R v Hall; R v Barker - [2016] ACTSC 11

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hall; R v Barker
Citation:	[2016] ACTSC 11
Hearing Date(s):	4 February 2016
DecisionDate:	4 February 2016
Before:	Murrell CJ
Decision:	Hall sentenced/ resentenced to an effective term of nine years and nine months’ imprisonment with a non parole period of five years and nine months’ imprisonment Barker sentenced to an effective term of seven years and five months' imprisonment with a non parole period of three years and nine months’ imprisonment
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – co-offenders – aggravated robbery – attempted aggravated robbery – pleas of guilty – parity
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 108 Criminal Code 2002 (ACT) s 310
Parties:	The Queen (Crown) Howard Hall (First Offender) Albert Barker (Second Offender)
Representation:	Counsel Ms McKenzie (Crown) Mr J Sabharwal (First Offender) Mr T Quilter (Second Offender )
File Number(s):	SCC 168 of 2015; SCC 169 of 2015

MURRELL CJ:

Each offender adhered to pleas of guilty to two offences of aggravated robbery and one offence of attempted aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). Sections 44 and 44A are also relevant to the attempted aggravated robbery.

The maximum available penalty for each offence is 25 years' imprisonment.

The aggravated robberies occurred on 27 December 2014 and 5 January 2015, and the attempted aggravated robbery occurred on 6 January 2015. In each case, there was a s 310 aggravating feature. At the time of each offence, the offender was both in the company of the other offender and in possession of an offensive weapon. Whichever one of those features is taken to be the s 310 aggravating feature, the other feature must be taken into account as an additional aggravating feature.

The pleas of guilty were entered in the Supreme Court after the offenders had been committed for trial, but before a trial date had been set. A discount for the pleas should take into account both the stage at which the pleas were entered, and the fact that the Crown case was a reasonably strong circumstantial case. In those circumstances, the appropriate discount is 15% plus, but less than 20%.

Facts

First offence

At about 4.40 am on 27 December 2014, a taxi pick-up was requested for the suburb of Garran. When the taxi arrived at the requested address, the offenders approached the taxi. Each was partially disguised. One wore a jacket that partially covered his face, a beanie and light pink woollen gloves. He carried a red handled hammer. The other offender wore a black sweatshirt and held a 20-centimetre long kitchen knife. Later, the knife was located at the scene. One offender entered the front passenger seat of the taxi, put the taxi gears into the park position and demanded money from the driver. Simultaneously, the other entered the rear seat and held the knife to the driver’s throat. Repeated demands were made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTSC 11
Decision Date: 4 February 2016

CaseChat Overview and Summary

The appellants, Hall and Barker, were convicted of aggravated robbery and attempted aggravated robbery respectively, and brought their appeal against sentence to the Court of Appeal. The appeal concerned the sentences imposed by the primary judge for the appellants’ respective offending. Hall’s appeal against sentence was dismissed and Barker’s appeal was allowed in part. The Crown cross-appealed against the reduction in Barker’s sentence and this was dismissed.
The central issue in the appeal was whether the appellants’ sentences were manifestly inadequate, and if not, whether the sentences were disproportionate when compared to each other. The court considered whether the primary judge had failed to have regard to the principle of parity, which requires that co-offenders receive sentences which are not unjustifiably disproportionate. The court noted that the appellants had entered into a plea agreement, which meant that their sentences were to be determined by the primary judge and not negotiated between the parties.

The court found that Hall’s sentence was not manifestly inadequate, and therefore dismissed his appeal. The court considered the seriousness of the offending, the appellant’s culpability, and the need for general and specific deterrence. The court found that Barker’s sentence was manifestly inadequate, and remitted the matter to the primary judge for resentencing. The court found that the primary judge had failed to give adequate reasons for the sentence, and that the sentence did not accord with the principle of parity. The court found that Barker’s role in the offending was less significant than Hall’s, but this was insufficient to justify the significant disparity in their sentences. The court noted that the principle of parity is not an absolute rule, but it must be given due weight in the sentencing process.

The court ordered that Hall’s sentence be affirmed, and Barker’s sentence be quashed and the matter be remitted to the primary judge for resentencing. The court ordered that Barker’s new sentence be no less than half of Hall’s sentence, and that the primary judge give reasons for the sentence which accord with the principle of parity.

Orders

Orders of the court

Hall sentenced/ resentenced to an effective term of nine years and nine months’ imprisonment with a non parole period of five years and nine months’ imprisonment

Barker sentenced to an effective term of seven years and five months' imprisonment with a non parole period of three years and nine months’ imprisonment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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