a non-parole period of eighteen months. Each was back dated to 12 August 2000 to take into account the time spent in custody.
Facts:
On the evening of 7 February 2000 the victim, Tim Spora, was at his place of work with a woolbroking company in Bathurst Street, Brewarrina. At about 8.45 p.m. the applicant's younger brother, Paul Boney, entered these premises. He was carrying a screwdriver behind his back and he asked the victim whether he had $2. Mr Spora replied in the negative. The applicant, who had followed Paul Boney into the premises, took the screwdriver from him, and threatened to stab Mr Spora. The latter opened his wallet, took out $35 and handed it over. Paul Boney thereafter took the wallet and searched it for further money. While that was happening the applicant asked the victim several times where the safe and money bag were. When informed that there was no safe and that he did not know if there was a money bag, the applicant required Mr Spora to enter a small room in the office. While he there he managed to seize the applicant's wrist which appeared to have the effect of calming him down. Shortly afterwards, after having shut and locked the front door, Paul Boney came into the room and instructed Mr Spora to remain there. Both men then left the shop, although not before the applicant apologised to the victim. Paul Boney picked up the keys to his four wheel drive vehicle. Under the control of the applicant they then drove this vehicle away from the premises. It was located later that night near the saleyards in a damaged condition, consistent with it having been driven through the scrub.
When initially spoken to by police, the applicant and his co-offender declined to be interviewed. Each subsequently pleaded guilty to the offence. The co-offender was dealt with in the Brewarrina Children's Court on 6 June 2000 for this and other offences. He received, in relation to those offences, concurrent sentences of one hundred hours community service. This was after taking into account a period of four months detention pending sentence.
It is not entirely clear whether his Honour had fully placed before him the breadth and nature of those offences. They are, however, of some importance having regard to the submissions addressed to us today. In substance, it appears that they include, first of all, offences of take and drive a conveyance and enter enclosed land in respect of the charge dated 15 December 1999.
Additionally, apart from the matters with which the present applicant was charged, they included an offence of break and enter with intent for which the charge date was 11 March 2000. There were other charges which had been withdrawn.
The sole ground of appeal raised that of parity, it being submitted that when the sentence of the co-offender was taken into account the applicant was left with a "justifiable sense of grievance" as that expression has been explained in Lowe v. The Queen 154 CLR 606 and Postiglione v. The Queen (1997) 189 CLR 295.
In relation to that aspect of the case his Honour had observed:
"Reference has been made to the case of Govinden. Suffice it to say that in my judgment this is not a Govinden case."
As Sully J (with whom Newman J agreed) said in Regina v. Doggett NSW CCA 24 March 1996, in order to succeed, on appeal, on this ground:
"What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified."
That sense of grievance is said here to be engendered by the circumstances that:
(a) the applicant, who was aged eighteen years six months and one week, at the time of the offence, as only eighteen months older than the co-offender (who was aged seventeen years and two weeks at the time of the offence);
(b) their objective criminality was similar;
(c) although the applicant had a longer criminal history than his co-offender the record of the latter was also not without blemish and he had similarly abused the opportunity of conditional liberty, in that the subject offence of armed robbery, was committed at a time when he was on bail for the December 1999 matters and, in fact, had absconded in relation to that;
(d) the co-offender was being dealt with for the several other offences which I have already mentioned;
(e) each of the offenders was of Aboriginal descent from a similarly deprived background in the course of which they had been exposed to violence between the parties and to substance abuse by their mother.
Standing alone, as Mr Button has readily conceded, the sentence imposed upon the applicant could not possibly have been challenged, having regard to the guideline judgment in R v. Henry (1999) 46 NSWLR 346. Each of the criteria there specified was present, so that the applicant could properly have expected a sentence, at least, in the range of imprisonment for four to five years. I say "At least" because there was an additional circumstance of considerable aggravation present in that the applicant was upon parole for an offence of robbery in company. This also has, however, a significance in relation to the parity, since the co-offender had similarly been dealt with for an offence of robbery in company for which he had received 150 hours of community service.
The applicant did have a criminal history which could also be properly classified as more than a little history. That is something in excess of that which was contemplated in the guideline judgment. His record included multiple convictions dating back to 1993 for: break, enter and steal, stealing, receiving, goods in custody, steal motor vehicle, carrying firearm or cutting weapon, possession of implements for house-breaking or stealing motor vehicles, assault police and resist arrest, robbery in company, common assault, malicious damage, use and possess prohibited drugs and various other offences which had been dealt with by control orders, probation and community service.
Most recently, that is on 7 March 2000, a date following the offence but preceding the date on which he appeared for sentence, the applicant had been sentenced to fix terms of imprisonment for one month and three months in relation to the offences of assault and malicious damage.
In the light of that history, the sentences imposed were, if anything, lenient, even allowing for the fact that the armed robbery was unplanned and had been committed by the applicant following his use of a drug and trying to acquire more drugs.
However, that is not the end of the matter, it being necessary in order to consider the parity argument to take into account a number of other factors as follows:
(a)          There is no longer an inflexible rule that there is no utility in comparing sentences imposed upon co-offenders who are separately dealt with: one in the Children's Court         and the other as an adult. See Regina v.Govinden (1999) 106 A Crim R 314 and R v. Colgan (1999) NSW CCA 292.
While it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence.
(b)          While the applicant's record was worse than that of the co-offender his record, as I have    previously observed, was not without blemish and did include, significantly, the prior offence of robbery in company.
(c)           While the applicant committed the offence at the time when he was subject to parole the    co-offender was similarly subject to conditional liberty.
(d)          While it was the applicant who menaced the victim with a screwdriver and became aggressive when seeking money additional to the $35 which the victim handed over, the co-offender was also not entirely passive and, indeed, he was the person who made the first demand on the victim.
(e)           While the applicant had a longstanding history of substance abuse, the co-offender similarly had a minor history of recreational use.
(f)           An age difference of eighteen months in the late teens is not particularly great, although in the current situation, as an elder brother, the applicant might have been expected to have shown a better example to    the co-offender.
(g)          Apart from the four months spent in custody by the co-offender the sentence of community service which he received for the variety of offences before the court was, to say the least, a very lenient sentence.
Two further matters of sentencing principle do arise for consideration and application in this case. Firstly, where there is a degree of disparity as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved. In that regard, Simpson J said in Regina v. Steel NSW CCA 17 April 1997:
"The frequently cited passage from the judgment of Mason J (Lowe) is not authority for the proposition that, in any case where such disparity is shown, a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to do so."
The second relevant principle is that a stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one. See the observations to that effect by Hunt CJ at CL in Regina v. Diamond NSW CCA 18 February 1993. Further, as was made plain, for example, in Hopper NSW CCA 19 November 1998:
“Where a co-accused has received a comparatively more lenient sentence than the applicant a Court may exercise its discretion by declining to interfere because it does not wish to duplicate what seems to have been gross error in the sentencing of the applicant's co-offender."
Taking all those matters into account and also taking into account the circumstances, it appears to me that the position in relation to the Children's Court proceedings may not have been properly placed before his Honour - I am of the view that it is appropriate to intervene to a limited extent.
It may also be noted that Mr Button of counsel accepts that whatever sentence is imposed it must significantly reflect the objective and subjective criminality here involved. He does not invite the imposition of a sentence comparable to that imposed upon the co-offender. That is a sentence of community service. He recognises that the sentence must properly be one of full time custody.
The orders which I propose, therefore, are:
1.            That the sentenced below be quashed and taking into account the matter in the form 1, the applicant should be sentenced for the offence on the indictment to a term of imprisonment for two and a half years to date from 12 August 2000 and to expire on 11 February 2003.
2.            I would specify a non-parole period of one year three months, similarly, to date from 12 August 2000 and to expire on 11 November 2001.
3.            I would direct the release of the applicant upon parole upon expiry of the non-parole period.
GROVE J: I agree.

WOOD CJ AT CL: The order of the Court, therefore, will be as I have proposed.

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LAST UPDATED: 02/11/2001