R v Masters
[2002] VSCA 50
•17 April 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 81 of 2001
| THE QUEEN |
| v. |
| BENJAMIN DOUGLAS MASTERS |
---
JUDGES: | CALLAWAY, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 March 2002 | |
DATE OF JUDGMENT: | 17 April 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 50 | |
---
Criminal law – Sentence – Manslaughter – Significant disparity between the sentences and non-parole periods imposed on the co-accused – Mitigating factors relevant for all offenders – Appellant the “driving force” behind the criminal enterprise – Justifiable grievance –Re‑sentence.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Stary Myall |
CALLAWAY, J.A.:
I agree with Vincent, J.A.
BUCHANAN, J.A.:
I would allow the appeal for the reasons stated by Vincent, J.A. and re-sentence the appellant as his Honour proposes.
VINCENT, J.A.:
On Monday, 6 December 1991, the deceased Craig Higgs, his wife Sonia Higgs and their five children were in bed at their home in Virgilia Drive, Hoppers Crossing when four persons approached the premises. They were
(a)The appellant. He was 20 years of age, a carpenter by occupation and profoundly deaf. It appears that he was acquainted with the deceased to whom he had on one occasion sold some stolen property.
(b)Chelsea Campbell. She was 20 years of age and a signwriter by occupation. Miss Campbell also is profoundly deaf and was, at the time, involved in a relationship with the appellant. It does not seem that the deceased was personally known to her although she had heard of him.
(c)David Northern. He was 23 years of age and employed as a glass-cutter. He too was profoundly deaf and again had had no prior contact with the deceased.
And finally:
(d)Matthew James Caffrey. He was 17 years of age, unemployed and with no fixed place of abode. Unlike the others, he suffered from no impairment of hearing. He had had no prior contact with the deceased.
The four persons approached the house pursuant to a pre-arranged plan formulated some weeks earlier by the appellant. He held the belief that a quantity of
drugs and an extraordinary amount of cash, possibly millions of dollars, was kept in the premises which could be taken with minimal risk. He had spoken about the project to at least two friends, indicating that he planned to take a girl to look after the children during the raid and suggesting that the male victim may have to be rendered unconscious. It was not part of the plan that persons in the house would necessarily be physically assaulted. The proposed victims were understood to suffer hearing impairment and it was thought that they might not even be awakened. However, it was anticipated that they might be overpowered should they attempt to prevent the group from achieving their objective. In the event of any such interference, the plan encompassed the possibility that the individual concerned would be rendered unconscious by a blow to the head with metal poles that they took with them. It was later accepted by the judge before whom they ultimately appeared that all four possessed the “extraordinarily naive belief” that such a blow would not result in serious injury to the person concerned.
Earlier that day, at about 4.30 p.m., Chelsea Campbell attended at her mother’s place of work in St Kilda Road, Melbourne. She there took possession of her mother’s motor vehicle, a silver Ford Fairlane, which she drove to Endeavour Hills and picked up David Northern. She then travelled to Boronia where the appellant was collected. Three metal poles were placed in the boot of the vehicle. From Boronia, the group went to the Deaf Club in East Melbourne and subsequently to the Crown Casino, leaving that location some time after midnight. They then drove to the appellant’s sister’s home in Richmond where they met up with Matthew Caffrey. They changed their clothing and obtained stockings to be cut and used as masks. The group, now comprising four persons, drove to a local Coles supermarket where they purchased plastic gloves, after which, at between 2.30 a.m. and 3.00 a.m., they made their way to the Hoppers Crossing address.
Initially, Northern attempted to gain entry to the house of their proposed victims by cutting a glass window in the loungeroom. When he was unsuccessful, the appellant and he climbed over a side fence and opened a kitchen window through which they entered. They then opened the front door to admit Campbell and Caffrey. Once inside, Campbell went to a wall phone and removed the handpiece from the socket. She then stood guard outside the bedrooms of the deceased’s children while the appellant, Caffrey and Northern went to the master bedroom where the deceased and his wife were sleeping. The appellant and Caffrey struck both persons across the head and body with the metal poles. The number of blows struck to each of the victims could not be determined and it is unclear why the two men commenced to assault their victims who, it would appear, were unaware of their presence at that stage. However, the attack was both vicious and sustained. It appears that when Northern, who struck no blow, appreciated what was happening, he immediately ran from the premises. Caffrey followed him not long afterwards, leaving the appellant and Campbell inside the house searching for money and drugs. Not finding their anticipated booty, they then left the premises and met up with Caffrey and Northern outside. The group next drove to an area beneath the Westgate Bridge where they placed the stocking pieces and rubber gloves inside two of the metal poles. All three poles were thrown into the river. They drove back to Richmond where Caffrey was left. Campbell drove the remaining two to their homes before returning to her own home in Greensborough.
By that stage, an ambulance had been called to the Hoppers Crossing house by the 12 year-old son of the deceased. Sonia Higgs was found to have lacerations and bruising to the head and bruising to the body. She had sustained a small subdural haemorrhage that fortunately did not require surgical intervention. She also suffered a fracture to the zygoma. As a consequence of these injuries, she was hospitalized for a week.
The deceased had sustained fractures to the skull with associated brain damage. He was observed to have subcutaneous bruising to various parts of his body. He did not regain consciousness and brain death was confirmed at 3.38 p.m. on 8 December 1999.
On Thursday, 9 December, Chelsea Campbell surrendered herself into police custody at the St Kilda Road complex. In the course of a formal interview which was then conducted, she made full admissions as to her involvement and as to the identities of the other offenders. She took the police to the locations where the weapons had been discarded and where other items, a number of which were later recovered by police divers, had been placed.
Northern was arrested at about 11.55 p.m. on the same day. He too made admissions concerning his part in the offences.
The appellant was arrested in the early hours of the following morning at his home. Initially, he denied having an involvement in the matter or knowledge about it and made what is described as a “no comment” interview. Subsequently, through his legal representatives, he indicated his preparedness to make a statement to the police detailing his involvement in the offences and also offering to give evidence against his co-offenders.
Caffrey was arrested at about 1.30 p.m. on the same day. In a video-recorded interview, he admitted having participated in the assault upon both the deceased and his wife.
All four offenders were initially charged with murder, arising from their participation in these events. Ultimately, on 26 February 2001, all pleaded guilty before the Supreme Court at Melbourne, to the lesser offence of manslaughter. The appellant and Caffrey also entered pleas of guilty to recklessly causing serious injury to Sonia Higgs.
After hearing pleas in mitigation of penalty, the sentencing judge on 10 April 2001 imposed sentences on each of the offenders as set out below:
(a)The appellant:
Manslaughter (Count 1) - seven years’ imprisonment.
Recklessly causing serious injury - two years’ imprisonment of
(Count 2)which six months was to be served cumulatively upon the sentence for manslaughter.
This created a total effective sentence of seven years and six months' imprisonment in respect of which a non-parole period of four years was fixed.
(b)Caffrey:
Manslaughter (Count 1) - three years and six months’ imprisonment.
Recklessly causing serious injury - two years’ imprisonment of
(Count 2)which six months was directed to be served cumulatively with the sentence imposed for the crime of manslaughter.
This created a total effective sentence of four years’ imprisonment in respect of which a non-parole period of two years was fixed.
(c)Campbell:
Manslaughter (Count 1) - three years’ imprisonment in respect of which a non-parole period of six months was fixed.
(c)Northern:
Manslaughter (Count 1) - three years’ imprisonment in respect of which a non-parole period of four months was fixed.
Having been granted leave by a single judge of this Court to do so, on 15 June 2001, the appellant now seeks to overturn the sentence imposed on count 1, the total effective sentence and the non-parole period fixed by the sentencing judge. No complaint is made with respect to the sentence imposed upon count 2 or the order for partial cumulation of that sentence upon the sentence imposed on count 1.
Although reliance was placed upon a number of grounds set out in the appellant’s Notice of Application for Leave to Appeal Against Sentence, by reason of the conclusion at which I have arrived, it is necessary to address only one of them, namely:
1.The learned sentencing judge erred in that the sentences and the minimum non-parole period imposed on the appellant was so disparate to those sentences and non-parole periods imposed on the co-accused that a justifiable sense of grievance arises.
In substance, counsel for the appellant conceded that some differentiation between the penalty imposed upon his client and those imposed upon his co-offenders was appropriate in the circumstances. However, it was submitted, no proper basis could be discerned from the circumstances or his Honour’s sentencing remarks for the presence of such dramatic differences in the sentences handed down.
In this context, considerable emphasis was placed upon the relative lengths of the sentences imposed upon the various participants in what was on any view of the matter a joint enterprise. Attention was drawn to the fact that the sentence imposed upon the appellant for manslaughter was twice the length of that handed down in the case of Caffrey, and more than twice that imposed upon Campbell and Northern. The non-parole period fixed in the case of the appellant is twice that of Caffrey, eight times that of Campbell and 12 times that of Northern. It is indeed 14 months longer than the total of the non-parole periods required to be served by the other offenders.
Whilst the relative severity of a sentence assessed by reference to the length of the period of incarceration required to be served by an individual offender is, of course, an important factor in determining whether there has been parity of treatment of the various persons involved in the commission of the crime concerned, only limited assistance can be derived from the kind of mathematical comparison advanced on behalf of the appellant in this case. There may be many reasons which would justify a sentencing judge distinguishing between co-offenders in such a fashion. In most situations, I would suggest, such an analysis serves only to emphasize the fact that a sentencing judge has concluded that quite different sentences should be imposed, leaving at large the question whether the various dispositions were appropriate and the differential treatment of co-offenders justifiable in the circumstances.
In the present case, no justification for the imposition of a disparate sentence upon the appellant could arise from his age, he was the second youngest of the four – or based upon his criminal history – none of the offenders had previously appeared before a criminal court. The sentencing judge accepted that there were many extenuating circumstances applying to each of the offenders who he described as “so incongruously criminals”. The three deaf participants had commendable work records and the sentencing judge accepted that the prospects of rehabilitation for all offenders were good. All had extensive support structures to assist them, including strong family networks. All expressed remorse and all, by reason of the presence of significant disabilities, would reasonably be expected to find prison more onerous than the general prison population. His Honour further accepted that, by reason of the criminal associations of the male victim’s father, any period of detention would involve protective custody. Further, the appellant, although he was not initially forthcoming as to his involvement, offered to plead guilty to the crime of manslaughter shortly after his arrest and to give evidence against his co-offenders if required. I do not think that there is any purpose to be served by setting out the various personal considerations which might be perceived as extenuating in the situations of the individual offenders as it does not seem to me that any significant differentiation could be properly made on such a basis. I observe that his Honour stated,
“There are some, but not many reasons for differentiating in the light of mitigating circumstances like youth, intellectual disability and being a victim of crime ...”
His later remarks do not suggest that such considerations exerted any substantial influence upon his determination of the various sentences imposed.
The major difference between the position of the appellant and his co-offenders is that it was he who formulated the plan of invading the home of persons whom he perceived as “soft targets”. He was aware of the household set up and clearly formed the view that the occupants would be relatively easy to overpower if they awoke. Importantly, he considered that it would be highly unlikely that his proposed victims would report what happened to the police. The sentencing judge described his role as follows:
“Benjamin Masters, you are very much at the top of the scale. You were responsible for almost all of the planning of the events. You wielded blows with your metal pipe that struck both Craig Higgs and Sonya Higgs. You were present when blows were struck by Matthew Caffery. He was later to be disparaged by you as a ‘chicken’. Your description of events both as to what was planned and as to what had happened points strongly to your level of involvement being very much greater than that of the other three."
The appellant recruited Ms Campbell, who was besotted with him as a willing assistant. His Honour said of her role:
“You, Chelsey Campbell, were recruited by Benjamin Masters to be the girl who would ‘look after’ the children. You agreed to do as you were asked for a mixture of reasons: you were emotionally attached to Benjamin Masters, you feared that you might lose him if you did not do as he asked, your thinking was affected by your naivete. Unfortunately, a substantial degree of naivete typically affects people suffering from a profound hearing loss since birth. Unfortunately, you believed Benjamin Masters when he spoke of a great deal of money to be gained relatively easily. Unfortunately, you also believed him when he spoke of the possibility of people having to be made to blackout.”
I should add that the appellant demonstrated a similar degree of unworldliness. There are indications that he contemplated that his victims may have had up to 44 million dollars hidden in their wardrobe. In the present context, it is important to bear in mind that his Honour found that the appellant was responsible in large measure for her involvement.
The appellant also recruited Caffrey, inducing him to participate with the promise of a share of “lots of money”. Although Northern was recruited by Campbell a matter of hours before the raid on the deceased’s home, she told him only of a plan to commit a burglary. More detail was later provided by the appellant who obviously played a part in his involvement.
In short, the appellant was the driving force behind the enterprise and as his counsel has conceded before us, it was reasonable to anticipate that this consideration would be reflected in the sentences imposed upon him. The central question raised in this appeal is whether the sentencing judge who differentiated only to a very limited extent between the head sentences imposed for manslaughter upon the other three offenders was justified in sentencing the appellant to more than double the period fixed in the case of Caffrey who also engaged in the fatal assault. I observe that an identical sentence and order for cumulation was imposed upon the appellant and Caffrey for recklessly causing serious injury to Sonia Biggs, who was subjected to a similar type of attack and at the same time. In my opinion, the answer to the question must be in the negative.
When regard is had to the non-parole period fixed, the situation is equally stark, in my view. I am unable to discern any good reason for distinguishing between the various offenders to the extent reflected in the various sentences imposed in this case.
I should add that I regard the sentences handed down in the case of each of the other offenders as extremely lenient in the circumstances, giving full weight to the factors which could be seen to militate in favour of mitigation in their individual situations.
However:
“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. 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. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v. The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
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.”[1]
[1]Postiglione v. The Queen (1997) 189 C.L.R. 295, 301-302.
In my opinion, after making due allowance for all of the circumstances, the appellant is entitled to a justifiable sense of grievance arising from the extent of the disparity of treatment of the various offenders in this case.
I would allow this appeal and substitute for the sentence imposed on count 1, a sentence of imprisonment for a period of five years and six months. I would confirm the sentence imposed on count 2 and the order for cumulation of six months of that sentence upon that imposed on count 1. This would create an effective sentence of six years' imprisonment in respect of which I would fix a non-parole period of three years and six months.
---
0
0