R v Timothy James Price

[2010] ACTCA 1

R v TIMOTHY JAMES PRICE
[2010] ACTCA 1 (9 February 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33 - 2009
No. SCC 71 of 2008
No. SCC 72 of 2008

Judges:        Higgins CJ, Gray P and Ryan J
Court of Appeal of the Australian Capital Territory
Date:           9 February 2010

IN THE SUPREME COURT OF THE     )          No. ACTCA 33 - 2009
  )          No. SCC 71 of 2008
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 72 of 2008
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE QUEEN

v

TIMOTHY JAMES PRICE

ORDER

Judges:  Higgins CJ, Gray P and Ryan J
Date:  9 February 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 33 - 2009
  )          No. SCC 71 of 2008
AUSTRALIAN CAPITAL TERRITORY )          No. SCC 72 of 2008
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE QUEEN

v

TIMOTHY JAMES PRICE

Judges:  Higgins CJ, Gray P and Ryan J
Date:  9 February 2010
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is a Crown appeal against the adequacy of the sentence imposed on the respondent.  We do not propose to recite the facts and history of the matter.  That is well and truly covered in the appeal papers and in the arguments that counsel for the Crown addressed. 

1. As far as Mr Price is concerned, it is true that he obtained the benefit of a favourable finding from the learned sentencing judge, which others might not have agreed with, particularly as to remorse.  The fact that he achieved a situation where he suddenly remembered that he had committed this first offence and was therefore remorseful for having done it might have struck a cynical mind as being somewhat artificial but her Honour did so find, and Mr Price is entitled to the benefit of that more benign finding than others might have made.  He also got the benefit of a less adverse interpretation of the victim impact statement than it might otherwise have been given.  Again he was entitled to that benefit. 

1. His efforts at rehabilitation were also found to be in his favour though there seems to be no dispute about that aspect of the matter.  Otherwise, for all offences which were committed jointly with himself and Mr Mazeika there was little difference between their participation in those offences and they would ordinarily be treated on a par with each other in respect of those offences.  However, her Honour seems to accept that the offences committed by Mr Mazeika were committed by a person with a more extensive criminal history than Mr Price and she does not reject the proposition that Mr Price was influenced by Mr Mazeika in committing those offences.  Although her Honour did not express that positively it does seem that she proceeded upon that hypothesis which is one that would not be unreasonable. 

1. As against that, Mr Price, of course, pleaded guilty at a relatively early stage to all offences except the first. 

1. Mr Mazeika would therefore have attracted, had all other things been equal, a significantly higher sentence, not only for being the more experienced offender but also for the additional armed robbery which he had committed on his own and without any participation by Mr Price.  He would, of course, have attracted leniency and considerable leniency for his co-operation and remorse and for his efforts at rehabilitation. 

1. The real complaint made by the Crown, it seems to us, is a lack of parity favouring Mr Price.  In considering that proposition it may be noted that Mr Price, at the time of sentencing, had served eight months in full-time custody and Mr Mazeika only two.  Mr Mazeika, however, did have 24 months of periodic detention compared with a good behaviour order for two years imposed upon Mr Price.  The portion of the sentence remaining suspended on terms of being of good behaviour were, in the case of Mr Price, 15 months and, the case of Mr Mazeika, two years and one month. 

1. Having regard to those matters, and particularly the additional armed robbery committed by Mr Mazeika, we cannot find it possible to say that the two sentences are not within range of each other having regard to all those factors and we are not persuaded there is a demonstrated lack of parity.  Additionally, one has to bear in mind that this is a Crown appeal and there does need to be a sense of restraint in approaching the outcome and result of that. 

1. In short, we are not satisfied that the Crown has made out a case for interfering with the sentence imposed by her Honour, though it may be remarked, and reasonably so, that it was towards the lower end of the scale. 

1. For those reasons we would dismiss the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:    23 February 2010

Counsel for the Appellant:  Mr J White
Solicitor for the Appellant:  Director of Public Prosecutions for the ACT
Counsel for the Respondent:  Ms T Warwick
Solicitor for the Respondent:  S & T Lawyers
Date of hearing:  9 February 2010
Date of judgment:  9 February 2010