R v Parkes

[1993] QCA 34

[1993] QCA 034

COURT OF APPEAL

MACROSSAN CJ
PINCUS JA

DAVIES JA

CA NO 344 OF 1992
THE QUEEN
v.
BARRY MICHEAL PARKES
BRISBANE
..DATE 02/02/93

THE CHIEF JUSTICE: I shall ask Mr Justice Pincus to deliver his reasons first.

PINCUS JA: This application for leave to appeal against sentence on behalf of Barry Michael Parkes is founded on the single submission put by Mr Rafter that the sentence imposed upon the applicant was excessive by comparison with that imposed upon a co-offender. The offence in question occurred when a group of young people or a group of people attacked 2 complainants for the purpose, it appears, of inducing one of them, Canniford, to pay a debt said to be due to one of them, Canniford, to pay a debt said to be due to one of he group of attackers whose name was Edwards.

The debt of $600 was suggested to relate to drug dealings but that suggestion was denied. The group attacked Canniford when he was in the company of a woman, whose name is Eichenroff, in a motor vehicle. In fact, Canniford was struck by a pipe or stick and his injury was such as to be likely to cause very serious harm to him in that arteries were severed. In fact, however, gratuitously, he apparently recovered well. The other person attacked, Eichenroff, was struck on the head but did not suffer serious injury.

Now, the charges or counts which were ultimately made consists in a charge of grievous bodily harm against 3 person, the applicant, Edwards and one Harris. A charge of unlawful assault on Eichenroff against the same 3 persons and a charge of wilfully and unlawfully damaging a motor vehicle, brought against Harris.

There were pleas of guilty in respect of all of those charges and all of them were related to the incident which I mentioned, that is , the mass attack upon Canniford with a view to obtaining payment of a debt.

The ring leader, so to speak, appears to have been Edward and the judge imposed a sentence of 4 years’ imprisonment on Edwards in respect of the grievous bodily harm charge and recommended him to be considered for parole after 18 months. His Honour imposed a sentence of 12 month’s imprisonment of Edwards in respect of the assault upon Eichenroff. As far as Harris was concerned, the same sentences were imposed in respect of those 2 charges with the reservation that he be recommended for parole after 12 months rather than 18 months.

Harris, as I’ve mentioned, was also charged with and convicted of unlawfully damaging a motor vehicle and in respect of that charge, he was sentenced to a period of 3 months’ imprisonment. There were also other charges against Harris which I shall mention later.

Now, the applicant, in respect of the 2 charges where he was a co-offender with Harris, received the same sentences, that is he was sentenced to 4 years’ imprisonment in respect of the grievous bodily harm charge with a recommendation for parole after 12 months and 12 months imprisonment in respect of the attack upon Eichenroff - the assault upon Eichenroff. Now, Mr Rafter says that the circumstances of the 2 offenders, Harris and Parkes were such as to make necessary, in the interests of justice, a substantial discrepancy between the 2 sentences and the argument which he advances is that there was no such discrepancy between the 2 sentences and the argument which he advances is that there was no such discrepancy and that further , he says that the sentence in respect of the applicant may be reduced so it would still be within a proper difference from that imposed upon Harris.

Something has to be said about the background of these 2 men. The applicant, Parkes, is a young man, 21 years of age and he has offences of a relatively minor character. The only one which requires particular mention, I think, is that he was put on probation in 1988 in respect of unlawful use of a motor vehicle.

The other offences are minor drug and liquor offences. The

criminal history of Harris is rather more spectacular.

One finds in drug offences in 1989, he was charged with unlawful possession of housebreaking implements with intent and convicted and sentenced to 40 hours community service and at the same time, he faced a number of breaking and entering charges and a number of stealing charges’ he was placed on probation for 3 years and was ordered to perform community service in respect of some false pretences and stealing charges. He also faced on that occasion, 2 charges of unlawful use of a motor vehicle; was convicted and placed on probation.

Subsequently, he was convicted of unlawful use of a motor vehicle in 1990, placed on 18 months probation in order to perform community service. Again in 1990, he was convicted of 2 false pretences charges, placed on probation and ordered to perform community service and he faced some - he was convicted of some drug offences of a relatively minor character. There were some other offences but it’s sufficient to say that he had a relatively formidable criminal record. But it’s necessary to mention also that there don’t seem to be any offences of violence.

At the time when he was guilty of the offences with which the Court’s presently concerned, he was on bail and on probation. The criminal records, therefore it seems to me, cannot be seriously compared. It seems clear that Harris’ record is significantly worse than that of the applicant. The additional offences with which Harris was charged and of which he was convicted, unrelated to the assault upon Canniford and Eichenroff, were 3 house breaking offences. In respect of those offences, the judge took the view that there should not be any further effective imprisonment.

His Honour said that the house breaking offences were committed when he had just turned 19; that there was some co-operation with the police in reaction to them and he ordered that they be - they attract a sentence of 12 month’s imprisonment to be served concurrently with the other sentences.

Now, summarising the position in respect of Harris and the applicant to date, Harris has the substantially worse criminal record. The ages are much the same and Harris was convicted of a greater number of offences on this occasion. I mentioned the damage to the motor vehicle and house breaking offences.

It is necessary to turn briefly to the various accounts of what happened at the scene to compare culpability there. The Crown initially alleged that the applicant had been the person who struck Canniford, but on that being disputed the Crown indicated that it did not wish to pursue that allegation. The Judge, as it seems to me, was therefore obliged to sentence the applicant on the basis that he was not shown to be a person who committed the serious - the person who committed the serious offence upon Canniford.

As far as Harris was concerned it was shown that he not only struck the woman Eichenroff but also damaged the motor vehicle. That is, he was shown to have personally committed two acts of violence. On the other hand, and balancing matters somewhat in favour of Harris, it was shown that the applicant actually carried a stick, allegedly, he said, but somewhat implausibly, for self-defence at the scene of the offences, whereas Harris apparently did not carry a weapon but picked a weapon up - picked a stick up to attack Eichenroff. Having taken these matters into account, it appears to me that one is forced to the conclusion that the imposition of the same punishment on the applicant as upon Harris appears to be odd.

In Lowe v. The Queen (1984) 154 CLR 606 Mr Justice Dawson discussed the discrepancy which must appear between two sentences in order to bring the principle discussed in that case into operation. His Honour says at the foot of page 623, and I’m reading only part of a sentence, “On 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 interest of justice”, and His Honour refers to authority. For myself I am content to accept His Honour’s statement as representing the law for present purposes, although it does not appear that the other members of the Court dealt specifically with that point.

Another question which was discussed on Lowe’s case, in particular by Mr Justice Mason, was whether a disparity between sentences imposed upon two offenders would justify interference with the one said to have been unjustly treated, even if it produced the result that that one produced then received too low a sentence. His Honour was of the opinion that disparity must be corrected even if it produces that result, that is, too low a sentence on the person who is complaining. It does not appear necessary to me in the present case to determine whether the principle stated by Mr Justice Mason should be applied.

The view which I have come to is that the discrepancy between the penalties which were imposed upon Harris and upon the appplicant is such as to call for the intervention of this Court. The considerably worse record of Harris and his having shown to have

specifically responsible for act of violence at the scene- personally responsible, and in addition the fact that he had to be punished for house- breaking offences a the same time, make it seem to me rather anomalous that he has the same head sentence in effect of the same non-parole period as does the applicant, and the difference seems to me sufficiently substantial to come within the principle stand by Mr Justice Dawson.

In respect of the applicant there are only, as I’ve mentioned, two counts to be considered. As to one he was sentenced to four years imprisonment and as to the other 12 months imprisonment. I would reduce the sentence in respect of Count 2, that’s the grievous bodily harm charge to a sentence of three years instead of four years and I would recommend that the applicant be considered for release on parole after the expiration of nine months rather than 12 months. I would otherwise refuse the application for leave to appeal.

THE CHIEF JUSTICE: I agree and I agree with the orders which Mr Justice Pincus has proposed. The factors which I find weigh with me in deciding that intervention is called for, particularly are the previous record of Harris as compared with that of the applicant, and the fact that Harris was on probation at the time that these offences were committed by him, the applicant, and other person.

I select those matters for mention and as calling for the Court’s intervention, even if one were to put aside the unrelated charges against Harris which were dealt with by sentencing Judge and put aside also the sentencing Judge’s decision to impose no cumulative penalty upon Harris in respect of the Eichenroff offence.

Looking at the matters which I have highlighted, it seems to me that a substantial discrepancy appears in respect of the penalties imposed upon Harris and upon the applicant, and that this discrepancy should be acknowledged and acted upon by the court in the way which Mr Justice Pincus has suggested.

DAVIES JA: I agree.

THE CHIEF JUSTICE: The order of the Court will then be as we have indicated.

JUDGMENT