R v Cotter & Ors

[2003] NSWCCA 273

CITATION:	R v COTTER AND ORS [2003] NSWCCA 273
HEARING DATE(S):	14 May 2003
JUDGMENT DATE:	1 October 2003
JUDGMENT OF:	Beazley JA at 1; Hulme J at 2; Carruthers AJ at 83
DECISION:	In the case of Mr Eter -; (a) Grant the application for leave to appeal against sentence but dismiss the appeal.; (b) Dismiss the Crown appeal.; Dismiss the Crown appeals against the sentences imposed upon each of Messrs Cotter, Russell and Iremonger.
PARTIES :	Regina Brett Allen Cotter Timothy Russell Craig Iremonger Ahmed Eter
FILE NUMBER(S):	CCA 60008/03; 60009/03; 60010/03; 60011/03; 60058/03
COUNSEL:	Crown: L Lampratti Cotter: T Baskerville Russell: K Jankowski/Ms H Gibbons Iremonger: R Perrignon/J Hickleton Eter: H Dhanji
SOLICITORS:	Crown: SE O'Connor Cotter: David Weston & Co Russell: Fritchley Solicitors Iremonger: Bruce A Swane & Co Eter: DJ Humphreys

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0257 02/11/0332 02/11/0440 02/11/0438
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

- 26 -

60008/03
60009/03
60010/03
60011/03
60058/03

BEAZLEY JA
HULME J
CARRUTHERS AJ

Wednesday 1 October 2003

R v Brett Allen COTTER

R v Timothy RUSSELL

R v Craig Barry IREMONGER

R v Ahmed ETER

Judgment

1 BEAZLEY JA: I agree with Carruthers AJ.

2 HULME J: These reasons arise in connection with four appeals by the Director of Public Prosecutions against sentences imposed by Judge Woods at the Sydney District Court on 16 December 2002 and an application by Mr Eter for leave to appeal against the severity of the sentence imposed on him.

3 In the preceding months the four Respondents to the appeals had each pleaded guilty to the following charges:-

Count 2 – That he on 14 October 2001 at Nymagee in the State of New South Wales being in company with … , did rob William Quill of certain property, namely, a quantity of firearms, knives, a sum of money and personal papers, the property of the said William Quill.
Count 4 – That he on 14 October 2001 at Nymagee in the State of New South Wales being in company with … , did rob Madeleine Davies of certain property, namely, a sum of money and personal papers, the property of the said Madeleine Davies.

4 In the case of Messrs Eter and Russell, the company alleged was the other 3 respondents. In the case of Messrs Cotter and Iremonger, the company alleged was only Mesrs Eter and Russell. The difference in the charges is not material.

5 Each respondent’s pleas were accepted in full satisfaction of the indictment against him, and the charges were in the alternative to two counts of Robbery Armed with a Dangerous Weapon. References in the appeal papers to matters which go beyond supporting the lesser charges must accordingly be disregarded.

6 The sentences imposed were:-

In the case of Mr Eter, and on each count, imprisonment for 3 years from 26 October 2002, such term to include a non-parole period of 15 months at the expiration of which Mr Eter was to be released to parole. The periods commenced on 26 October 2002.
In the case of Mr Cotter, and on each count, imprisonment for 3 years from 15 December 2002, such term to include a non-parole period of 15 months at the expiration of which Mr Cotter was to be released to parole. The periods commenced on 16 December 2002.
In the case of Mr Russell, and on each count, imprisonment for 2 years commencing on 16 December 2002. Execution of the sentence was suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 for the term of the sentence and the offender released from custody on condition that he entered into a good behaviour bond for the term of his sentence.
In the case of Mr Iremonger, and on each count, imprisonment for 2 years commencing on 16 December 2002. Execution of the sentence was suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 for the term of the sentence and the offender released from custody on condition that he entered into a good behaviour bond for the term of his sentence.

7 The events leading to and the circumstances of the offences were as follows. Prior to his death some years before, Mr Russell’s father, who had been a friend of the victim Mr Quill, had gone on a number of occasions on shooting trips to Mr Quill’s property. The offender from time to time had accompanied his father. Mr Russell senior had left on Mr Quill’s property some of his shooting equipment including a stainless steel Ruger firearm. In circumstances detailed below, Mr Russell junior had a strong sentimental attachment to the Ruger. He asked Mr Quill on a number of occasions for the weapon’s return. Mr Quill refused, although there is a dispute whether this was, as Mr Quill said, pending Mr Russell junior acquiring a shooter’s licence or, as Mr Russell and his mother said, because of a purported claim to be owed money by the offender who, after his father’s death, had himself stayed with Mr Quill for some months because, as Mr Russell said in his ERISP, he had been “getting into a bit of strife”.

8 Although this information is contained only in records of interview and thus not available in the case of some of the Respondents, it appears that within a day or two prior to the offence, at a party, Mr Russell had apparently mentioned Mr Quill’s refusal to return the weapon. Some of the co-offenders offered to go to Mr Quill’s property to recover it.

9 Mr Quill’s property was approximately 15 kilometres north of Nymagee, and about 100 kilometres west of Nyngan in north-western New South Wales. At about 3 am on Sunday 14 October 2001, Mr Quill and his partner Medeleine Davies were asleep in their home on the property. Awoken by the barking of their dog, Mr Quill arose and went to investigate. He saw a red motor car parked outside the house yard with its lights on. Mr Quill went outside.

10 Mr Eter said he was a detective and produced what purported to be a police identification badge. Mr Eter told Mr Quill that he and other police were at the property to investigate a murder and wished to view the firearms at the house. Messrs Eter and Cotter gained entry to the house. Inside their manner became aggressive. Mr Cotter said to Mr Quill, “Who else is in the house, who else is on the property, don’t lie to me!”.

11 Mr Eter asked to see the victim’s shooter’s licence. Mr Quill fetched his wallet containing it. Mr Cotter grabbed the wallet, took the licence out and left the house with it. He returned to the house a short time later. The victims were ordered to “get on the floor or we will hurt you.” Mr Quill was asked the whereabouts of his firearms’ safe which was located in a bedroom. The victims were also asked if they had any handguns.

12 Initially, Messrs Iremonger and Russell remained hidden in the car, but after a time, Mr Iremonger went into the house. The victims having been ordered onto the floor, lay there, and a towel was placed over their heads. The victims were terrified. Mr Quill believed they were going to die. Ms Davies had a panic attack and began shaking. Whilst the victims lay on the floor, demands were made for money. The telephone was pulled from the wall. Whilst the intruders were in the house the victims were shouted at and threatened.

13 According to Mr Quill, one of the offenders entered the house later than the first two and all three yelled and made threats towards the victims. Mr Iremonger admitted being the third person in Mr Quill’s house but denied being present when any threat was made. His Honour said that he accepted that Mr Iremonger was not a principal in the threats that were used against the 2 victims.

14 Eleven firearms were removed from the gun cabinet along with ammunition. A bow with a quiver, a box with 30 arrows, two additional firearms and a hunting knife were also taken. Money was taken from Mr Quill. Ms Davies’ purse was obtained and cash money was taken. Her handbag was rifled and the contents of the handbag were strewn over the bedroom floor. An overnight bag belonging to Ms Davies was taken, its contents having been emptied on to the floor. The drawers to the bedroom dressing table were opened and the contents gone through. The telephone and some of Ms Davies’ personal papers were taken.

15 Mr Russell remained out of sight but assisted in carrying the stolen items to the car outside.

16 The offenders left the premises. Some of them departed in the red motor vehicle. Some used Mr Quill’s utility motor vehicle. The utility was quickly abandoned but the ignition key was retained, apparently to prevent the group being pursued in the utility. Other vehicles on the property also had their ignition keys removed.

17 The offenders went to the Sundowner motel at Nyngan at about 4.00am and spent the rest of the night there, not having enough petrol to go further. At Nyngan, in addition to getting petrol, Mr Eter washed their car. Later that day the vehicle, then being driven by Mr Eter, was seen by police and pursued but the offenders escaped, it would seem badly damaging the vehicle in the exercise.

18 At 1.45pm on the same day, the offenders approached one Allan Hunt at a property at Tamworth. Eter showed Mr Hunt the look alike “police identification” and asked him to convey the group to the nearest police station. Mr Hunt agreed and the offenders transferred the stolen property to Mr Hunt’s vehicle. While driving towards Walcha Police Station, Mr Hunt became suspicious and on seeing two police vehicles at an intersection, Mr Hunt stopped the car, removed the keys from the ignition, and ran to the Police. The offenders were arrested. The Respondents did not fall to be sentenced for the events the subject of this and the immediately preceding paragraph.

19 The intrusion into Mr Quill’s property has had a marked effect upon the victims. Mr Quill aged 53 years has suffered from stress and has difficulty sleeping. He becomes fearful when visitors come to the farm. He used to do work on other farms to supplement his income, but now feels unable to do this because he feels unable to leave Ms Davies alone at the farm. His income has dropped markedly. He has to travel from time to time in order to receive counselling and this is costly. He no longer feels safe at the farm and has put it up for sale.

20 Ms Davis has had a tendency to anxiety attacks over the years. However, since the incident, she experiences panic attacks and, for the first time, has high blood pressure. She takes medication for these conditions. She attends at counselling and also consults a psychiatrist. Occasionally, when someone comes to the property, she hides until the identity of the person is known. She says that neither herself nor Mr Quill feels safe on the property but, with the farm up for sale, they hope to start over somewhere else.

Mr Eter

21 Mr Eter asked that four offences on two Form 1s be taken into account, namely possession of 6.7 grams of methylamphetamine and possession of 1.8 grams of cannabis resin both of which offences occurred on 30 March 2001, impersonating a police officer and possession of a small quantity of amphetamines on 14 October 2001. The third of these offences arose as an incident of Mr Eter’s conduct the subject of the principal charges.

22 According to Mr Eter’s antecedents tendered before Wood DCJ but which appear to be incomplete, his first recorded offence was in February 1998 of driving whilst disqualified for which and for other offences he was sentenced to periodic detention. Later that year he was convicted of breaching his periodic detention orders. In March 2001 he was convicted of possession of a prohibited drug and of administering and of possession of equipment for administering the same and also for driving whilst disqualified and not obeying the direction of a police officer. In February 2002 he was convicted again of driving whilst disqualified, of driving when his licence was cancelled and of driving under the influence, the date of these offences being 14 October 2001. One may infer that they arose in connection with the offences with which this Court is concerned. For the driving offences, Mr Eter was sentenced to 4 months imprisonment commencing on 14 October 2001. In July 2001 there was another offence of driving under the influence of alcohol or other drugs.

23 According to information in a psychologist’s report, Mr Eter completed education to year 12 level and had been in regular employment until about the end of 2000; he had a generally happy childhood but after his family moved to a new area when he was 13, becoming the only Muslim family in the area, he was subjected to a deal of racial abuse and rejection. Nevertheless he apparently achieved well academically and became a house captain. The psychologist recorded that when Mr Eter was about 18 he suffered an unprovoked assault from which he effectively lost the use of his left eye and, on the following day, his brother was purposely run over and suffered permanent brain injury. The psychologist diagnosed Mr Eter as suffering from post-traumatic stress disorder and depression, the latter being exacerbated by cannabis abuse, receiving an electric shock and later by severe poly-substance abuse. Mr Eter reported to the psychologist an attempt at suicide when he was about 22 or 23.

24 His cannabis abuse apparently commenced at about age 19 and there was also a history of amphetamine use of a binge nature for up to 5 days at a time and weekend heavy binge cocaine use. These drug habits resulted in sleep deprivation, paranoia, grandiosity and hallucinations.

25 Mr Eter expressed remorse and shame to the psychologist though claimed he had been alarmed by the aggression of his co-offenders. He indicated that, on the way to Mr Quill’s property, he had apparently been on an almost constant cocktail of “ice”, cannabis, ecstasy and alcohol.

26 Mr Eter gave evidence. He again said that at the time of his offence he had been using a large quantity of amphetamines and expressed remorse at his offending. If genuine, and not merely parrot-like repetition, the terms in which Mr Eter did so indicate that he has learnt a lot from the Salvation Army.

27 Mr Eter had entered the Salvation Army Bridge program in Surry Hills on 2 April 2002. This involved him in residing at Bridge House since then, 7 hours per week counselling and 30 hours per week community service at Red Shield Industries. A report of the program director notes that he had found Mr Eter to be open and honest, keen to resolve his addiction and other issues and had made significant changes to his values system. Random and regular drug and alcohol testing had indicated he was free of drugs and alcohol.

28 Prior to commencing in that program Mr Eter had been in custody for some time. While in that situation he had obtained a number of certificates of achievement. On the other hand, a Probation and Parole Service report on Mr Eter recorded concern about his ability to comply with any community sentencing option, given a history of past non-compliance.

Mr Cotter

29 Mr Cotter’s first recorded offence was breaking, entering and stealing in January 1993. There followed a number of other dishonesty offences in that and the following year. Commencing in 1994 also there have been a number of possession and other relatively minor offences involving drugs. In 1997 and again in 2000 he committed offences of driving with an excess of alcohol in his blood. In December 1999 he drove whilst his licence was cancelled and in December 2000 and again in April 2002 he drove whilst disqualified.

30 A Probation and Parole Pre-sentence report recorded that Mr Cotter had minimised his involvement in the crime but impressed as a follower rather than a leader. A psychologist’s report indicated that Mr Cotter was of low average intelligence, recorded a disrupted family background, including that Mr Cotter was rejected by his biological father, that his mother and step-father split up, and that the latter with whom Mr Cotter went to live, himself had a criminal history. To the psychologist Mr Cotter apparently said that he had participated in the journey in return for money and denied knowledge of, and intent to steal, any guns. He asserted that the four offenders had been abusing drugs and alcohol for a number of days prior to the offence.

31 The psychologist recorded that Mr Cotter had left school after year 9 having suffered teasing from being in a disability class and dyslexic. Then Mr Cotter seems to have had a number of short jobs but then, until his employer’s business failed shortly before the subject offences, had done well as the manager of a used car sales yard. Mr Cotter told the psychologist that he had commenced smoking cigarettes at 9, marijuana at 13, drinking alcohol at 15, and that that became a daily habit some years later. He regularly used amphetamines, ecstasy and cocaine though had never injected that or any other drug. The psychological assessment indicated that Mr Cotter suffered from alcohol and drug problems, paranoia, borderline features and anxiety.

32 Mr Cotter himself gave evidence supportive of what he had told the psychologist and Probation and Parole Officer. Mr Cotter said that he had been on a cocktail of drugs at the time of his offence and expressed sorrow for what he had done.

33 On 16 September 2002 Mr Cotter also entered the William Booth Institute near Newcastle to pursue a 10 months rehabilitation course. A report from a counsellor of that organisation indicates that on arrival Mr Cotter was a “physically, emotionally and spiritually sick person” but that he had made great progress and worked exceptionally well. The counsellor observed that it would be very detrimental to have Mr Cotter’s rehabilitation interrupted.

Mr Russell

34 A report of a psychiatrist, Dr Nielssen, records that Mr Russell developed a major depressive illness arising from pathological grief following the sudden death of his father and that intensive treatment for depression was needed. Dr Nielssen opined that Mr Russell was a “rather immature and vulnerable person”, that observations suggested “a rather dependent relationship with his mother” and that Mr Russell “looked and behaved like someone younger than his stated age” of nearly 20. Dr Nielssen recorded also that Mr Russell began drinking after his father had died but after some incidents of having no recollection of how he arrived home, he took up cannabis, but no other form of illicit drug, instead.

35 In dealing with the circumstance of the offence when talking to Dr Nielssen, Mr Russell contended that “his understanding was that he would wait outside while they went in to get the gun. He said that they did not discuss their intention to steal anything else, or use any degree of force. He said that after they “went in”, it all went wrong.” On the other hand, in his ERISP, Mr Russell acknowledged that he thought that maybe the others were going to take “maybe one other gun to sell to make a profit for taking me up there sort of thing”.

36 Mr Russell’s mother gave evidence supporting a deal of the history on which Dr Neilssen relied. She said, inter alia, that Mr Russell and his father, who had died some 6 years previously had been “very, very close” and that they never went anywhere except together. They had been going to Mr Quill’s property since the offender was about 12 months old. She said that although Mr Quill would respond to requests for the return of the guns by claiming to be owed money, Mr Quill would refuse to specify how much. His father’s sudden death had led to her son experiencing severe depression. Having the guns back was very important to Mr Russell because, “that’s the only part of his father that Timothy’s got left”.

37 Mr Russell senior died 2 weeks before his son was due to sit for the School Certificate with the result the latter could not concentrate and did not want to go on. It was about 6 months after this that the offender lived on Mr Quill’s property for about 12 months. He was counselled for a time after his return and then had a job of a few years. Since the offence, Mr Russell had received more counselling, kept to himself and had made remarks indicative of great regret for what had occurred.

38 Woods DCJ indicated that he generally accepted the evidence of Mrs Russell and Dr Neilssen.

39 Tendered in Mr Russell’s case were references from employers. One, dated 24 October 2001, recorded that Mr Russell had been employed for 2 years and was an honest and reliable worker. A second, whose author was aware of the charges, recorded that Mr Russell had commenced as an apprentice on 15 February 2002 and had proven reliable, dedicated, and punctual and that his work was of a first class standard. A further document recorded that Mr Russell had been performing to a high standard in both his work place and studies and, barring any disruption would graduate as a trades-person in February 2005.

40 A pre-sentence report said that Mr Russell appeared genuinely remorseful and possibly afraid. In it Mr Russell was said to present “as an emotionally troubled and perhaps naive young man who may have involved himself in criminal activity well above his experience or inclination”.

Mr Iremonger

41 In his case there was a Form 1 which included two offences namely possession of a small amount of cannabis leaf and of a small amount of amphetamine on 14 October 2001.

42 A pre-sentence report records that he left school after completing year 10 and worked for 3 years as an apprentice mechanic but left prior to completing the mandatory 4 years. There was a period of casual employment as a bakery delivery driver and then unemployment. He had no physical or psychiatric health problems and no history of drug addiction although he had consumed cannabis and amphetamines in a “social context”. His mother died when he was 11. Mr Iremonger said that he could have a reasonable relationship with his father but not with his stepmother. He has virtually no contact with his sisters. He expressed an intention to complete his trade qualifications.

43 To the probation officer he apparently denied any criminal intention and some of the factual matters surrounding the offence, asserting that he was merely assisting a friend to retrieve some personal property. Confronted with his plea of guilty he apparently conceded that the taking away of weapons that did not belong to his friend should not have occurred but said he was not involved in the second charge. He was assessed as unlikely to benefit from supervision as he did not acknowledge any underlying issues that could be addressed by supervision.

44 Mr Iremonger gave evidence. He said that he was aged 20 and had been frequently using drugs for some 6 months prior to his offence. (In his ERISP he said that he had been a heavy smoker of marijuana for years.) He said that usage had stopped 2½ to 3 months prior to October 2002 and his alcohol consumption had also dramatically decreased. His evidence also supported some of the history to which I have referred above and he expressed remorse for what had occurred.

45 In May 2002, he offended by driving with a “middle range” concentration of alcohol in his blood. There seems also to have been what was referred to as a “minor marijuana charge” when he was 17.

History of the Proceedings

46 It is appropriate to make some mention of the history of proceedings against the Applicants.

47 All offenders were apprehended on 14 October 2001 and interviewed. It is fair to say that although each made some admissions, it is impossible to conclude but that Messrs Eter and Cotter were deliberately obfuscatory in much they said and difficult to believe some of Mr Iremonger’s answers. In his ERISP Mr Russell, although denying going into, or having knowledge of what occurred in, Mr Quill’s house otherwise substantially admitted what had occurred. Asked about the guns, Mr Russell said there was discussion about them being sold but all he himself was to receive was his own property.

48 Mr Eter seems to have pleaded guilty at the committal proceedings although the transcript of proceedings before Woods DCJ suggests the charges were then, though to an extent not disclosed, different. The trial of the other three was fixed for hearing in September 2002.

49 On 29 August 2002 in the District Court the proceedings against Mr Eter were listed. It is obvious from the transcript of that day that he was pleading guilty.

50 On 2 September 2002 Mr Russell made an induced statement to the police. On 4 September 2002 Mr Iremonger also made an induced statement to the police in which he admitted to a substantial portion of what had occurred. However, the terms of the statement are such that one cannot escape the conclusion that Mr Iremonger was even then being less than frank.

51 Although it is not clear when this occurred, in submissions made on 31 December 2002, Mr Cotter’s counsel is recorded as saying that Mr Cotter had pleaded guilty just prior to the jury being empanelled. Even before this, he had acquiesced in a suggestion by the Crown that one of the victims not be required to be cross-examined because of the mental anguish which would be engendered.

The Sentencing Judge’s Remarks

52 His Honour recorded four matters which he regarded as significant points of distinction between Eter and Cotter on the one hand and Russell and Iremonger on the other. The first was that the former offenders were both 25 while the others were 19. The second matter was that the actual threats to the victims and robbery in their presence were mainly carried out by Messrs Eter and Cotter.

53 His Honour found thirdly, that Messrs Eter and Cotter were seriously affected by drugs – to some extent “off their faces” – at the time of the offences. His Honour regarded this factor as aggravating. The fourth ground of distinction was that Messrs Russell and Iremonger had no prior criminal history whereas the older two had committed prior offences.

54 His Honour observed that Messrs Russell and Iremonger were “very young and very frail (and) would be extremely vulnerable in prison” and that both were working and custody would damage “these valuable arrangements”. He also said that there were powerful considerations in both Mr Eter’s and Mr Cotter’s background which explained their misconduct and which, to some extent mitigated their criminality.

55 In arriving at the sentences imposed, His Honour regarded each offender as having pleaded guilty at the first available opportunity after the indictment was presented in a form which embodied the counts of robbery in company, saying he would “make allowance for the pleas of guilty as reflecting contrition and some assistance in the administration of justice. When his Honour came to sentence each offender he indicated he was making an allowance of 25 per cent for his plea.

56 Dealing with Mr Eter, his Honour concluded that he had good prospects of rehabilitation. His Honour also said that he would make an allowance for 8½ months Mr Eter had spent in a rehabilitation program, equating this with 4 months in custody and found special circumstances in a special need for drug treatment and rehabilitation. In the case of Mr Eter, his Honour referred to only one of the 2 Form 1s which he should have taken into account

57 His Honour did not make findings so favourable in Mr Cotter’s case but reduced the sentence by 1½ months for the 3 months Mr Cotter had spent in the William Booth Institute.

58 His Honour said that Mr Russell’s prospects of rehabilitation were “very good” although it must also be said that later in the same paragraph his Honour said that “It seems as if (those prospects) are generally good”. In respect of Mr Iremonger, his Honour said:-

“I take account of the fact that there is, whatever he said to the Probation and Parole Officer, a plea of guilty in these proceedings to the appropriate charge and that that reflects a measure of contrition.”

59 His Honour concluded that Messrs Russell and Iremonger fell into the category of “most exceptional cases” referred to in R v Henry – see at p372 - 374.

Crown Submissions

60 In support of its submissions that the sentences were manifestly inadequate the Crown drew attention to those authorities which lay down that a sentence must reflect the objective seriousness of an offence as must a non-parole period and that deterrence is a very important aspect fo sentencing.

61 The Crown also submitted that by comparison with the example used in the guideline judgment of R v Henry (1999) 46 NSWLR 346, the circumstances in the instant case were markedly worse. Here 2 of the offenders were not young, there was considerably more than “a limited degree of planning” and premeditation, there were 2 victims and the offence involved the invasion of the victims’ home. In the case of some offenders, the sentence should also have reflected the additional offences on a Form 1. Yet, it was submitted, although the offending was worse, in the case of those offenders whose sentences were not suspended, the sentencing judge had selected the bottom of the range of sentences indicated in R v Henry (1999) 46 NSWLR 346, granted the maximum discount for the guilty plea and then allowed a substantial reduction in the non-parole period, resulting in sentences which did not reflect the objective seriousness of the criminality. In the case of Messrs Russell and Iremonger, the sentences, being suspended, were even lighter.

62 Criticism was also directed at some particular remarks of his Honour which, it was submitted, indicated an inadequate appreciation of the seriousness of the offending. In recounting events His Honour said:-

“One night at a party shortly before 14 October 2001, in the company with the other offenders, Russell related to these recent associates his complaint that his father’s rifles were being wrongly retained by William Quill on the property which was located some distance from Nyngan. This apparently excited the sympathy of the co-offenders, who, it would seem, agreed to undertake a mission of recovering the items which Timothy Russell claimed he was entitled to have. With too much time on their hands, an excess of bravado, something of a twisted sense of justice, what should have disappeared into that late night limbo where most drunken schemes vanish, in fact, crystallised in the next day or so into reality. This reality took the form of the offender taking a hired vehicle and proceeding west from Sydney towards Nyngan and the property out of Nyngan. The motor trip was no doubt accompanied by the intake of alcohol and probably other drugs, particularly, it seems, by Eter and Cotter, who each had a particular drug problem.”

63 It might also be observed that all his Honour said concerning the impact on the victims was that “the atmosphere generated by the conduct of the offenders must have been frightening”, that parts of that conduct “must have been very frightening especially to 2 people who are not particularly young” and “the psychological damage of being required to lie on the floor, in circumstances where what was being taken included guns, is serious”.

Conclusions

64 There can in my view be no doubt that the sentencing proceedings generally miscarried. Although the sentencing judge correctly said that it was necessary for him to have regard to the decision of this Court in R v Henry even though the case before him was not on all fours, the sentences he imposed on Messrs Eter and Cotter do not come close to being reconcilable with that decision.

65 In R v Henry, this Court said that sentences of between 4 and 5 years should generally be imposed for offences having the following characteristics, viz:-

(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 shop-keeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

66 Although in light of the terms of the charges pleaded to and the evidence before his Honour one could not conclude that any of the offenders were armed and therefore there was not the same risk of injury as in the circumstances envisaged in R v Henry, a number of the other features of each offence here were worse than in the example given. It is difficult to regard Messrs Eter and Cotter at age 25 as young. There was appreciably more than a limited degree of planning. There was more than “a small amount taken”.

67 Furthermore, the offence occurred by way of invasion of their home – a circumstance which traditionally this Court has emphasised is a substantially aggravating factor. In addition, there were two victims and it is clear that the impact of the offences on each of them has been severe. His Honour’s remarks in that regard suggest a wholly inadequate appreciation of that impact.

68 Woods DCJ did not explain why, in light of the matters to which I have referred, he adopted as his starting point before any discount for the pleas of guilty, the bottom of the range of finishing points in R v Henry after that discount had been allowed. There was no conceivable justification for doing so.

69 Nor did his Honour explain why he made the sentences on each count wholly concurrent. It may fairly be said that the two offences by each offender were but incidents of one bout of criminality but where the offences involved different victims and each of whose lives have been detrimentally affected to a significant degree by that criminality, the total sentence should reflect that fact. The individual sentences imposed on each offender could not reflect the fact of 2 victims – Pearce v R (1998) 194 CLR 610.

70 It is clear law that it would be wrong to reflect in the sentence for the count involving Mr Quill, punishment for the offence against Ms Davies but it is equally clear to my mind that the punishment should reflect the fact that two and not merely one life has been damaged. There should have been some accumulation of sentences.

71 Of course I do not suggest that the remarks of this Court in R v Henry are like the provisions of a statute, the proper operation of which must be slavishly followed. Those words were used to provide a guideline, but the guideline is one which reflects proper sentencing principles and standards. The sentences on Messrs Eter and Cotter do not.

72 That statement applies both to the head sentences and the non-parole periods. Given the extent of their efforts towards rehabilitation and the favourable reports in that regard, it was clearly appropriate for Woods DCJ to find special circumstances in the case of Mr Eter and I am not persuaded that his Honour was in error in doing so in the case of Mr Cotter. It was appropriate for some allowance to be made for the time each had spent in full time rehabilitation. However the ultimate result of a non-parole period of 15 months gives wholly inadequate weight to considerations of general deterrence and retribution.

73 Each of the offences in this case carried maximum penalties of 25 years imprisonment. Clearly the offences were not within the category of those which could be regarded as the worst examples of offences of their type but nor were they near the bottom of the range of offences under the section. The extent of inadequacy and the absence of reasons operating in the opposite direction means that this Court should interfere with the sentences imposed on Messrs Eter and Cotter.

74 So far as the head sentences are concerned, the Court should impose the least sentence which could properly have been imposed at first instance. In my view that is, in the case of each offence, and after making all appropriate allowances for the pleas and prospects of rehabilitation, a sentence of 5 years imprisonment. The sentences should be made partly cumulative so that the effective head sentence is 6 years.

75 In arriving at those sentences, I am not unconscious of the fact that on one of the charges against Mr Eter the 4 offences on Form 1s must be taken into account. In the ordinary course they should have led to a higher sentence being imposed on that charge. However, Mr Eter’s plea at committal entitled him to a greater discount in that regard than the other offenders and it is not inappropriate to take this into account by making the sentences on the 4 charges equal.

76 On the other hand, despite their manifest inadequacy, I would not interfere with the non-parole periods imposed on Messrs Eter and Cotter. I would do so in the exercise of the discretion which, in recognition of the double jeopardy involved, this Court has in Crown appeals. Mr Eter’s achievements in the Salvation Army Bridge Program are significant and, even though in its significance so as sentence is concerned, rehabilitation operates in a direction opposite to punishment by way of deterrence and retribution, rehabilitation is important to the community. Furthermore, the increase in the head sentence which I propose should provide a substantial extra incentive to Mr Eter to reform and sufficiently reflect the Court’s view of his conduct if he does not. It follows from what I have said that in my view there are special circumstances justifying the lower than usual proportion between the non-parole period and head sentence.

77 Although there are differences between the circumstances relevant to Mr Eter and those relevant to Mr Cotter, and in particular that the latter’s efforts in the Bridge Program were later and shorter, for the reasons which have inspired the orders I propose in the case of Mr Eter, I would propose the same orders for Mr Cotter. Assuming they wish to avoid spending 6 years in prison, both would be well advised to return to the Bridge Program immediately on release from custody.

78 Although I regard it as on the borderline, ultimately the conclusion at which I have arrived is that I am not persuaded that the sentence imposed by Woods DCJ on Mr Russell was manifestly inadequate. While R v Henry contemplates that persons without any criminal history will come within the guideline there laid down, there is nothing in that case to indicate that weight is not to be given to an exemplary record. Furthermore, however misguided Mr Russell may have been in resorting to self help, it is impossible to conclude other than that an apparently legitimate claim to return of his father’s weapons was the sole inspiration for his offending. He was also entitled to have weight given to the history and personality of which his mother and Dr Neilssen spoke and of his clear good prospects of rehabilitation and when all things were considered, Woods DCJ was entitled to regard Mr Russell as falling within the “exceptional”, referred to in R v Henry (at p372 - 374).

79 Mr Iremonger’s claim for leniency was significantly less than Mr Russell’s. Mr Iremonger was entitled to some consideration for the disadvantages in his upbringing and to have taken into account His Honour’s views that he was “very young and very frail (and) would be extremely vulnerable in prison” and that custody would damage his “valuable (working) arrangements”. On the other hand, the attitude displayed by his other offending and to the Probation Service indicated that no confidence could be had that he would not offend again and his expression of remorse would not seem to have impressed his Honour. The latter did not mention it, contenting himself with the observation that “… there is … a plea of guilty … and that reflects a measure of contrition”. In fact, having regard to the position Mr Iremonger was in at the time of his plea, and to the principle that “an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them” - Holloway v McFeeters (1956) 94 CLR 470 at 477, per Dixon CJ – I doubt whether any such inference of contrition was justified but I am content to assume that it was.

80 Mr Iremonger was not found to have good prospects of rehabilitation and did not fall within the description of “exceptional”. In all the circumstances, the sentence on him was manifestly inadequate and a custodial sentence on Mr Iremonger should have been imposed.

81 However, it is now almost 2 years since the offences and some 9 months since the proceedings before Woods DCJ and it is no light matter to impose a custodial sentence at this stage. In Mr Iremonger’s case also, but as a matter of discretion, I would dismiss the Crown appeal.

82 Accordingly the orders I propose are:-

(i) in the case of Mr Eter,
(a) The Appeal by the Crown is allowed;
(b) The sentences imposed by Woods DCJ on 16 December 2001 are quashed; and in lieu thereof,
(c) In respect of Count 2, impose a sentence of imprisonment for 5 years, including a non-parole period of 15 months, both such periods to commence on 26 October 2002;
(d) In respect of Count 4, impose a sentence of imprisonment for 5 years, including a non-parole period of 3 months, both such periods to commence on 26 October 2003; and
(e) Dismiss Mr Eter’s appeal against sentence.
(ii) in the case of Mr Cotter,
(a) The Appeal by the Crown is allowed;
(b) The sentences imposed by Woods DCJ on 16 December 2001 are quashed; and in lieu thereof,
(c) In respect of Count 2, impose a sentence of imprisonment for 5 years, including a non-parole period of 15 months, both such periods to commence on 16 December 2002; and
(d) In respect of Count 4, impose a sentence of imprisonment for 5 years, including a non-parole period of 3 months, both such periods to commence on 16 December 2003.
(iii) In the case of Mr Russell, dismiss the Crown appeal.
(iv) In the case of Mr Iremonger, dismiss the Crown appeal.

83 CARRUTHERS AJ: In these matters I have had the benefit of reading in draft form the judgment of Hulme J and I gratefully adopt his summary of the relevant factual material.

84 The learned sentencing judge was faced with difficult problems when dealing with each of the offenders, not the least of which was the attainment, as far as reasonably possible, of parity between the sentences. It is helpful, I think, to consider, at the outset, certain principles of law applicable to the offences to which each offender pleaded guilty. Relevantly, s 97(1) of the Crimes Act 1900 provides that

“Whosoever ..... being in company with another person robs ..... any person shall be liable for imprisonment for twenty years.”

85 The law has always looked with disfavour upon robbery in company because it is acknowledged that, generally speaking, persons acting in concert are capable of causing more harm than a person acting alone.

86 In the instant case the Crown relied upon a joint criminal enterprise by each offender to enter Mr Quill’s property and rob the occupants of weapons. As it transpired both Mr Quill and Ms Davies were robbed and in addition to firearms, knives and money, personal papers belonging to the occupants were also stolen.

87 The law is clear that where there are two or more persons carrying out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime or crimes may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

88 If the agreed crime is committed by one or other or all of the parties to the joint criminal enterprise, all parties are equally guilty of the crime regardless of the part played by each in its commission.

89 If, in addition to the agreed crime, another crime is committed by one or other, or others, of the parties to that joint criminal enterprise, or if all played some part in committing that other crime, all parties are equally guilty of that other crime regardless of the part played by each in its commission, provided that the Crown has also established that the parties to the enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime. These principles are discussed in R v Tangye (1997) 92 A Crim R 545.

90 In view of the pleas of guilty in the instant case, the evidentiary material before the sentencing judge, including an agreed statement of facts established that each offender stood to be sentenced for the full range of criminal acts perpetrated against both Mr Quill and Ms Davies on the night in question. This is a consequence of the application of the above stated principles of law.

91 In this context it is important to note how the argument developed before this Court. In this regard it should be borne in mind that it was alleged, generally speaking, that Mr Eter was the ringleader. In addition to being a respondent to a Crown appeal, Mr Eter seeks leave to appeal against the alleged severity of the sentences imposed upon him. In support of such application Mr Dhanji of counsel for Mr Eter argued that as the subject offences arose out of a joint criminal enterprise there was a lack of parity between the sentences imposed upon Mr Eter and those imposed upon Messrs Russell and Iremonger. He argued that each offender had the same degree of criminal responsibility and, allowing for their subjective differences, there was nevertheless a lack of parity in the sentencing regime. There is a certain attraction in this argument. When English judges sum up to juries in joint criminal enterprise cases, they often pose for the jury the simple question “Were they all in it together?”. Here, Mr Dhanji submitted that all four offenders were in it together and should be sentenced accordingly.

92 On the other hand counsel for Messrs Russell and Iremonger sought to distance themselves from that argument when responding to the Crown appeals on the alleged inadequacy of the sentences they received, contending that their degree of criminal responsibility was less than that of Messrs Eter and Cotter.

93 There were, of course, some significant subjective differences that played a role in the sentencing process, as they must, even though the court was dealing with a case of joint criminal enterprise. Thus, Messrs Russell and Iremonger were some six years younger than Messrs Cotter and Eter and there were differences in their relevant backgrounds including their relevant criminal backgrounds. In addition, the sentencing judge was required to take into account a total of four matters on 2 Form 1’s in Mr Eter’s case, and two matters on a Form 1 in Mr Iremonger’s case.

94 Bearing in mind the objective serious criminality involved in the joint criminal enterprise, and giving full weight to the various subjective matters raised by each offender, I am, with due respect to the learned sentencing judge, firmly of the view that the sentences were manifestly inadequate in each case. I agree with the respective submissions that were made by Mr Lamprati on behalf of the Crown in this respect. Specifically there was in each case a failure to comply with the guidelines set out in R v Henry (1999) 46 NSWLR 346 and a failure to apply the principles applicable to a joint criminal enterprise.

95 Special mention should be made of Mr Russell’s case. It is true that whilst the specific criminal conduct was occurring within the farmhouse itself, he remained hidden within the motor vehicle. The only explanation available for such conduct on his part is that he and his co-offenders obviously feared that if he entered the farmhouse he would be recognised by the occupants. This would put them all at risk. However, the law is clear that in the circumstances he could not avoid full culpability for the criminal conduct which did occur within the farmhouse by reason of the nature of the criminal enterprise in which he engaged. Thus, although I regretfully find myself in disagreement with Hulme J in this regard, I am of the view that Mr Russell as well as Mr Iremonger should have received full custodial sentences.

96 Further, in my view, these offences called for partially concurrent sentences in each case.

97 No problem arises in relation to the application by Mr Eter for leave to appeal against his sentence. This application lacks substance. However, the application for leave to appeal should be allowed but the appeal dismissed. The Crown appeals do, however, present considerable difficulties, particularly bearing in mind the question of parity. It is now almost two years since the offences were committed and some nine months since the offenders were sentenced. To their credit each of the offenders has taken advantage of the leniency afforded to him and progressed towards rehabilitation. It would, in my view, now be unduly onerous to impose full custodial sentences upon Messrs Russell and Iremonger. In their case I would therefore exercise the discretion which is vested in the Court to dismiss the appeals albeit having been satisfied that these sentences were manifestly inadequate.

98 Bearing in mind what I have said about the involvement of each offender in the one joint criminal enterprise, I think it would offend the principle of parity to then increase the sentences imposed upon Messrs Eter and Cotter, again, despite their manifest inadequacy. In this regard one must bear in mind that Mr Cotter is due to be released to parole on 15 March 2004 and Mr Eter on 25 January 2004. Thus, I would also exercise the Court’s residual discretion and dismiss the Crown appeals against them.

99 In summary therefore, I would propose the following orders:

1. In the case of Mr Eter -
(a) Grant the application for leave to appeal against sentence but dismiss the appeal.
(b) Dismiss the Crown appeal.
2. Dismiss the Crown appeals against the sentences imposed upon each of Messrs Cotter, Russell and Iremonger.
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Last Modified: 10/13/2003