Ramos v R

[2015] NSWCCA 313

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ramos v R [2015] NSWCCA 313

Hearing dates:

9 October 2015

Decision date:

09 December 2015

Before:

Basten JA at [1];
Campbell J at [72];
Button J at [81]

Decision:

(1)   Grant the applicant leave to appeal with respect to the sentence for the murder imposed by Johnson J on 11 December 2012.

 

(2)   Set aside the sentence imposed for the murder and in place thereof sentence the applicant for the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, to imprisonment comprising a non-parole period of 10 years, commencing on 22 July 2012 and expiring on 21 July 2022, with a balance of term of 4 years and 3 months commencing on 22 July 2022 and expiring on 21 October 2026.

 (3)   The earliest date on which the applicant will be eligible for release on parole is 21 July 2022.

Catchwords:

CRIMINAL LAW – sentence appeal – murder – sentencing on the basis of participation in extended joint criminal enterprise – appellant a getaway driver not present at the scene of murder – whether sentencing judge properly assessed the culpability of driver – assessment of objective seriousness of the offending – whether assessment of objective seriousness of offending within the range properly available to sentencing judge – comparison of sentences between co-offenders – whether proper effect given to principle of parity – relevance of young age and no antecedents to finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A; Table, item 1
Criminal Appeal Act 1912 (NSW), ss 5D, 6

Cases Cited:

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499
Kaminic v R [2014] NSWCCA 116
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v GWM [2012] NSWCCA 240
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Kaliti [2001] NSWCCA 268; 34 MVR 160
Regina v Kama [2000] NSWCCA 23; 110 A Crim R 47
Regina v KB; Regina v JL; Regina v RJB [2011] NSWCCA 190
Sabongi v R [2015] NSWCCA 25
Siganto v The Queen [1998] HCA 74; 194 CLR 656
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

David Ramos (Applicant)
The Queen (Director of Public Prosecutions) (Respondent)

Representation:

Counsel:
Mr T Game SC (Applicant)
Ms T Smith (Respondent)

  Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/244305

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2012] NSWSC 1527

Date of Decision:

11 December 2012

Before:

Johnson J

File Number(s):

2010/244305

Judgment

1. BASTEN JA: The applicant, David Joshua Ramos, was sentenced on 11 December 2012 for various offences, to each of which he had entered a plea of guilty, resulting in a non-parole period of 14 years with a balance of term of five years. The applicant was one of three co-offenders sentenced together by Johnson J in the Common Law Division. [1] The most serious offence was one of murder. The application for leave to appeal was directed primarily to the sentence imposed for that offence.

   1. R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527.

2. The sentence for murder involved a non-parole period of 12 years, commencing on 22 July 2012 with a balance of term of five years, giving an overall sentence of 17 years imprisonment. The applicant did not participate in the physical attack on the deceased; rather, he was the driver of a vehicle which transported those directly involved in the assault to the premises where the assault took place and drove them away after the event. The combination of a lengthy sentence and the room for debate as to an appropriate sentence for murder where culpability is based on circumstances commonly referred to as “extended joint criminal enterprise” warrant a grant of leave to appeal. For the reasons explained below, the appeal should be allowed.

Factual background

3. The factual circumstances relating to the applicant’s offences have been carefully set out in the judgment of the sentencing judge and need not be repeated, except to the extent necessary to address the issues raised on the appeal.

4. The primary sources are twofold. First, there was an agreed statement of facts with respect to the applicant tendered at his committal for sentence on 4 July 2012. One difficulty in using that statement is that, while it is clear that many of the events and conversations took place when the applicant was not present, the statement did not make clear precisely what the applicant knew as to those events and conversations. The second source of information was evidence given by the applicant at the hearing on sentence on 30 and 31 October 2012.

5. The offending in which the applicant was involved occurred between 29 June 2010 and 2 July 2010. The applicant was arrested on 22 July 2010. The activities were carried out by a group who called themselves the United Brotherhood, most of whom were young men in their early twenties or, in two cases under 18 and in the case of the applicant a few months over 18. The leader of the group, John Khoury was 29 years at the time of the offences. The modus operandi of the group appeared to be carrying out home invasions of persons believed to have drugs or significant sums of money on their premises. One of the group was Richard Vergara who was a friend of the applicant and a co-offender, known as MA. The applicant and MA were also friends, the applicant having been at the same school as MA, but a year ahead of him. The members of the group referred to Khoury’s home as “the compound”, as did the applicant in his evidence. At the time that the applicant was recruited to join in the activities of the group, he was allowed to drive a Toyota Tarago which belonged to his father.

6. On Tuesday, 29 June 2010 Khoury and his lieutenants, Ray Tuki, Mohammad Karimi and Anaterea Tamapua, planned a home invasion at premises owned by the uncle of an ex-girlfriend of Khoury. The purpose was to steal firearms held in a safe in the uncle’s home in Lakemba, including a Desert Eagle, two Berettas and a Glock. Tamapua identified the applicant and Vergara as persons present at the meeting at the compound when Khoury gave the group a large serrated machete and a sawn-off .22 calibre rifle for the invasion. Two vehicles were taken, the applicant carrying five members of the group, while Tamapua went with Khoury and his then girlfriend. Vergara had the rifle, which was loaded. Four members of the group approached the house, one of the others having the machete and a third carrying a bag for the proceeds of the proposed robbery. However, the robbery did not proceed because, as Vergara told Karimi, “there were three boys and two girls in the house and they thought they were outnumbered.” They were sent back by Karimi, but the occupants had apparently left the house and the home invasion was abandoned for a second time. These events were the subject of a charge of conspiracy to rob whilst armed with a dangerous weapon included on a Form 1 and taken into account in sentencing the applicant on the murder charge.

7. On returning to the compound, the group was then directed to go to an address in Ashcroft, being a residence occupied by a married couple and their teenage children. When the male occupant, James Stiff, opened the door, he was immediately assaulted by Vergara with a machete. When Stiff put up his left arm to protect himself he received a deep cut to the forearm and started to bleed profusely. The robbery netted 7 grams of cannabis and a school computer stolen from one of the children.

8. When giving evidence at the sentencing hearing about the events at Ashcroft, the applicant’s counsel asked him, “You knew the men were armed with machetes?”, to which the applicant answered “Yep.” [2] Further, the agreed facts stated: [3]

“As they drove back to the compound, Vergara smiled and laughed when he told the others in Ramos’ Tarago how he ‘chopped’ the male victim in the arm.”

2.    Tcpt, 30/10/12, p 107(25).

3.    Agreed statement of facts, par 3.18.

9. The events at Ashcroft were the subject of a charge of specially aggravated break, enter and steal, for which the applicant was sentenced to four years imprisonment, with a non-parole period of three years to commence from the date of his arrest, namely 22 July 2010.

10. Khoury ran a business, involving the sale of mobile phones and various accessories and implements. On the day after the Ashcroft offence, 30 June 2010, a group including the applicant met at Khoury’s shop to discuss plans for further home invasions. Ramos and MA collected Tamapua and Vergara in the Tarago and went to Khoury’s shop in Chester Hill. Two female members of the group left the premises but became involved in a confrontation with two males. Tamapua and other members of the group confronted the males and a brawl eventuated. Police then went to Khoury’s shop and arrested a number of persons in the shop, including the applicant. He said they were taken to Bankstown Police Station. [4] On being released, they went to the compound, where the rifle was taken from a cupboard, cleaned and handled by members of the group.

    4.    Tcpt, p 110(10).

11. The next offence was planned for 1 July 2010 involving premises at Warwick Farm. Vergara arranged for the applicant (who appeared to have been expecting the call) to go to the compound with the Tarago. The group congregated at Khoury’s shop shortly before 10pm. After the applicant and MA arrived at the shop, four members of the group were allocated to carry out the offences, with the applicant as the driver and Tamapua and Karimi going along to identify the address and oversee the job. Each of the four members were given an Elephant brand meat cleaver as a weapon. They then went to an address in Warwick Farm where a drug dealer known as “beanie boy” was believed to live. The four men with the weapons were told to go and scare him a bit and take whatever drugs he had. The men entered a unit occupied by a mother with two daughters who were threatened with the meat cleavers. The men demanded drugs, but obtained nothing, except a laptop computer which they stole. (The intended victim lived in the unit next door.)

12. The applicant was charged in respect of this offence with robbery whilst armed with an offensive weapon, being sentenced to 5.5 years imprisonment with a non-parole period of four years.

13. On the same night, the group went to Lurnea to commit a second home invasion which had been planned at the same time as the Warwick Farm job. With the applicant driving, they went first to an address in Granville to find out the address of the proposed victim, another dealer in cannabis.

14. The premises at Lurnea were occupied by Tracey Burgess (who was 47 years of age), Kesley Burgess (25 years) and his girlfriend, and another male aged 56 years. Ms Burgess’ second son and intended victim, Jacob Burgess (20 years) was not at home. When a member of the group knocked on the door, the male friend, thinking that it was Jacob, opened the latch, at which point one of the men flung the door open, knocking the male over; four of the group then entered the home.

15. Seeing four men enter the home with large meat cleavers, Tracey Burgess ran to her son’s bedroom and asked him to let her in. She was chased by a co-offender identified as Tomasi Natuba. Natuba threatened Tracey Burgess with a meat cleaver, demanding drugs and cash. At one point he swung the weapon at her; it glanced off the palm of her hand before the weapon wedged in the laundry door. Natuba pulled the meat cleaver free and started smashing items on bookshelves in the hallway. Kesley Burgess armed himself with a large kitchen knife and lunged at Natuba, stabbing him in the shoulder. Other members of the group then attacked Kesley Burgess; one of the co-offenders, Byquar, struck his own foot, causing a deep gash. Kesley Burgess was viciously attacked, suffering eight incised wounds, to his lower left forearm, his left wrist and right wrist (each of which severed arteries), his left calf (also causing arterial damage), his left mid-thigh and both buttocks. He died in hospital as a consequence of the loss of blood at about 9.15pm on 2 July 2010.

16. Before the men left, Tracey Burgess threw a tin containing a small amount of cannabis at one of the males, while another grabbed her handbag which contained her wallet and other personal effects. MA, Byquar and Natuba got into the applicant’s Tarago. The group reassembled some time later at Khoury’s shop.

17. The applicant and Vergara then drove Natuba to Bankstown Hospital for him to get medical treatment for his wounded shoulder. They devised a story that he would tell the police that he had been “jumped” in Bankstown and had rung his mate (the applicant) to come and take him to hospital. He made a call to the applicant’s phone number to support the story. After being told that the police had arrived at the hospital, the applicant and Vergara were directed to return to Khoury’s shop. The applicant dropped four members of the group at separate addresses.

18. The events at Lurnea and the death of Kesley Burgess were the subject of the charge of murder. The events of that evening also gave rise to a charge of robbery whilst armed with an offensive weapon, an offense which was contained on the Form 1 and taken into account with respect to the conviction for murder.

Grounds of appeal

19. The applicant was sentenced by Johnson J on 11 December 2012. The grounds of appeal appear in an application for leave to appeal filed on 27 May 2015. The delay of some 2.5 years was not explained, but it appears that the applicant obtained the benefit of numerous extensions of time to permit the application to be brought. There were two grounds of appeal identified in the notice, namely:

1. His Honour erred in his assessment of the applicant’s objective culpability. In the alternative, his Honour failed to give proper effect to the parity principle when sentencing the applicant having regard to the sentences imposed on MA and Byquar for the offence of murder.

2. His Honour erred in failing to give proper effect to his finding of special circumstances.

20. The first element of the first ground relied upon the fact that the applicant was the driver, whereas the two co-offenders sentenced with him had entered the Burgess house and one (Byquar) had inflicted wounds on the deceased. The second element of the first ground required a comparison of the sentences imposed on each offender charged with the murder.

21. Whereas the sentences for each of the other offences reflected participation in a joint criminal enterprise, the attack resulting in death, although foreseen by the applicant as a possible consequence of the joint criminal enterprise, was not within the criminal purpose. On the other hand, because Byquar actually inflicted serious harm on the victim his liability for murder was that of a principal.

22. The second ground raises a more limited issue relating to the relationship between the non-parole period and the balance of term. While a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure)Act1999 (NSW) (“the Sentencing Procedure Act”) allows the court to reduce the non-parole period so as to increase the balance of term beyond the proportion permitted by the section, the exercise must be undertaken for the purpose of allowing a longer period of supervised release. That purpose will be based on considerations specific to the individual.

Sentences imposed and conduct of each offender

23. To consider how these matters should properly have affected the sentencing of the applicant, it is necessary to identify the sentences imposed on MA and Byquar. Each entered a plea of guilty to the charge of murder and each received a 25% discount for the plea. Each also obtained the benefit of a finding of special circumstances for the purpose of s 44. As has been noted, the applicant was sentenced to 17 years with a non-parole period of 12 years. MA was sentenced to imprisonment for 20 years with a non-parole period of 14 years. Byquar was sentenced to imprisonment for 23 years with a non-parole period of 16 years.

24. A further method of comparison involved looking at the undiscounted starting point of each sentence which was, in the case of Byquar, 30 years 8 months (with a non-parole period of 21 years 4 months); in the case of MA, 26 years 8 months (with a non-parole period of 18 years 8 months) and in the case of the applicant, 22 years 8 months (with a non-parole period of 16 years). Not being an adult at the time of the offending, MA was not subject to a standard non-parole period; in the case of the others, the standard non-parole period was 20 years. [5] The disparities may thus be identified as three year steps with respect to the total sentence and two year steps with respect to the non-parole period which, in each case, constituted approximately 70% of the total sentence. The disparities appear greater if regard is had to the undiscounted starting points for each sentence: the sentences, in the same order, decrease by steps of four years and, with respect to the non-parole periods, two years nine months.

    5. Sentencing Procedure Act, s 54A and Table, item 1.

25. In considering the roles played by MA and Byquar in the events at the Burgess home, two principal circumstances were identified. First, each entered the home with a meat cleaver; secondly, while Byquar was actively involved in striking the deceased from behind, MA did not use his meat cleaver to attack. On the other hand, the sentencing judge found that MA “willingly participated in the offence” and did nothing “to suggest withdrawal from the house or desisting from any attack or continued attack upon Kesley Burgess by others.”[6] Of the applicant, the sentencing judge stated:[7]

“Ramos did not enter the premises of any home invaded by his co-offenders. He did not see them in action inside the houses. However, he heard what was said as his co-offenders emerged from the premises on each occasion, and he was aware of the distribution of meat cleavers for use in the crimes. He saw bloodied persons and items leaving the Burgess house. He nevertheless continued his assistance to his co-offenders.”

6. R v MA at [229].

7. R v MA at [235].

26. The reference to hearing what his co-offenders had said included, following the Ashcroft offence, Vergara boasting about chopping one of the victims. Although MA clearly had an opportunity to withdraw, or intervene to stop the attack, when the joint enterprise escalated to a vicious attack on Kesley Burgess, the applicant had no such opportunity, not being in the house or knowing what was occurring. On the other hand, the judge recounted MA’s agreed admission, “I saw someone get hacked last night … I seen it happen in front of me. I was in shock”. [8] Thus, in a practical sense MA’s opportunity to withdraw was limited.

    8. R v MA at [99].

27. Before turning to the personal circumstances of each offender, a factor relevant to the comparison between the sentences imposed, it is convenient to identify the principles which may be applied in assessing the objective elements of the offence of murder, as it affected each offender.

Joint enterprise liability

28. In considering the position of individuals involved in a joint criminal enterprise, it is important to distinguish between responsibility and culpability. The law imposes responsibility where the accused has a particular state of mind and undertakes particular acts; culpability is an assessment of moral blameworthiness. If, in a moral sense, the accused is not seen to be blameworthy (or sufficiently blameworthy to be guilty of a particular crime) that may provide a basis for criticising the level of responsibility imposed by the criminal law. However, it is not a reason for the sentencing court to impose a sentence appropriate to a lesser offence than that for which the offender was, it must be accepted, properly convicted.

28. That is not to say that moral blameworthiness (culpability) is not relevant to sentencing; it is central to that exercise. Nevertheless, the limits on the sentencing discretion are imposed by the offence for which the person has been convicted.

29. This reasoning is important in a case such as the present where the offender is convicted of murder, but based on the principles of extended joint criminal enterprise. However far, physically and in terms of awareness, the offender may have been removed from the act of killing, the law says that he or she is responsible for it. That leads to a dilemma: the law prescribes a maximum penalty for murder (life imprisonment) and, in the case of the applicant, a standard non-parole period (20 years). Because of the broad range of circumstances that can result in a conviction for murder, it is by no means easy to characterise where particular circumstances fall on a scale of culpability; nor is it easy to assess culpability where the law ascribes to the offender’s conduct a particular level of criminality, namely, in this case, murder.

30. Indeed, the term “culpability” refers to only part of the sentencing process. As explained by Gibbs CJ in Lowe v The Queen:[9]

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”

Objective seriousness of applicant’s conduct

9. (1984) 154 CLR 606 at 609.

(a)   principles of appellate review

32. The first complaint raised on the appeal was a challenge to the assessment by the sentencing judge of the objective seriousness of the applicant’s conduct.

33. Section 6(3) of the Criminal Appeal Act 1912 (NSW) provides that if the court is of opinion that “some other sentence, whether more or less severe is warranted in law and should have been passed” it is obliged to quash the sentence and pass such other sentence. Although the power conferred on the court by s 6(3) is stated succinctly and in neutral terms, a constrained approach has generally been followed with respect to some aspects of the sentencing process. Because, following the decision in the High Court of Carroll v The Queen, [10] there has been discussion in this Court as to the proper course to be taken in considering a challenge to the characterisation adopted by the sentencing judge of the objective seriousness of the offender’s conduct,[11] it is convenient to restate the relevant principles.

    10. [2009] HCA 13; 83 ALJR 579.

    11. See Kaminic v R [2014] NSWCCA 116 at [2]-[8] (Ward JA), [46]-[48] (Fullerton J) and [78]-[86], [89] (Hamill J) (presently restricted); Sabongi v R [2015] NSWCCA 25 at [70]-[72] (Hamill J, Hoeben CJ at CL and Johnson J agreeing).

34. Section 6(3) is silent as to whether the appellate court is required to identify error and, if so as to the kind of error which is sufficient to warrant intervention. However, with respect to a judicial function requiring an evaluative assessment of the culpability of an offender and the characterisation of the conduct constituting the offence, the court should only interfere in accordance with the principles established almost 80 years ago in House v The King. [12] That case requires the establishment of error, including any error of law, or mistaking the facts. In language which foreshadowed that used in relation to legal error of an administrative decision in the absence of reasons,[13] the Court recognised that even if the error did not appear in the judgment, “if upon the facts [the result] is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”

    12. (1936) 55 CLR 499 at 504-505.

    13. Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

35. Where, as in this case, comprehensive reasons have been given, this last principle is unlikely to be engaged. Thus, if error is to be identified in the present case, it should be possible to point to some aspect of the reasoning of the sentencing judge, including by way of omission, reflecting error.

36. On the other hand, it may be said that characterisation of the objective seriousness of the offending, being an evaluative judgment, is not readily explained or justified by a precise reasoning process. As explained by Spigelman CJ in Mulato v Regina, [14] the question for the appellate court must be whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open. In the same case, Simpson J noted that such an assessment was “reviewable in this Court only on the principle stated in House v The King”. [15] That proposition is not to be doubted; however, Simpson J further suggested that the principle of constraint was based on what were correctly identified as the separate roles of the first instance judge and the appellate court.

    14. [2006] NSWCCA 282 at [37].

    15. Mulato at [46].

37. These statements of the principle of restraint were repeated by Bathurst CJ in Regina v KB, [16] continuing at [53]:

“This is particularly so in the case of an offence of this nature which can occur in a very wide variety of different circumstances. That is not to say that appellate courts should not intervene once they have reached a concluded view that the sentencing judge was in error in his or her assessment of the objective seriousness of the offence. However, the approach in Mulato …, emphasises the need for caution in reaching such a view and the importance of paying due regard to the opinion of the sentencing judge.”

16. Regina v KB; Regina v JL; Regina v RJB [2011] NSWCCA 190 at [52] (with the agreement Buddin and Harrison JJ).

38. The question raised in recent authority is whether the constrained approach adopted in Mulato and cases referring to it is consistent with the following proposition stated in Carroll at [24]:

“In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood.”

39. There is, however, no reason to suppose that this language intended any departure from established principle. Carroll involved an appeal by the Director of Public Prosecutions against the leniency of a sentence, on the single ground of manifest inadequacy. As the High Court stated at [4]:

“The determinative issue in this Court is whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate. The division of opinion in the Court of Criminal Appeal on that question hinged about differing assessments of the objective gravity of the offence. And, of course, the adequacy of the sentence passed on the appellant could not be determined without close attention to that issue.”

40. After setting out the statutory provision relevant to a prosecution appeal (s 5D(1) of the Criminal Appeal Act), the joint judgment continued at [7]:

“It has long been established[17] that ‘[i]nadequacy of sentence, an expression not found in the Criminal Appeal Act ... is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed’. [18] Rather, as pointed out in Dinsdale v The Queen, [19] error must first be identified by the appellate court. And as was held in House v The King,[20] an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles.”

17. Whittaker v The King (1928) 41 CLR 230 at 248-249; Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; Everett v The Queen (1994) 181 CLR 295 at 299-300, 306; Dinsdale v The Queen (2000) 202 CLR 321.

18. Griffiths (1977) 137 CLR 293 at 310.

19.    Dinsdale at [6]-[9], [24], [57]-[61].

20.    House at 504-505.

41. Although in Carroll the error on the part of the Court of Criminal Appeal was intervening in respect of findings of fact which had not been challenged on appeal, there can be no doubt that the principles to be applied were those laid down in House v The King. Nor could Mulato properly involve any qualification or departure from those principles laid down by the High Court. Accordingly, the question is whether the assessment of the objective seriousness of the offending in the present case was shown to be outside the range properly available to the sentencing judge, bearing in mind that the reasonableness of the range should not be too readily confined, nor error too easily inferred.

(b)   assessing objective seriousness

42. The principal argument articulated for the applicant was that the sentencing judge failed to identify the applicant’s involvement in the killing as based on the principle of extended joint criminal enterprise. That is, the common purpose of the offenders did not extend to the infliction of grievous bodily harm or fatal injury on any person, but the possibility of such conduct occurring was within the contemplation of the parties to the joint enterprise. [21]

    21. See McAuliffe v The Queen (1995) 183 CLR 108.

43. It is true that the sentencing judge did not use the phrase “extended joint criminal enterprise”, nor did he analyse the conduct of the three offenders before him in those terms. Nevertheless, no other basis for sentencing could fairly be derived from the reasons. Thus, in describing the proposed offending, the judge noted that “[t]he intended purpose of the offence was to target Jacob Burgess, and to forcefully steal drugs and money from him using weapons.”[22] There was no suggestion that the common purpose was to inflict grievous bodily harm or to kill. It is in that context that the following passage should be understood:

“[224]   Concerning the murder charge, then, the present offenders include those in the house who struck Kesley Burgess with machetes (Byquar), those in the house who did not strike him (MA) and those outside the house who had assisted and remained willing to assist in the commission of offences (Ramos).

[225]   Although it cannot be said that any person intended to inflict grievous bodily harm or death to Kesley Burgess until he armed himself to challenge the intruders, events that followed saw persons striking Kesley Burgess in a manner demonstrative at least of an intention to inflict grievous bodily harm, if not death.”

22. R v MA at [69].

44. It is clear from this passage that the applicant could only have been party to a common purpose which did not include the elements of murder. In dealing with the applicant’s circumstances, the trial judge stated:

“[235]   Ramos did not enter the premises of any home invaded by his co-offenders. He did not see them in action inside the houses. However, he heard what was said as his co-offenders emerged from the premises on each occasion, and he was aware of the distribution of meat cleavers for use in the crimes. He saw bloodied persons and items leaving the Burgess house. He nevertheless continued his assistance to his co-offenders.

[236]   Ramos was involved in the enterprise from 29 June 2010, commencing with the provision of transport for the conspiracy to rob whilst armed with a dangerous weapon (the Form 1 offence), followed by the Ashcroft offence and, the next night, the Warwick Farm offence and then the invasion of the Burgess house leading to the murder of Kesley Burgess.”

45. It is apparent from the manner in which the sentencing judge dealt with the conduct and involvement of each of the offenders separately that he expressly took into account the different bases upon which they were guilty of murder. No factual error was identified in his description of the applicant’s conduct. Nor was his assessment merely descriptive; it included evaluative considerations appropriate to a comparative exercise which, in due course, was undertaken. Thus, although noting that the applicant became involved “at the request of others because he had available to him a large vehicle which could be used as a type of people mover for the planned home invasions”, the judge also noted that the vehicle was “an important part of the enterprise.”[23] He also said:[24]

“Ramos was criminally involved in the enterprise over what was, comparatively speaking, an extended period. Even allowing for the view that he felt himself, in a sense, trapped in the situation, this was a serious course of criminal conduct.”

23. R v MA at [234].

24. R v MA at [239].

46. Finally, the judge accepted that the applicant displayed “a lesser level of criminality” than the other two offenders before him for sentencing, stating that “[i]t was more serious to enter premises and threaten (and harm) persons than to wait outside in a car”. [25]

    25. R v MA at [240].

47. Where a standard non-parole period is to be taken into account, a sentencing judge may adopt the statutory language of offences “in the middle of the range of objective seriousness”. [26] In this case, the sentencing judge did not do this, being more concerned with the relativities as between each of the three offenders before him, and as between those offenders and others involved in the events, including some who had been sentenced, and some who were awaiting trial. Indeed, the applicant criticised the reasons for spending more time analysing the conduct of other offenders in the group who had not been charged with murder, than comparing the respective roles of the offenders then before the court.

    26. Sentencing Procedure Act, s 54A(2).

48. There was no complaint that the judge did not seek to place the applicant’s conduct above or below the middle of the range of objective seriousness. A finding that an offence is in (or outside) the middle of the range of objective seriousness can be of limited assistance and usually involves a high degree of imprecision. The assessment of the applicant’s conduct was neither inaccurate nor, taken in isolation, outside the appropriate range for assessment of objective seriousness. The first limb of the first ground cannot be upheld in its terms. However, it will be appropriate to return shortly to the weight given by the judge to the assessment of the starting point for conduct of this kind, when taken into account with the applicant’s favourable personal circumstances.

(c)   assessing disparities

49. The second limb involved a complaint as to what was described as “parity” but was better identified as an inadequate level of disparity.

50. It was clear that the conduct of Byquar was by far the most culpable of the three. He knocked at the front door of the Burgess home and entered immediately the door was opened. He was directly involved with the attack on Kesley Burgess. Thus, after Kesley Burgess had struck Natuba in the shoulder, Byquar hit him from behind and later slashed at him again, although he missed and struck his own foot. As the judge noted, “there is little difference objectively between the striking of machete blows with intent to cause grievous bodily harm or intent to kill.”[27] By contrast, although MA entered the premises with a meat cleaver and intimidated the occupants, he did not use the meat cleaver to strike anyone. [28] He was thus an active participant in the house, who did not seek to withdraw or intervene when Kesley Burgess was attacked, but also did not get involved in the attack.

    27. R v MA at [226].

    28.    R v MA at [228] and [229].

51. There was a separate issue raised with respect to the applicant, who gave evidence of “an element of fear affecting his decision to continue his involvement in these criminal activities, even though no direct threat had been made to him”. [29] The judge accepted that the applicant found himself in a “position from which it was difficult to extricate himself, given the serious violent criminal activities being carried out by those with whom he was involved.” The judge did not accept, however, that there was any element of duress or pressure sufficient to “significantly reduce his criminality”, finding that he was “aware that serious crimes of violence were being committed and there were clear opportunities for him to withdraw from the process, and not continue to make available his father’s Tarago vehicle.”[30]

    29. R v MA at [237].

    30. R v MA at [238].

52. On one view, the level of variation in the sentences noted above [31] might be seen as reflecting the respective levels of objective seriousness of the conduct of each. In assessing the sentences imposed, it is, of course, necessary also to factor in the personal circumstances of the separate participants, as explained in Lowe and by Spigelman CJ in R v JW. [32]

    31.    At [23]-[24].

    32. (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]-[162].

(d)   assessing subjective circumstances

53. Turning to the subjective circumstances, disparities may be noted between the circumstances of the offenders which tended to accentuate their disparate roles in the offending.

54. The sentencing took place some two years and three months after the commission of the offences. Their ages at the time of the offending were 17 years 8 months (MA), 18 years 7 months (the applicant) and 18 years 11 months (Byquar). Reports on each indicated a greater level of maturity developed whilst in custody and a degree of insight into his offending.

55. Both MA and Byquar had prior criminal histories, each being on conditional liberty, in the case of MA as the result of a probation order and in the case of Byquar as a result of a parole order, at the time of the further offending. With respect to Byquar, the judge noted that his early response to his offences was “hardly indicative of contrition and remorse” but that during his period in custody he had developed “some insight, and a measure of contrition”. [33] With respect to MA, the judge found that he too had developed “a level of insight” and “a level of contrition and remorse”. [34] These were favourable findings, but expressed in muted terms.

    33. R v MA at [204].

    34. R v MA at [188].

56. The findings with respect to the applicant were markedly different. The applicant had no prior criminal history, he had a “stable family upbringing until his parents separated in 2009”, following which misbehaviour at school led to him being asked to leave. [35] He then undertook TAFE studies and was on vacation in the course of those studies when the offending occurred.

    35. R v MA at [211].

57. The applicant gave evidence of contrition and remorse which the sentencing judge accepted as genuine. [36] The judge concluded:

“[217]   In addition, I am satisfied that Ramos has good prospects of rehabilitation. Although he had displayed some antisocial conduct prior to his involvement in these offences, he had no prior criminal history. These most serious offences constitute his first involvement with the criminal justice system.

[218]   The evidence of Ramos, his sister and the documentary material provides a solid foundation for conclusions favourable to him in the area of rehabilitation. The principal difficulty for him will be the length of time for which he will remain in custody, given the gravity of the offences for which he is to be sentenced.”

36. R v MA at [216].

58. It is a basic element of the principle of equal treatment according to the law that like cases be treated alike and cases which are materially different be treated differently “according to differences between them relevant to the scope, purpose and subject matter of the law.”[37] The question is, therefore, whether the material differences between the circumstances and the conduct of the applicant and the other offenders were adequately reflected in the differential sentences imposed upon him, MA and Byquar.

    37. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ); see also Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ).

58. The applicant accepted that there were differences in the sentences, but, it was submitted, they did not differ “by a substantial margin.” That submission is difficult to accept and may depend upon the comparison being undertaken. If, as seems appropriate, the comparison should be between the undiscounted starting point for each sentence, the difference between the sentence imposed on the applicant and that imposed on Byquar is eight years and the difference between that imposed on MA and that imposed on the applicant is four years. These are not insignificant periods. On the other hand, the discounted non-parole periods, reflecting the minimum periods to be served in custody, involve differentials of four years and two years respectively. On the last calculation, the applicant would expect to serve a non-parole period being 75% of that imposed on Byquar and 86% of that imposed on MA.

59. No specific calculation or comparison is determinative; further, the applicant must establish that the differential was so inadequate as to take it outside the range reasonably available to the sentencing judge, on the basis of the findings made which are either not challenged or the challenges to which have been rejected.

60. Before concluding the analysis, it is convenient to turn to the second ground of the appeal, namely failing to give proper effect to the finding of special circumstances.

(e)   finding of special circumstances

62. The finding of special circumstances with respect to the applicant, was based on the necessary accumulation of sentences for the different offences, together with the fact that he would have to serve a lengthy sentence as his first sentence of imprisonment. [38] Similar findings were made with respect to the co-offenders, although, with respect to Byquar, the basis of the finding was limited to the effect of accumulation, whereas in respect of MA, it was said to be both the effect of accumulation and “having regard to MA’s youth”. [39]

    38. R v MA at [295].

    39.    See R v MA at [289] and [280] respectively.

63. A common purpose for a finding of special circumstances under s 44 of the Sentencing Procedure Act, in cases where there has been an accumulation, is to provide an overall sentencing regime within which the non-parole period bears a relationship equivalent to that required for each sentence with respect to the balance of term. In other words, absent any other consideration, the accumulation of the longest sentence on earlier sentences will result in the balance of term being less than one-third of the combined non-parole periods. On one view, primary consideration appears to have been given to the effect of accumulation as a similar proportion was allowed for each offender. On that view, the allowance made for the fact that this would be the applicant’s first term of imprisonment was said to be inadequate.

64. In its terms, this submission should not be accepted. There is a wealth of consistent authority at least doubting whether “the age and lack of antecedents of an offender and the fact that the sentence is one involving a first occasion of custody are, of themselves, special circumstances within the meaning of the legislation.”[40] In R v Kaliti, Woods CJ at CL, referring to the last quotation, stated:[41]

“[11]   I share that doubt, save to the extent that in an appropriate case, those circumstances may be reasons why, in conjunction with the remaining subjective circumstances, an assessment was justified that the applicant required a longer period than usual subject to a supervised release. …

…

[13]   Where special help is needed to overcome an alcohol or drug problem, or where some form of psychiatric assistance is needed to deal with the underlying circumstances which generate those problems, and where that help cannot adequately be provided within the corrective system, or where it would require an extended period of release subject to supervision, then it may be accepted that special circumstances do exist.”

40. R v Kaliti [2001] NSWCCA 268; 34 MVR 160 at [10] (Woods CJ at CL) referring to Regina v Kama [2000] NSWCCA 23; 110 A Crim R 47 at [15] (Spigelman CJ) and quoted with approval by Johnson J (McClellan CJ at CL and Bellew J agreeing) in R v GWM [2012] NSWCCA 240 at [103].

41. Kaliti at [11], [13], also cited with approval in GWM at [103].

65. The question raised by this ground is, therefore, whether a lengthier period on parole would necessarily be beneficial for the applicant’s rehabilitation. As a practical matter it is unlikely that supervision would extend beyond some three years after release. The balance of term fixed by the sentencing judge was five years. It was open to the sentencing judge to consider that after 14 years in custody (or a little less if that period were to be reduced) a period of five years on parole was sufficient. No basis for extending the period of supervised release was identified.

66. There is no doubt that the sentencing judge took into account the subjective circumstances concerning the applicant which have been noted above. Those included his age, his lack of criminal history and his progress in custody. In formulating the sentence, the judge noted that his subjective circumstances operated in his favour “in a manner greater than the other offenders.”[42] That included giving greater weight in his case to “youth and immaturity”. As with the objective seriousness of the offending, the question is whether the sentence imposed for the murder took sufficient account of these favourable relative considerations.

    42. R v MA at [293].

Conclusions as to substance of appeal

67. The grounds of appeal invited the Court to consider the assessment by the sentencing judge of the objective seriousness of the applicant’s offending, the relativity of the sentences imposed on each of the three offenders and the subjective circumstances of the applicant, both in their own terms and in a comparative sense. Having regard to the combined effect of those considerations, in my view the starting point was excessive. That is, disregarding the discount for the plea of guilty, the sentencing judge needed to give proper weight to the following considerations, namely that:

1. the applicant was party to a joint criminal enterprise involving robberies undertaken with weapons (meat cleavers), with the awareness that, no doubt if resistance were met, the meat cleavers might be used to inflict grievous bodily harm or even possibly to kill a person;

2. nevertheless, the joint criminal enterprise did not extend to such conduct which occurred inside the victim’s home when the applicant was not present and of which he had no immediate knowledge;

3. although his conduct in driving the vehicle was an important element in executing the joint criminal enterprise, he did not physically invade any person’s home or threaten or intimidate any person;

4. his role as driver was that of a loyal participant, but not an organiser or planner;

5. the sentence imposed, taken in combination with the other sentences for conduct occurring within a matter of days before the murder, would be his first period of imprisonment;

6. he was, at the time of the offending, 18 years 7 months, and

7. the judge accepted his expressions on oath of contrition and remorse and found that he had good prospects of rehabilitation.

68. A combination of these circumstances should, without in anyway diminishing the horrendous behaviour inside the Burgess home, or the pointless and vicious killing of Kesley Burgess, have warranted a starting point in sentencing the applicant significantly less than 22 years and 8 months.

69. Although the maximum penalty for murder is life imprisonment, and the standard non-parole period for an offence in the middle of the range of objective seriousness is 20 years, a further indicator of the level of sentence which can be derived from the standard non-parole period is that, when account is taken of the relationship between the non-parole period and the balance of term provided in s 44 of the Sentencing Procedure Act, a standard non-parole period will involve a balance of term of 6 years 8 months and an overall sentence of 26 years and 8 months.

70. Taking these various factors into account, together with the two further matters referred to on the Form 1, an appropriate starting point would have been 19 years and an unadjusted non-parole period of 14 years 3 months. Taking the plea into account would give a discounted sentence of 14 years 3 months. Adopting the same proportion of the sentence to be a minimum period of custody as that used by the sentencing judge (that is 70%) would result in a non-parole period of 10 years.

71. Accordingly, the Court should make the following orders:

1. Grant the applicant leave to appeal with respect to the sentence for the murder imposed by Johnson J on 11 December 2012.

2. Set aside the sentence imposed for the murder and in place thereof sentence the applicant for the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, to imprisonment comprising a non-parole period of 10 years, commencing on 22 July 2012 and expiring on 21 July 2022, with a balance of term of 4 years and 3 months commencing on 22 July 2022 and expiring on 21 October 2026.

3. The earliest date on which the applicant will be eligible for release on parole is 21 July 2022.

72. CAMPBELL J: I agree with the orders proposed by Basten JA and substantially with his Honour’s reasons. In particular, I agree that the factors identified at [67] (a) – (g) justify the conclusion that a lesser sentence than that imposed by the learned sentencing judge is warranted for reasons which follow.

73. I am persuaded that the applicant has made good the second aspect of his first ground, that is, with respect, that the learned sentencing judge “failed to give proper effect to the parity principle” when sentencing the applicant.

74. To Basten JA’s quotation from Lowe v The Queen at [31] above, I would add that the powers conferred on this court by the Criminal Appeal Act 1912 (NSW):

“… are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender … [and] the reason why the court interferes in such a case is that it considers the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”

I acknowledge that the operative sense of grievance must be assessed by “objective criteria”. It does not involve “a judgment about the feelings of the person complaining of disparity”: Green at [31]; see also Lowe at 613; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 323 and 338.

75. In Postiglione Dawson and Gaudron JJ, with whom Kirby J formed the majority, said the following (at 302):

“If regard is had solely to the head sentences — twenty-five years in the case of Savvas, eighteen years in Postiglione's case — the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione's subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components.

One component of each of the sentences involved in this case and one which is susceptible of easy comparison is the non-parole period.”

To similar effect, Kirby J said (at 338):

“The focus of the attention of an appellate court is not upon the nominal sentence but upon the actual punishment which it appears likely the prisoners in suggested comparison will undergo.”

76. Without wishing to unnecessarily multiply references to authority, I also refer to Siganto v The Queen [1998] HCA 74; 194 CLR 656, where Gaudron J reiterated her position in Postiglione (at 670 [51]):

“Once it is appreciated that the principle of parity in sentencing is concerned with consistency in punishment, it is apparent that all components of a sentence must be taken into account to determine whether the principle has been violated, including the maximum and minimum periods of actual incarceration. That is so whether the question is that of parity between co-offenders or parity across the range of those convicted of the offence in question.” [Footnotes omitted]

77. In my view, it was insufficient for the learned sentencing judge to adopt a starting point which, on its face, may have reflected the legitimate differences between the co-offenders in terms of culpability and subjective circumstances. It was necessary for “the principle of parity in sentencing” to be taken into account throughout the whole of the sentencing task. As Kirby J pointed out in Postiglione, after making the various adjustments that the instinctive synthesis calls for in a given case (at 341):

“… it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike.”

And due allowance made for relevant differences.

78. In my judgment, the learned sentencing judge failed to consider the application of the parity principle throughout the process; it was considered at the outset, but not at the end.

79. As Basten JA has pointed out, the end result of this enterprise was a horrendous crime. Although the applicant’s liability arose on the extended operation of the joint criminal enterprise principle, his knowledge of what happened at Ashcroft proved that he must have contemplated the infliction of serious bodily injury by use of the meat cleavers at Lurnea as a very real possibility. It is this conclusion which makes him liable for the murder as a secondary party. But, as the learned sentencing judge fully appreciated, his culpability was less than the others being sentenced at the same time. And his subjective circumstances entitled him to greater leniency, so far as there was scope for it, than the others.

80. Although I have concluded that it is the discounted sentence of each offender which throws up the relevant disparity, to cure that disparity, “looking back at the product of these calculations and discounts”, and as suggested by Basten JA, the starting point should be adjusted to produce the final sentence he has proposed, and thus eliminate the disparity.

81. BUTTON J: I have had the benefit of reading the judgments of Basten JA and Campbell J in draft. Although I respectfully agree with much of what Basten JA has written, I do not consider that the sentence imposed upon the applicant should be the subject of interference by this Court. Because Basten JA has comprehensively dealt with all of the salient features of the matter, and because mine is a minority view, I can be brief.

82. I gratefully adopt the conspectus of evidential and procedural matters provided by Basten JA, and shall not elaborate upon any aspect of them.

83. I agree with Basten JA that the characterisation of the objective seriousness of the offence was open to the evaluative judgment of the learned sentencing judge, and that the first basis of ground one should be rejected. In that regard, I accept the submission of the applicant that he was to be sentenced for murder by way of the doctrine of extended joint criminal enterprise. I do not accept, however, that the learned sentencing judge was under any misapprehension about that fact, or failed to give it appropriate weight.

84. I respectfully disagree with Campbell J that the applicant has demonstrated erroneous disparity, when one compares the sentence for the murder imposed upon him with the sentence for the murder imposed upon Byquar, and upon the juvenile MA. I consider that the level of differentiation in the sentences imposed upon the three of them was open to the discretion reposed in the learned sentencing judge, whether one focuses upon notional starting points or the ultimate sentences actually imposed. For that reason, I respectfully consider that the second basis of ground one should be rejected.

85. I agree with Basten JA that the approach of the sentencing judge to the question of special circumstances does not bespeak error of itself. For that reason, I consider that ground two should be rejected.

86. I respectfully disagree with the ultimate conclusion of Basten JA that the sentence imposed upon the applicant should be reduced on the basis that the starting point adopted by the sentencing judge was excessive. That is so for the following reasons.

87. First, that proposition was not explicitly notified and pressed by the applicant as a ground of appeal.

88. Secondly, I do not accept that the grounds focusing upon the characterisation of the objective seriousness of the offence; the sentences imposed upon the two co-offenders; and the approach to special circumstances can be “aggregated” to impugn successfully the sentence by way of its notional starting point. In other words, in light of my view that no individual ground should succeed, I do not consider that the whole of the grounds is greater than the sum of their parts.

89. Thirdly, the murder – featuring as it did the hacking to death of a young man in his own home in the presence of his mother – was an exceptionally brutal offence.

90. Fourthly, that offence occurred in the context of the applicant having previously involved himself in the activities of a criminal gang that made it its business to commit premeditated offences of ruthless violence.

91. Fifthly, it may be accepted that, speaking generally and all other things being equal, sentences for offences that are established against a principal in the second degree by way of the doctrine of extended joint criminal enterprise may be expected to be shorter than sentences imposed upon a principle in the second degree whose liability is established by way of the doctrine of basic joint criminal enterprise, and also shorter than sentences imposed upon a principle in the first degree. However, each case depends very much upon its own facts.

92. Here, pursuant to the doctrine of extended joint criminal enterprise, and by way of his plea of guilty to the offence of murder, the applicant accepted that he foresaw that there was a significant possibility that, in the course of the armed robbery of prohibited drugs and cash (the foundational offence of 1 July 2010 at Lurnea in which he had agreed), one of his co-offenders would do an act with intent to inflict grievous bodily harm. That state of mind was established, at least very largely, by the fact that, less than 48 hours before, one of the members of the gang had used a machete almost to sever the arm of a victim of a very similar home invasion committed by the same gang. It will be recalled that, after the completion of that act, the co-offender who had done it saw fit to boast about it in the presence of the applicant. And it will also be recalled that, prior to the commencement of the armed home invasion that saw the deceased hacked to death, the applicant observed the distribution of the weapons of choice: meat cleavers.

93. In other words, in the circumstances of this particular case, I consider that the moral culpability of this particular offender (even within the context of his liability being established by way of extended joint criminal enterprise) was extremely high, as a result of his state of specific knowledge of what could very well occur, even accepting that he did not agree in it.

94. Sixthly, I have not overlooked the fact that the applicant was only some months beyond 18 years of age, the age of full adulthood for the purposes of the criminal law. Nor have I overlooked his absence of prior criminality before he fell in with his co-offenders; his remorse; his good prospects of rehabilitation; and the finding by the sentencing judge that the applicant involved himself in a situation from which he found it difficult to extricate himself. Those subjective features may lead one respectfully to regard the adoption by the sentencing judge of a starting point of a putative head sentence of 22 years 8 months as a stern approach.

78. But it is one thing to characterise the starting point in that way; it is another to characterise the starting point as excessive, and manifestly so, to the point of it being beyond the legitimate exercise of the sentencing discretion. And it is yet another to be satisfied that the sentence of imprisonment for 17 years with a non-parole period of 12 years actually imposed upon the applicant for this murder demonstrates the same error. I am not satisfied of either of those propositions.

79. In light of my opinion that the sentence should not be the subject of interference, the orders that I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Endnotes

Decision last updated: 09 December 2015