R v Fraser - [2008] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FRASER
[2008] SASC 40
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
14 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Appeal against sentence - whether sentence imposed on appellant should be set aside because it is a heavier sentence than sentence imposed on co-offender.
Held: appeal allowed - sentence imposed by District Court set aside - new sentence imposed.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 86A, s 134, s 169(2), referred to.
R v MacGowan (1986) 42 SASR 50; R v Czubak (2005) 92 SASR 400; R v Bartels (1986) 44 SASR 260, considered.

R v FRASER
[2008] SASC 40
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ (extempore)

DOYLE CJ: This is an appeal against sentence. Permission to appeal was granted by a single judge.
The issue on appeal is whether a sentence imposed on Mr Fraser should be set aside because it is a heavier sentence than the sentence imposed on Mr Peake who is a co-offender.
Mr Fraser and Mr Peake were sentenced by different judges. Each of them pleaded guilty to seven offences.
The offences were as follows: using a motor vehicle without consent contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (“the Act”); two counts of aggravated serious criminal trespass in non-residential premises contrary to s 169(2) of the Act; two counts of damaging property contrary to s 85(3) of the Act and two counts of theft contrary to s 134 of the Act.
The maximum penalty for these offences is as follows: for using the motor vehicle not less than three months and not more than four years’ imprisonment, and licence disqualification for 12 months; for the aggravated serious criminal trespass, imprisonment not exceeding 20 years; for damaging property, imprisonment not exceeding three years; and for theft, imprisonment not exceeding ten years.
The circumstances of the offences were as follows.
Together Mr Fraser and Mr Peake unlawfully took a motor vehicle from a car park. The taking and subsequent use of this motor vehicle gave rise to the first offence.
Together they used the motor vehicle to force their way into a pharmacy at Kensington Park. This was a so-called “ram raid”. The damage they did to the premises was estimated at $8,500. They stole tablets and cash from the premises.
Using the same vehicle, they then carried out another “ram raid” at a pharmacy at Brighton. The damage to the premises was estimated at $20,000. They stole perfumes valued at about $7,000.
The “ram raids” gave rise to the offences of aggravated serious criminal trespass, theft and damaging property.
Mr Peake and Mr Fraser were each equally culpable. There is no basis for distinguishing between them having regard to their involvement in the offences.
Each of them is aged 33 years of age. Each had a depressingly long background of prior offending. Each of them was on parole at the time of the offending.
There is no apparent basis for distinguishing between Mr Fraser and Mr Peake. Ms Mealor, counsel for the Director, has not suggested that there is any such basis.
Mr Peake was sentenced to imprisonment for four years and eight months after allowing for his pleas of guilty. But for the pleas of guilty the sentence would have been six years, three months.
The Judge also made an allowance for time spent in custody but for the purposes of comparison, that can be put to one side.
The sentence imposed on Mr Peake was a moderate one. It could easily have been heavier.
The Judge who sentenced Mr Fraser referred to the sentence imposed on Mr Peake. The Judge did not give any reason for taking a different approach with Mr Fraser. In fact, the Judge referred to the fact that the principle of parity would apply, but the Judge then imposed a single sentence of imprisonment for six years and three months saying that but for the pleas of guilty, the sentence would have been eight years and four months.
In other words, the Judge sentenced Mr Fraser to a term of imprisonment equivalent to the term that the Judge who sentenced Mr Peake took as a starting point before allowing for the plea of guilty.
The Judge under appeal was invited to provide a report to the court but has not done so.
In my opinion there is no basis for differentiating between the two offenders. There is a significant disparity between the sentences imposed on the two offenders.
The principles in R v MacGowan (1986) 42 SASR 50 are applicable. Applying those principles, this Court is not obliged to interfere, but it cannot be said that the sentence imposed on Mr Peake is so low that the public interest requires that the higher sentence stand. The sentence imposed on Mr Peake was a merciful one but was within an appropriate range.
That leads me to the conclusion that the court should interfere to eliminate the disparity, there being no basis for any difference of approach and the earlier sentence not being a sentence that should be disregarded.
For those reasons I would allow the appeal and set aside the sentence imposed by the District Court.
I would sentence Mr Fraser to a single sentence of imprisonment for four years, eight months. In arriving at that figure I have made the same allowance for his pleas of guilty as was made in relation to Mr Peake.
I would order that Mr Fraser be disqualified from holding or obtaining a driver’s licence for 12 months commencing on 13 November 2007, the date on which he was sentenced in the District Court.
Mr Fraser is required to serve the balance of the sentence in respect of which he was on parole at the time of the commission of the offences. When he came before the District Court Judge, the outstanding balance was a period of nine months and two days. He was already serving that sentence. The outstanding balance would now be some five months less.
As I understand it, that balance sentence was originally in total one year two months and 19 days and was to be served from 24 April 2007. That means that the combined head sentence being served by Mr Fraser is the sum of the two sentences, namely five years ten months and 19 days.
The sentence that I would impose will be served cumulatively upon the outstanding balance of the previous sentence.
It is necessary to fix a non-parole period in relation to the combined head sentences. I would fix a non-parole period of three years eight months, or 44 months, which non-parole period operates from 24 April 2007, the date when Mr Fraser began to serve the outstanding balance of the relevant sentence.
I should also record that there appears to be a technical error in the sentence imposed on Mr Peake. I have not checked the court record, and in what I say I am relying on the sentencing remarks. The Judge who sentenced him, according to his reasons, sentenced him to imprisonment for three months for the offence of driving a motor vehicle without consent and for three years for the three offences committed at Kensington Park and for three years for the three offences committed at Brighton.
However, the Judge then said that he gave credit for the pleas of guilty and he reduced the total sentence to imprisonment to 56 months. He further reduced that further sentence for the time spent in custody.
The error is that the Judge has purported to impose three separate sentences but has then proceeded as if he had imposed a single sentence reducing the single sentence to allow for the guilty pleas. The Judge could proceed in the way he did only if he had imposed a single sentence in respect of all of the offences that were before him.
It may well be that there is no need for the error to be corrected as it makes no difference to the end result. However, I have raised the matter so that the DPP can consider whether any action should be taken.
For the reasons I indicate, they are the orders I would make.
BLEBY J: In my opinion the sentence imposed on the appellant’s co-defendant, Mr Peake, was at the lower end of the applicable range for the offending. Furthermore, but for the parity question, I would not interfere with the sentence imposed on Mr Fraser.
However, I agree that the involvement of both offenders and their personal circumstances warranted similar penalties. There were no grounds to justify any differentiation.
I cannot say that Mr Peake’s sentence was so low that to grant parity with Mr Fraser would compound an error in a way that would be unacceptable to the public conscience[1]. I therefore agree that Mr Fraser’s sentence must be adjusted.
[1] R v MacGowan (1986) 42 SASR 580 at 583
I agree with the orders proposed by the Chief Justice.
GRAY J: I agree with the reasons of the Chief Justice, the orders proposed.
I have a concern that the time the appellant has served in custody since the offences were committed may not have been properly brought to account. I refer to the decision of Czubak[2], and the earlier decision of R v Bartels[3]. I refer in particular to the observations of White J in Czubak at [65]-[75]. If any question arises it may be necessary to further consider the matter.
[2] (2005) 92 SASR 400
[3] (1986) 44 SASR 260