R v Gardiner No. Sccrm-97-186 Judgment No. S6410

[1997] SASC 6410

R  v  GARDINER

Court of Criminal Appeal
Coram:  Matheson, Duggan, Nyland JJ

Nyland J: (ex tempore)

This is an appeal against sentence.  The appellant was charged with the offence of house breaking and assault. The charge arose out of an incident which occurred on 5 January 1997 when the appellant, together with five or six other men, entered a house and assaulted one of the occupants thereof.

The appellant was jointly charged on the information with another man called Willmott.  They both appeared before a judge in the District Court and pleaded guilty to the charge.   Another man called Rincon was dealt with in the Magistrates Court.

Prior to sentence Willmott was on bail.  On 26 June 1997 the judge sentenced Willmott to imprisonment for a period of 18 months and imposed a non-parole period of 6 months.  The appellant was not in court at that time, due to certain health problems.

The appellant subsequently appeared before the same judge for sentence on 4 July 1997.  At that time the appellant also pleaded guilty to a number of Magistrate Court matters which had been brought up to be dealt with by the District Court Judge.  They were charges of unlawful possession, driving a motor vehicle without the consent of the owner, driving whilst disqualified and driving an unregistered vehicle.  The appellant has a long history of prior offending which extends over nearly six pages of his antecedent report.

On 4 February 1992, for a number of offences of dishonesty he was sentenced to a total head sentence of six years, four months and 18 days with a non-parole period of 20 months. He was paroled in relation to that sentence on 19 February 1993.  Each of the offences dealt with by the District Court Judge breached the appellant's parole.  The offence of unlawful possession occurred on 4 July 1995.  At that time the balance of the unexpired portion of the sentence of imprisonment was three years and five days.  As a result of the sentence imposed with respect to the offence of unlawful possession, the appellant became liable to serve the balance of his earlier sentence.

In the course of his sentencing remarks the judge referred to the sentence imposed upon Willmott and indicated that there could not really be any differentiation between him and Willmott as to his role in the matter as they were part of an enterprise to assault a person in another person's home and to take the law into their own hands.  The judge then imposed sentence.  He sentenced the appellant to be imprisoned for a period of three months with respect to the charge of unlawful possession, one month for driving a motor vehicle without the consent of the owner and one month on the charge of driving whilst disqualified.  A fine was imposed with respect to the other driving offence.  The judge ordered that the three terms of imprisonment be served concurrently but the sentence was to begin at the expiration of the three years and five days of the unexpired non-parole period. On the charge of house breaking and assault, the judge ordered that the appellant be imprisoned for a period of 18 months and directed that such term of imprisonment be cumulative on the earlier sentence.  That made a total head sentence of four years nine months and five days.

The appellant had been in custody for a period of 6 months prior to sentence being imposed. Pursuant to the provisions of the Correctional Services Act, however, the non-parole period could not be backdated. The judge took that period into account and then fixed a non-parole period of 18 months.

The appellant does not take issue with the head sentence imposed by the learned sentencing judge but has appealed with respect to the non-parole period.  As the appellant had been in custody for six months prior to sentencing, the appellant argued that the non-parole period of 18 months was tantamount to a period of 24 months, as opposed to the non-parole period received by Willmott of 6 months, making a difference of 18 months.

Mr Crocker, in the course of his argument this afternoon, pointed out that, although 3 of those 18 months could be accounted for as a sentence to be served in relation to the summary offences, the remaining 15 months represented the punishment administered to the appellant for committing the offence of unlawful possession whilst on parole. He submitted that such a period was manifestly excessive having regard to the maximum penalty for a charge of unlawful possession, the actual sentence imposed with respect to that offence, the period of time which the appellant had subsequently served on parole before committing that offence (which was a period of nearly 29 months) the balance of the unexpired portion of the sentence as at the date of committing the offence of unlawful possession, which was a period of 36 months, and the personal circumstances of the appellant, in particular his health problems which were referred to in a report of Dr Robinson, a cardiologist.  In addition, the sentence passed upon Rincon appeared to be more lenient than that imposed upon the appellant or Willmott.

Rincon pleaded guilty to the crime of break and enter and larceny of a television set. He was sentenced by a magistrate to one penalty, namely, imprisonment for five months, which was suspended upon him entering into a good behaviour bond for a period of 18 months.

Rincon was sentenced by the magistrate in May 1997 but there appears to have been little discussion as to the relevance of that sentence before the District Court Judge when hearing submissions in relation to Willmott and there is no reference to it during the submissions in relation to the appellant.  The District Court Judge did not refer to Rincon's sentence in his sentencing remarks with respect to either Willmott or the appellant. 

In my opinion, however, the non-parole period fixed by the learned sentencing judge cannot be characterised as being manifestly excessive.  In sentencing the appellant the judge was required to fix a non-parole period with respect to a sentence involving multiple offences.  As those offences were committed during a period of release on parole, the judge was required to have regard to the balance of the previous sentence and he was then required to have regard to the whole of the head sentence.  Even if the 6 months in custody is added to the non-parole period fixed by the judge of 18 months, the period to be served in custody by the appellant before being paroled is still less than one half of the total head sentence.  In my view, this adequately reflected such considerations as the appellant's age and state of health.

In R v Lowe[1] the court held that:

[1] (1984) 154 CLR 606 at 623

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them.  Obviously, where the circumstances of each offender or his involvement in the offence are different, then different sentences may be called for.  But justice should be even-handed and, it has come to be recognised both here and in England that any difference between sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

The High Court has more recently considered the issue of parity in the case of Postiglione v R[2] (1997) 145 ALR 408 and Mr Crocker referred to that case in the course of his submissions this afternoon. In that case Dawson and Gaudron JJ said at p.411:

[2] (1997) 145 ALR 408

“The parity principle upon which the argument in this court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but if there are relevant differences due allowance should be made for them (Lowe v The Queen (supra) at 609).  In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated.”

And at p413 they went on to say:

“It is convenient to observe, once again, that as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison.  And, of course, it is necessary when applying the parity principle that like be compared with like.  There may be some aspects of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused.  If so, it may justify the imposition of a different sentence (Lowe v The Queen (supra)) or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”

In my opinion, this is such a case.  I consider that the disparity between the non-parole period received by the appellant, as opposed to the co-offender, Willmott, was justified taking into account the fact that Willmott's offence did not constitute a breach of parole, Willmott was only sentenced to the crime of house breaking and assault and he appeared to have a lesser criminal history than that of the appellant.

Although the sentence imposed upon Rincon appears to have been more lenient in that it was a suspended sentence, I not consider that gives any reason to interfere in the present matter in the absence of some identifiable error on the part of the sentencing judge.  In my opinion the appeal should be dismissed.

Matheson J:

Notwithstanding Mr Crocker's well organised and attractive submission, I am not persuaded that this court should interfere.  I agree with the reasons of Nyland J for dismissing the appeal.

Duggan J:

I agree the appeal should be dismissed for the reasons given by Nyland J.

Matheson J:

The order of the court therefore is appeal dismissed.