R v Freeman

[1999] NSWCCA 394

CITATION:	R v Freeman [1999] NSWCCA 394
FILE NUMBER(S):	CCA 60791/98
HEARING DATE(S):	06/12/99
JUDGMENT DATE:	6 December 1999
PARTIES :	Regina v Wayne Ernest Joseph Freeman
JUDGMENT OF:	James J; Sperling J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/71/0064
LOWER COURT JUDICIAL OFFICER:	Luland DCJ

COUNSEL:	LMB Lamprati (Crown) GC Corr (Applicant)
SOLICITORS:	SE O'Connor (Crown) Central-Southern Aboriginal Corporation (Applicant)
CATCHWORDS:	Criminal Law and Procedure: Sentencing - no question of principle
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60791/98

JAMES J
SPERLING J

MONDAY 6 DECEMBER 1999

REGINA v WAYNE ERNEST JOSEPH FREEMAN

JUDGMENT.

1   JAMES J: This is an application by Wayne Ernest Joseph Freeman for leave to appeal against a sentence imposed on him in the District Court on 4 December 1998 by his Honour Judge Luland, after the applicant had pleaded guilty to one charge of armed robbery committed on 7 October 1997. In sentencing the applicant Judge Luland took into account an offence of breaking, entering and stealing also committed on 7 October 1997. Judge Luland imposed a sentence of 7 years penal servitude, consisting of a minimum term of 4 years commencing on 14 February 1998, the date on which the applicant was taken into custody, and an additional term of 3 years. The maximum penalty for the offence of armed robbery is penal servitude for 20 years.

2   The facts of the offence were stated by Judge Luland in his remarks on sentence in a way which has not been the subject of any complaint on the hearing of this application. His Honour said:

"The facts are that at about 7.15pm on 7 October 1997 the prisoner, with two other men, went to the Shell service station at Tumut armed with knives and wearing balaclavas. One of the offenders grabbed hold of Mr Murphy, threatening him with a knife whilst another attempted to open the till. When he was unable to do so, the first offender pushed Mr Murphy towards the counter and ordered him to open the till which he did, whereupon the offenders took $270. They then took further money from the gas tin totalling in all $778.25. Mr Murphy was then ordered to lie on the floor and an offender placed a knife towards his face and he heard a voice say 'Don't kill him, get the smoke and let's go'. The offenders then left the service station."

3   The other two men referred to were both named Williams, Dennis Williams and Donald Williams. It would appear that these two men were cousins. Judge Luland noted that of the co-offenders Donald Williams had pleaded not guilty and would be standing trial. Dennis Williams had been arrested by Police on 4 December 1997. After being arrested he had admitted committing the offence of armed robbery and he had named the co-offenders and undertaken to give evidence against them.

4   On 20 March 1998 Dennis Williams was sentenced by another District Court Judge, Judge Bellear, to a sentence of 6 and a half years, consisting of a minimum term of one year three months and an additional term of five years three months. It will be necessary later in this judgment to consider in more detail the sentence imposed on Dennis Williams.

5   In his remarks on sentence Judge Luland stated that Dennis Williams had a criminal record which was not as bad as the present offender's and that in the case of Dennis Williams there was no further offence to be taken into account in sentencing.

6   The applicant and Dennis Williams had given conflicting accounts of the role played by the applicant in the offence. Judge Luland concluded that he would sentence the applicant on the basis that he was no more culpable than Dennis Williams.

7   Judge Luland described the offence of breaking, entering and stealing as follows:

"In the early hours of the following morning the prisoner and his co-offenders broke into the Woolpack Hotel at Tumut and stole a quantity of liquor and cigarettes totalling $964. This is the matter on the Form 1."

8   With regard to the subjective circumstances of the applicant, Judge Luland noted that the applicant was a 35 year old aboriginal man. He had had a deprived childhood. He was addicted to alcohol; he also used illicit drugs. He had a bad record, including prison sentences. In prison he had been placed in segregation for his own protection. His Honour took into account the applicant’s stated intention of endeavouring to rehabilitate himself and was prepared to find special circumstances.

9   No submission was put that the sentence imposed on the applicant, considered by itself, was appellably excessive. It was accepted that the present case was worse than the category of case which the Court of Criminal Appeal in its guideline judgment in R v Henry (1999) 34 NSWLR 346 said would generally warrant a full time sentence of 4 to 5 years. Apart from any other consideration, the applicant was not a young offender. He had a substantial criminal history, the offence was committed in company and the sentencing Judge had to take into account the quite serious offence of breaking, entering and stealing.

10   The argument which was advanced on behalf of the applicant was based on the alleged disparity between the sentence imposed on the applicant and the sentence imposed on Dennis Williams.

11   The Court has been provided with a copy of the remarks on sentence of Judge Bellear in sentencing Dennis Williams. It is apparent from these remarks on sentence that Judge Bellear took into account in favour of Williams that he had made early admissions of guilt, that he had made full admissions in an electronically recorded interview on 4 November 1997, that he was remorseful, that he had nominated the two co-offenders, one of whom was a cousin, and had undertaken to give evidence against them, that as a result of the assistance he had given and had undertaken to give he had been ostracized, both inside the prison system and outside the prison system, that by providing assistance he had lost his extended aboriginal family, that he had been on protection and that he had nowhere to hide, even while in protective custody. There is a passage near the conclusion of Judge Bellear’s remarks on sentence, which is as follows:

"…in all the circumstances I propose therefore to set an overall sentence of six and a half years penal servitude.
In setting the minimum term I propose to reduce the minimum term for his early plea of guilty and his showing of remorse and contrition, by twelve months. Next I propose to further reduce it, taking into consideration special circumstances which is giving him benefit for his assistance to authorities, which makes it two and a half years minimum term. I then have given this matter careful consideration and as earlier indicated, I propose to give 50 per cent for his assistance to authorities, which brings his minimum term to one year and three months."

12   It must be said that some parts of this passage are lacking in clarity.
13   It was submitted on behalf of the applicant that while the total sentences imposed on the applicant and co-offender were approximately the same, the disparity between the minimum term of 4 years imposed on the applicant and the minimum tern of 1 year 3 months imposed on the co-offender was such as to give rise to a justifiable sense of grievance. That being so, the sentence on the applicant should be reduced, notwithstanding that it was otherwise appropriate.

14   As was made plain in Postiglione v the Queen (1995-1996) 189 CLR 295 it is necessary to compare not merely the total sentences but also the minimum terms or non parole periods passed on a prisoner and a co-offender. See Postiglione v The Queen per Dawson and Gaudron JJ at 302.

15   I do not consider that the submissions made on behalf of the applicant should be upheld. A material difference between the case of the applicant and that of the co-offender was the assistance provided and to be provided by the co-offender. For this assistance Judge Bellear allowed a discount of 50 percent. This discount, although high, was within the permissible limits of the discount which may be allowed for assistance. A further important difference was that the further offence of breaking, entering and stealing had to be taken into account in sentencing the applicant but not in sentencing the co-offender. Other differences included that the applicant had committed the two offences only a few days after completing a sentence of imprisonment for breaking and entering with intent and whilst he was subject to a recognizance. While both of the applicant and the co-offender had pleaded guilty, the co-offender had pleaded guilty at an early stage, whereas the applicant pleaded guilty only after he had been incriminated by the co-offender. Judge Bellear allowed a large discount for the co-offender's early plea and contrition.

16   Taking into account the differences which existed between the cases of the applicant and the co-offender, I do not consider that the disparity between the minimum terms imposed on the applicant and co-offender is such as to give rise to a justifiable sense of grievance. I would propose that leave to appeal be granted but I would dismiss the appeal against sentence.

SPERLING J: I agree.

JAMES J: The orders of the court will be as proposed by me.


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