R v Scott

[2001] NSWCCA 377

New South Wales
Court of Criminal Appeal

CITATION :	R v Scott [2001] NSWCCA 377
FILE NUMBER(S) :	CCA 60081/00
HEARING DATE(S) :	10/8/2001
JUDGMENT DATE :	10 August 2001
PARTIES :	Regina Michael Vincent Scott
JUDGMENT OF :	Dowd J at 1; Smart AJ at 34

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0383
LOWER COURT JUDICIAL  OFFICER :	Morgan DCJ

COUNSEL :	Ms CJ Lyons- Applicant Mr MC Grogan- Crown
SOLICITORS :	Mr DJ Humphreys- Applicant Mr SE O'Connor- Crown
CATCHWORDS :	Appeal against severity of sentence - Aggravated break, enter and steal - Justifiable sense of grievance - Parity
LEGISLATION CITED :	Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999
CASES CITED:	AB v R (1999) 198 CLR 111. Attorney General's Application (No. 1); R v Ponfield & Ors (Unreported, NSWCCA, 16 December 1999). Postiglione v The Queen (1995) 189 CLR 295. R v Barton (Unreported, NSWCCA, 5 March 2001). R v Ellis (1986) 6 NSWLR 603. R v Hodges (Unreported, NSWCCA, 20 August 1997). Thompson v Houlton (2000) 29 NSWLR 383.
DECISION :	1. Leave to appeal granted; and 2. The sentence of imprisonment imposed by Morgan DCJ be quashed, and that in lieu thereof, a sentence be imposed of imprisonment for a period of five-and-a-half years, commencing on 16 August 1999 and concluding on 15 February 2005, with a non-parole period of three-and-a-half years to date from 16 August 1999 and to expire on 15 February 2003.

IN THE COURT OF
CRIMINAL APPEAL

60081/00

DOWD J
SMART AJ


10 August 2001

Regina v Michael Vincent SCOTT

JUDGMENT

1    DOWD J: On arraignment at the Newcastle District Court, the applicant, Michael Vincent Scott, pleaded guilty before Coolahan DCJ to a single charge of aggravated break, enter and steal contrary to s112(2) of the Crimes Act 1900 (‘the Act’). He adhered to that plea before Morgan DCJ at the East Maitland District Court on 17 February 2000, and on 18 February 2000, was sentenced by Her Honour to seven years imprisonment with a minimum term of four years and six months. At the time of sentencing, Morgan DCJ took into account thirteen matters on a Form 1. The offence upon which he was sentenced carried a maximum penalty of twenty years imprisonment.

2    The matters on the Form 1 relate to various matters, including contravening a domestic violence order, goods in custody, attempting to obtain money by deception, maliciously destroying property, and a high range PCA. There are two break, enter and steal matters, but the details of those matters were not before Her Honour.

3    More seriously, at the time of the commission of the subject offence, the applicant was on bail in relation to most of the matters on the Form 1.

4    The facts of the case are set out as follows. The victim, a resident of Cessnock, went to bed at about 2:00am on Tuesday 9 June 1999, having checked that both front and back doors were secured. The applicant and a co-offender, Pearson, gained entry into the house by removing the fly screen window and unlocking the rear door. The victim, who was eighty years of age, was in bed at the time and was threatened, and a demand was made for money. He was struck a number of times heavily on the face with a wooden tomato stake before he could answer, causing a laceration above his right eye and under his chin, the latter requiring sutures. He suffered severe bruising, swelling and redness to most of his face. The applicant and co-offender went through the victim's residence, stealing $420 from the victim's wallet. The applicant admitted entering the premises and stealing the money from the wallet, but denied inflicting the blows to the victim, saying that when he committed the offences, he was high on amphetamines, and said that the robbery was committed to support his drug habit. At the time of the sentencing of the applicant, the co-offender had not then been dealt with.

5    The applicant's evidence was that he asked why his co-offender had the garden stake and was told by the co-offender that it was just in case it was needed. The applicant nonetheless proceeded with the offence. Prior to the co-offender striking the victim, the victim had grabbed a whistle and blew on it loudly. The applicant said he could hear the victim making loud noises as he was hit.

6    Her Honour, in sentencing, found that the co-offender and applicant were involved in a joint enterprise, and thus each was as responsible as the other. The applicant had an extensive criminal history commencing in the Children's Court, with offences involving several terms of imprisonment, albeit relatively short, extending up until the time of this offence.

7    Her Honour took into account in sentencing the applicant's unfortunate background, which involved the separation of his parents, going to live with an aunt who subsequently died, he coming back to live with his father and grandmother, with his grandmother then dying.

8    The applicant had long-term treatment for alcohol and drug abuse, and has been involved in an intermittent de facto relationship and has two young children of that relationship. His de facto wife was the person obtaining the apprehended violence orders, the breaches of which were taken into account on the Form 1.

9    The applicant was found by a psychologist to have a dysfunctional behaviour disorder dating from his mid 20's, and that he urgently requires professional support, and that notwithstanding his limited insight, he does seem motivated to put his life in order and to make some contribution to his children's lives.

10    Her Honour found that there were special circumstances warranting a longer period on parole to attempt rehabilitation under supervision.

11 The co-offender, Philip Pearson, was sentenced by Price DCJ on 18 January 2001, having pleaded guilty on arraignment to a single count under s112(2) of the Act. He was sentenced to two years imprisonment with a non-parole period of eighteen months, but which sentence was suspended under s12 of the Crimes (Sentencing Procedures) Act 1999, he having served some three months pre- sentence; bail refused.

12    Firstly, the applicant's submissions were that as compared with the co-offender, the sentence was so different as to engender a justified sense of grievance.

13    Secondly, that Her Honour failed to give consideration to the timely plea given by the applicant.

14    Thirdly, that Her Honour erred in her consideration of the hardship arising from the protective custody and that Her Honour qualified her assessment with her consideration of the irrelevant factor in the circumstances, namely, the applicant's culpability or otherwise in the circumstances leading to him being in protected custody.

15    Fourthly, that the sentence was manifestly excessive.

16    The applicant, through his counsel, fairly concedes that there were factors enhancing the seriousness in this offence. I refer to the Attorney General's Application (No. 1); R v Ponfield & Ors (Unreported, NSWCCA, 16 December 1999).

17    It is submitted by the applicant, relying upon a passage in Postiglione v The Queen (1995) 189 CLR 295, that discrepancy is not simply a question of the imposition of different sentences for the same offence, rather, it is a question of proportion between those sentences that had been a matter to be determined, having information relating to different circumstances of the co-offender and a question of the different degrees of criminality. The applicant does not suggest that this is a case where the same sentence should be given to the co-offender. It is conceded that the applicant's total criminality warranted a more serious sentence than the co-accused. However, it is put on the applicant's behalf that the sentences were grossly disproportionate.

18    The applicant's submission as to Her Honour's failure to give sufficient discount to the plea, was supported by the submission that Her Honour averted to the fact that there was no reason or argument given as to quantifying of the plea. This was a matter which should have fallen between the ten and twenty-five percent discount. It is contended, on behalf of the applicant, that he was also entitled to a discount in terms of R v Ellis (1986) 6 NSWLR 603 at 604, since, but for his confession, it is unlikely the case would have been proved.

19    As to the question of his being in protective custody, the applicant relies on the case of AB v R (1999) 198 CLR 111, per Kirby J, where it was held that every year in protective custody is a significantly greater loss of liberty than under other conditions.

20    It is put by the Crown that the criminal record of the co-offender was relatively light, having juvenile offences as well as adult offences, and that he had never served a sentence of full time imprisonment beforehand; that he spent three months in custody, as I referred to, and that the Learned District Court judge found that his time in custody had a significant impact upon him.

21    In subjective matters, the co-offender had reconciled with his wife; he had ceased to use heroin and amphetamines; he had completed a welding course; and this contrasts with Morgan DCJ's findings that the evidence as to the applicant shows a faint hope of realisation that he would rehabilitate himself.

22    It should be noted that there was different evidence before the court. Price DCJ gave detailed consideration to the issue of parity. An important difference between the two cases is that before Morgan DCJ, there was only a statement tendered as part of the Crown case. The applicant did not give evidence, and the sentencing was on the basis that the co-offender had struck the blow, even though on his own evidence he maintained his involvement, notwithstanding he knew of the garden stake being used.

23    The facts before Price DCJ nominated the applicant as having obtained the weapon, entering the house first, striking the blow, and stealing the money. The co-offender, Pearson, gave evidence during his sentence proceedings and said that he would not have entered if he had known that it was occupied. In that respect, I refer to R v Hodges (Unreported, NSWCCA, 20 August 1997), per Hunt CJ at CL:

"In all of those cases, however, the existence and the degree of any disparity is assessed by comparison between the sentence imposed by a court upon one co-offender based on facts found by that court in relation to that co-offender and the sentences imposed either by that court or another court upon the other co-offender based on facts found by that court in relation to the other co-offender. The factual bases of those different findings are often very different. Thus, that if Judge X sentences on the basis that, on the findings of fact made by that judge, A was merely a courier and B was the organiser of the drug importation, and Judge Y sentences B upon the basis that, on the findings of fact made by that judge, the roles were in fact reversed, any sense of grievance on the part of A in relation to the different findings by Judge Y would be disregarded should A seek to appeal against his own sentence. It would not be a justified sense of grievance. All things would not have been equal, although that is not to deny the proposition that the sentence imposed on A should bear a reasonable relationship with or relativity to that imposed on B albeit sentenced upon a different factual basis."

24    The Crown puts it that three of the offences attract sentences of five years imprisonment; and that two have sentences of fourteen years imprisonment.

25    The Crown submitted that although the prisoner pleaded on arraignment, it was not at the first opportunity as he had already been committed for trial from the Local Court. The Crown conceded that the Ellis discount was not given and that the sentence was before the guideline decision in Thompson v Houlton (2000) 29 NSWLR 383.

26    I also refer to R v Barton (Unreported, NSWCCA, 5 March 2001), in which the Learned Chief Justice outlined the fact that, in effect, on a Form 1 there should be more than a slight increase for offences that are taken into account when they are serious in their own right. Of course, most of the offences here were not as serious a matter that might well have been dealt with before a Local Court. The impact, however, of the matters on the Form 1 is the total impact of those offences, not just the offences individually.

27    Notwithstanding, however, the seriousness of the matters taken into account in the case of the applicant, and notwithstanding that the sentence, of itself, is, in my view, an appropriate one if standing alone, it is my view that the applicant is entitled to feel a justified sense of grievance at the sentence imposed for his co-offender, and thus, it is my view that the court should intervene.

28    It is not necessary to deal with the other matters referred to on appeal, except to say this; that whatever the other ground involved, this would, even if made out, not have warranted the court intervening because the sentence was otherwise an appropriate sentence. However, the disparity in the two sentences consequent upon the decision by Price DCJ, as to the co-offender brings about, as I have said, the justified sense of grievance. That is not thereby to criticise the decision of Price DCJ in the sentence that he imposed. It was for a period of two years and took into account three months already served for someone who, in fact on the evidence before him, was very much the lesser role.

29    In examining the matters that this Court should take into account on re-sentencing, the Court has to take into account the objective seriousness of the offence and also take into account the sentence imposed on the co-offender Pearson. The evidence before this court, however, is that the applicant is now endeavouring to place his life in order. He has shown, on the evidence before the court, the acceptance of responsibility in relation to his children and I accept that his weaning of himself off his addiction for amphetamines is a significant sign of improvement.

30    I have also taken into account the confidence shown in him by Mr Sylvester in his offer of employment, and also the very impressive record of attending and completing various courses. It is, however, clear on the evidence that of the subjective matters it is necessary for conditions to be imposed when assessing the period on parole, and that there will be proper supervision of the applicant during that period.

31    I would impose the condition that the applicant be placed under the supervision of the Probation and Parole Service; that he be treated for his psychological needs, as demonstrated under the supervision of Probation and Parole; and that he attend appropriate anger management courses to assist in his rehabilitative process.

32    Notwithstanding the much lighter sentence imposed on the co-offender, there is, in this particular case for the applicant, the need to reflect the objective seriousness of the offence to which he has pleaded guilty, and to take into account the very large number of serious matters on the Form 1, plus take into account the fact that the offence, the subject of this sentencing, was committed whilst on bail.

33    Accordingly, I would propose the following orders:

1. That leave to appeal be granted;

2. That the sentence of imprisonment imposed by Morgan DCJ be quashed, and that in lieu thereof, a sentence be imposed of imprisonment for a period of five-and-a-half years, commencing on 16 August 1999 and to conclude on 15 February 2005, with a non-parole period of three-and-a-half years to date from 16 August 1999 and to expire on 15 February 2003; and

3. That when released to parole, the applicant be subject to the supervision of the Probation and Parole Service, and in particular, carry out such psychological treatment and anger management treatment and drug rehabilitation treatment as may, to that Service, appear appropriate.

34    SMART AJ: I agree.

35    DOWD J: The orders of the Court will therefore be as I have proposed.

oOo