R v Sica

[1993] QCA 377

IN THE COURT OF APPEAL [1993] QCA 377

SUPREME COURT OF QUEENSLAND

C.A. No. 239 of 1993

Brisbane

[R. v. Sica]

T H E Q U E E N
v.
MASSIMO SICA

(Applicant)

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THE PRESIDENT

DAVIES J.A. THOMAS J.A.

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J udgment delivered 08/10/1993

REASONS FOR JUDGMENT - THE COURT
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THE APPLICATION IS REFUSED.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - 23 year-old applicant sentenced to 9 years with recommendation for parole after 3 years for 31 offences including arson and attempted arson - 52 further offences taken into account - late guilty plea on most of more serious offences - whether unjustifiable disparity with two co-offenders' sentences of 7 years with recommendation for parole after 18 months - no significant difference between criminal histories of and total offences committed by the three offenders - difference in sentences justified by co-offenders' early guilty pleas and co-operation with police
Counsel:	P. Callaghan for the Respondent T. Glynn for the Applicant
Solicitors:	Director of Prosecutions for the Respondent N. Barbi & Associates for the Applicant
Hearing Date(s):	5 October 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 239 of 1993
Brisbane
Before	The President Mr Justice Davies Mr Justice Thomas

[R. v. Sica]

T H E Q U E E N
v.
MASSIMO SICA

(Applicant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 08/10/1993

The applicant seeks leave to appeal against sentences imposed for a large number of offences. As all sentences were concurrent, the effective term was nine years' imprisonment with a recommendation that he be eligible for release on parole after serving three years of that term, that being the sentence imposed for six counts of arson and one of attempted arson. The sole ground of appeal argued was that there was such a disparity between that sentence and the sentence imposed upon the applicant's co-offenders, Smith and Lavelle, as to give rise to a justifiable sense of grievance in the applicant.

The applicant was convicted on his own plea of 31 offences. However, an additional 52 offences were taken into account in imposing sentence pursuant to s. 189(1) of the Penalties and Sentences Act 1992. There were two indictments. The first charged him with one offence of wilful damage. There were a further five charges of wilful damage on the second indictment.

For those six offences the applicant was sentenced to twelve months' imprisonment. For one offence of wilful damage endangering life he was sentenced to two years' imprisonment. For five offences of unlawful use of a motor vehicle he was sentenced to two years' imprisonment. For five offences of breaking, entering and stealing, four offences of breaking, entering and wilful damage, and three offences of breaking and entering with intent he was sentenced to five years' imprisonment. And, as we have already said, for six offences of arson and one of attempted arson he was sentenced to nine years' imprisonment. As we have also said, all sentences were concurrent and the learned sentencing judge recommended that the applicant be eligible for release on parole after serving three years of that term. Of the further 52 offences taken into account, 29 were of breaking, entering and stealing, seven were of breaking and entering with intent, two were of arson, one was of attempted arson and 13 were of wilful damage.

All of the offences, including those taken into account pursuant to s. 189(1), were committed between 6 July 1990 and 24 November 1990. They involved deliberate, planned acts of destruction of property of the most serious kind by a gang of young men involving, in all, loss or damage totalling over $365,000. The offences of arson and of attempted arson included the burning down of one police station and the attempted burning down of another and the destruction by fire of a police vehicle. On at least five occasions school premises were broken and entered, cash, video cassette recorders and a television set were stolen, other property was damaged and in one case property in a school was set alight. On another occasion the tyres on a vehicle owned by a policeman known to the applicant, and who had reason to speak to one of the applicant's co-accused, were slashed. On each occasion the applicant wore gloves and a balaclava and on more than one occasion the offenders had the police radio channel monitored on a scanner and cut power to premises which they were going to break into.

The applicant made admissions to the police which may have implicated him in the breaking and entering of one of the police stations referred to above but otherwise he declined to be interviewed. He pleaded guilty later to some of the charges. However, he pleaded not guilty and went to trial on fourteen charges, including those in respect of the five arson offences and most of the other more serious offences. Only after he had been arraigned on those charges and a jury empanelled did he change his plea to guilty.

Mr Glynn, who appeared for the applicant, did not submit that, apart from the ground of appeal referred to above, the sentences imposed were manifestly excessive. Indeed, he conceded, rightly in our view, that they were within the appropriate range. We turn then to the ground argued, that of disparity of the effective sentence from that imposed on each of Smith and Lavelle. Each of them received an effective sentence of seven years' imprisonment with a recommendation that he be eligible for parole after serving 18 months.

The applicant is 23 years of age, having been born on 17 March 1970. Although he was older than both Smith and Lavelle and it was contended by the Crown that he was the leader of the gang which perpetrated the above offences, the learned sentencing judge sentenced him on the basis that the offenders were equally responsible for those offences in which all were involved. However, neither Lavelle nor Smith was involved in all of the offences referred to above. Lavelle was not involved in the first three offences the subject of the indictments, which included one of the arson offences, and Smith did not become involved until still later. Nevertheless there was not a great deal of difference in the number of offences taken into account in each case. In the applicant's case a total of 83 offences was taken into account, in Lavelle's 91 and in Smith's 61. We have already said that over $365,000 was involved in applicant's 83 offences. More than $285,000 was involved in Smith's offences, and, although there is no evidence of how much was involved in Lavelle's offences, it seems unlikely that the amount would have been any less than that last amount.

Nor was there any evidence which would indicate that there was any difference between the offenders in respect of their prior criminal conduct. Indeed there was no satisfactory evidence of the prior criminal records, if any, of either Smith or Lavelle.

The applicant had never before been in jail but had been convicted on two occasions, once for receiving stolen goods and once for wilful and unlawful damage to property and wilful and unlawful interference with works of electricity. The offences involved in the second of those convictions appear to be related to offences the subject of this appeal. Although the totality principle would require that the penalty imposed in respect of those offences be taken into account in imposing the sentences here, that penalty, being a fine of $900, if it were taken into account, could not make any difference to the effective sentences imposed here.

The learned sentencing judge in the present case was fully aware of the sentences imposed on Smith and Lavelle and of the requirement to avoid disparity with those sentences. There were, however, in his Honour's view, important differences between those cases and this in the conduct of the offenders after the commission of the offences. Each of Smith and Lavelle confessed his involvement in those offences to the police when first apprehended and each admitted to committing offences in which the police had no suspicion of their involvement. They then pleaded guilty at an early stage to ex officio indictments and were prepared to give evidence against others of their co- offenders, thereby taking the risks which that involves. By contrast, as we have indicated, the applicant at no stage co- operated with the police and did not plead guilty to most of the more serious offences until after his trial had commenced.

We think that, for these reasons, the learned sentencing judge was justified in making a substantial distinction between the sentence which he should impose in this case and that which was imposed upon each of Smith and Lavelle. The early pleas of guilty, along with the added co-operation which each of the other offenders offered the police and the risks which each thereby undertook, in our view justify the difference between the sentences imposed on them and that imposed on the applicant.

We therefore do not think that there was such a disparity between the sentences imposed on Smith and Lavelle and that imposed on the applicant as to give rise, on the part of the applicant, to a justifiable sense of grievance.

The application is therefore refused.