R v Cimone

[2001] NSWCCA 98

Reported Decision: 121 A Crim R 433

New South Wales

Court of Criminal Appeal

CITATION:	R v Cimone [2001] NSWCCA 98
FILE NUMBER(S):	CCA 60763/00
HEARING DATE(S):	13 March 2001
JUDGMENT DATE:	29 March 2001
PARTIES :	Regina Phillip David Cimone
JUDGMENT OF:	Beazley JA at 1; Studdert J at 33; Sperling J at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/3026
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

COUNSEL :	Crown: P Hock Respondent: T Molomby/B Vasic
SOLICITORS:	Crown: S E O'Connor Respondent: Stoikovich Banfield Macri
CATCHWORDS:	Robbery in company - Larceny - Receive stolen property - Adequacy of sentence - Parity of sentence - Rehabilitation - Assistance to police
LEGISLATION CITED:	Crimes Act 1900 (NSW) ss 97(1), 117, 188
CASES CITED:	R v Henry (1999) 46 NSWLR 346 Lowe v R (1984) 154 CLR 606 R v Diamond (unreported, New South Wales Court of Criminal Appeal, 18 February 1993) R v Steele (unreported, New South Wales Court of Criminal Appeal, 17 April 1997)
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60763/00

BEAZLEY JA

STUDDERT J

SPERLING J

Thursday, 29 March 2001

REGINA v Phillip David CIMONE

FACTS

The respondent pleaded guilty to charges of robbery in company, larceny and receive stolen property. The maximum penalty for these offences was 20 years imprisonment for robbery in company, 5 years imprisonment for larceny and 10 years imprisonment for receive stolen property. He was sentenced to 3 years imprisonment with a non-parole period of 2 years on the charge of robbery in company; 2 years imprisonment on the charge of larceny; and 6 months imprisonment on the charge of receive stolen property. All sentences were to be served concurrently and by way of periodic detention.

There were three other co-offenders involved in the robbery in company offence. Two co-offenders were juveniles and were sentenced to control orders in the Children’s Court. The third (Cosovan) was sentenced to 18 months imprisonment with a non-parole period of 6 months, to be served by way of periodic detention. In imposing that sentence, the sentencing judge stated, and the Crown had accepted, that the respondent’s sentence was the benchmark against which Cosovan’s sentence should be measured.

The Crown appealed against the adequacy of the sentences imposed on the respondent, on the basis that the offences, and in particular the offence of robbery in company warranted a full time custodial sentence: R v Henry (1999) 46 NSWLR 346. The Crown had not appealed against Cosovan’s sentence.

HELD per Beazley JA (Studdert and Sperling JJ agreeing)

(i) the sentence imposed by the trial judge for the offence of robbery involved a significant departure from the guidelines laid down in R v Henry ;

(ii) Both the sentence imposed on the respondent and that imposed on Cosovan appeared, on their face, to be manifestly inadequate;

(iii) The Crown had shut itself out of an appeal in Cosovan by accepting that Cosovan should be sentenced by way of parity with the respondent. However, if a full time custodial sentence was now imposed on the respondent, he would have a legitimate grievance within the test laid down in R v Lowe (1984) 154 CLR 606. R v Diamond (unreported, New South Wales Court of Criminal Appeal, 18 February 1993); R v Steele (unreported, New South Wales Court of Criminal Appeal, 17 April 1997) distinguished.

(iv) This case should be viewed as a unique and exceptional departure from the Court’s decision in R v Henry .

ORDER

Appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CCA 60763/00
BEAZLEY JA
STUDDERT J
SPERLING J

Thursday, 29 March 2001

REGINA v Phillip David CIMONE

JUDGMENT

1    BEAZLEY JA: On 23 February 2000 the respondent pleaded guilty to the following charges: (i) robbery in company (s 97(1) of the Crimes Act 1900 (NSW)), which bears a maximum penalty of 20 years imprisonment; (ii) larceny (s 117 of the Crimes Act) which bears a maximum penalty of 5 years imprisonment; and (iii) receive stolen property (s 188 of the Crimes Act) which bears a maximum penalty of 10 years imprisonment.

2    On 13 November 2000, Moore DCJ sentenced the respondent as follows. On the first charge of robbery in company the respondent received a sentence of imprisonment for 3 years with a non-parole period of 2 years. On the larceny charge, the respondent was sentenced to 2 years imprisonment and on the third charge, of receiving stolen property, the respondent was sentenced to 6 months. All sentences were to be served concurrently, commencing on 25 November 2000, by way of periodic detention.

3    The Crown has appealed against the adequacy of the sentences. However, the appeal was directed principally to the question of the adequacy of the sentence imposed for the first offence of robbery in company. It was accepted, both by the Crown and by counsel for the respondent, that the outcome of the appeals in respect of the other two sentences was dependant upon the outcome of the appeal in relation to the first sentence. I therefore propose to deal, in the first instance, with the circumstances relevant to that.

4    The sentence imposed for the offence of robbery in company is, on an initial impression of the trial judge’s reasons, manifestly inadequate: see R v Henry (1999) 46 NSWLR 346. Without more, and notwithstanding the constraints which govern Crown appeals, I would have been inclined to vary that sentence by imposing a full time custodial sentence.

5    However, three matters were raised on behalf of the respondent which call for particular consideration in this case: namely the respondent’s prospects for rehabilitation, the assistance he was prepared to give to police and the effect, in this case, of the principles of parity of sentencing.

6    Before proceeding to examine those matters in detail, the sentencing context in which they fall for consideration should be stated. In R v Henry, this Court pronounced what is now referred to as a guideline judgment in respect of the offence of robbery in company. It specified that a full time custodial sentence of between 4 and 5 years for the full term was generally the appropriate sentence in a case which presented the following features:

“(i) Young offender with no or little criminal history;
(ii) Weapon like a knife, capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.”

7    The respondent fitted that profile. The robbery was committed on 31 March 1999. The respondent and three co-offenders apprehended the victim at a car park adjacent to a railway station and made him drive to a remote reserve. The car park was virtually empty at the time. Once at the reserve, a knife was placed at the back of his neck and he was robbed of his wallet containing $100 and personal papers, his watch and mobile phone. The victim was kept hostage by two of the co-offenders while the respondent and the fourth co-offender took the victim’s car, found an ATM and withdrew $500 from the victim’s bank account using his card and PIN which was extracted from him under threat of personal harm. When the respondent and the other offender returned to the reserve, they left the victim at the reserve and fled in his car. The victim was unharmed, but the offenders threatened him with further harm if he reported the matter to the police.

8    The respondent was arrested for this offence on 25 September 1999. His co-offenders had been arrested by that time. The respondent participated in a ERISP (electronically recorded interview) in which he immediately and in detail admitted his participation in the crime and, with some assistance with surnames, identified his three co-offenders.

9    He was also questioned about the other two offences and again made full admissions.

10    He pleaded guilty at the earliest opportunity. Although it must be said there was a strong case against the respondent, that was so far as this Court is aware, because of his own admissions.

11    The respondent’s co-offenders in the robbery in company offence were:

Darren Von Heiderbrantd, aged 17 at the time of the offence, who was identified by the respondent as (and found by the trial judge to be) the instigator of the offence. He pleaded guilty and was sentenced at Cobham Children’s Court to a twelve month control order with a non-parole period of nine months. He had an extensive criminal history and was sentenced at the same time for 9 other very serious offences, including robbery and robbery armed with a dangerous weapon.

Luke Cosovan, aged 18 at the time of the offence, who was sentenced by Norrish DCJ on 11 December 2000 to 18 months imprisonment to be served by way of periodic detention, with a non-parole period of 6 months.

Vega Gesi, aged 15 at the time of the offence, who was sentenced at Cobham Children’s Court to a 3 month control order and who had effectively resisted any form of sentence by way of community service order.

12    Von Heiderbrandt and Gesi had been sentenced at the time Moore DCJ passed sentence on the respondent. Cosovan had not been sentenced.

13    It is against this background that the three issues raised by counsel for the respondent need to be considered.

Rehabilitation Issue

14    At the time of the commission of the offences, the respondent was a seriously addicted drug user with 11 prior convictions, including for malicious damage, goods in custody, obtaining money by deception and larceny. None of the convictions had resulted in a custodial sentence.

15    In a Probation and Parole Service Report dated 8 June 2000, the respondent was described as having:

“little insight into his behaviour and a clearly distorted perception of the impact of his actions on his victim(s).”

It was considered he might benefit from psychiatric or psychological evaluation, in addition to drug rehabilitation. His Probation and Parole Officer expressed the view that, whilst his recent attendance at and participation in a Personal Awareness Programme “had been encouraging, … he [had] not yet … acquired the skills, or indeed motivation necessary to comply with the requirements of [the] Service” . The case officer did not consider him an appropriate candidate for periodic detention or community service.

16    However, his Honour found that the improved attendance at the Programme presented a “glimmer” of a “clearly recognisable change in [the respondent’s] attitude”. He therefore granted a 3 month adjournment to see whether this nascent rehabilitation would continue. The matter was finally disposed of by his Honour on 13 November 2000.

17    In the intervening period, the respondent had undergone a rapid detoxification programme and had come under the care of Dr Otter, an experienced drug therapist. There had been some problems with the respondent’s drug rehabilitation. However, Dr Otter, when giving evidence before Moore DCJ at the further sentence hearing on the 13 November, expressed the view that the respondent had reacted adversely to a chemical imbalance caused by inadequate treatment. Dr Otter’s opinion was that the respondent was “quite a stable person … [and was] really moving ahead”. He believed that he had the motivation and the family support which would assist him to become a productive member of the community. Dr Otter also expressed the opinion that the respondent was suffering from Attention Deficit Disorder, for which he also required treatment, and which Dr Otter was proposing to undertake.

18    His Honour accepted Dr Otter’s evidence. He considered that that and other evidence before him indicated a change in the respondent’s attitudes to his lifestyle and addiction He also found that by the time of sentencing on 13 November, the respondent had “genuine remorse” for his crimes. The evidence on this was scant and came from the respondent’s father and Dr Parmigiani who did an assessment for medico-legal purposes. The respondent did not give evidence himself. However, to the extent to which the Probation and Parole Service had a contrary view, his Honour considered it was based upon premises which, unbeknown to the Service, proved to be false. The Service, as had others, had misinterpreted the chemical imbalance as a drug relapse and had not been aware of the extent of the treatment or the credentials of Dr Otter.

19    The prospects of rehabilitation is one of the cornerstones of sentencing discretion. However, it is only one. A proper balance has to be maintained along with the concepts of retribution, and personal and general deterrence. In Henry, it was held that, whilst still considering the question of rehabilitation, a full time sentence was to be the usual starting point for this offence, for an offender fitting the description to which I have already referred. It is, after all, an offence of a most serious nature attracting a heavy maximum penalty.

20    Accordingly, although the prospect of rehabilitation is an important matter, it is not sufficient of itself to justify a less than full time custodial sentence.

21    That leaves the issues of assistance and parity.

Assistance

22    The appellant at an early time gave a written undertaking to give evidence against the co-offender Cosovan. The undertaking was signed on 23 February 2000, on the day the respondent entered his pleas of guilty in respect of all three offences. He subsequently, at all times, maintained his willingness to give evidence. Cosovan had not co-operated with police and had initially intended to plead not guilty. The Crown case was dependent therefore upon Cimone’s evidence against him, and appears to have played some part in Cosovan’s guilty plea. The assistance was therefore valuable in both its content and its effect. As such, it was a factor to be taken into account, but not to the extent of imposing less than a full time custodial sentence. However, in this case, I consider that it had an added significance in relation to what this Court should do by way of the application of the principles of parity of sentence.

Parity

23    Cosovan was sentenced on 11 December 2000 by Norrish DCJ. In imposing a sentence of 18 months imprisonment to be served by way of periodic detention with a non-parole period of 6 months, his Honour made no reference to Henry. Rather, he said:

“In the circumstances of the matter, it is the sentence imposed on Cimone which provides the true guidance as to the way in which I should approach this matter. I have spoken to counsel for the Crown and for the defence as to the significance of this sentence and it is as I understand it conceded that given Cimone’s criminal history and his leading role in the commission of the offence, the penalty imposed on Cimone is a penalty to which I should have regard and in respect of which I am entitled to distinguish the circumstances of this particular prisoner for significant reasons.”

24    This Court was informed by the Crown, and it is accepted on behalf of the respondent, that Norrish DCJ was not informed of the existence of a Crown appeal in this matter. Cosovan’s sentence thus poses a difficult question for this Court in so far as it is required to have regard to the principles governing parity of sentence. The rationale for the principle of parity of sentence is expressed in the well known statements of Gibbs CJ and Mason J in Lowe v R (1984) 154 CLR 606. Gibbs CJ said at 610:

“It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”

25    Mason J said at 613 - 614:

“And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.
… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”

26    However, where a sentence with which parity is sought is itself manifestly inadequate, it has been said that there can be no legitimate grievance and therefore no room for the operation of the principle. In R v Diamond (unreported, New South Wales Court of Criminal Appeal, 18 February 1993), Hunt CJ at CL (James J agreeing) said:

“There is … a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one. In Hutchinson’s case, it was not thought that that line had been passed. In my opinion, that stage has well and truly been passed in the present case, and a reduction of the applicant’s sentence to a community service order would … be described as an affront to the proper administration of justice.”

See also R v Steele (unreported, New South Wales Court of Criminal Appeal, 17 April 1997).

27    Cosovan’s sentence, on its face, also appears to be manifestly inadequate. If it is, the principle stated in Diamond and Steele would apply. However, there has been no Crown appeal in the case against Cosovan. Indeed, the Crown, in a practical sense, has shut itself out of an appeal in that case by expressly accepting before the sentencing judge that the sentence imposed on Cimone was the benchmark against which Cosovan’s sentence should be measured.

28    It was submitted, however, that here the respondent does have a legitimate sense of grievance. He agreed to give evidence against Cosovan. Cosovan eventually pleaded guilty and was then sentenced on the basis that, having regard to principles of parity, the respondent’s sentence was the appropriate benchmark against which his sentence should be determined. However, if the submissions made on behalf of the Crown here were acceded to, the respondent would find himself dealt with significantly more harshly than Cosovan.

29    It was further submitted that parity with the custodial sentences of the two juvenile co-offenders was of minimal relevance. Von Heiderbrandt was sentenced for a number of serious crimes and Gesi resisted anything but a custodial sentence. I accept this submission in the circumstances of this case. The question then is whether the imposition of a full time custodial sentence would give rise to a grievance which might rightly be categorised as legitimate in the sense used in Lowe.

30    In my opinion, the respondent would, in the circumstances to which I have referred, feel legitimately aggrieved if a successful Crown appeal resulted in the imposition of a full time custodial sentence. The respondent is as much entitled to the application of the principles governing parity as was Cosovan.

31    For that reason, I do not think this Court should interfere with the sentence. However, I should state that this case involves a unique and exceptional departure from the Court’s decision in Henry.

Conclusion

32    The appeal should be dismissed.

33    STUDDERT J: I agree with Beazley JA.

34    SPERLING J: I agree with Beazley JA.