R v Sharp
[2019] ACTCA 7
•15 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Sharp |
Citation: | [2019] ACTCA 7 |
Hearing Date: | 15 February 2019 |
DecisionDate: | 15 February 2019 |
ReasonsDate: | 8 April 2019 |
Before: | Murrell CJ, Mossop and Charlesworth JJ |
Decision: | Appeal allowed; offender resentenced. See [6]. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – unlawful confinement – whether sentence manifestly inadequate – no appeal from appeals imposed on two co-offenders – further co-offender resentenced on appeal – whether interference with the appellant’s sentence would create unjustified parity between sentences imposed on co-offenders – appeal allowed – appellant resentenced |
Legislation Cited: | Crimes Act 1900 (ACT) ss 32, 34 Crimes (Sentencing) Act 2005 (ACT) s 33 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Green v The Queen [2011] HCA 49; 244 CLR 462 Singh v The Queen [2015] ACTCA 65 |
Parties: | The Queen (Appellant) Cameron Sharp (Respondent) |
Representation: | Counsel Mr Williams (Appellant) Mr Doil (Respondent) |
| Solicitors Director of Public Prosecutions (ACT) (Appellant) Ben Aulich and Associates (Respondent) | |
File Number: | ACTCA 59 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 17 October 2018 Case Title: R v Sharp Citation: [2018] ACTSC 286 |
THE COURT
Introduction
The respondent, Mr Cameron Sharp, pleaded guilty to two offences committed on and around 8 April 2017. Together with four co-offenders, Mr Sharp duct taped Mr Andrew Peisley (the victim) to a chair. They threatened, assaulted and interrogated him over a period of about three hours.
On 17 October 2018, Mr Sharp was sentenced to 15 months imprisonment, comprised of the following individual head sentences, cumulative as to one month:
(a)for an offence of unlawful confinement in contravention of s 34 of the Crimes Act 1900 (ACT) (Crimes Act) (charge CC2017/4977), 14 months imprisonment, commencing on 9 May 2018 and ending on 8 July 2019;
(b)for an offence of making a demand accompanied by a threat in contravention of s 32(2)(a) of the Crimes Act (charge XO2017/31239), 14 months imprisonment commencing on 9 June 2018 and ending on 8 August 2019.
The sentencing judge fixed a non-parole period of 10 months, being 66 percent of the head sentence.
The Crown appealed against the whole of the sentence pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) on the ground that each individual head sentence was manifestly inadequate. Ultimately, the challenge to the sentence for the offence of making a demand accompanied by a threat was not pressed.
The offence of unlawful confinement carries a maximum penalty of 10 years imprisonment.
On 15 February 2019 this Court made the following orders:
1. The appeal is allowed.
2.The sentences imposed on 17 October 2018 are set aside and the offender is sentenced as follows:
i.In respect of unlawful confinement (CC2017/4977) the offender is sentenced to imprisonment for two years and 11 months starting on 9 May 2018 and ending on 8 April 2021.
ii.In respect of the offence of demands accompanied by threats (XO2017/31239) the offender is sentenced to imprisonment starting on 9 March 2020 and ending on 8 May 2021.
iii.The non-parole period starts 9 May 2018 and ends 8 November 2019.
iv.A reparation order pursuant to s 19 of the Crimes (Sentencing) Act 2005 in the amount of $1170 in reparation payable to the victim Andrew Peisley to be paid within 24 months from 17 October 2018.
Written reasons for these orders were not provided on the day they were made. That was because of the possibility that Mr Sharp might otherwise have an expectation that he would become eligible for parole soon after judgment on the appeal was reserved. The Court informed the parties that written reasons for the orders would be given in due course. These are our reasons for making the orders.
Principles
As this Court said in R v Lee [2017] ACTCA 30 (Elkaim, Mossop and Wigney JJ), a Crown appeal against sentence is a “unique species of appeal”: at [53]. Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3] (Refshauge J). In R v Clarke [1996] VSC 30; 2 VR 520 Charles JA identified (at 522, Winneke P and Hayne JA agreeing) appropriate occasions that might arise for the bringing of a Crown appeal, including:
(a)to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b)to enable the Court to establish and maintain adequate standards of punishment;
(c)to ensure uniformity in sentencing, so far as the subject matter permits.
Section 33 of the Crimes (Sentencing) Act 2005 (ACT) inexhaustively prescribes the matters to be taken into account in deciding how an offender should be sentenced. Among the relevant considerations are the nature and circumstances of the offence, the effect of the offence on the victim, the degree of responsibility of the offender for the commission of the offence, the age, character, antecedents and other personal circumstances of the offender and current sentencing practice.
10. Careful attention must to be given to the maximum penalty as it provides a yardstick for comparison between the worst possible case and the case before the Court at the time: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
11. In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale), Gleeson CJ and Hayne J explained the role of an appellate court on an appeal against sentence on the grounds of manifest excess or inadequacy as follows (at [6]):
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
12. The principles that apply to the sentencing of co-offenders are discussed elsewhere in these reasons.
Mr Sharp’s offending
13. An agreed Statement of Facts (forming Exhibit 1 before the sentencing judge) describes the offending conduct in the following terms:
2.On 8 April 2017, Andrew Piesley and Caleb Fisher attended a house party at a residence in Florey, ACT.
3.At approximately 1.00am on 9 April 2017, Lorette Kirby arrived in her car and remained parked at the front of the residence. Ms Kirby would deal illicit drugs from time to time. Shortly after arriving, Ms Kirby received a phone call informing her that a coke can containing MDMA tablets and a stash of money which he [sic] owned went missing.
4.By this time Mr Fisher was intoxicated. At some point he acquired the coke can containing MDMA and money, although it is unclear how. He passed the can to a friend of his, John Cursely. Another attendee at the party, John Sharp, opened the can and found a clear plastic satchel containing yellow MDMA tablets with distinct yellow Pikachu characters (‘pingers'). The 'pingers' were then freely passed around at the party.
5.Ms Kirby sought the assistance of some of her friends, the offender Avery, the offender Sharp and Zachary Froome (hereafter 'the offender Froome'), in recovering the drugs and money. They speculated that Mr Piesley had opened a coke can and distributed the 'pingers'.
6.The offender Sharp told offender Froome to attend an address in Palmerston and meet him there. When the offender Froome arrived at the address, the offender Sharp told Froome to contact Mr Piesley, because it was ‘Froome's responsibility’ to recover the drugs and money. The offender Sharp, along with other unidentified individuals, made threats to the offender Froome that if he did not recover the drugs and money, his family would be in danger.
7.At approximately 2.54pm, the offender Froome sent a group message on the Facebook messenger application which stated ‘Who the fuck took shit out of Rettes car?!? Half of that shit was mine cunts. I need cash today. Fucking piss weak’.
8.At 4.40am, the offender Froome called Mr Piesley. At approximately 4.41am, the offender Froome sent a SMS message to Mr Piesley's phone stating ‘answer me cunt’.
9.At approximately 1.30pm Mr Piesley was informed by a friend, Darson Bosnjack, to contact the offender AVERY. Mr Piesley complied. The offender Avery accused Mr Piesley of stealing from him and his 'boys'. He was agitated and yelled at Mr Piesley, threatening to either come to him or 'send people around' to Mr Piesley's house. Mr Piesley was aware that the offender AVERY knew where he lived.
10.At approximately 8.00pm Mr Piesley received a call from his ex-girlfriend, Ms Shaw. She merged the telephone call with the accused FRROME [sic] who accused Mr Piesley of stealing from him. The accused FRROME [sic] asked Mr Piesley where he was and told him to stay put as he would pick him up.
Unlawful confinement and demands accompanied by threats - 8 April 2017
11At around 8.15pm the offender Musolino, along with Sugimatatihuna Mena (hereafter 'co-offender Mena'), Dante Lamb and Mr J Sharp arrive at Mr Piesley's residence in a dark Toyota Lexus. Mr Piesley was instructed to sit in the back middle seat between Lamb and J Sharp.
12.He was driven to the offender Avery's house. As the car pulled up Mr Pieseley noticed the back doors were child locked as the back doors required others to open the doors.
13.As the car approached the offender Avery's residence, the offender Sharp exited the premises and approached Mr Piesley. The offender Sharp punched Mr Piesley to the back of his head and told him ‘Get the fuck inside’. The accused Musolino, Mr Lamb, Mr Sharp, the co-offender MENA and Mr Darson walked into the residence with Mr Piesley. When Mr Piesley had entered the residence, the offender Sharp hit Mr Piesley to the back of the head again.
14.Mr Pielsey was lead [sic] into the residence and into a dining room. The offender Avery told him to sit down on a white coloured leather dining chair. The offender Sharp also yelled at Mr Piesley sit down, and slapped him across the head. As soon as he sat down, the offender Musolino held him by the left shoulder and the offender Avery instructed the co-offender Mena to strap him to the chair with black coloured duct tape. Mr Piesley was instructed to put his hands by his side whilst the co-offender Mena wrapped the duct tape around his body and taped him to the chair.
15.Mr Piesley felt completely outnumbered and overpowered and did not struggle.
16.Once strapped to the chair, the offender Avery asked ‘where is the gear?’ Mr Piesley replied that he didn't know. The offender Avery stated that ‘I don't want to hear I don't know’.
17.The offender Avery began to interrogate Mr Piesley. Each time Mr Piesley replied with the answer ‘I don't know’, either the offender Avery, the offender Froome or the offender Sharp would strike his temple and eye socket on both sides of his face.
18.The offender Sharp was particularly angry and punched Mr Piesley all around his face and the back of his head. The offender Sharp cocked his body backwards and took time between strikes with each strike becoming more powerful. He repeatedly said ‘where’s my shit? I know you cunts have got it, I'm sick of hearing I don't know’ and '’you are going to pay for the shit’.
19.Mr Piesley repeatedly said he did not know where the drugs were, but he would attempt to settle the matter by obtaining money for them.
20.The offender Avery, the offender Sharp and the offender Froome repeatedly stated ‘no we want the gear too’. They continued to assault Mr Piesley for a 10 minute period. Each would take turns in assaulting Mr Piesley whilst others in the background giggled and said things like ‘are we going to have to take him out to the Brindies’. At that stage Mr Piesley began to fear for his life.
21.The offender Froome took Mr Piesley's phone off him and went into another room and called Mr Piesley's ex-girlfriend, Georgina Shaw. He said that ‘Andy has gotten himself into a lot of trouble; Andy stole or knows of 80 'pingers' being ·stolen and thousands of dollars’. The offender Froome brought the phone back into the dining room and demanded that Ms Shaw relay the conversation to Mr Piesley.
22.The offender Froome then left the room with the phone. The offender Avery and the offender Sharp continued to assault Mr Piesley. The offender Froome came back into the room and yelled ‘you are a fucking liar, don't fucking lie to my face’. He then started punching Mr Piesley in the face with a fully closed fist. Mr Piesley felt his vision go black and blurry and thought his brain was shutting down.
23.The offender Sharp picked up a baseball bat and angrily said ‘I want my fucking stuff'. He started to swing the baseball bat, but the offender Froome stepped in and stopped him. Instead, the offender Sharp picked up the baseball bat and placed it at the front of his neck behind his voice box. He pulled the baseball bat rearward against Mr Piesley's neck with such force that it caused Mr Piesley and the chair to be lifted off the ground. The offender Sharp did this for a few seconds, then let Mr Piesley go. Mr Piesley could not breathe during this period.
24.The offender Avery then picked up a pair of scissors and held the scissors by the closed blades with a few centimetres of the blade protruding from his hand. He approached Mr Piesley and said ‘I've had enough of this bullshit, I'm sick of you lying to me, I'm sick of hearing I don't know’. He then pushed the end of the blade into the front of Mr Piesley's front neck [sic], piercing the skin. The chair titled backward and hit the wall behind Mr Piesley.
25.Mr Piesley continued to say that he didn't know anything about the incident and that either Mr Fisher or Mr Cursley could have more information. The offender Avery then struck him to the temple, causing him to black out. He was unconscious for an unknown period of time. The co-offender Mena then cut the tape that was holding Mr Piesley to the chair.
26.The offender Froome took Mr Piesley outside and gave him two vodka based alcoholic beverages. The offender Froome apologised for what was happening and said they had to get to the bottom of it as there was a deadline. He then took Mr Piesley inside and told him to clean himself up in the bathroom. He provided Mr Piesley with a white coloured tea towel which was wrapped in ice.
27.Mr Piesley exited the bathroom and returned to the same chair. An unknown person grabbed him from behind and placed a towel over his head. The towel was wrapped under the lower part of his jaw. Unknown members of the group pushed his head backwards while the towel remained covering his face. Another person poured water over his face as his head was titled backwards for a period of 20 seconds and then stopped. Since Mr Piesley was not tied to the chair, he attempted to get out of the chair. Unknown members of the group kept holding Mr Piesley down. Mr Piesley struggled for breath. This occurred eight times and lasted minutes. Once the towel was removed, Mr Piesley saw the offenders Avery, Musolino·and Mana [sic], and the offender Froome and the offender Sharp in the room.
28.The offender AVERY said ‘first thing in the morning you are going to rock up here with the papers to your car, you are going to sign it over to me. You owe me three grand on top of that’.
29.The offender Froome said ‘You also owe me your Nixon watch ... the one with the diamond on it’.
30.The offender AVERY said ‘this is for the 80 pills and 80 caps that went missing’.
31.The offender Sharp said ‘I also had $1400 of my cash in there’.
32.The offender Avery then told Mr Piesley that he had to pick up Mr Fisher and Mr Cursley and take them back to the offender Avery's residence and inflict upon them the same treatment that he had just been subject to (i.e. Mr Piesley would have to unlawfully confine and assault Mr Fisher and Mr Cursley).
33.At approximately 11.25pm, the offender Sharp and Ms Kirby returned Mr Piesley to his residence. The accused Sharp threatened that if Mr Piesley went to the police he would get people to hurt his mother, father and brother.
34.As a result of this incident Mr Pielsey sustained significant bruising and swelling to his face and body.
Reasons of the sentencing judge
14. The sentencing judge considered Mr Sharp’s personal circumstances, including his young age at the time of the offence, his mental health issues, his prospects for employment, his strong family support and his relatively minor prior convictions for driving on a suspended licence, contravening a protection order and common assault: R v Sharp [2018] ACTSC 286 (R v Sharp) at [66]-[69], [73]-[74] and [76]. Although there was evidence that Mr Sharp had made expressions of remorse to his sister, the sentencing judge treated the out-of-court expressions with caution: at [72].
15. At the time that Mr Sharp was sentenced, his adult co-offenders had been sentenced to terms of imprisonment by Elkaim J: see R v Avery [2018] ACTSC 64 (13 March 2018); R v Musolino [2018] ACTSC 3 (29 January 2018) and R v Froome [2018] ACTSC 152 (29 May 2018). A fourth co-offender had been sentenced as a juvenile in proceedings before the Magistrates Court.
16. The sentencing judge identified the following sentences imposed by Elkaim J on the adult co-offenders in respect of offences arising out of the same incident:
(a)On Mr Avery:
(i)12 months imprisonment for an offence of unlawful confinement;
(ii)12 months imprisonment for the offence of demands accompanied by threats.
(b)On Mr Musolino:
(iii)nine months imprisonment in respect of an offence of aid and abet unlawful confinement contrary to s 34 of the Crimes Act;
(iv)six months imprisonment in respect of an offence of aid and abet assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act;
(v)A total head sentence of one year and nine months imprisonment allowing for partial concurrency between these and two further sentences of imprisonment for other offences.
(c)On Mr Froome:
(i)seven months and ten days imprisonment in respect of one count of unlawful confinement
(ii)15 months imprisonment in respect of demands accompanied by threats;
(iii)A total head sentence of one year, six months and 27 days imprisonment.
The sentences imposed on Mr Avery, Mr Musolino and Mr Froome reflected discounts for early guilty pleas of 35 percent, 20 percent and 35 percent respectively.
18. On 19 March 2018, the Crown commenced an appeal against the sentence imposed on Mr Avery at first instance. That appeal was neither heard nor determined at the time that Mr Sharp came to be sentenced. After noting the pending appeal, the sentencing judge said (R v Sharp at [114]):
I cannot pre-empt the decision of the Court of Appeal in relation to the co-offender Avery and it is inappropriate for me to do so. The sentences of Froome and Musolino have not been appealed by the Crown. Parity is clearly a relevant consideration in sentencing in this matter. I take into account the sentence of the co-offender Avery as I must take into account all the sentences of all the co-offenders in sentencing the offender.
Her Honour went on to remark upon Mr Sharp’s participation in the offending, relative to that of his co-offenders, concluding that Mr Avery was approximately 14 years older than the others and was the leader among them, and that Mr Sharp was “unquestionably heavily involved in the offences, as was the co-offender Froome”: R v Sharp at [115].
20. The sentencing judge said that the seriousness of the offences was such that there was no appropriate alternative to full time imprisonment in Mr Sharp’s case: R v Sharp at [90]. Her Honour allowed for a discount of 12 per cent for Mr Sharp’s late guilty plea, made on 9 May 2018, after the matter had been set down for trial to commence on 4 June 2018: at [79]–[84].
21. As to parity, the sentencing judge referred to the importance of avoiding a justifiable sense of grievance, particularly in connection with Mr Froome: R v Sharp at [125(j)]. Her Honour concluded at [128]:
In coming to a conclusion by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, the plea of guilty, the youth of the offender, and the resulting emphasis on rehabilitation, along with considerations of parity with other offenders, in particular the co-offender Froome.
It may be inferred from these passages that the sentencing judge considered Mr Sharp and Mr Froome to bear similar degrees of criminal responsibility, although the starting point for sentencing Mr Sharp was just two months shy of the starting point from which Elkaim J had sentenced Mr Avery.
The appeal in R v Avery [2018] ACTCA 57
On 14 December 2018, the Crown’s appeal against the sentence imposed by Elkaim J on Mr Avery was allowed: R v Avery [2018] ACTCA 57.
24. The Court of Appeal held:
(a)the unlawful confinement of the victim was “an extremely serious offence of its type” (at [25]);
(b)the starting point for the sentence for Mr Avery’s offence of unlawful confinement (being 18 months imprisonment) was manifestly inadequate, having regard to the maximum penalty and the Court’s sentencing practices in relation to such offences (at [39]);
(c)having regard to the gravity of the offending conduct and the extent of departure from current sentencing practices, it was appropriate to intervene, notwithstanding that Mr Avery had completed his sentence and notwithstanding Mr Avery’s submission that increasing his sentence would create unjustified disparity in sentences vis a vis co-offenders (at [37]–[38]);
(d)the appropriate starting point for the unlawful confinement offence was four years imprisonment (at [39]);
(e)applying a 35% discount for Mr Avery’s early plea, the appropriate head sentence for that offence was two years and seven months (at [39]);
(f)the cumulative relationship between that sentence and the other sentences imposed on Mr Avery should not be disturbed, such that the appropriate total head sentence for all offences was two years and 11 months (at [44]);
(g)as Mr Avery had completed the sentence imposed by Elkaim J, the balance of the sentence imposed by the Court of Appeal was suspended, and no non-parole period was set (at [44]).
Submissions on this appeal
25. The Crown submitted that the sentence imposed on Mr Sharp for the unlawful confinement offence could not be reconciled against the findings made by the sentencing judge about the objective seriousness of his offending conduct. The following objective features were relied upon:
· The length of the confinement – around 3 hours;
· The level of restraint – for most of the confinement the victim was either tied to a chair or held down by the offenders;
· The element of pre-meditation – earlier in the day the respondent had threatened to send people around to the victim’s house, as subsequently occurred;
· The behaviour towards the victim – the defendant was continually beaten by a number of offenders whilst tied to a chair. Eventually this assault rendered him unconscious. During this beating he was repeatedly threatened. At one point he was ‘water boarded’ as a method of torture;
· The use of weapons such as scissors and a baseball bat;
· The purpose of confinement – to recover drugs or money the respondent believed was owed by the victim;
· The degradation of the victim as the offenders laughed during the beating;
· The victim feared for his life;
· The number of offenders would have exacerbated the victim’s feelings of terror and helplessness; and
· The significant swelling and bruising occasioned to the victim.
In addition, it was submitted that although Mr Avery was the instigator of the offence, Mr Sharp had played a key role in the overall offending. The Crown submitted that Mr Sharp had planned the means of getting the victim to the place where the confinement occurred, that both Mr Sharp and Mr Avery had planned what was to occur there, that Mr Sharp had assaulted the victim immediately upon his arrival, that he had (together with Mr Avery) directed the victim to sit in the chair, that he had struck the victim on the head numerous times and with significant force, and that he had placed the baseball bat around the victim’s neck causing loss of breath.
27. The confinement was, the Crown submitted, “an exercise of absolute control characterised by sadistic and gratuitous violence and torture” that would have been a terrifying experience for the victim, having a significant impact on his mental health for some time. It was submitted the vigilante action justified a sentence in which general deterrence operated as a prominent purpose: R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [110], [112] and [122] (Johnson J, McClellan CJ at CL and Hammerschlag J agreeing); R v KB [2017] ACTSC 344 (Murrell CJ); R v Le Clair [2016] ACTSC 126 (R v Le Clair) (Burns J).
28. Counsel for the Crown referred to authorities said to reflect the current sentencing practices of this Court with respect to unlawful confinement offences having similar features: Singh v The Queen [2015] ACTCA 65; R v Ndlovu [2017] ACTSC 244; Ndlovu v The Queen [2018] ACTCA 33; R v Le Clair; Le Clair v The Queen [2017] ACTCA 19; R v Barlow [2017] ACTSC 90.
29. It was submitted that subjective features such as Mr Sharp’s age and minimal criminal history could not explain the sentence imposed.
30. Counsel for Mr Sharp submitted that current sentencing practices in relation to unlawful confinement cases could not be established by a small selection of authorities, particularly where the cases are not truly comparable. Counsel identified a number of features distinguishing the circumstances of Mr Sharp’s offending with those cases to which the Crown had referred. An important distinguishing feature was the circumstance that Mr Sharp had been separately charged and sentenced with the offence of making a demand accompanied by a threat such that the conduct constituting that offence could not permissibly be taken into account as aggravating the seriousness of the unlawful confinement charge.
31. Counsel accepted that general deterrence was an important sentencing consideration, but submitted that crimes involving vigilante action must in all cases be judged on their own facts, such that “The adoption of a blanket rule would itself be an error of sentencing principle”: Dinsdale at [68] (Kirby J).
It was further submitted that notwithstanding the re-sentencing of Mr Avery, this Court should not disturb Mr Sharp’s sentence, even if his sentence was found by this Court to be manifestly inadequate. To increase the sentence, Counsel submitted, would be to create unjustifiable disparity between the term of imprisonment imposed on Mr Sharp and that imposed on Mr Froome, the co-offender who, in the view of the sentencing judge, shared a similar degree of criminal responsibility. That was especially so in circumstances where the Crown had not appealed against the sentences imposed on Mr Froome and Mr Musolino, and had not taken issue with the sentencing judge’s assessment of the co-offenders’ relative culpability. Any re-sentencing of Mr Sharp on appeal would, Counsel submitted, be restrained by principles of parity vis a vis Mr Sharp and Mr Froome and so result in nothing more than mere tinkering with the sentence imposed by the sentencing judge.
Consideration
33. The Crown’s submissions concerning the nature and objective seriousness of Mr Sharp’s offending should be accepted. Indeed, the sentencing judge concluded that the features of the case demonstrated that this is a “particularly serious example of unlawful confinement”: R v Sharp at [60].
34. Having regard to the maximum period of 10 years imprisonment, the starting point of 16 months adopted by the sentencing judge was manifestly inadequate. The sentence cannot be explained by reference to Mr Sharp’s personal circumstances.
35. As the sentencing judge correctly acknowledged, parity as between the sentences imposed on all of the co-offenders was an important consideration in the sentencing of Mr Sharp, as it is on this appeal.
As French CJ, Crennan and Kiefel JJ said in Green v The Queen [2011] HCA 49; 244 CLR 462 at [32]:
A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.
(footnotes omitted)
37. Their Honours were there concerned with the incidence of unjustifiable disparity as an indicator of appealable error affecting sentences imposed at first instance.
38. In the present case, the sentencing judge made a qualitative and discretionary judgment as to Mr Sharp’s degree of responsibility and fixed a sentence having regard to the sentences previously imposed upon all of Mr Sharp’s co-offenders, including Mr Avery. The sentence imposed reflected the relative culpability of all of the co-offenders as assessed by the sentencing judge and no error is asserted by the Crown with respect to that assessment. The 16 month starting point adopted by her Honour was arrived at having regard to the 18 month starting point adopted by Elkaim J with respect to Mr Avery and the 12 month starting point his Honour had adopted with respect to Mr Froome. As the sentencing judge noted, there were “powerful subjective factors” justifying leniency in Mr Froome’s case: R v Sharp at [123].
39. The relativity of the sentences achieved by the sentencing judge was disturbed by the increased sentence imposed on Mr Avery on the Crown’s successful appeal. The Court of Appeal rejected a submission that it should not, in its discretion, interfere with the manifestly inadequate sentence, if to do so would create disparity in sentences as between the co-offenders.
It is true that the sentencing judge proceeded on the basis that considerations of parity were particularly important in her consideration of Mr Sharp’s sentence relative to Mr Froome’s sentence for the same offence. However, it is not correct to say that considerations of parity require only that the sentences imposed upon Mr Froome and Mr Sharp proceed from similar starting points. It remains important that Mr Sharp’s sentence appropriately reflected his degree of responsibility vis-a-vis Mr Avery, albeit that subjective factors such as Mr Sharp’s age are also relevant.
Conclusion
41. The appropriate starting point in Mr Sharp’s case is three years and four months imprisonment, having regard to the seriousness of the offending, his degree of participation, and subjective factors, particularly his age. There should be a 12 percent reduction on account of Mr Sharp’s guilty plea, resulting in a head sentence for the offence of unlawful confinement of two years and 11 months.
42. The unchallenged sentence for the offence of making demands accompanied by threats should remain cumulative as to one month, resulting in a total head sentence of three years.
The non-parole period should commence on 8 May 2018 and end on 8 November 2019.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: |
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