R v Kollas and Mitchell - [2002] NSWCCA 491

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kollas and Mitchell [2002] NSWCCA 491

FILE NUMBER(S):
60421/02,
60511/01

HEARING DATE(S): 19/11/02

JUDGMENT DATE: 19/11/2002

PARTIES:
Regina
Robbie Ashley Kollas
Nathan James Mitchell

JUDGMENT OF: Meagher JA Wood CJ at CL Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0322, 01/11/0321

LOWER COURT JUDICIAL OFFICER: Coorey DCJ; Hosking DCJ

COUNSEL:
DC Frearson (Crown)
R J Perrington (Respondent Kollas)
A C Haesler (Applicant Mitchell)

SOLICITORS:
S E O'Connor (Crown)
Humphreys and Feather (Kollas)
D J Humphreys (Mitchell)

CATCHWORDS:
Criminal Law - Appeals against inadequacy of sentence - Enter dwelling with intent to commit a serius indictable offence (affray) in circumstantces of aggravation - plea of guilty - Crown appeal allowed (Kollas) - Appeal dismissed (Mitchell).

LEGISLATION CITED:
Crimes Act 1900
Justices Act 1902

DECISION:
Kollas: Crown appeal allowed. The sentence below is quashed. In lieu thereof, the respondent is sentenced to imprisonment for five years and six months, to date from 16 March 2002, and to expire on 15 September 2007. Sentnece to be served partially concurrently with, and partially cumulatively upon, the pre-existing sentence. I would fix a non parole period of three years and three months to date from 16 March 2002 and to expire on 15 June 2005, that being the earliest date on which the respondent would be released to parole.
Mitchell: Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 13 -

IN THE COURT OF
CRIMINAL APPEAL

60421/02
60511/02
MEAGHER JA
WOOD CJ at CL
GREG JAMES J
Tuesday 19 November 2002

Regina v Robbie Ashley Kollas
Regina v Nathan James Mitchell

Judgment

MEAGHER JA: We are in a position to give judgment. Mr Justice Wood will give the first judgment.
.
WOOD CJ AT CL: The Crown appeal against leniency in the matter of Kollas, and the application by Mitchell for leave to appeal against severity, arise out of the same incident. They are linked in so far as Mitchell relies upon an alleged disparity in the sentences imposed at first instance. It is accordingly convenient to deal with them together.
In the case of Kollas, he was arraigned on indictment, on 14 August 2001, in respect of a count of robbery in company and, in the alternative, in respect of a count of enter a dwelling house with intent to commit a serious indictable offence (affray) in circumstances of aggravation (armed with an offensive instrument). His plea of guilty to the alternative count was accepted by the Crown in full satisfaction of the indictment.
The sentence imposed upon by his Honour Judge Coorey, in the District Court, on 16 July 2002, was one of imprisonment for four years to commence on 16 September 2001, and to expire on 15 September 2005, with a non-parole period of two years and four months similarly to commence on 16 September 2001 and to expire on 15 January 2004.
This sentence was partially concurrent with, and partially cumulative upon, a pre-existing sentence, which had been imposed on 15 June 2001, of imprisonment for three years commencing on 16 March 2001, and expiring on 15 March 2004, with a non-parole period of two years to expire on 15 March 2003, for an offence of maliciously inflict grievous bodily harm; and it was wholly cumulative upon a sentence for a fixed term of six months, which was to be served concurrently with that last-mentioned sentence, for an offence of maliciously destroy or damage property. In practical terms his Honour’s sentencing order meant that the respondent was required to serve only six months in custody for the earlier offences.
These earlier offences had been committed on 23 December 1999, and the more serious of them had involved a savage attack upon the victim, George Karam. An appeal against the severity of that sentence was dismissed by this Court on 11 February 2002 (R v Kollas [2002], NSWCCA 15).
The effect of Judge Coorey's sentence was to add 18 months to the previous sentence, and to extend the non-parole period by ten months. It also meant that the previous sentence was significantly diminished in its impact, to the point of rendering it derisory for the serious offence to which it related. It did, however, mean that the respondent faced a maximum period of continuous custody of four and a half years, against which there would be an overall period of two years ten months before he became eligible for release on parole.
In the case of Mitchell he was committed for sentence under s 51A of the Justices Act 1902 in respect of a charge of robbery in company, having offered a plea of guilty in the Local Court. He was sentenced by his Honour Judge Hosking, on 26 July 2001, to imprisonment for five years to date from 13 June 2001, and to expire on 12 June 2006, with a non-parole period of three years and four months to expire on 12 October 2004.

FACTS

On 27 January 2001 the respondent, Kollas, and the applicant, Mitchell, went to a flat in Albert Avenue, Hornsby which was occupied at that time by four adults, Fiona Stevenson, Peter De Wall, Earl Saunders and Imelda Saunders, as well as by six children aged between eight months and eight years. Two of these children were asleep and the others were watching a movie in the lounge room.
Kollas and Mitchell were accompanied in this journey by at least two other men, with whom they had been sitting around drinking that afternoon. At some stage their discussions turned to the possibility of visiting someone to obtain some "free drugs", and to the circumstance that Kollas had been allegedly threatened by Fiona Stevenson and Peter De Wall for not having paid for some cannabis which he had obtained from them.
It was understood that the premises at Hornsby were an outlet for drugs, a circumstance doing no credit to those of the victims who were responsible for such activity but not a circumstance denying them the protection of the law against being the subject of a home invasion or robbery.
The offenders arrived at the subject premises at about 10.25 pm. Peter De Wall, who opened the door, was struck on the forehead by Kollas with a steel pole which he was holding. Another man struck him on the elbow with a piece of wood, after which Kollas again struck him with a steel pole. Kollas then turned his attention to Earl Saunders swinging the pole towards him several times. Although he endeavoured to block the blows with a chair he was struck on the wrist and chin after being distracted by a man holding a wooden bat.
Kollas struck the television with the steel pole and said to Fiona Stevenson "You wanna kill me do you?" before striking her, with the pole, on the arm and head. Earl Saunders and Imelda Saunders were forced into the kitchen area with the children. One of the offenders threw a brass stand towards them. As he moved towards them Fiona Stevenson pulled him back. For her efforts she was punched to the head several times.
At this point the group began looking for Peter De Wall, who had made his way out to the balcony. Kollas yelled out to him "You want to fight me, do you want to fight me you gutless prick?" De Wall jumped off the first floor balcony and ran to a neighbour's house where he phoned the police. Fiona Stevenson made a similar call from the flat.
Before the men left Mitchell demanded that they be given the drugs in the flat. Fiona Stevenson handed over, from the fridge, a quantity of cannabis which had been packed in two plastic re-sealable bags and which weighed in total 38.44 grams. Additionally, a video recorder and a mobile phone were taken from the premises.
It was in these circumstances, that the offenders came to be sentenced, in Kollas' case, for the offence of aggravated entry of a dwelling house with intent, an offence which carried a maximum sentence of imprisonment for fourteen years (s 111 Crimes Act); and, in Mitchell's case, for the offence of robbery in company, which carried a maximum penalty of imprisonment for twenty years (s 97(1) Crimes Act). It was not suggested, in Mitchell's case, that he had wielded any weapons but it was implicit in his plea that he had been a party to the theft of the property taken from the premises.
Before turning first to the Crown appeal in relation to Kollas, and then to the severity appeal in the case of Mitchell, it is necessary to note, in each case, the relevance of the principle in The Queen v De Simoni (1981) 147 CLR 383. The circumstances, in which the offences for which the offenders individually stood for sentence occurred, may properly be taken into account in order to determine the role each played so far as that is relevant to their objective criminality. However, it would be impermissible to have regard to aggravating facts which would have warranted a conviction for any uncharged offence or for a more serious offence. This has a particular relevance for Kollas in so far as any aggravation relating to robbery cannot be taken into account. It also has relevance for Mitchell in so far as he was not shown to have been personally involved in the infliction of physical harm to any person.
KOLLAS
In the case of Kollas, Judge Coorey assessed the offence as one that was "very serious", an assessment that I would regard as involving something of an under statement. It had all the hallmarks of a home invasion, having been carried out late at night, in premises occupied by a number of persons including children, having involved a number of men, two of whom were armed, and also having involved the infliction of threats and actual violence. In the light of the earlier threats which had been made to the respondent, and of his knowledge of the residents, it was highly provocative, if not potentially exceedingly dangerous, for him to have taken the fight up to them.
The threats by the victims, the fact that some of them were drug dealers, and the belief that they may have been supplying drugs to children, provided no excuse whatsoever for the respondent's behaviour. Nor did those circumstances mitigate his criminality. The submission to the contrary, implicit in the respondent's case during the sentencing proceedings, which appears to have attracted some sympathy from his Honour and which was pressed upon appeal, is offensive to common sense and to the maintenance of law and order. Under no circumstances can society tolerate, or extend leniency to, any form of criminality upon the basis that the victims were themselves engaged in criminal behaviour.
Of very serious aggravation was the fact that the offence was committed at a time when the respondent was on conditional bail, in relation to the matter of violence in respect of which he had been sentenced on 1 June 2001, involving, as it had, the senseless cowardly and brutal bashing of a young man with a club lock and with other implements, not only by Kollas, but by associates who he had summonsed for help.
The need for that circumstances to be reflected in his Honour's sentence by way of an accumulation of sentence is well-established for the reasons identified in Regina v Richards [1981] 2 NSWLR 464.
In sentencing the respondent, his Honour noted that he had paid specific regard to the sentence passed on Mitchell, although he did not further explain how it was that he sought to achieve parity. In passing the sentence it is obvious that he took into account, as circumstances justifying a degree of leniency, the fact that he respondent had found it necessary to go on protection, as well as his troubled childhood, his resort to drugs, his favourable response to anger management courses while in custody, his co-operation with police following his surrender to them, and his later plea.
In not providing for a greater degree of accumulation his Honour observed, without stating any reason for his conclusion, however, that to do so would "not be in the interests of the community or the prisoner". I am totally unable to understand why that would be so. It suggests that his Honour overlooked entirely the aspects of specific and general deterrence which had a particular relevance for this case, in view of the earlier offence, and the fact that the respondent had, again, been the instigator of the violent events which occurred on the night of 27 January.
The case was one which placed it towards the upper range of seriousness for an offence of its kind, and which also displayed a continuation of gratuitous violence on the respondent’s part. Accordingly, it called for a severely deterrent sentence and one that reflected the respondent's objective criminality in both the head sentence and the non-parole period: R v Rushby [1977] 1 NSWLR 594 and R v Dodd (1991) 56 A Crim R 349.
The effective sentencing order failed completely to reflect these considerations, even allowing for the subjective circumstances previously mentioned. In particular that followed from the failure of his Honour to select an appropriate commencement date for the accumulation of sentence and in overlooking the principle of totality.
I would accept that the need for accumulation, the fact that the respondent may need to serve most, if not all, of the sentence, on protection, and the need for him to undertake drug rehabilitation and anger management under supervision, do qualify as special circumstances and justify some departure from the statutory ratio, but not to the extent adopted by his Honour.
In the course of the sentencing proceedings there was an exchange between his Honour and the Crown Prosecutor in the following terms:
"HIS HONOUR: Mr Broad, what do you say about the argument from Mr Broadhead that the maximum sentence is approximately a third higher, that therefore I should be, if I'm looking at parity, I should be looking at less than what the co-offender got to that proportion?
BROAD: It's my submission that your Honour is restrained by the maximum penalties which is 14 years. Whether it has to be mathematically precise is another matter. I would bring to your Honour's attention a fact that Mr Kollas was on bail at the time he committed this offence for an offence of a similar type and it is my submission that in these circumstances a prisoner is liable to an accumulation of his sentence and I hand up a decision of WHS unreported decision of the CCA NSW, 11 April 1995, and it is the decision of McInerney J where he discusses the principle I am referring your Honour to. It is the second paragraph on the page I am handing up. (Handed up)."
It was submitted that this exchange indicated an acceptance by the Crown Prosecutor, of the proposition that the head sentence, which in fact was imposed, would have been an appropriate sentence for the offence for which the respondent was to be sentenced. I am by no means persuaded that it goes so far, or that the Crown Prosecutor could be taken to have accepted the arguments which had been advanced by Mr Broadhead of counsel for the respondent. The passage is somewhat obscure, at the best and, in any event, it was up to his Honour to determine what was the appropriate sentence.
On appeal, the Crown Prosecutor has indicated that, although the appeal is primarily conducted by reference to the question of accumulation, it also reserves the argument that the sentence as a whole was inappropriate to reflect the objective criminality involved.
Notwithstanding the discretion reserved for Crown appeals, I am persuaded that the sentence imposed was so lenient as to manifest a material error of law, thereby requiring this court to intervene, being a case of the kind noted in R v Alpass (1993) 72 A Crim R 561, Griffiths v The Queen (1977) 137 CLR 293 and Dinsdale v The Queen (2000) 74 ALJR 1538 where an appellate court might properly intervene.
Error having been demonstrated, it is appropriate for the court to re-sentence not only in relation to accumulation but also in relation to the sentence itself if it reaches the view that the sentence was inappropriate. In that regard I do not consider the Crown should be precluded from maintaining the argument that the sentence was inadequate. The principles of double jeopardy, however, means that any substituted sentence should be towards the lower end of the range of sentences appropriate for the offence.
I would allow the Crown appeal both by increasing the sentence, and the extent of accumulation upon the pre-existing sentence so as to reflect the totality of the criminality involved in accordance with the decisions in Pearce v The Queen (1988) 194 CLR 610, and in R v WHS NSWCCA, 6 April 1995.
This will also necessitate adjusting the non-parole period to one that appropriately reflects the applicant's personal circumstances, and the fact of accumulation. In doing so, the sentence which I propose will remain below that which I would have imposed at first instance, paying respect, in this regard, both to the principle of double jeopardy and the delays which have affected the sentencing of the respondent, not all of which have been of his own making.
I would propose that the Crown appeal be allowed, that the sentence be quashed, and that in lieu thereof the respondent be sentenced to imprisonment for five years and six months to date from 16 March 2002 and to expire on 15 September 2007, to be served partially concurrently with and partially cumulatively upon the pre-existing sentence. I would fix a non parole period of three years and three months to date from 16 March 2002 and to expire on 15 June 2005, that being the earliest date on which the respondent would be released to parole.
MEAGHER JA: I agree.
GREG JAMES J: I agree.

MITCHELL

WOOD CJ AT CL: The applicant was the offender who actually took possession of the drugs and the video recorder. It was his understanding that, if there was any resistance to the surrender of the drugs, then he and the co-offenders would "punch on", an expression which he explained in his ERISP as meaning that he would “bash someone”. His role in the robbery was significant, so far as he lent himself wholeheartedly to Kollas' plan, in following him into the premises, and in threatening some of the residents so as to seize their drugs.
Judge Hosking correctly categorised the offence as a "extremely serious one" that called for specific and general deterrence. In relation to the former his Honour expressly noted that, for a young man of twenty-one, the applicant had a significant criminal history, including offences of dishonesty and, further, that he was on two forms of conditional liberty at the time of the offence. That related to the circumstances that he was on parole for break, enter and steal matters, and subject to a recognisance. Of some relevance in this regard was the circumstance that his earlier imprisonment, and later release to parole, had followed cancellation of a periodic detention order, and that a recognisance which he had entered on 12 February 1999, had also been breached leading to the imposition of a further recognisance, which was current at the time of this offence.
This was itself a matter which had to be reflected in the sentence for the reasons noted in R v Richards [1981] 2 NSWLR 464.
His Honour made reference to all of the relevant subjective circumstances, including those relating to the applicant’s co-operation with police, his early plea, for which he was allowed a discount of one year upon the sentence which had otherwise been considered appropriate of six years. His Honour, additionally, made it clear that, in arriving at a starting point of six years, he had paid reference to the guideline decision in R v Henry (1999) 46 NSWLR 346, noting that the applicant fell outside the type of offender there under consideration, in so far as he had a criminal history of some significance and that this offence had involved very real violence.
It was first submitted that the sentence was excessive, irrespective of any question of parity, in that his Honour failed to give the applicant the benefit of the applicant's early plea, and in that regard had fallen into error in making reference to the strength of the Crown case.

It is not correct that an early plea will automatically lead to a reduction of twenty-five per cent. So far as such a proposition seems regularly to be advanced upon appeal to this Court, it involves a misreading of the decision in R v Thomson and Houlton (2000) 49 NSWLR 383. That case proposed a guideline range of between ten and twenty-five per cent, depending on matters such as the timing of the plea and matters of the kind discussed in R v Sharma [2002] NSWCCA 142.
The simple fact that his Honour referred, in the course of his reasons, to the fact that the Crown case was strong does not necessarily mean that he fell into the error noted in R v Carter [2001] NSWCCA 245. Even assuming that he had fallen into error, the discount of one year, which was equivalent to a discount in the order of seventeen per cent upon the six year sentence which his Honour had selected as a starting point, in my view, adequately reflected the plea. The sentence was well within the range for an offence of its kind where there was an early plea.
In relation to parity, it was submitted that, by reason of the more central role played by Kollas and the partial concurrency of the sentence imposed by his Honour Judge Coorey, the applicant was entitled to maintain a justifiable sense of grievance.
The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p 4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved.
In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered.
That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is "an aspect of equal justice". Equal justice requires, as their Honours pointed out, that "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them."
The principle is enlivened only where the disparity is such as to give rise to a justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337):
"So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders."
This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and for an individual assessment of the facts by the sentencing Judge who has the benefit of seeing and hearing the evidence first hand.
The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person, looking at the circumstances of the case, would regard the offender's grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at par 6).
This is not a case where the applicant satisfies that test. His role was significant and all things were not equal. The offence of which he was convicted carried a longer maximum penalty: while Kollas had been on bail the appellant had been both on parole and subject to a bond, having previously breached orders for periodic detention and a recognisance. Kollas faced serving his sentence on strict protection and Kollas' sentence has now been increased on appeal. Those circumstances appear to me to balance out the admittedly greater role which Kollas played as instigator of the events leading to the offences of which they separately stand convicted.
I would grant leave to appeal, but I would dismiss the appeal.
MEAGHER JA: I agree.
GREG JAMES J: I agree.
MEAGHER JA: The orders of the Court will be as proposed by Justice Wood.

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LAST UPDATED: 06/12/2002