R v Geiger

[2001] NSWCCA 140

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Geiger [2001]  NSWCCA 140

FILE NUMBER(S):
60645/00

HEARING DATE(S): 11 April 2001

JUDGMENT DATE:    11/04/2001

PARTIES:
Regina v Hank Stephen Geiger

JUDGMENT OF:        Wood CJ at CL Smart AJ    

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):             00/41/0043; 99/41/0264

LOWER COURT JUDICIAL OFFICER:        Phelan DCJ

COUNSEL:
(A)   M Thangaraj
(R)   M Grogan

SOLICITORS:
(A)   D J Humphreys
(R)   S E O'Connor

CATCHWORDS:
Sentencing - parity - different factors applicable to each offender - lesser sentence not permissible

LEGISLATION CITED:
Nil

DECISION:
Leave to appeal granted - appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60645/00

WOOD CJ AT CL
  SMART AJ

Wednesday 11 April 2001

REGINA       v       HANK STEPHEN GEIGER

JUDGMENT

1      WOOD CJ AT CL:  I will ask Smart AJ to give the first judgment.

2      SMART AJ: Hank Stephen Geiger seeks leave to appeal against the severity of sentences imposed upon him in the District Court.  On a charge that at Queanbeyan on 7 September 1999 he had in his possession a Commodore sedan stolen outside New South Wales and in the Australian Capital Territory, he was sentenced to a fixed term of imprisonment of 12 months.  On charges of take and drive a conveyance on 10 March 1999 and break, enter and steal, on that day he was sentenced on each charge to three years imprisonment with a non-parole period of 15 months. Two offences of fail to appear were taken into account.  All sentences dated from 5 April 2000.   The point at issue is one of parity having regard to the sentence imposed on the applicant and Mark Douglas Cross, a co-offender.

7 September 1999 offence

3      A car was stolen from the staff park at Isabella Plains Primary School, ACT. About 4pm the applicant was a passenger in that vehicle.  He admitted to the police that he was a passenger in the vehicle from Boronia Crescent to Callan Street, Queanbeyan, a short distance.  He also admitted when he got into the vehicle he knew it was stolen. He insisted that he got out of the vehicle at Callan Street and was not in the vehicle when it was subsequently pursued at speed by the police.  The co-offender was a cousin. He was sentenced in the Local Court and received a minimum term of 6 months and an additional term of 6 months.  He was sentenced to fixed terms of 6 months for driving without a licence and dangerous driving.  He was 19 years of age and had a criminal history but the papers do not reveal the details or the subjective features.

4      Complaint is made that the judge when dealing with this matter in relation to Mr Geiger, firstly imposed a significantly longer sentence than that imposed on Mr Cross and secondly, did not take into account that the matter could have been dealt with in the Local Court. The sentence on the applicant for this offence has expired.  This sentence has to be taken into account on the overall question of parity and I  propose to do so.

5      The paucity of detail as to the co-offender makes it difficult to deal with the matter although it does appear that the co-offender was more blameworthy.  This offence took place while the applicant was on bail for other matters.

10 March 1999 offence

6      The applicant broke into a dwelling house in Crest Park Parade, Queanbeyan, entered those premises and stole a laptop computer, video cassette recorder, a large amount of jewellery, items of clothing and a set of keys to the car parked at that time in the adjoining carport.  It was estimated that the goods taken and not subsequently recovered had a value of about $13,486.

7      The role of Mr Cross, it appears, was that of a cockatoo or look out.  The applicant drove the car from the house to a friend's house before leaving it in the grounds of a church in Crest Park Parade.  The car had been extensively damaged.  Necessary repairs cost about $1610.  Some property was recovered.

8      The applicant was born on 21 July 1980. His record commences in October 1996 when he was dealt with for trespass, receiving, aiding and abetting, self-administer prohibited drug and malicious damage.  He was fined, placed on a good behaviour bond and required to do 30 hours community service.  In June 1997 he was fined for goods in custody.  In August 1997 he was dealt with for larceny, carrying a cutting weapon, break, enter and steal (2 counts) and illegal use of a motor vehicle.  He was subjected to a control order for 9 months with an additional term of 3 months.  On 17 November 1999 he was sentenced in the ACT Supreme Court for committing an act of indecency, assault occasioning actual bodily harm, accessory after the fact of armed robbery and escape from lawful custody.  He received sentences totalling 4 years imprisonment with a non-parole period of 2 years.  This sentence is the subject of an appeal to the Federal Court.  Judgment has been reserved.  Counsel for the applicant contended that there were strong prospects of success on that appeal.  These offences pre-dated the offences the subject of this application.

9      On 19 November 1999, the applicant was fined $500 in the Local Court for assault and committing an act of indecency. The judge found that the failures to appear resulted from the deep seated depression which the applicant suffered as a result of the death of his very close friend and co-offender in the offences of 10 March 1999, Mark Douglas Cross.  Mr Cross died from an overdose of heroin. The applicant was at hand when this occurred.

10 The judge attached considerable weight to the pre-sentence report.  That revealed that the applicant had little contact with his natural father and that the applicant was raised by his mother.  Until he was 11 she was in a relationship with a man who abused alcohol and was violent when intoxicated. Alcohol was a factor in several of his previous offences and the major factor in the serious offences in the ACT. The report suggests alcohol was involved in one of the offences the subject of this application.

11    The applicant has a long history of drug abuse which has been a factor in much of his offending.  The judge continued:

"The report goes on to note that his early unsatisfactory home environment has left him poorly prepared for adult responsibilities.  He has a long history of drug and alcohol abuse and this appears to have been the major factor in his offending.  He also displays poor impulse control and has a propensity for aggression and violence particularly when affected by alcohol.  The report however does say that he has made genuine efforts to overcome his drug and alcohol abuse and has responded well to intervention whilst in juvenile detention centres.  More recently whilst in gaol reports reflect the same pattern.  However the report does note that he has not persevered with his efforts and has succumbed to the influence of associates.  It warns that it is doubtful whether the death of his best friend and his current relationship alone will be sufficient to deter him from future substance abuse and intensive intervention possibly in a residential setting is considered desirable.

A more recent report suggests that his mother when interviewed said that she has visited him regularly since he has been n prison and she reports a positive change in his attitudes and I think this is also reflected in the various reports which were tendered to me today".

12    It is a matter of some concern that the applicant had succumbed to the influence of associates while in gaol. At the time of the sentencing the applicant was in a relationship with a lady and they have a baby.  This was important to the applicant.

13    The judge took into account the admissions made by the applicant immediately upon questioning, his very early pleas of guilty and his assistance to the police in recovering some of the stolen property. The judge accepted that the offences were unplanned and reflected somebody in the deep throes of drug addiction.

14    At the time of the commission of these offences the applicant was on a Griffith remand in respect of the ACT matters. Bail was revoked as a result of these offences. The judge commented:

"His record does not assist him but the subjective matters particularly his youth and his early childhood as an abused child not untypical of young men who appear in this court and who are drug addicts, must be taken into account."

15    The judge found special circumstances in the applicant's youth and the need for him to have intensive and probably full time rehabilitation.  He recommended that the applicant continue to have psychotherapy and drug counselling during his period in gaol.

16    The judge was told that Mr Cross had been dealt with at Queanbeyan District Court on 13 May 1999 for break, enter and steal and had received a minimum term of 2 months with an additional term of 16 months.  The offence of take and drive a conveyance without consent was taken into account.  So far as I can tell the judge was not provided with a copy of Judge Morgan's reasons, in Mr Cross' case nor with those of Gallop J in the ACT Supreme Court.

17    The reasons of Judge Morgan in Cross' sentencing proceedings have been provided to us.  They reveal that Mr Cross was born on 14 May 1980 and was thus of the same age as the applicant.  Mr Cross had acted as the lookout for the applicant and was fully aware that the applicant was taking property from the premises.  Judge Morgan described Mr Cross' record as appalling for one so young. Some of the offences were serious, for example, a considerable number of instances of breaking entering and stealing, robbery, escape lawful custody and malicious damage.  There were a number of other dishonesty offences.  He was on bail at the time of the offences of 10 March 1999.

18    Judge Morgan records that Mr Cross was shocked by being in an adult gaol for the first time and that this had helped him to make up his mind to cease taking drugs.  He had been addicted to drugs since his early teens.

19  Judge Morgan appeared to accept that Mr Cross had resolved to have nothing more to do with drugs and that he was genuine.  He had remained drug free while he was in prison.  However, Judge Morgan recognised Mr Cross would need a lot of help.  She decided to give him a chance to overcome the drug habit.  She envisaged that upon his release from  prison after serving 2 months Mr Cross would be supervised as to his drug addiction and undergo counselling.

20    It is, perhaps, the ultimate irony that after Mr Cross' early release from prison he should die from an overdose of heroin.  This undermines the basis on which leniency was extended to Mr Cross and the correctness of the sentence which he received.

21    Counsel for the applicant complained that the judge had not referred to parity. One difficulty is that no materials were put before the judge except a rather spare statement made from the Bar table. Complaint was made about the head sentence imposed on the applicant, namely, one of 36 months and that imposed on Mr Cross, namely, one of 18 months. Complaint was also made about the difference in the minimum terms, 15 months and 2 months.

22    Counsel for the applicant pointed out that there was a major difference between the sentences imposed on the applicant and Mr Cross for the offence of break, enter and steal and take and drive a vehicle without consent. That is so. It was also pointed out that while the applicant was on a Griffith remained Mr Cross was on bail and for a similar type of offence.  Both had records which did not assist.

23    In view of the judge's findings as to the failures to appear they constituted a difference but by no means a significant one.  The further offence of 7 September 1999 was of some significance.  It was while the applicant was on bail.  It was an indulgence to the applicant that this sentence was made concurrent.

24    The judge in the applicant's case was not as optimistic as the judge in Mr Cross' case as to drug rehabilitation. Indeed, the judge in the applicant's case thought that he might need residential rehabilitation.

25  Counsel for the applicant submitted that the Court should apply the principles in Doan 2000 NSW CCA 317. Counsel stated that he was not asking for the same sentence as Mr Cross received nor was he asking for a sentence that was manifestly inadequate.  He was asking for a sentence for the offences committed by the applicant which were at the bottom of the range. He relied  on what Anderson J said in Regina v Capper 1993 69 A Crim R 64 at 75.

"When a co-offender has been treated with excessive leniency justice may sufficiently be done if the prisoner receives as lenient a sentence as can be justified within the accepted range for this kind of offence in the light of matters personal to the prisoner including his record."

26    The sentence imposed upon the applicant was in my opinion both a lenient and sensible one and made ample allowance for any prospect of drug rehabilitation. When regard is had to the different approach to rehabilitation in Mr Cross' case and that in the applicant's case, with the judge in Mr Cross' case being more favourably inclined to his prospects of rehabilitation, and to the concurrent sentence in relation to the offence of 7 September 1999, it cannot reasonably be said that it was open to the judge to impose a lesser sentence upon the applicant. I do not think that the disparity is such as to require the intervention of this court.  It does not give  rise to a justifiable sense of aggrievement.

27    Leave to appeal should be granted but the appeal should be dismissed.

28    WOOD CJ AT CL:  I agree. The orders of the Court will be as Smart AJ has proposed.

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LAST UPDATED:       19/04/2001