Regina v Emerson

[2000] NSWCCA 271

CITATION:	Regina v Emerson [2000] NSWCCA 271
FILE NUMBER(S):	CCA 60265/99
HEARING DATE(S):	Wednesday, 21 June 2000
JUDGMENT DATE:	21 June 2000
PARTIES :	The Crown Darren Alan Emerson
JUDGMENT OF:	Grove J at 27; Newman J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/71/0028
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

COUNSEL :	L M B Lamprati (Crown) P J D Hamill (Appl)
SOLICITORS:	S E O'Connor (Crown) Kremmer Townsend
CATCHWORDS:	Criminal law - aggravated break enter & steal - severity of sentence - parity of sentence - disparity between co-offenders - criminal records
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Lowe (1984) 154 CLR 606 R v Postiglione (1997) 189 CLR 295 R v Doggett, unreported, CCA, 24 March 1997
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60265/99

GROVE J
NEWMAN J

WEDNESDAY, 21 JUNE 2000

REGINA v Darren Alan EMERSON

1    NEWMAN J: This is an application for leave to appeal against the sentence passed on the applicant by his Honour Freeman DCJ in the Albury District Court on 7 May 1999.

2 Before his Honour the applicant had pleaded guilty to the offences of aggravated break, enter and commit felony contrary to the provisions of s112(2) of the Crimes Act 1900. That sub-section of the Crimes Act carries a maximum sentence of twenty years penal servitude.

3    Not only did the applicant plead guilty to that offence, but he also asked that his Honour take into account no less than seven matters on a Form 1, which his Honour did. It should be stated that certain of the matters which appeared on the Form 1 were related to the actual offences, others were not. They included larceny, assault, behaving in an offensive manner, cultivate prohibited drug, possess prohibited drug, possession of implements to self-administer prohibited drug, and yet again break, enter and steal. In the event his Honour passed a head sentence of ten years constructed of a minimum term of seven years penal servitude commencing on 4 March 1999 expiring on 30 March 2006 and an additional term of three years.

4    At the same time, the applicant's brother appeared before his Honour and was charged with the same offence. He also had a number of offences on a Form 1 to be taken into account, which they were. His Honour sentenced the applicant's brother to a head sentence of six years consisting of a minimum term of four years and an additional term of two years.

5    The objective facts of the crime in question may be quite simply stated.

6    The applicant and his brother entered a nursing home in which an elderly man, who suffered from crippling disability and was aged seventy-eight years, was a resident. A knife was used to assist in the carrying out of the theft which the applicant and his brother ultimately did carry out.

7    The amount of terror which the elderly victim suffered is clearly set out in the statement that was tendered before his Honour and it was a matter which his Honour took into account.

8    It might be said, as indeed has been submitted, that at one stage the elderly man told one of the assailants that he was a veteran which put that man to be less aggressive. For the purposes of the appeal one can safely assume that it was the present applicant.

9    The applicant, it is true, pleaded guilty at the earliest opportunity, namely, before the Magistrate, and he adhered to his plea ultimately before his Honour Judge Freeman.

10    Rightly, Mr Hamill of counsel, both in his written submissions and in his oral submissions before this Court, did not attempt to cavil with the proposition that this was a serious offence. Again, correctly, he submitted that it did not fall within the category of the worst type of case and instanced, in support of this submission, the absence of planning in the perpetration of the offence. He emphasised that his Honour Judge Freeman made an observation that the commission of this crime had a fortuitous aspect to it. But the fact remains that this is a crime which stands high in the criminal calendar carrying, as it does, a maximum penalty of twenty years penal servitude.

11    His Honour, when reviewing the subjective features in relation to the applicant, was confronted with an extensive criminal record dating back to the time when the applicant was but fourteen years. He was twenty-nine at the time he appeared before his Honour. That record is very extensive and contains numerous convictions for break, enter and steal, a few convictions of violence, but, as Mr Hamill submitted, it contained no crime of this type, or of a similar type, by that he referred to crimes such as armed robbery. Be that as it may, it is a criminal record which is not favourable to the applicant in terms of mitigation.

12    Mr Hamill's submission that his Honour erred, fell into two parts. First, it was Mr Hamill's submission that the sentence, looked at alone, was manifestly excessive. He relied upon the statistics which have been prepared by the Judicial Commission which indicate that the sentence imposed by his Honour was condign; second, he submitted that, when one looked at the features of the crime, bad as it might have been, when one took into account the absence of planning and the subjective feature that the applicant pleaded guilty at the first available opportunity, that the head sentence and, indeed, the minimum sentence were beyond the range. He suggested that eight years head sentence may be the top of the range for this offence committed in the circumstances in which it was committed.

13    For myself, I am of view that, while the sentence, looked at alone, would stand at the top of the range, when one takes into account the fact that the crime which was committed involved the terrorizing of a seventy-eight-year-old man in a nursing home, the very type of person whom those who entered the premises with the intention of theft armed with knives might well expect to encounter, and might well expect to find terror being the result of their visitation in that form, that it is a very serious breach of the subject section. Secondly, in the applicant's case, he has, as I have said, a very extensive criminal record.

14    In relation to the offence itself it is an offence where general deterrence must play a principal part in the exercise of the sentencing judge's discretion.

15    In the case of this applicant, having regard to his past history, specific deterrence also is a matter which would have to play a significant part.

16    While the sentence is a severe one, I do not believe that, having regard to the objective and subjective features of the matter, that his Honour erred, in that he sentenced beyond the range. The minimum term in fact was adjusted slightly, albeit, in the applicant's favour. Therefore, as far as the submission that the sentence itself, standing alone being manifestly excessive is concerned, I am of the view that no error has been demonstrated on his Honour's part.

17 The second leg of Mr Hamill's argument was one based on parity. The co-offender, the applicant's younger brother was sentenced, as I have said, to a head sentence of six years with a minimum term of four years and an additional term of two years. Very properly, Mr Hamill conceded in his written submissions and indeed confirmed those submissions orally before the court this morning that there would have to be a difference between these sentences, having regard to the age of the pair. At the time of sentence the applicant was twenty-nine, his brother had just turned eighteen. However, Mr Hamill submits that because the objective criminality was identical, and indeed the matters to be taken into account on the Form 1 in both cases were similar, that the disparity between the sentence passed on the applicant and that passed on his younger brother is such as to give rise to a justifiable sense of grievance in the applicant and that in accordance with what has fallen from the High Court in R v Lowe (1984) 154 CLR 606 and R v Postiglione (1997) 189 CLR 295 this Court should interfere.

18    In Postiglione at 301 the High Court summarised the concepts of parity sentencing which had been dealt with by the court in the earlier case of Lowe:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a ‘justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

19    In this Court, subsequently, in the case of R v Doggett, unreported Court of Criminal Appeal, 24 March 1997, Sully J, with whom I agreed, observed as to the concept of parity on page 4 of his judgment:

"What has to be demonstrated by the person complaining on the ground of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that his sense of grievance is a justified one."

20    I agreed with Sully J in that judgment at the time and I do not now resile from my agreement.

21    In dealing with the younger brother, his Honour adverted to the fact that that person had recently turned eighteen and had passed from the ambit of the Children's Court into the cold world of the administration of adult criminal justice. It is trite law that in dealing with young offenders that a sentencing judge must bear in mind questions of rehabilitation more strongly than in dealing with offenders who are older.

22    On my reading of his Honour's reasons for sentence in relation to the younger brother, Bradley, his Honour applied the appropriate sentencing principles in dealing with a young person who had committed a very serious crime.

23    It was, of course, for this reason that Mr Hamill conceded that there would necessarily have to be a disparity between the sentences passed on the two brothers.

24    However, for myself, having regard to the disparity of ages and the vast disparity of the criminal records adopting the test as adumbrated by the High Court in Lowe and explained in Postiglione and applied by Sully J in Doggett, I am of the view that this is a case where disparity does not give rise to a justifiable sense of grievance in the applicant.

25    Accordingly, I am of view that the parity argument, as did the first argument, should fail.

26    Because this is a matter of some seriousness and involving a question of principle, it is a matter in which I would propose that this Court should grant leave to appeal, but dismiss the appeal.

27    GROVE J: I agree. The orders of the Court, therefore, will be as proposed by Newman J.