R v Walton; R v Scorah

[2009] NSWCCA 243

New South Wales
Court of Criminal Appeal

CITATION:	R v Walton; R v Scorah [2009] NSWCCA 243
HEARING DATE(S):	17 June 2009
JUDGMENT DATE:	22 September 2009
JUDGMENT OF:	Young JA at 1; Johnson J at 2; Latham J at 3
DECISION:	1. In the applications for leave to appeal by Carl Walton and Kevin Scorah, leave is granted in each case. 2. In each case the appeals are dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - robbery in company and steal from the person - whether parity with juvenile co-offender - whether sentences manifestly excessive - partial accumulation warranted where offences committed against separate victims.
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Ersman v R [2007] NSWCCA 161 R v Tran [2004] NSWCCA 6 R v Boney [2001] NSWCCA 432 R v Palmer [2005] NSWCCA 349 R v Cage [2006] NSWCCA 304 R v Henry & Ors. [1999] NSWCCA 111 ; (1999) 46 NSWLR 346 ; (1999) 106 A Crim R 149) R v Cahyadi v R [2007] NSWCCA 1 Regina v Dunn [2004] NSWCCA 41 R v KM [2004] NSWCCA 65 R v Wilson [2005] NSWCCA 219 R v XX [2009] NSWCCA 115 R v Goundar [2001] NSWCCA 198 ; 127 A Crim R 331 R v Mitchell & Gallagher [2007] NSWCCA 296 ; 177 A Crim R 94 R v Wright [2009] NSWCCA 3.
PARTIES:	Carl Phillip Walton - (Applicant) Kevin Scorah - (Applicant) Regina - (Crown)
FILE NUMBER(S):	CCA 2007/7782; 2007/8208
COUNSEL:	A Haesler SC - (Applicant) (Walton) CT Loukas - (Applicant) (Scorah) J Dwyer - (Crown)
SOLICITORS:	Steve O'Connor - (Applicant) (Walton) Steve O'Connor - (Applicant) (Scorah) S Kavanagh - Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/41/0024 and 2007/41/0138
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	13 August 2008

2007/7782
2007/8208

YOUNG JA
JOHNSON J
LATHAM J

22 SEPTEMBER 2009
CARL PHILLIP WALTON v REGINA
KEVIN JAMES SCORAH v REGINA
Judgment

1 YOUNG JA : I agree with Latham J

2 JOHNSON J : I agree with Latham J.

3 LATHAM J : The applicants each seek leave to appeal against sentences imposed by Goldring DCJ (the Judge) on 13 August 2008 in respect of a number of offences committed on 2 December 2006. Each applicant was sentenced for steal from the person and robbery in company, carrying maximum penalties of 14 years and 20 years respectively. The applicant Walton was also sentenced for affray, carrying a maximum penalty of 10 years imprisonment.

4 The sentences were imposed following the applicants’ conviction on 2 June 2008 after a trial lasting several days. On the second day of their joint trial, the applicant Walton pleaded guilty to the affray offence.

5 The applicants received the same sentence for the offence of steal from the person, namely a non parole period of one year and 6 months, with a balance of term of one year. Walton received a sentence of 6 years for the robbery in company offence, comprising a non parole period of 3 years. Scorah received a sentence of 5 years for the robbery in company offence, comprising a non parole period of 3 years. The applicant Walton received a sentence of 8 months for the affray.

6 A degree of accumulation resulted in an aggregate sentence of 7 years and 5 months, with an aggregate non parole period of 4 years and 5 months in respect of the applicant Walton. Scorah’s aggregate non parole period is one of 4 years, with a balance of term of 2 years.

7 The applicants contend that the sentences individually and collectively are manifestly excessive and that the principles of parity are engaged when one has regard to the sentence imposed upon Walton’s brother, AW, in the Childrens Court. He received concurrent 2 years good behaviour bonds for the same offences of steal from the person and robbery in company.

The Offences

8 The following description of the offences is taken from the Judge’s remarks on sentence. No issue was taken with this summary for the purposes of the appeal.

On 2 December 2006 at about 5 p.m. four young men left the Bellambi hotel, walked east along Bellambi lane and up the ramp to the Bellambi railway station. They had all been drinking in the hotel and were carrying bottles, including a bottle of whisky. From the point they entered the ramp their actions on the station were caught on closed-circuit television. The four were the two offenders, AW, and a fourth man who appears to be called Shane Woodside. ………………..
As they walked up the ramp to the station the four men appear to have a discussion, then they walked in single file along the eastern side of the platform until they reached the entrance to a shelter where the ticket office and ticket machine is situated. MS, then 15 years old, had bought a ticket and was waiting in the shelter. He had seen the four men approaching and was a little apprehensive. He was counting money and had a $20 note in his hand. The four young men walked towards him and one of them took the money from his hand. They then went onto the western side of the platform. MS followed and asked for his money back, but the four men mocked him. MS then left the station and walked east to Pioneer road from where he called the police on a mobile phone. These events constituted the offence of steal from the person.
The four young men then walked south along the platform. At the southern end of the platform a young woman was sitting on an upturned milk crate. The offender Walton kicked the milk crate from under the woman. She stood and walked north along the platform. The offender followed her. He reached the milk crate, picked it up and threw it at her. She avoided it and continued to walk north along the platform. The offender then picked up the milk crate and threw it at her again. These events which were also captured on closed-circuit television constitute the offence of affray to which Mr Walton pleaded guilty at the trial.
The four men then caught a train to Corrimal. Again, some, but not all of their activities were recorded on closed-circuit television. As they walked down the platform towards the exit, AW appeared to kick at the train and lost his footing. A young man with a bicycle, ZG, was following them but when AW fell over, ZG walked around him. The four young men then walked past ZG and left the station. ZG mounted his bicycle and rode it off the platform. On his evidence, and this was not shown on closed-circuit television, he was being jostled by the four young men and placed in a headlock by Carl Walton, who then beckoned to AW. The other man stood in the middle of the road outside the station blocking ZG’s route. ZG became apprehensive, put down his bicycle and took off his bag which he placed on the ground. AW came up to him and knocked him to the ground two or three times. Carl Walton picked up the bicycle and rode off on it. The other offenders, including Kevin Scorah, picked up his bag and removed his watch and other items from it. They also took an Ipod from a pouch on ZG’s belt.
The four men then walked east down Murray Rd. Some of their movements can be seen on the closed-circuit television recording, but the actual assault is obscured. However ZG gave evidence, as did two eyewitnesses. ZG got to his feet and ran after the four men, or three men actually, because Carl Walton had ridden off on the bicycle. They stopped ZG and there was a further fight. ……… I could not be satisfied beyond reasonable doubt that either of the offenders before me took part in that assault. ZG says he was knocked to the ground but cannot say who caused this. As a result ZG suffered lacerations to his face and knee and a chipped tooth. There is no doubt in my mind that there was a robbery immediately ZG left the station and what happened after that is not necessary to find that offence established.
The offenders ran south and through the East Corrimal public school to an area near Towradgi Creek. Scorah and AW were apprehended in this area. Carl Walton was arrested two days later after a search warrant was executed at his parent’s home, and clothing matching that shown on the closed-circuit television recording was found there. These events constituted the offence of robbery in company.

9 During the hearing of the appeal, the Court watched the closed circuit television footage. The narrative of the events constituting the offences took on an added dimension. The behaviour towards the young woman minding her own business on the railway platform, as depicted in the film, was calculated to intimidate and harass. The milk crate was apparently thrown with considerable force and narrowly missed its target. Having seen the footage, as did the jury in the applicants’ trial, I would agree with the Judge’s assessment of the objective gravity of the offences in these terms :-

What makes these offences rather more serious than would otherwise have been the case, is that they were committed in or near railway stations on a summer Saturday afternoon. The public has a right to expect to be able to travel by train without being assaulted and robbed and otherwise put in fear by drunken hooligans. The property involved in this case was not particularly valuable, however three totally different innocent individuals were threatened by behaviour, put in fear and, in the case of Mr Gordon, suffered quite serious physical injuries. There can be little doubt in my view that each victim who gave evidence suffered psychological injury. The robbery offence was vicious and unprovoked. It is aggravated because it involved the use of gratuitous force, which could have endangered the life of the victim. [ZG] himself did not say he was kicked in the head, but an eyewitness said he was, and that is not necessary for a finding of the use of actual or threatened force, that is, the violence which is an essential element of robbery. ……. There is evidence of gratuitous use of force and reckless [dis]regard for human safety, and that is a seriously aggravating factor.

10 It has been submitted that there is some inconsistency between the absence of a finding that the applicants inflicted violence after the robbery offence and the remarks immediately above. However, the context of the latter remarks is clearly the description of the robbery as a joint criminal enterprise. The Judge was entitled to take the infliction of violence into account as a circumstance surrounding the commission of the offence, regardless of the individual role played by each applicant.

The Applicant Walton

11 The applicant Walton was 21 years of age at the time of the offences. He has a number of previous convictions for property offences, affray and offences against public order. His criminal history begins in July 2002, when the applicant received the benefit of three suspended control orders with conditions, including that he be of good behaviour. Those bonds were breached by the commission of further offences in November 2002. The applicant was given a number of control orders, resulting in an aggregate sentence of 15 months with a non parole period of 12 months. In December 2002, the applicant successfully appealed those sentences, allowing for his release in January 2003. Further offences were committed in July 2003 and April 2005. The applicant again received the benefit of suspended sentences. After the commission of the offences the subject of this appeal, the applicant continued to offend.

12 The applicant is the middle child of three children living with his parents. He was expelled from school after completing year 9 and completed one year of a TAFE apprenticeship. He had been working on a casual basis as a labourer since 2004. That position became full time in December 2007. The applicant has a young child from a relationship that ended in mid 2006, when the mother left the child in the care of the applicant and his parents. The child has since been returned to his mother. The applicant’s offending is associated with abuse of alcohol.

13 The applicant was interviewed by a Probation and Parole officer. In that interview, the applicant minimised the offences by claiming that the events surrounding the robbery did not qualify as such and that the young woman on the railway platform was a drug addict and he was demonstrating his disapproval. The closed circuit footage does not support such a contention. Bearing in mind that this interview was for the purposes of sentence, the Judge’s finding that the applicant had good prospects of rehabilitation was a generous one.

Parity Between Walton and AW

14 The applicant’s brother, AW, pleaded guilty in the Children’s Court to two counts of robbery in company. He was placed on two concurrent one year good behaviour bonds under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987. AW was 17 years of age at the time of the commission of these offences. He had no prior criminal history.

15 The Judge found that AW was the most violent of the group and that he had taken a leading role. The Judge went on to note that the applicant was also “deeply involved in the offence, being the person who actually took the money from MS … and the person who put ZG in a headlock.” The Judge was of the view that the sentences imposed upon AW were manifestly inadequate. His Honour went on to observe that the constraints inherent in the application of parity principles to juvenile and adult co-offenders were particularly relevant to the matter before him. For these reasons, his Honour disregarded the sentences imposed upon AW.

16 The applicant does not contend that strict parity applies, but relies upon Ersman v R [2007] NSWCCA 161 and R v Tran [2004] NSWCCA 6 in support of the submission that some consideration should have been given to the sentences imposed upon AW, leading to a “modest reduction” in the corresponding sentences imposed upon the applicant.

17 It must be acknowledged that the sentences imposed upon AW, who was on the threshold of adulthood, were inadequate, if not manifestly so. It was within the Judge’s sentencing discretion to decline to reduce the sentences he was minded to impose upon the applicant, even if he had taken account of the sentences imposed upon AW, as the principles summarised in R v Boney [2001] NSWCCA 432 make clear. The applicant has not demonstrated that the Judge’s failure to have regard to the sentences imposed upon AW amounts to an error that would have necessarily affected the outcome to his detriment.

Whether the Sentences Imposed upon Walton are Manifestly Excessive.

18 The applicant’s submissions acknowledge that the sentence of 2 years and 6 months for the offence of steal from the person is not an uncommon sentence, according to the JIRS statistics. The real complaint is that the objective circumstances of this offence were relatively trivial and that, disregarding the applicant’s subjective circumstances, a lesser sentence was warranted.

19 The applicant does not point to any material error on the part of the Judge capable of triggering a re-sentencing exercise by this Court. The submission really amounts to a contention that a different court might well have reached a different result. That is not a proper basis for setting aside a sentence that has been regularly imposed in the exercise of a broad sentencing discretion.

20 In respect of the sentence imposed for the offence of affray, the applicant relies upon the fact that summary disposition was the most likely outcome, had this offence not been caught up with related, more serious offences. It is then said that the sentencing pattern in the Local Court for this offence is of relevance and that, according to that pattern, a sentence of 8 months imprisonment is manifestly excessive. This submission is maintained, notwithstanding that the sentence for affray was made wholly concurrent with the sentences imposed for the other offences.

21 The applicant relies upon R v Palmer [2005] NSWCCA 349. The principles collected therein by Hall J, with whom Grove J and Smart AJ agreed, include a reference to the fact that the significance of the loss of the chance of a matter being dealt with in the Local Court varies from case to case. It is also of relevance that in Palmer, all the offences ultimately dealt with in the District Court were capable of summary disposition. That is not the position here. The affray was never likely to be subject to summary disposition, given that the offence of robbery in company was indictable.

22 The more apposite observations in the circumstances of this case are those in R v Cage [2006] NSWCCA 304, wherein I said (Hunt AJA and Johnson J agreeing) :-

28 In R v Gent [2005] NSWCCA 370, Johnson J. reviewed the principles relevant to the sentencing of an offender in the District Court where summary disposition of the charges was available. Following references to R v Crombie [1999] NSWCCA 297 at paragraphs 15 to 16 and R v El Masri [2005] NSWCCA 167 at paragraph 29, Johnson J. concluded (at par 84) that "the principles in Crombie and El Masri have particular application with respect to .... offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge." In those circumstances, "the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court."

23 The only submission made to the Judge by this applicant’s legal representative was that there should be no additional penalty for the affray offence, given that it was part of a course of criminal conduct of much greater gravity. That submission was accepted and was reflected in the result. Once the applicant was convicted of the affray, he stood to be sentenced on the basis that the offence carries a 10 year maximum penalty. A sentence of 8 months imprisonment was entirely appropriate to the objective and subjective circumstances of this offence. The applicant’s complaint in this Court has no substance.

24 The applicant’s submissions in respect of the sentence for the offence of robbery in company assert that the Judge “appears to have simply oscillated around the Henry guideline figure.” The Crown submits that there is nothing in the remarks or the transcript of the sentencing submissions that could support such a conclusion. It is also submitted that the Judge erred in noting that “the Henry decision applied to cases where there was an early plea of guilty.” (See R v Henry & Ors. [1999] NSWCCA 111 ; (1999) 46 NSWLR 346 ; (1999) 106 A Crim R 149) The Crown acknowledges that this is an error, but maintains that no lesser sentence is warranted.

25 Taking the latter error first, it is not difficult to discern how that comment may have affected the Judge’s determination of the sentence for this offence. If the Judge was wrongly of the view that the Henry guideline posited a sentence of 4 to 5 years in circumstances where an offender is now nominally entitled to a discount of 25%, then his Honour may well have notionally increased the sentence to allow for the conviction after trial. However, an exchange between the Judge and the applicant’s legal representative during sentencing submissions on 7 August 2008, during which the Henry guideline was discussed in terms of its application to a plea of guilty simpliciter, suggests that the Judge had already formed the impression that the offence was “more serious than the Henry situation .. ,but not much more so.”

26 The extent of the Judge’s remarks on this topic were :-

The offence of stealing from the person is part of a group of offences dealt with in the same part of the Crimes Act . It is, even when committed in aggravated circumstances, less serious than the offence of robbery, because actual or threatened violence is not an element. The offence of robbery in company, however, is very serious and falls within the scope of the guideline established by the Court of Criminal Appeal in the case of Henry . It must be remembered that the Henry decision applied to cases in which there was an early plea of guilty. In that case the court pointed to a number of factors which courts should consider, and in this case the victims were in each case a single person facing a group of four young men. In the case of the robbery of ZG there was gratuitous violence and actual injury, and that in itself takes it slightly outside the range of sentences which the court discussed in Henry .

27 The last sentence in this passage supports the conclusion that his Honour’s reference to “an early plea of guilty” did not significantly affect the sentencing outcome. The fact remains that the applicant went to trial. It was open to his Honour to impose a sentence above the generally appropriate sentence (4 to 5 years) that was applicable to an offence, absent the infliction of violence, to which there had been a plea of guilty. In taking account of these factors, the Judge was not “oscillating” around the Henry guideline.

28 It remains to consider whether the aggregate sentence is manifestly excessive.

Whether the Aggregate Sentence Imposed on Walton is Manifestly Excessive

29 The applicant’s submissions on this ground rely primarily upon the commission of the offences as part of a “single episode of criminality … separated only by the short train ride from Bellambi to Corrimal.” It is said that where such offences share certain factors, “it is more likely that the sentence for one of the offences will reflect the criminality of both” : R v Cahyadi v R [2007] NSWCCA 1 at [27]. The elements common to the offences were not articulated, but I assume the applicant is referring to the fact that two of the offences involved the theft of property whilst the applicant was in the company of the same persons.

30 The context of the remark quoted above is :-

In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

31 For my part, I cannot see how the sentence imposed for any of the three offences adequately comprehends and reflects the criminality inherent in any other of those offences, given that each offence was committed against a separate victim. They were “discrete and independent criminal acts” in that sense. The totality of the applicant’s criminality could not be reflected without partial accumulation : see Regina v Dunn [2004] NSWCCA 41 at [50] ; R v KM [2004] NSWCCA 65 ; R v Wilson [2005] NSWCCA 219, where it was noted that the closeness in time and proximity of two offences will often not be determinative factors and that, having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, "... to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims ..." per Simpson J at [38], referred to with approval in R v XX [2009] NSWCCA 115.

32 The real question is whether a sentence of 7 years and 4 months is a manifestly excessive representation of the applicant’s overall criminality. I do not think that it is. These were discrete offences that put members of the community using public transport in fear for their safety. The applicant’s remorse was limited and his subjective case was not wholly favourable. I would reject this ground of the appeal.

The Applicant Scorah

33 This applicant was 25 years of age at the time of the commission of the offences. This applicant had a criminal history beginning in 2000 consisting primarily of property offences at a summary level. Apart from serving a four months prison term, the applicant received the benefit of bonds, fines and community service orders for these offences. On 14 March 2005 the applicant entered a bond to be of good behaviour for two years. The instant offences represent breaches of this bond. The applicant has a dependency on alcohol that has contributed to his offending. The pre-sentence report indicated that the applicant’s past response to supervision had been generally unsatisfactory.

34 Mr Scorah’s former partner gave birth to a daughter in July 2007. He reportedly has a good relationship with the child and her mother, both of whom reside in Sydney. Mr Scorah left school before completing Year 9 due to his disruptive behaviour in class and has been employed as a welder. He was unemployed at the time of the offences. He was not an associate of his co-offenders, but had come into their company on the day of the offences at the hotel where they were drinking.

35 Mr Scorah continued to deny responsibility for the offences after his conviction. The video footage depicted this applicant as part of the group, although the Judge found that there was no evidence that he inflicted any physical violence. The applicant took property from ZG and from that victim’s bag.

Parity, and Manifest Excess

36 This applicant’s submissions on these grounds were identical to those of the applicant Walton and should be rejected for the same reasons. Additionally, it is said on behalf of the applicant that there were clear and significant distinctions between the role of Mr Walton in the offences and that of the applicant, that should have resulted in a more marked difference in the penalties imposed.

37 The applicant refers to R v Goundar [2001] NSWCCA 198 ; 127 A Crim R 331, where Wood CJ at CL held that an aider and abettor is not necessarily less culpable than the principal in the first degree, and that the level of involvement of such an offender must be judged by the facts of the case at hand. Similar observations have been made in relation to offenders as parties to a joint criminal enterprise. In R v Mitchell & Gallagher [2007] NSWCCA 296 ; 177 A Crim R 94, Howie J (with whom Giles JA and Fullerton J agreed) commented that some differentiation in the sentence imposed, albeit not substantial, may be warranted where the criminality of one offender is lesser than that of a co-offender in a joint criminal enterprise. To like effect is the decision of R v Wright [2009] NSWCCA 3.

38 It may be accepted that Mr Walton’s criminality was greater than Mr Scorah’s, in that the former took the money from MS and held ZG in a headlock, before AW punched him. However, I do not regard the differentiation to be so great. The facts as related by the Judge during the remarks on sentence included references to ZG being jostled “by the four young men” before ZG was restrained by Carl Walton. After ZG was knocked to the ground by AW, this applicant, AW and a co-offender picked up the bag and rifled through it. It is often the case that participants to a joint criminal enterprise such as this assume different roles. The restraint and assault of the victim allows a co-offender to obtain access to the victim’s property. However one dissects the respective acts committed by each participant, it must not be overlooked that it is precisely because of the presentation of the combined force of a number of people, each of whom act in concert with the others, that the victim is subdued.

39 In any event, the Judge explicitly referred to those features of the offences that differentiated this applicant from Mr Walton. The applicant’s complaint is not that the differentiation was not recognised, but that it was insufficiently reflected in the sentences imposed. I do not agree. A sentence of 5 years for the robbery in company was wholly within the Judge’s sentencing discretion, particularly given its commission whilst on conditional liberty and absent the benefit that would have flowed from a plea of guilty.

40 There is no substance to these grounds. The orders I propose are :-

1. In the applications for leave to appeal by Carl Walton and Kevin Scorah, leave is granted in each case.

2. In each case the appeals are dismissed.

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