R v Rushby

[1999] NSWCCA 104

CITATION:

R v RUSHBY [1999] NSWCCA 104

FILE NUMBER(S):

CCA 60081/98

HEARING DATE(S):

24 May 1999

JUDGMENT DATE:

24 May 1999

PARTIES :

REGINA
(Crown)

v

Andrew Troy RUSHBY
(Applicant)

JUDGMENT OF:

Barr J at 1; McInerney AJ at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0379
LOWER COURT JUDICIAL OFFICER:	Christie DCJ

COUNSEL:	DN Howard (Crown) PM Strickland (Applicant)
SOLICITORS:	CK Smith (Crown) TA Murphy (Applicant)
CATCHWORDS:	Criminal Law - sentencing - assertion of disparity - co-offenders sentenced by different judges - disparate findings of fact - whether justifiable sense of grievance; Criminal Law - sentencing of co-offenders - desirability that one judge sentence all.
ACTS CITED:	s 61J Crimes Act
CASES CITED:	R v Cartwright (1989) 17 NSWLR 243 R v Bus, Court of Criminal 3.11.95, unrep R v Lewis, Court of Criminal Appeal 14.12.93 unrep
DECISION:	Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60081/98

BARR J
McINERNEY AJ

Monday, 24 May 1999

REGINA v Andrew Troy RUSHBY

JUDGMENT

1 BARR J: The applicant seeks leave to appeal against sentences imposed by his Honour Judge Christie of Queen’s Counsel in the District Court. For the offence of having sexual intercourse without consent and in circumstances of aggravation, his Honour sentenced the applicant to penal servitude for eight years comprising a minimum term of five years and an additional term of three years. In imposing sentence, his Honour took into account under the provisions of the Criminal Procedure Act the offences of taking and driving a conveyance and driving whilst unlicensed.

2   The applicant, who was then aged eighteen years and ten months, and his co-offender Stephen Spence, then aged sixteen years and three months, met a thirteen year old girl at Liverpool. The three decided to steal a car. They did so and used it to spend some hours in the Liverpool area carrying out various activities. They then drove north along the Singleton Road but at a remote place many kilometres north of Colo, the vehicle broke down and they abandoned it in the early hours of the morning. They lit a fire and waited. When it was daylight they began to walk towards Windsor, intending to hitchhike. The applicant and the co-offender discussed raping the girl. She realised what was happening and began to walk faster trying to get away from them. They caught her up and the co-offender pushed her down at the side of the road and dragged her into rough bushland. The applicant assisted and the two dragged her between 100 and 150 metres to a secluded spot well away from the road.

3   The complainant was distressed, yelling and screaming. The co-offender ordered her to remove her clothes and threatened to strike her with a piece of wood if she did not do so. He had penile vaginal sexual intercourse with her and ejaculated. The applicant watched. The applicant then forced the complainant on to her hands and knees and had anal intercourse with her and ejaculated. When they had finished with her the two of them tore up her clothing and used it to tie her to a tree. They left her to her own devices and got a lift back to the Sydney metropolitan area.

4   The complainant managed to free herself and get help. Eventually she was taken to hospital and cared for. She suffered superficial injuries.

5   The applicant travelled to South Australia and was identified and extradited to New South Wales after being arrested on another charge. He immediately admitted his involvement in the offence and pleaded guilty before the Magistrate.

6   The co-offender was dealt with by his Honour Judge Graham on 12 March 1998. His Honour was furnished with a copy of Judge Christie’s remarks on the sentence of the applicant. Judge Graham sentenced the co-offender to penal servitude for six years, comprising a minimum term of three years and an additional term of three years, and in doing so took the same two offences into account.

7   The first ground of appeal asserts a disparity between the sentences of the applicant and the co-offender which gives rise to a justifiable sense of grievance in the applicant. It was submitted that his Honour found that the co-offender was the instigator of the offences, that is that it was his idea that they take place. He also found that the part played by the applicant was not quite as aggressive as that of his co-offender.

8   Then it was submitted that the subjective features significantly favoured the applicant over the co-offender except for the fact that the co-offender was younger.

9   It was submitted that the co-offender’s criminal record was worse than the applicant’s. The co-offender had been convicted of seven offences of break, enter and steal, two of stealing, one of taking a car without consent, one of possessing house breaking implements, one of malicious damage and one of being an unlicensed driver. On the other hand, the applicant’s record consisted of five driving offences, one of resisting arrest, one of assaulting police, one of larceny, one of illegally using a motor vehicle and one of possessing implements to enter a motor vehicle. At the time of the offence the co-offender was serving the additional term of a control order imposed in the Children’s Court.

10   It was submitted that the applicant made full and candid admissions to the police whereas the co-offender made no admissions. The applicant was therefore entitled to a greater allowance for contrition.

11   It was submitted that the applicant pleaded guilty at the Local Court at the earliest opportunity whereas the co-offender pleaded guilty at a much later stage.

12   Most significantly, it was submitted, the applicant offered to give assistance to the police by giving evidence against the co-offender. The offer was significant and timely and there was a reasonable chance that it must have persuaded the co-offender to plead guilty, thereby sparing the complainant from having to give evidence at his trial. The information given to the police was truthful, accurate, reliable and complete. As a result of the undertaking, the applicant will have to spend his custody in protection. He told the sentencing judge he feared for his life because of threats made against him by the co-offender.

13 It was submitted that the sentencing judge had regarded the difference between the ages of the offenders as “marginal” and, notwithstanding that he was under eighteen years of age at the time of sentence, the co-offender had to be treated as an adult under the provisions of the Children (Criminal Proceedings) Act because the offence was a serious indictable offence. Accordingly, it was submitted that there was no available argument that the principle of parity did not apply.

14   It was submitted that despite all these matters the applicant had received a minimum term that was forty per cent greater and a total term that was twenty-five per cent greater than those received by his co-offender. In all the circumstances he had a justifiable sense of grievance.

15   As both sentencing judges realised, this offence was a very serious one indeed and their Honours delivered substantial and detailed remarks on sentence. Both made detailed findings of fact about the respective offenders.

16   As sometimes happens when co-offenders are sentenced by different judges, however, not all the findings of fact are consistent. This is no criticism of their Honours, who were obliged to find facts according to the evidence before them. It is appropriate to say, however, that it was most unfortunate that both matters were not dealt with by the same sentencing judge.

17   As will appear, some of the facts found by Judge Graham concerning the co-offender relating to relative criminality of the offenders and to their subjective features did not accord with the findings of Judge Christie about the applicant. That is a source of some difficulty for the applicant in this application. As he found the facts relating to the co-offender, Judge Graham made detailed reference to the remarks on sentence by Judge Christie. Although Judge Christie found in the applicant’s case that the co-offender was the “chief perpetrator” of the events in the sense that it was his idea that they happen and that the applicant did not play quite so aggressive a part as the co-offender, the corresponding findings were not made by Judge Graham. In fact, his Honour was not satisfied that the co-offender was the perpetrator and regarded their respective parts in the events as about equal.

18   There were four statutory aggravating features of the offence, namely that actual bodily harm was occasioned to the complainant, that threats were made, that the offence was committed in company and that the complainant was under the age of sixteen years. Although it was the co-offender who threatened to strike the complainant if she did not do their will, they were equally responsible for it. Each of the offenders was therefore responsible for the features the statute regards as aggravating the offence.

19   In addition there were two other features not mentioned by the statute which might properly be regarded as aggravating the part played by one or both the offenders. One was that the offenders tied up the complainant and left her in a remote place and the other was that one of the acts of sexual intercourse was anal intercourse. Both were responsible for the former feature but only the applicant for the latter. Judge Graham thought it an important distinguishing feature. It has to be said that it was a particularly revolting act carried out as part of an atrocious attack.

20   An available view of the objective facts therefore was that but for the act of anal intercourse, the part played by the two was about equal. Such a conclusion would not favour the applicant’s case.

21   Turning to the subjective features, it is correct to say, as counsel for the applicant has submitted, that the applicant had a more favourable record than the co-offender. It has to be said, however, as pointed out by Judge Graham, that neither of these offenders had been involved in any similar offence before and that was a significant matter in the sentencing of two young offenders.

22   The applicant correctly submits that the fact that the co-offender was serving the additional term of a control order was one of the facts making for a longer term for the co-offender. So was the fact that the applicant made full and candid admissions to the police compared with the co-offender who made none and pleaded guilty at a late stage, perhaps, though not certainly, after he heard that the applicant was prepared to give evidence against him.

23   The point is also well made that the applicant was entitled to a substantial discount, not available to the co-offender, for the assistance promised to the authorities in giving evidence against the co-offender. It has to be said, however, that the assistance was not of the kind likely to produce maximum discounts of the kind mentioned in R v Cartwright (1989) 17 NSWLR 243. In one sense the assistance was no more than an expression of a full working out of the applicant’s plea of guilty and his contrition. This was not a matter in which the applicant was able to assist the authorities in other criminal matters.

24   It seems to me that the outstanding difference between the two offenders, however, was their relative ages. The co-offender was only sixteen years three months of age at the time of the offence, two years seven months younger than the applicant. That age difference could not, in my opinion, accurately be described as marginal. It is large and significant. It was so regarded by Judge Graham and correctly so in my opinion.

25   The applicant relied on a statement of this Court in R v Bus, an unreported decision of 3 November 1995. In the judgment of the Chief Judge at Common Law, Hunt J, appears this passage:

In any event, it is obvious that the relevance of the principles stated in s 6 (of the Criminal Appeal Act) to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed. An offender almost eighteen years of age cannot be expected to be treated according to law substantially different to an offender just over eighteen years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing.

26   As Judge Graham pointed out, this was a very serious offence, properly calling for a substantial sentence in order to deter others from offending in like manner. However, making due allowance for the statement of the Chief Judge at Common Law in Bus when offenders as young as the co-offender are being sentenced, although aspects of general deterrence and retribution are still significant, particularly when offences are as serious as this one, the Courts must give more weight to the question of rehabilitation than they do in the case of an older offender. There was here a very substantial disparity in chronological ages of the offenders and a corresponding disparity in their maturity.

27   Summarising the differences between the offenders, the most important matters favouring the applicant were his early plea of guilty, his contrition and his assistance to authorities and the fact that the co-offender was on parole. All things being equal, those facts would have produced a lower sentence for the applicant.

28   They have to be balanced against two features which seem to me to be overwhelming. They were that it was the applicant who was responsible for the anal intercourse and the significantly different basis upon which the co-offender was entitled to be sentenced, bearing in mind his tender age.

29   In my opinion in all the circumstances it cannot be said that the applicant has a justifiable sense of grievance about the differences between the sentences.

30   The second ground of appeal asserts that the sentence was manifestly excessive by comparison with sentencing statistics. His Honour first determined that a head sentence of the order of twelve to fourteen years would have been appropriate. It is submitted that a starting point of fourteen years would be manifestly excessive. However that may be, this Court does not know that his Honour began so high. His Honour might have begun at the lower end of that range which would not be manifestly excessive for an offence as serious as this one in my opinion.

31 His Honour was of the opinion that the offence did not fall into the worst category of offences of this kind although it was not far removed. I think it was almost in the worst category of cases. The fact there were four statutory aggravating features present when one would have justified conviction under s 61J of the Crimes Act and the presence of the two other aggravating features I have mentioned, made the offence a very serious one indeed.

32   It was said that the statistics showed this offence to be in the top thirty per cent of all offenders for this offence and that in view of the applicant’s age, his plea of guilty, his remorse, his admissions and the assistance he gave, such a position in the scale is not justified.

33   The figures do demonstrate that the sentence is high but not, in my opinion, that it is outside the proper range of sentencing discretion of his Honour. Reference might be made to R v Lewis, unreported, Court of Criminal Appeal of 14 December 1993. That was an appeal following a plea of guilty for a single offence under the same section. The applicant there committed violent and revolting acts on the victim, probably no more revolting than the ones in the present case. Absent from the case were the tender age of the complainant and the feature that the complainant was left to fend for herself in a remote part of the bush. A total sentence of eight years was there held to be within the range of sound sentencing discretion of the sentencing judge.

34   A single case does not draw the limits of a tariff, of course, but the case does demonstrate that the statistics to which our attention has been drawn do not themselves state the limits of sentencing discretion.

35   Although because of the seriousness of this matter I would grant leave to appeal, I would dismiss the appeal.

36   McINERNEY AJ: This matter, I must say, has caused me considerable concern. It again arises from the practice that seems to be common in the District Court of two separate judges sentencing persons involved in a common offence. This circumstance has been commented on unfavourably by this Court on many occasions but the practice seems to persist.

37   In the circumstances here it is not open to this Court to determine which findings of fact of either judge should be accepted in the circumstances here.

38   In the end, therefore, I agree with the orders proposed by the presiding judge having regard to the factual findings by his Honour Judge Graham and the two circumstances referred to by the presiding Judge.

39   BARR J: The orders of the Court, therefore, will be as I have proposed.

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