R v Eaton
[2006] VSCA 16
•16 February 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 141 of 2005
| THE QUEEN |
| v. |
| WAYNE PATRICK EATON |
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JUDGES: | CALLAWAY, EAMES and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 February 2006 | |
DATE OF JUDGMENT: | 16 February 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 16 | |
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Criminal law – Sentence – Armed robbery – Two offenders sentenced to four years imprisonment with non-parole period of two years and six months’ imprisonment – Appellant, 34 years old, had 30 prior convictions from three appearances and strong prospects of rehabilitation – Co-accused, aged 24, had 170 prior convictions from 18 appearances and was on parole – Appeal allowed (by majority) – Re-sentenced to three years six months with two years non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr T.C. Wallwork | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr D.A. Glynn | Victoria Legal Aid |
CALLAWAY, J.A.:
I invite Eames, J.A. to deliver the first judgment.
EAMES, J.A.:
The appellant and one David Smith pleaded guilty in the County Court to one count of armed robbery. A third offender, one Quinn, who has pleaded guilty to the same offence, has not yet been sentenced. At the time of sentence the appellant was 34 years old and Smith was 24. Smith admitted 170 prior convictions arising out of 18 appearances in the Magistrates' Court between 1999 and 2004. The appellant admitted 30 convictions out of three Magistrates' Court appearances. On 12 May 2005, the judge sentenced both offenders to four years' imprisonment and fixed a non-parole period for both of two years and six months' imprisonment.
Leave to appeal against sentence has been granted to the appellant.
Ground 1 of the appellant's grounds of appeal complains that the sentence offended the principle of parity. Ground 2 complains that the judge gave inadequate weight to rehabilitation and to the appellant's efforts to rehabilitate himself. Ground 3 complained that the sentence was manifestly excessive.
The offence occurred on the evening of 14 November 2004 at Southbank. The three men, all drug addicts, determined to effect a robbery to obtain funds for drugs. Quinn drove the appellant's car and they targeted a man walking in the street after leaving work. The vehicle pulled suddenly alongside the man, whereupon the appellant was the first to get out, followed by the two others, and all surrounded the victim. The appellant menaced the victim with a pair of bolt cutters, Smith held a metal bar and Quinn a car lock. Both the appellant and Quinn yelled at the man, demanding his wallet and backpack. He was terrorised, as his victim impact statement shows. One of the men threatened to kill him. His backpack was seized and they departed the scene, only to be apprehended by police soon after. The appellant, as did Smith, made admissions when interviewed.
I will turn to ground 1.
Ground 1 Parity
In sentencing the two offenders, the judge acknowledged the parity principle, but applied it in the following way, as set out in paragraph [16] of his reasons:
"In sentencing each of you, this court has carefully considered the difficult issue of parity. Having done so, it has formed the view that given the gravity of your offending, and given that you appear to have each taken, as it were, an equal role in the commission of the offence, you should each receive the same length of sentence, notwithstanding that you, Smith, have the more extensive criminal history. This court has considered all available sentencing options and, considering your prior convictions and the most serious nature of your present offending, it has formed a clear view that the only appropriate sentence is one of immediate imprisonment. In recognition of your early pleas of guilty this court has applied an appropriate sentencing discount."
Counsel for the appellant submitted that the approach there adopted failed to apply correctly the principle of parity. In particular, the judge failed to give proper weight to the significant differences between not only the antecedents but also the rehabilitation prospects of the two offenders. Mr Coghlan submitted, on the other hand, that the judge got the parity principle right and correctly applied it in this case, albeit that he conceded that it was a stern sentence.
In Postiglione v. The Queen[1], Kirby, J. acknowledged the requirement to punish equally like offenders convicted of like offences. However, in a passage cited with approval by Batt and Buchanan, JJ.A. in Director of Public Prosecutions v. Buhagiar and Heathcote[2], his Honour added that when applying principles of parity "due allowance will be made for their differing antecedents, personal circumstances and mitigating factors". In rejecting the Director's appeal in Buhagiar and Heathcote, and after citing that passage from the judgment of Kirby, J., Batt and Buchanan, JJ.A. held, as to the two offenders in that case:
"There is much to be said for the view that here the cases of the two respondents were not like or similar because Heathcote had a worse record and his rehabilitative prospects were much more uncertain."
Thus, even where two offenders played similar roles in an offence - indeed, even in circumstances where their roles were indistinguishable, as the Director says was the case here - parity would not be accorded proper weight if in sentencing both to the same sentence the disparate and favourable mitigating features of one offender's situation, when contrasted to the situation of the co-offender, were not appropriately recognised and thereby gave rise to a justifiable sense of grievance.[3]
[1](1997) 189 C.L.R. 295, at 338.
[2][1998] 4 V.R. 540, at 549.
[3]Lowe v. The Queen (1984) 154 C.L.R. 606, at 610.
The Director contends that all of the favourable factors called in aid by the appellant were specifically acknowledged by the judge, and the sentence imposed for such a serious example of the offence reflected that considerable allowance had been made by his Honour. If, having regard to his prior convictions and more limited mitigating factors, the co-accused was even more fortunate in the sentence imposed, then, Mr Coghlan submitted, that represented an exercise of mercy on the part of the judge as to that offender. It did not demonstrate that the appellant had been denied full weight to his mitigating circumstances, and therefore any sense of grievance he might hold would not be justifiable.
In my view, in this case there were significant differences in the positions of the two men. Not only did Smith have many more convictions than the appellant, he had been sentenced to imprisonment in an adult prison on nine separate occasions, to a suspended prison term on one other occasion and to detention in a youth training centre on four further occasions. The appellant had only two serious court appearances, both of which occurred in the year 2000. Apart from one later offence, a relatively minor drug offence, he had not offended before or since the year 2000. Smith on the other hand had an offending history which did not display any such gap in his offending. Indeed, his offending had continued unabated up to the time of this offence. The appellant had never been imprisoned, and had kept the terms of both the intensive correction order and the community-based order which had been imposed on him in the year 2000. Smith, on the other hand, had breached all of his non-custodial orders which had been granted to him by courts. At the time of this offence the appellant was in the fourth month of a five-month good behaviour bond, but Smith's position was even worse, as he was on parole, having been released only a week before this offence.
In addition, the rehabilitation prospects of the appellant were significantly better than those of the co-offender. On the plea, counsel for the appellant called evidence and tendered reports which the judge accepted were favourable as to his rehabilitation prospects. No similar evidence was called on behalf of Smith. Whilst released on bail, the appellant had participated in a bail support program. The case worker for that program gave evidence that he had responded quite positively to the program and that over the six months that he had been dealing with the appellant he had shown positive prospects of rehabilitation and had displayed no physiological signs of drug use whilst on the program. That evidence was supported by a report from Access Alcohol and Drug Services, and by the report of the drug clinician of the Credit Drug Program, who reported that the appellant was highly motivated to address his substance abuse issues. A psychological report from Ms Elizabeth Warren opined that imprisonment had had a marked impact on the appellant and that he was now more motivated to address his substance abuse. She opined that, given his compliance and progress, it was probable that he would be similarly compliant were he to be given another chance of a community-based disposition.
The appellant had held responsible employment in the past but had suffered a mental breakdown in 1999. The appellant had been drug-dependent since the age of 21, mainly on amphetamines and cannabis, and he had been a heroin addict since the age of 28. After his breakdown he was suicidal, attempting suicide on a couple of occasions, leading to admission in a psychiatric ward. His Honour accepted that the appellant was drug free and had apparently made significant progress on the drug intervention program, and he also accepted the evidence of what he described as "very positive steps towards rehabilitation". No similar finding was made with respect to Smith.
Although I accept that the judge identified and acknowledged that the appellant had fewer prior convictions and had good rehabilitation prospects, the passage cited from his Honour's sentencing remarks in my view clearly articulates error in the sentencing approach which his Honour was adopting. In my opinion his Honour did fail to apply parity principles appropriately. Given the significant differences in the prior criminal history of the two offenders, and the substantially better rehabilitation prospects of the appellant, and also the efforts undertaken by him to achieve rehabilitation, the imposition of the same sentence would, in my view, engender a justifiable sense of grievance on the part of the appellant. It is unnecessary, having reached that conclusion, to deal separately with the other grounds of appeal. There being error disclosed under ground 1, the appeal should be allowed and the sentencing discretion is re-opened.
Mr Coghlan submitted that, having regard to the seriousness of this offence (in his outline he emphasised the fact that it carried a 25-year maximum sentence), and the fact that it was a serious example of such an offence, a substantial sentence of imprisonment was justified. I acknowledge the seriousness of the offence and the fact that the appellant admitted many prior offences, albeit none for violence. I have regard, too, to the victim impact statement in this case as emphasising, as Mr Coghlan said, that this was indeed a serious offence. On the other hand there was much evidence of genuine remorse and positive evidence of his prospects for and desire to achieve rehabilitation.
Taking all factors into account, in my opinion the appellant should be re-sentenced to three years and six months' imprisonment and I would fix a non-parole period of two years.
CALLAWAY, J.A.:
I shall ask Ashley, J.A. to follow.
ASHLEY, J.A.:
I agree, for the reasons which his Honour has given, that the appeal should be allowed and the appellant re-sentenced as is proposed by Eames, J.A.
CALLAWAY, J.A.:
I have the misfortune to differ from the other members of the Court. I do not consider that the differences between the appellant and Smith were so marked as to require a greater difference in their sentences.[4] Smith was a youthful offender; the appellant was not. The learned and very experienced judge should not, in my view, be taken to have disregarded the offenders' personal circumstances when he considered the issue of parity, still less to have overlooked the appellant's prospects of rehabilitation. Smith's more extensive criminal history was referred to, in the context of parity, at paragraph [16] of the sentencing remarks. The observations in that paragraph are to be understood against the background his Honour had earlier recited, which included the evidence bearing on the appellant's prospects of rehabilitation. The non-parole period shows that that factor was given weight in relation to both offenders. The sentence is within the appropriate range.
[4]There is a practical difference in the sentences imposed, because Smith owed nine months to the Parole Board, on which his sentence would be served cumulatively: see R. v. Orphanides (2002) 130 A.Crim.R. 403.
I would dismiss the appeal.
The orders of the Court will be as follows:
The appeal is allowed.
The sentence of imprisonment imposed below is quashed. In lieu thereof, the appellant is sentenced to three years and six months' imprisonment.
A non-parole period of two years is fixed.
It is declared that the period of 296 days is to be reckoned as already served
under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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