Regina v West

[2001] NSWCCA 26

CITATION:	Regina v West [2001] NSWCCA 26
FILE NUMBER(S):	CCA 60581/99
HEARING DATE(S):	14/02/01
JUDGMENT DATE:	14 February 2001
PARTIES :	Regina v Ian John West
JUDGMENT OF:	James J at 32; Whealy J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0700
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	M. C. Marien - Crown M. G. Pincott - Applicant
SOLICITORS:	S. E. O'Connor - DPP Sydney Regional Aboriginal Corporation Legal Service - Applicant
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Lowe v R (1984) 154 CLR 618 Lovelock v R (1978) 33 FLR 132 Cross v McHugh (1974) 1 NSWLR 501 at 503
DECISION:	Leave to appeal granted. Appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

60581/99



JAMES J
WHEALY J


WEDNESDAY 14 February 2001


REGINA v Ian John WEST


JUDGMENT

1    JAMES J: The Court is able to give a decision. I call on Whealy J to give the first judgment.

2    WHEALY J: This is an application for leave to appeal against sentences imposed by Kinchington DCJ on 9 September 1999. The applicant, Ian John West, had, on 24 June pleaded guilty to one count of robbery (Crimes Act s 94) and one count of maliciously inflicting grievous bodily harm (Crimes Act s 35). The first charge carries a maximum penalty of fourteen years imprisonment, the second carries a maximum penalty of seven years imprisonment.

3    His Honour passed the following sentences on the applicant and his co-offender. In respect of the robbery, imprisonment for seven and a half years with a minimum term of four and a half years commencing on 7 July 1998 and an additional term of three years; In respect of maliciously inflicting grievous bodily harm, a fixed term of imprisonment of four years was imposed.

4    The facts of the matter were these. A Mr Moskwa was walking in a westerly direction in Brougham Lane, Kings Cross, on 26 April 1998, after having purchased four cans of Victoria Bitter beer from a liquor store in Darlinghurst Road.

5    As he reached the intersection of Brougham Lane and Brougham Street, he was approached by the two co-offenders. Both men punched the victim a number of times to the head, causing him to fall to the ground. While he was lying on the ground, the two men kicked the victim a number of times to the head and body.

6    They took the four cans of Victoria Bitter beer from him and a set of keys, before they ran away. The victim was conveyed to St Vincent’s Hospital and was initially treated for a closed head injury. His condition deteriorated, however, and he was subsequently treated for a fracture to his skull. He was found to have signs of impending brain death at the time his operation commenced. Eventually the operation stabilised his condition and he was subsequently discharged from St Vincent’s Hospital.

7    The applicant's co-offender, Raymond Green, was arrested on 4 May 1998. The applicant himself was arrested on 7 July 1998. Both men were refused bail and remained in custody until they were sentenced.

8    His Honour gave close consideration to the subjective circumstances of each of the co-offenders. The applicant, at the time of sentence, was thirty-two. He had a long criminal history, going back to 1981. He had many convictions for crimes of dishonesty, including prior convictions for robbery and steal from the person, and convictions as well for assault and malicious damage. He had been sentenced to imprisonment on many occasions.

9    The applicant is an Aborigine and came from a dysfunctional family. He was born in Coonamble. His father, who was an alcoholic, died when he was sixteen. It fell to the applicant's mother to raise eight children and to do the best she could in relation to them. The applicant himself grew up in Redfern. He went to school in the area, but was expelled from school and became involved with gangs in the area. He quickly became involved in crime and was committed to a juvenile institution at an early age. His behaviour improved, however, after he was released from gaol in about 1996, although he was convicted of an assault in 1998 and sustained PCA and driving offences against himself in May and June 1998.

10    The applicant had five children to his first partner, although he had not seen them for many years. He had no relationship with their mother for a long time. At the time of the offences in question his then de facto partner had given birth to a son. She was an alcoholic, however, and this relationship came to an end when the applicant went into custody.

11    The applicant does not have an ongoing drink or drug problem, although he was, like his co-offender, well affected by alcohol at the time of the subject offences. It seems that the applicant's behaviour in custody since the time of his arrest has shown some prospects towards his rehabilitation. The applicant became actively involved in Aboriginal issues within the prison environment. He co-operated with the gaol authorities in providing support for his fellow Aborigines. He had generally been of great assistance in this regard to those running the gaol, and for his efforts in this regard he received a number of commendations from the authorities, which were before his Honour. He had successfully completed courses in literacy and in connection with the Aboriginal mentor training program. He attended a number of drug and alcohol counselling sessions.

12    Again, details of these matters were before his Honour. As to this his Honour said:

"From all the material placed before me during the sentencing process it seems to me that the offender has for the first time in his life some vision for the future as he has recently expressed to the officer from the Probation Service his desire to 'eventually become a field officer for juvenile Aboriginal offenders' and it would seem from his recent efforts while in custody he may have the necessary attributes to fulfil this ambition, provided of course this is a genuine expression of what he hopes to achieve in the future."

13    The applicant's co-offender, Green, was, at the time of sentence, thirty. He too had an extensive criminal history dating from about 1980, although, as has been pointed out in the argument before the Court today, his criminal history did not involve convictions for robbery or/for “steal from the person”. The history did include, however, a number of assaults.

14    Mr Green came from a large Aboriginal family as well, some thirteen children, and he had led an itinerant lifestyle throughout northern New South Wales and Queensland, with other members of his family in his young years. He was brought up in an atmosphere of fear, as his father was prone to violence and alcohol abuse.

15    Mr Green had six children, born out of a volatile and de facto relationship, which ended in 1997. Unlike the applicant, Mr Green has had an ongoing problem with drug and alcohol abuse for many years. At the time of his arrest he was using heroin, cocaine and alcohol daily. Most of his criminality, despite a number of attempts at rehabilitation, had related to his use of alcohol and drugs.

16    His Honour said this:

"... it is clear from a reading of the material contained in the Pre Sentence Report of Damien Gray and the Psychological Report of Anita Duffy herein that the offender comes from a dysfunctional family and had a disturbed upbringing which involved him being sexually assaulted by a person either from within his family group or close to that group, that this background has contributed to his now presenting as an extremely aggressive, disturbed and agitated individual who has poor impulse control and who needs considerable assistance to manage his dependence on drugs and alcohol and his tendency to act aggressively when affected by alcohol and drugs. It is obvious from all this material that not only is he presently in need of counselling from both a psychological and drug and alcohol point of view, but that such counselling should be available if he is to have a realistic chance of becoming a worthwhile member of our society in the future."

17    His Honour also noted that Mr Green had had, in the past, suicidal tendencies. His Honour, having considered the subjective circumstances of each co-offender, found that there were special circumstances in relation to each. The essential submission on behalf of the applicant, albeit refined today by the oral submissions, was that the sentencing judge misapplied the principle of parity in sentencing the applicant. In particular, it was argued that this was a case where comparable sentences were imposed on co-offenders whose respective circumstances warranted disparate sentence (Lowe v R (1984) 154 CLR 606 at 618; Lovelock v R (1978) 33 FLR 132).

18    The aspect of difference between the co-offenders is said to be the positive steps taken by the applicant in custody, which I have outlined above. By contrast, it was said Green had at that stage not exhibited any positive signs towards rehabilitation. There can be no doubt that the sentences imposed on each of the offenders, insofar as they recognised the objective gravity of the offences, were appropriate. Indeed, there was no challenge on that basis.

19    The offences were rightly categorised as serious criminal matters. Although trifling items were stolen - beer cans and keys - the attack on the victim nearly ended his life.

20    Nor was it said his Honour fell into error in finding special circumstances. The sole error was said to revolve around infringement of the parity principle. Support for the argument was said to reside in his Honour's remarks:

"While both of you have placed a strong body of subjective material before the Court during this sentencing process, the objective facts indicates that your criminal activity on this occasion was of a high order. To my mind the communities abhorrence for this type of criminal behaviour can only be appraised by my subjecting you each to an overall custodial sentence of some magnitude. While you don't have identical criminal histories they are very similar, and involve both crimes of violence and dishonesty, while both histories date back to your teenage years. While it could be said that the subjective material placed before me on behalf of the offender West is stronger and more compelling than that of the offender Green, bearing in mind the concept of parity, it seems to me that I should deal with each offender in a similar way ". [my underlining added]

21    The underlined portion of the passage, it was argued, supported the proposition that his Honour took the view, erroneously, that the concept of parity required him to deal with the two co-offenders similarly, notwithstanding the applicant's demonstration of rehabilitation, which mitigated a disparity requiring discrimination.

22    First, I do not accept his Honour's remarks should be read in that way. As is often observed in matters of detailed textual criticism of a judgment, care should be taken to read the material fairly and in context. (Cross v McHugh (1974) 1 NSWLR 501 at 503) The impugned sentence appears in one paragraph on page 8 of a nine paged version of an ex-tempore decision. Read fairly, I take his Honour to be saying that while there were factors in the material relating to the applicant that boded well for his rehabilitation, more so no doubt in the applicant’s case at this stage than in the case of Green, his Honour took the view that overall the subjective circumstances of the two men, including any differences between them, did not warrant a different sentence being imposed on each of them.

23    In the same paragraph, for example, his Honour noted that there were different criminal histories in the case of each offender, yet overall his Honour took the view that those differences, given the similarities, did not warrant a discrimination between them. It could hardly be claimed by Green that his Honour's statement warranted a lesser sentence than that imposed on him, because it recognised the applicant's criminal record in some respects was worse than that of Green.

24    There is, in my opinion, no substance in the textual attack on his Honour's judgment.

25    Second, where identical sentences are imposed on co-offenders the parity principle is available to support the correctness of the sentences where, all other things being equal, there is an overall sameness in the position of the offenders. As Brennan CJ stated in Lowe at page 609:

"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".

26    It is clear that in assessing comparisons between the type of matters referred to by the Chief Justice in the passage above, a sentencing court may have to take into account minor differences and make, not infrequently, subtle and discriminating distinctions between situations revealed in the evidence and submissions before it. In some cases a court may conclude that there are, in the end, real differences and that those differences warrant the conclusion that different sentences be imposed. In other cases it may be the Court's concluded view, as was the case here in my opinion, that overall the differences, such as they were, did not warrant such a conclusion.

27    Finally, an examination of the material before his Honour shows that the position of the applicant was not markedly different from the co-offender, so as to warrant the imposition of a more lenient sentence. While the prospects of the applicant's rehabilitation were more favourable than Mr Green, it was also clear that the latter was more psychologically disturbed than the applicant. Mr Green also had serious problems with drug and alcohol dependency. There was evidence before the Court to show a long history of substance abuse by him and a history of suicide attempts.

28    The material before his Honour showed that the applicant was far less psychologically or emotionally disturbed than Mr Green. The applicant's prospects of rehabilitation were better than those of Mr Green and were understandably so. There were, on the other hand, powerful subjective matters operative in the case of Mr Green, which in some respects favoured his position, or the possibility of his position improving subject to successful treatment and counselling.

29    As well, there was the material before his Honour to which I have already made reference, which showed that there were significant and marked differences in the criminal antecedents of the applicant and Mr Green. In this regard it was apparent that the nature of the applicant's antecedents made him more criminally culpable than Mr Green in the commission of these offences.

30    As I have said, in the overall result his Honour treated this aspect of the comparison between the two men as not so markedly different as to require different sentences. Having regard to all these matters, I am not persuaded that his Honour was in error. It cannot be said that his Honour placed insufficient weight on the favourable material regarding the applicant. The applicant's better prospects of rehabilitation, however, were to be balanced against Mr Green's lesser degree of criminality in the commission of the offences, in the way I have explained.

31    In my opinion a justifiable sense of grievance on the part of the applicant does not arise. I propose that leave to appeal be given but that the appeal be dismissed.

32    JAMES J: I agree with the judgment which has just been given. The orders of the Court will be as proposed by Whealy J.

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