Regina v Pheeney
[2002] NSWCCA 278
•25 June 2002
CITATION: Regina v Pheeney [2002] NSWCCA 278 FILE NUMBER(S): CCA 60132/2002 HEARING DATE(S): 25 June, 2002 JUDGMENT DATE:
25 June 2002PARTIES :
Regina
Glenn Raymond PheeneyJUDGMENT OF: Smart AJ at 10; Blanch AJ at 1
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 01/11/0133 LOWER COURT JUDICIAL
OFFICER :Nash ADCJ
COUNSEL : W G Dawe QC (Crown)
A J Bellanto QC (appellant)SOLICITORS: S E O'Connor (Crown)
Murphy's Lawyers (appellant)CATCHWORDS: Criminal law - parity of sentence CASES CITED: The Queen v Lowe (1984) 154 CLR 606
R v Postiglione (1997) 189 CLR 295DECISION: Application for leave to appeal refused.
- 4 -IN THE COURT OF
60132/2002
25 June, 2002SMART AJ
BLANCH AJ
1 BLANCH AJ: This is an application for leave to appeal against a sentence imposed in the District Court on 11 March, 2002. The applicant and eight co-accused had entered pleas of guilty to a number of offences on 20 February, 2002. This applicant’s plea of guilty was to four counts of larceny and he was sentenced to a total sentence of one year and six months and a non-parole period was specified of nine months. The sentence was made up of a sentence of one year and six months on the third count, taking into account two offences on a Form 1 and a non-parole period of nine months was fixed to expire on 10 December, 2002. On the first, second and fourth counts, he was imprisoned for six months fixed term on each to be served concurrently.
2 The applicant was part of an organised shoplifting syndicate. Ultimately, they all entered pleas of guilty. The shoplifting occurred mainly from large supermarkets in the Sydney metropolitan area but also in some country towns. The shoplifting appears to have been organised principally by members of the Nicholls family, four of whom were sentenced on 11 March, 2002. They usually operated in groups targeting expensive easily disposed of goods in supermarkets. The operations of the group were on a regular basis from the end of 1998 through to May, 2000. A special police task force was set up to deal with the problem of shoplifting and this resulted in the arrest of the applicant and the co-offenders.
3 The criminality of this particular applicant, of course, is restricted to those matters to which he has entered a plea of guilty and they are stealing $4,000 worth of cosmetics on 12 February, 2000 from Woolworths, stealing $5,000 worth of cigarettes and razor blades from Franklins on 4 March, 2000, stealing $11,535 worth of cigars and a cigar humidifier from Mac’s Liquor on 5 March, 2000 and stealing $4,748 worth of men’s toiletries from Amcal Pharmacy on 6 May, 2000. The matters on the Form 1 related to offences of stealing cigarettes and cosmetics in February and March, 2000.
4 The applicant was born on 28 September, 1957 and was 43 and 44 at the time of the offences. He is divorced and has two children. He has a prior criminal record relating to offences of dishonesty going back to 1978. He was given a bond for robbery in 1983, a community service order for receiving in 1988 and a fine for goods in custody in 1992. A pre-sentence report tendered on his behalf said he assisted in the care of his two children and at the time of sentence, he was self-employed with a company dealing with the sports and hospitality industry. He was described as having an alcohol and gambling problem which led him into participating in these offences and also was instrumental in the breakdown of his marriage. He said he no longer had problems with alcohol or gambling, but it was recommended he continue in group programmes.
5 The thrust of the challenge to the applicant’s sentence is based on an assertion of lack of parity and in particular, lack of parity with the sentence imposed by his Honour Judge Moore on the co-offender, Green. In sentencing this applicant, the sentencing judge described Green’s involvement as serious. He contrasted with that the involvement of three of the co-offenders including this applicant, whom he categorised as engaged in moderate criminality. He categorised Mr. and Mrs. Bushby, Mark Nicholls and Mrs. Nicholls as engaged in very serious criminality.
6 Green was sentenced for seven counts with nine counts on a Form 1 to three years imprisonment, with a non-parole period of one year and nine months. The argument advanced is that this applicant can entertain a justifiable sense of grievance when comparing his sentence to that of Green, bearing in mind their respective criminality and circumstances. That being the focus of the appeal, it is unnecessary to deal in detail with all of the co-offenders, but those categorised as engaged in serious criminality were given sentences of between four years and four and a half years with non-parole periods between two years and two and a half years. Of the other two offenders categorised by the sentencing judge as having the same degree of criminality as the applicant, Douglas was sentenced to two years, seven months and two weeks, with a non-parole period of one year and four months and Kim Nicholls was sentenced to two years and nine months, with a non-parole period of one year and six months.
7 The sentencing judge was obviously faced with a difficult sentencing task. He recognised the need to avoid disparity in the sentencing and he set out to achieve that objective. It is an objective which cannot be achieved with any degree of mathematical precision. Obviously, the sentence imposed on this applicant was considerably less than the sentence imposed on Douglas and Nicholls, who were said to fall in the same category. No doubt that was because they appeared on more offences.
8 The authorities dealing with the question of parity of sentencing are well-known and the most authoritative cases are The Queen v Lowe (1984) 154 CLR 606 and R v Postiglione (1997) 189 CLR 295. The authorities speak of a “justifiable” sense of grievance, not just a sense of grievance. There must be some sensible objective basis for the grievance which is felt. In this case, I do not see it. It is true that Green was sentenced for 16 offences as compared to the applicant’s six and that this sentencing judge categorised Green’s criminality as serious and the applicant’s criminality as moderately serious. On the other hand, the applicant only received half the head sentence Green received and less than half the non-parole period. Having looked at their respective records and backgrounds, I see nothing to justify any significant differentiation. In my view, the sentencing judge was careful and correct in imposing these sentences and there is no basis to find a justifiable sense of grievance in the case of the applicant.
9 I would refuse the application for leave to appeal.
10 SMART AJ: I agree. The orders of the Court are as proposed by Acting Justice Blanch.
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