R v Hildebrandt
[2008] VSCA 142
•15 August 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 21 of 2007
| THE QUEEN |
| v |
| GREGG JAMES HILDEBRANDT |
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JUDGES: | ASHLEY and DODDS-STREETON JJA and LASRY AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 June 2008 | |
DATE OF JUDGMENT: | 15 August 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 142 | |
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CRIMINAL LAW – Sentencing – Conspiracy to murder – Parity principle – Whether violated by appellant’s sentence of 13 years’ imprisonment (with 9 years’ non-parole) compared to 3 years’ suspended sentence imposed on co-conspirator – Meaning of parity principle – Comparative analysis of sentencing judge found no relevant similarity of culpability and circumstance, where co-conspirator voluntarily withdrew from conspiracy and provided invaluable cooperation to authorities – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr J Kennan SC and Ms G A Costello | Lewenberg & Lewenberg |
ASHLEY JA:
I have had the advantage of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree with her Honour, for the reasons she gives, that this appeal should be dismissed.
DODDS-STREETON JA:
On 15 December 2006, the appellant, Gregory James Anthony Hildebrant, was presented in the Supreme Court on one count of conspiracy to murder Mario Condello. He pleaded guilty and was sentenced to 13 years’ imprisonment with a non-parole period of nine years. It was directed that 794 days already spent in custody in relation to the proceedings be reckoned as a period of imprisonment already served under the sentence.
The offence of conspiracy to murder carries a penalty of life imprisonment pursuant to s 321 of the Crimes Act 1958.
Three other persons (Michael Thorneycroft, Sean Sonnet and Carl Williams) were also charged with the offence. Michael Thorneycroft pleaded guilty at a very early stage. He was sentenced on 22 July 2004 to three years’ imprisonment, wholly suspended. Sean Sonnet and Carl Williams, at the date of the appellant’s sentence on 15 December 2006, had pleaded not guilty and had not been sentenced. Ultimately, Williams pleaded guilty and was sentenced to 25 years’ imprisonment with no minimum, as it was part of a sentence containing three separate sentences for murder, with an overall minimum term of 35 years. Sonnet did not plead guilty. He was convicted and, on 29 May 2008, was sentenced to 20 years’ imprisonment, to be served concurrently with sentences for theft of a vehicle and possession of firearms, with a 16 year minimum term. We were informed that Williams has appealed against his sentence and that Sonnet has appealed against both his conviction and sentence. Those appeals have not yet been heard.
Grounds of Appeal
The appellant appeals against sentence on the following grounds:
1. The learned sentencing judge failed to apply the principle of parity.
2.The learned sentencing judge was in error in that she placed excessive weight on the withdrawal of the co-accused from the conspiracy.
3.The learned sentencing judge was in error in failing to give any or any sufficient weight to the aggravating factors concerning the involvement of the co-accused in the conspiracy.
4.The learned sentencing judge was in error in failing to give any or any sufficient weight to the personal circumstances of the co-accused.
5.The learned sentencing judge failed to adequately evaluate the differences between the appellant and the co-accused.
6.The learned sentencing judge failed to place any or sufficient weight on the prospects for rehabilitation of the appellant.
7.The learned sentencing judge failed to place any or sufficient weight on the evidence of the appellant’s remorse.
8. The sentence was manifestly excessive.
Before us, the appellant principally contended that the sentencing judge failed to apply the parity principle because there was manifest disparity between his sentence and the sentence passed on Michael Thorneycroft, which created a justifiable sense of grievance and the appearance that justice might not have been done. Alternatively, the appellant argued that the parity principle was misapplied, because the sentencing judge placed too much weight on Thorneycroft’s withdrawal from the conspiracy and his ‘informer’s discount’.
Facts and Evidence
The appellant was born on 3 May 1970 and is now aged 38.
The offending occurred in the context of a long-running gangland war in Melbourne. The circumstances were as follows.
On 9 June 2004, the appellant and his long-term neighbour and childhood friend, Sean Sonnet, drove to Brighton Cemetery in a stolen car. They arrived at 7.30 am and parked outside the walls of the cemetery. They were only a couple of minutes walk from the home of the intended murder victim, Mario Condello, who was expected to walk his dog at that hour. Sonnet had a loaded revolver, an automatic pistol and a portable two-way radio. The appellant had only a portable two-way radio.
Contrary to the offenders’ expectations, Condello was living elsewhere at the time.
The police had been monitoring the co-offenders’ movements and conversations for some time. Shortly after 7.30 am on 9 June 2004, they arrested Sonnet and the appellant. As the trial judge accepted, it was clear from the police recordings that Sonnet and the appellant then believed that they were only a minute or two away from carrying out the murder. They had discussed whether a man who was walking his dog was likely to be Condello.
The appellant was not an original party to the conspiracy, which, as the Crown claimed and Williams later conceded, was organised by Williams. It was originally planned that Sonnet, for a payment of $120,000-$140,000, would kill Condello, while Thorneycroft (a relative and associate of Williams) for a payment of $30,000 would steal and drive the car and would assist Sonnet’s escape.
To that end, Sonnet and Thorneycroft conducted surveillance of Condello’s home. The first recorded date of the surveillance was 1 June 2004.
By 3 or 4 June 2004, the appellant had been recruited to replace Thorneycroft, after Thorneycroft appeared to be unreliable. Thorneycroft withdrew from the conspiracy on 8 June 2004 and the appellant never met him.
Role and sentencing of Thorneycroft
Thorneycroft pleaded guilty and on 22 July 2004 was sentenced by Teague J.
Thorneycroft was then aged 27. There was evidence that, throughout his childhood, Thorneycroft and his mother had been subjected to extreme domestic violence and frequently fled to refuges. He had a significant criminal record and had spent most of his teenage years and early 20s in gaol. Although he was a relative of Williams, he met him for the first time in prison, where they formed an association and Thorneycroft apparently became obliged to Williams.
After his last release from prison, Thorneycroft had formed a significant relationship with a woman, with whom he had a child.
Thorneycroft had been approached on 29 May 2004 and was invited to assist in murdering Condello. He had agreed to do so and had many discussions with the co-conspirators (at that stage only Williams and Sonnet) and took action to advance the plan.
Teague J stated that Thorneycroft’s record of prior convictions ‘could not have been bleaker were it not for the fact that there is a relatively significant period out of prison up to the start of your involvement in these matters’.
Teague J recognised that there were very significant mitigating considerations, in that Thorneycroft had chosen to withdraw from the conspiracy, was always relatively reluctant to be involved, made an early guilty plea and, crucially, undertook to give, and had already given, significant and extensive assistance to the authorities.[1]
[1]The varying importance of an informer’s discount has been recently reconsidered by this Court: R v Johnston [2008] VSCA 133, [118] (Nettle JA). For several reasons, the discount in Thorneycroft’s case should have been accounted comparatively great.
Teague J stated that Thorneycroft’s choice to assist the authorities warranted a very large reduction in sentence for ‘purely utilitarian reasons dictated by the public interest’ and it was also imperative that Thorneycroft be provided with ‘the highest level of protection available’.
With the concurrence of the prosecutor, Teague J therefore sentenced Thorneycroft to three years’ imprisonment, wholly suspended.
The prosecutor stated that the sentence appeared ‘at first blush to be an extremely generous disposition’, but the prosecution supported it in the circumstances, including the fact that Thorneycroft ‘pulled out of the conspiracy before it got to the final stage’ and was prepared to give ‘extremely significant assistance to the further investigation and prosecution of this and other matters.’
The sentencing remarks of King J made on 29 May 2008 in relation to Sonnet[2] amplified the circumstances of Thorneycroft’s involvement in the conspiracy. King J there observed that his co-conspirators perceived Thorneycroft to be unreliable due to his heroin addiction. On 5 June 2004, Thorneycroft stole the vehicle which was used by Sonnet and the appellant. He remained partially involved, continuing to be updated on developments, until 8 June 2004, when he definitively withdrew.
[2]R v Sonnet [2008] VSC 221 (Unreported, King J, 29 May 2008).
We were informed that Thorneycroft subsequently fulfilled his undertaking to co-operate and gave evidence which assisted in the conviction of Sonnet, although Thorneycroft had died by the time of Sonnet’s trial.
The judgment below
In sentencing the appellant, the sentencing judge observed that the appellant was party to a planned ‘cold blooded execution of a human being in a very public area’ with people on their way to work and children going to school and ‘from you I have no explanation at all for your involvement in the matter’.
Her Honour inferred that the money to be paid to Thorneycroft would have been paid to the man who replaced him. She observed that the appellant may also have desired an association with Williams, whom he apparently viewed as a celebrity, but despite her invitation, counsel had ‘put nothing forward in the way of explanation or motivation’ for the appellant’s involvement.
The judge also observed that the appellant had already spent 740 days in a relatively harsh prison regime, as a consequence of his involvement in the gangland war.
Her Honour acknowledged that, although the issue of parity with Thorneycroft’s sentence had initially caused her some concern, she had ultimately concluded that it was of no real relevance, because Thorneycroft’s was ‘a most unusual sentence as a result of the quite exceptional circumstances’ of that offender.
Before the sentencing judge, as on appeal, counsel for the appellant contended that Thorneycroft and the appellant played similar roles in the conspiracy and Thorneycroft’s significant prior convictions and longer involvement in the conspiracy compared unfavourably with the appellant’s relatively insignificant criminal record and shorter involvement.
While acknowledging that, in accordance with Pecora v R,[3] the sentence passed on Thorneycroft could not be disregarded, her Honour considered that the distinguishing factors in favour of Thorneycroft were numerous and significant.
[3][1980] VR 499.
She stated:
Equally, Thorneycroft had placed his life in jeopardy if he was to remain in prison by assisting and giving evidence against his alleged co-offenders and others. Thorneycroft withdrew from the conspiracy before he was arrested. You, on the other hand, were arrested at a time that you intended to be a participant in the murder of Condello if you could have found him that morning. You pleaded guilty at a late stage, some two and a half years after the event, and I have to say I am not so confident of your remorse as I am of the evident remorse of Thorneycroft.
She further noted that the appellant was, even then, refusing to co-operate with the police.
Her Honour, in reliance on R v Karagiannakis[4] and R v MacGowan,[5] stated that the circumstances of both the offending and the offender were significant matters and ‘[s]pecial mitigating or aggravating factors can and should contribute to justifiable disparity…’.
[4](Unreported, Victorian Supreme Court of Appeal, Young CJ, McInerney and King JJ, 2 October 1981).
[5](1986) 42 SASR 580.
She concluded that, in the circumstances, ‘it was not possible to pass a sentence that reflects the principles of parity…’.
Her Honour observed that the appellant had worked as a spray painter and had resided with his mother at Noble Park for most of his life.
The appellant had a nine year old son, born of a relationship which commenced in 2000 and ended eighteen months later. He had had fortnightly access to his son until his arrest, after which his contact had ceased.
The appellant’s background was unremarkable. He had several minor convictions. He had a stable upbringing and supportive family, but was not academic and left school at 14. His mother gave evidence that the offence was out of character and that Sonnet was a bad influence on the appellant. The appellant had expressed remorse to his mother for the hurt his involvement in the offence had caused to his family and friends.
The appellant’s friend, Thomas Stewart, also gave evidence that the appellant’s offence was out of character. Mr Stewart testified that the appellant was a good worker and had expressed remorse.
The trial judge acknowledged that there was nothing to indicate that the appellant did not have reasonable prospects of rehabilitation, provided that he distanced himself from Sonnet and Williams, whom he apparently admired.
Her Honour concluded that this was ‘one of the most serious conspiracies to murder that was never totally completed’ which, as part of a gangland war, threatened public safety by a proposed execution in a public street.
Relevant authorities
Judicial expositions of the meaning of the parity principle are not entirely uniform. The term ‘the parity principle’ is used in at least two senses in the relevant authorities. First, to express the recognition that like cases should be treated alike (itself an emanation of equal justice). Secondly, the phrase is used to describe the requirement to consider the ‘appropriate comparability’ of co-offenders, and in that sense, comprehends the mirror propositions that like should be treated alike, and that disparate culpability or circumstances may mandate a different disposition.
In Postiglione v The Queen,[6] Dawson and Gaudron JJ stated:
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 that, if there are relevant differences, due allowance should be made for them (See Lowe v The Queen (1984) 154 CLR 606 at 610-611 per Mason J). 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.
…
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.[7]
[6](1997) 189 CLR 295.
[7]Ibid, 300-302.
In R v Ronald Peter Kucharski[8] (‘Kucharski’), the applicant appealed against sentence on the ground that there was manifest disparity between his sentence and the sentences passed on his co-offenders, such as to engender a justifiable sense of grievance or to give the appearance that justice may not have been done. The co-offenders carried out a violent attack on a debtor at the behest of the applicant, but received only a fine. The applicant was sentenced to three years’ imprisonment with a 15 month non-parole period.
[8](Unreported, Victorian Supreme Court of Appeal, Brooking and Hayne JJA and Ashley AJA, 23 June 1997).
The Court of Appeal allowed the appeal on the basis of ‘the stark and excessive difference’ between the applicant’s sentence and the fines imposed on his co-offenders.
Hayne JA (with whom Brooking JA and Ashley AJA agreed) stated:
As was said in Taudevin [1996] 2 VR 402, the ground of appeal concerning disparity is often described in terms of whether there is a difference between two sentences that is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done. The important words are, as Callaway, JA said in Taudevin, ‘manifestly’, ‘justifiable’ and ‘objective’.
In R v Tien & Ors,[9] Tadgell JA stated:
Although it is no doubt convenient as a matter of shorthand expression to refer to ‘the principle of parity’, the concept is not to be likened to a principle of physics or mathematics which is necessarily to be applied, or necessarily to be withheld from application, in a particular case.
As I understand it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. In the absence of such an explanation a more lenient sentence imposed on one of them will be likely to engender a justifiable sense of grievance in the other or others, and a justified sense of grievance is inconsistent with a fair system of justice. It is, as I should think, inappropriate ever to say that the ‘principle of parity’, understood in that way, should not apply as between co-offenders. The concept is always to be borne steadily in mind when co-offenders are to be sentenced, whether together or separately, or by one judge or more than one.[10]
[9][1998] VSCA 6 (Unreported, Tadgell, Charles and Buchanan JJA, 22 July 1998).
[10]R v Tien & Ors [1998] VSCA 6 (Unreported, Tadgell, Charles and Buchanan JJA, 22 July 1998) at page 4.
In R v Jovica Djukic, Vincent JA stated:
The concept of parity of treatment is fundamental to our notions of justice and is integral to both the procedures and substance of our legal system. It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses.
‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ (Wong v R [2001] HCA 64 per Gaudron, Gummow and Hayne JJ at para 655)
…
It must not be forgotten that the principle of equal treatment which involves consideration of the need for disparity in result is being considered in the context of the sentencing process. Obviously, where there is manifest and inadequately explained disparity, the inference that there has been unequal treatment may be relatively easily drawn. [11]
[11]R v Jovica Djukic [2001] VSCA 226 (Unreported, Brooking, Phillips and Vincent JJA, 13 December 2001) [25]-[26].
The authorities make clear that application of the parity principle in the sense that a comparative analysis of the culpability and circumstances of co-offenders must be performed, is indispensable. The parity principle used in the narrower sense that like should be treated alike would not, however, apply unless the co-offenders were relevantly similar.
The different usages were recognised in R v Tien & Ors, where Buchanan JA recognised that the trial judge had not rejected the application of the principles of parity used ‘in the sense of an appropriate comparability’ but rather, simply appeared ‘to have rejected the notion that the offenders were in the same position’.[12]
[12]R v Tien & Ors [1998] VSCA 6 (Unreported, Tadgell, Charles and Buchanan JJA, 22 July 1998) at page 3.
There are also different judicial approaches to whether, if a co-offender has already received an inadequate sentence, the parity principle may require the imposition of another inadequate sentence.
On one view, a prior lesser sentence, albeit itself inadequate, may justify a further, proportionately inadequate sentence. According to a contrary view, however, the parity principle does not justify compounding the error of a preceding inadequate sentence.
In Lowe v The Queen,[13] the applicant sought special leave to appeal against the decision of the Court of Criminal Appeal, arguing that its reduction of his non-parole period did not adequately address the disparity between his sentence and that imposed on a co-offender. The co-offender (who had kept watch while the applicant held up a service station) was sentenced only to three years probation with community service, while the applicant was originally sentenced to six years’ imprisonment with a two years non-parole period. The Court of Criminal Appeal reduced the applicant’s non-parole period to one year.
[13](1984) 154 CLR 606.
The High Court, while unanimous that disparity in the sentences of co-offenders, was not, in itself, a ground for intervention by an appellate court, was divided in its approach to the application.
The majority, Gibbs CJ, Wilson and Dawson JJ, refused special leave to appeal.
Gibbs CJ (with whom Wilson J agreed), stated:
The true position, in my opinion, may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.[14]
[14]Ibid, 609.
His Honour recognised that the Court had a discretion to reduce a sentence which was not manifestly excessive in order to avoid marked disparity with the sentence imposed on a co-offender. He continued:
It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal.[15]
Dawson J stated (citations omitted):
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 of 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 recognized both here and in England that any difference between the 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: … There is always the dilemma that in order to eliminate the disparity the court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. [O]n any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v R, supra, at 504 and R v Tisalandis, supra, at 438.[16]
[15]Ibid, 609-610.
[16]Ibid, 623-624.
Mason and Brennan JJ considered that special leave should be granted.
Mason J, on whose judgment the appellant in the present case particularly relied, considered that, because it was usually impracticable to address an unjustifiable discrepancy by increasing the lesser sentence, even if it were inadequate,[17]:
It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice while reducing the more severe sentence in appropriate cases.[18]
[17]Ibid.
[18]Ibid, 612.
His Honour also stated that:
…a Court of Appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.[19]
[19]Ibid, 613-4.
Brennan J, however, (although also prepared to grant special leave) adopted a more reserved approach. His Honour stated:
The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time.
As regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender. To say that an appellate court is bound to take the lesser sentence as the norm, even though it is inappropriately lenient, is tantamount to saying that “where you have one wrong sentence and one right sentence [the] court should produce two wrong sentences” — a proposition that cannot be accepted: per Roskill LJ in R v Stroud (1977) 65 Cr App R 150 at 152. I agree with Nagle CJ at CL who said in R v Tisalandis (1979) 1 A Crim R 7 at 17: “… to lay down as a principle of law that once disparity was shown to exist a sentence appealed against should be interfered with is so obviously wrong that it needs no argument.”
There is a passage in the judgment in Pecora v R [1980] VR 499 at 504 where the Full Court of the Supreme Court of Victoria seems to say that manifest disparity in sentences may in itself be a ground for appellate interference. If that was their Honours’ view, I would respectfully depart from it, for it is wrong to think that it is “more important that sentences should be proportionate to one another than that they should be proportionate to guilt” R v Robson and East [1970] Crim LR 354 at 355 and see R v Coe (1968) 53 Cr App R 66 at 71; O'Malley v French (1971) 2 SASR 110 at 114).[20]
[20]Ibid, 617.
In Pecora v R[21] (to which Brennan J referred in Lowe v The Queen), the Full Court of the Supreme Court of Victoria stated:
In R v Andrews (unreported, delivered 4 February 1976, and wrongly dated 1975), it was said that if the sentence imposed upon the co-offender appears to the sentencing Judge to be manifestly inadequate he is not obliged to impose a sentence which he considers to be inadequate. In that case the Full Court considered whether the sentencing Judge had given insufficient weight to the sentences passed on the co-offenders and concluded that he had not. What was said by the Court in that case should not, however, be construed as meaning that where a sentencing judge considers that the sentence imposed on the co-offender is manifestly inadequate, he can disregard it entirely. The consideration which the Court gave to the sentence under review in Andrew's Case shows that he cannot. He must take it into account and give the principle of parity such weight as he considers in all the circumstances it deserves.[22]
[21][1980] VR 499.
[22]Ibid, 503.
The Full Court’s statement in Pecora v R requires the Court to take into account an inadequate sentence imposed on a co-offender, but authorises great flexibility in relation to the weight it should be accorded. It does not, in terms, mandate or clearly endorse the imposition of a further inadequate sentence in such circumstances, but indicates a need for proportionality.
In R v Kucharski, the Full Court recognised that the sentence passed on the lesser offenders was ‘far too lenient’. It applied the approach suggested in Pecorav R by imposing ‘a somewhat lesser sentence [on the appellant] than might otherwise have been the case’[23].
[23]At [5].
Hunt CJ in R v Maslen and Shaw[24] (in reliance on Mason J’s dictum in Lowe v The Queen), accepted that a sentence could be reduced to the point where it was inadequate in order to reduce disparity. In contrast, the view of Vincent JA (with whom Brooking and Phillips JJA agreed) in R v Jovica Djukic[25] appeared to echo Brennan J’s approach in Lowe v The Queen. Vincent JA doubted that that fairness and justice would require a reduction of a not-excessive sentence to the point of inadequacy, where a co-offender had received an inadequate sentence. His Honour stated:
I must confess to the possession of serious doubt concerning the notion that the ‘impassive representative of the community, the objective bystander’ would perceive greater injustice in the imposition of two or more inadequate sentences in order to maintain parity of treatment of the offenders involved, than that created by the acceptance of a measure of disparity to avoid the handing down of an inadequate sentence on one of them. The fairness and justice of such a result would, I suspect, be more easily perceived and accepted by its beneficiaries than by those who were the victims of the offence or offences concerned. I also query the idea that a person, appropriately sentenced, would be entitled to a justifiable sense of grievance because he had not received an inadequate sentence in such circumstances.[26]
[24]R v Maslen and Shaw (1995) 79 A Crim R 199.
[25][2001] VSCA 226 (Unreported, Brooking, Phillips and Vincent JJA, 13 December 2001).
[26]R v Jovica Djukic [2001] VSCA 226 (Unreported, Brooking, Phillips and Vincent JJA, 13 December 2001) [30].
Ground 1
Counsel for the appellant contended that the sentencing judge erred in that she dispensed with or abandoned the parity principle altogether, in relation to the sentence passed on Thorneycroft.
Although four persons were charged with the offence, Thorneycroft, the only co-conspirator sentenced at the date of the appellant’s disposition, was necessarily the sole benchmark for the sentencing judge’s comparative analysis in relation to parity. Williams and Sonnet, the other two co-conspirators, have since been sentenced, but the appellant submitted that Thorneycroft’s role as the intended driver most closely resembled his own. The appellant did not invite this Court to consider the sentences passed on Williams or Sonnet for the purposes of applying the parity principle. In my opinion, it is doubtful whether Thorneycroft was the co-offender most similar to the appellant for the purposes of applying the parity principle. Factors such as whether the offender voluntarily withdrew from the conspiracy, made an early plea or co-operated with the authorities appear considerably more significant in that context than the technical role or function of the offender. In those matters, the appellant more closely resembled Sonnet than Thorneycroft. Given, however, that Thorneycroft was the only offender sentenced prior to the sentencing of the appellant, he was justifiably the sole focus of the appellant’s complaint in relation to parity.
The appellant pointed, in relation to ground 1, to paragraphs 40 and 41 at the sentencing reasons, where her Honour stated:
I have explained my reasons why the issue of parity is of no real relevance and in my opinion the sentence passed by His Honour on Thorneycroft was a most unusual sentence as a result of the quite exceptional circumstances of the offender that he was sentencing.
I have considered the matter at length and in my view it is not possible to pass a sentence that reflects the principles of parity as argued by Mr Kennan.[27]
[27]R v Hildebrandt [2007] VCC (Unreported, King J, 5 February 2007) [40]-[41].
In my opinion, her Honour did not err as alleged. The observations in the impugned paragraphs must be read in the context of the reasons as a whole. Her Honour’s preceding analysis makes plain that she was keenly aware of the requirement to determine whether and in what respects Thorneycroft and the appellant were relevantly ‘like’ (thereby mandating a like disposition) or relevantly different, thus requiring a different disposition in order to satisfy the demands of equal justice.
Her Honour did not, as the appellant suggested, pay mere lip-service to the requirement to compare the two offenders by referring to the principle only to ignore it. Rather, she made a comprehensive comparative analysis of all relevant circumstances, and concluded the offenders were not ‘like’ in any respect apt to attract the parity principle. Instead, her Honour concluded that the offenders were so disparate in culpability, circumstance and position that radically different dispositions were objectively justified and could be rationally explained.
In my opinion, as in R v Tien & Ors, her Honour’s remarks represent the conclusion she reached after having performed the comparative analysis. The statements that the parity principle was not relevant or could not be applied did not indicate that the sentencing judge had dispensed with the requisite comparative analysis, with which much of her reasons were concerned. Rather, it indicated that she found no relevant parity, but rather, disparity between the co-offenders. Her Honour nevertheless took into account the sentence passed on Thorneycroft in accordance with the principle expressed in Pecora v R, but found the culpability and circumstance of the offenders so different that the parity principle could be given little or no weight.
Grounds 2, 3, 4 and 5
The appellant alternatively contended that, if the sentencing judge did apply the parity principle at all, then her application was erroneous. First, it was submitted that the judge gave too much weight to the fact that Thorneycroft withdrew from the conspiracy before his arrest. Counsel argued that the judge should have tempered the weight she accorded that circumstance because it was questionable whether it was a voluntary withdrawal, given that the co-conspirators were doubtful of Thorneycroft’s capacity to perform his role.
Both the sentencing judge and Teague J, who sentenced Thorneycroft, found as a fact that Thorneycroft voluntarily withdrew from the conspiracy before he was arrested. Before us, however, the appellant at one point appeared to challenge that finding. Counsel for the appellant submitted that Teague J found his sentencing facts summarily and without the benefit of a contradictor. It was suggested that, on proper analysis, Thorneycroft’s services were terminated by his increasingly concerned co-conspirators, who doubted his reliability. The appellant also argued that Thorneycroft had already essentially completed his task prior to his withdrawal, in the sense that he had carried out surveillance and had stolen the car.
Ultimately, however, counsel did not dispute that Thorneycroft’s withdrawal was voluntary. Rather, he asserted that the withdrawal was of a ‘technical’ character, which did not involve real contrition. Counsel invited this Court to conclude that the withdrawal was not as strongly in Thorneycroft’s favour as the sentencing judge, and perhaps Teague J, assumed, given that the co-conspirators were, throughout, becoming increasingly doubtful of Thorneycroft’s ability satisfactorily to perform his part.
In my opinion, this Court, even if empowered to revisit the findings of Teague J or the sentencing judge, should, in the circumstances, decline to do so. There was a plea before Teague J in which the prosecution was competently represented. The sentencing judge also subsequently considered the same issues thoroughly, in the context of a comparison central to her disposition.
There is no basis on which to doubt that Thorneycroft voluntarily withdrew from the conspiracy, in the sense that, as the appellant conceded, his services were not terminated by the co-conspirators. It is also clear that he withdrew before he fulfilled the intended role of driving Sonnet to and from the planned murder of Condello.
While, as the sentencing judge recognised, Thorneycroft’s co-conspirators were concerned about his reliability, that is not inconsistent with his relative reluctance as found by Teague J, or his voluntary withdrawal.
The extent of subjective contrition is inherently difficult to gauge. In the present case, the objective circumstances of Thorneycroft’s early plea and his unprecedented level of co-operation with the authorities were at least strongly consistent with, if not conclusive proof of, remorse. While, as the appellant contended, Thorneycroft was involved in the conspiracy for a longer period than the appellant, and took a number of steps to forward it, his positive withdrawal prior to the attempt to execute the plan contrasts crucially with the appellant’s actions.
It was clearly open to the sentencing judge, (who did not contradict or diminish any finding of the judge who sentenced Thorneycroft) to characterise, value and weigh his conduct as she did when comparing his characteristics and culpability with those of the appellant.
Secondly, the appellant argued that the sentencing judge misapplied the parity principle by overvaluing Thorneycroft’s co-operation with and assistance to the authorities, which had attracted such a significant ‘informer’s discount’. The appellant submitted that the weight accorded to Thorneycroft’s informer’s role indirectly rewarded his criminality, while punishing the appellant for his relatively insignificant criminal record, as he had ‘nothing [comparable] to sell’. That circumstance compounded, it was said, the appellant’s sense of grievance.
Despite a superficial plausibility, on analysis that contention is unpersuasive. The appellant failed to cooperate with the authorities even to the extent of his capacity to do so. He did not give evidence against Sonnet, who asserted that the attempt on Condello was a sham and was convicted partly on the basis of Thorneycroft’s evidence. Further, the appellant did not deign to proffer any explanation for his involvement in the conspiracy. Thorneycroft, in salient contrast to the appellant, exposed himself to the extremely serious risks and detriments of cooperation with the authorities. He thus provided an unprecedented, extraordinarily valuable breakthrough in the battle against the gangland war, which justified, as a matter of public policy, significant recognition.
In summary, the sentence passed on the appellant did not, by reference to Thorneycroft, offend the principle of parity.
As Vincent JA stated in R v Jovica Djukic, parity requires identity of outcome for cases that are relevantly identical and where offenders are not equally culpable or equally positioned, justice requires different outcomes. Similarly, as Tadgell JA recognised in R v Tien & Ors, where, as in this case, there is significant disparity in the sentences of co-offenders, if there is a rational explanation for a more lenient sentence, there can be no justifiable sense of grievance or perception of injustice.
Grounds 6, 7 and 8
In my opinion, the sentencing judge did not err by failing to give sufficient weight to the appellant’s remorse or prospects for rehabilitation.
Her Honour took into account all mitigating factors to an appropriate degree.
She acknowledged his prospects of rehabilitation, albeit they depended on his distancing himself from Williams.
The sentencing judge also acknowledged the appellant’s expression of remorse to his mother and friend, but necessarily recognised that he had proffered no explanation at all for his conduct, that his eventual plea of guilty was long-delayed, that he did not cooperate with the authorities at all and he remained unco-operative at the date of sentencing. That conduct did not support the expressions of remorse, to which her Honour accorded adequate weight.
Nor, in my opinion, was the sentence manifestly excessive.
No statistics or information on sentences for conspiracy to murder were provided to the Court. The Sentencing Advisory Council Sentencing Snapshot No. 21 states, however, that the median term for attempted murder (which the Crown submitted to be a comparable offence), is 10 years and 6 months. [28]
[28]Sentencing Advisory Council, Sentencing trends in the higher courts 2001-02 to 2005-06 - Sentencing Snapshot No. 21 Attempted Murder, January 2007, 2.
The offence of conspiracy to murder is, by its nature, grave. The appellant’s offending was, as the sentencing judge observed, one of the worst examples, albeit the conspiracy was thwarted. The conspiracy played a part in a gangland war and posed a very serious threat of harm to members of the public. Had the sentence imposed on Thorneycroft been too lenient or otherwise inadequate, due proportionality may have required a more lenient sentence for the appellant than might otherwise have been imposed. As the sentencing judge implicitly recognised, however, Thorneycroft’s sentence was not inadequate. Rather, it reflected the exceptional conduct and circumstances which rendered Thorneycroft so unlike the appellant that no proportional adjustment of the latter’s sentence was appropriate.
The admittedly significant sentence imposed on the appellant reflects, in my opinion, the gravity of his offending.
Conclusion
In my opinion, the appeal should be dismissed.
LASRY AJA:
I have had the considerable advantage of reading the reasons of Dodds-Streeton JA in draft. I respectfully agree with her Honour’s analysis and the outcome she proposes that the appeal should be dismissed.
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