Rose v R

[2013] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Matthew Rose v R [2013] NSWCCA 71

Hearing dates:

13 March 2013

Decision date:

09 April 2013

Before:

Hoeben CJ at CL at [1]
Slattery J at [2]
Bellew J at [3]

Decision:

1.Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - assault with intent to rob in company and robbery in company - whether sentencing judge applied the relevant guideline - necessity to have regard to the fact that sentencing judgment delivered ex-tempore immediately following submissions - where factual errors on the part of the sentencing judge were not material - no error in application of guideline - whether applicant had justifiable sense of grievance in light of different non-parole period imposed upon co-offender - differentiating factors present - no breach of parity principle - leave to appeal granted and appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:

Gill v R [2010] NSWCCA 236
Gommesen v R [2012] NSWCCA 226
Green v R (2011) 244 CLR 462
R v Henry (1999) 46 NSWLR 346
R v Kelly [2010] NSWCCA 259
R v Thomson and Houlton (2000) 49 NSWLR 383
Tatana v Regina [2006] NSWCCA 398 Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10

Category:

Principal judgment

Parties:

Matthew Rose - Applicant
Regina - Respondent

Representation:

Mr D Barrow (Applicant)
Ms S Dowling (Respondent)
Blair Criminal Lawyers (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/102169 2011/210504

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-04-05 00:00:00

Before:

Neilson DCJ

Judgment

1. HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

1. SLATTERY J:I agree with Bellew J.

1. BELLEW J: The applicant pleaded guilty before the District Court to two offences contrary to s. 97(1) of the Crimes Act 1900, namely:

(i)   assault with intent to rob in company ("the first offence"); and

(ii)   robbery in company ("the second offence").

1. In addition, the applicant asked the sentencing judge to take into account an offence of larceny contrary to s. 117 of the Crimes Act, which was contained on a Form 1.

1. In respect of the first offence, the applicant was sentenced to a non-parole of 2 years commencing on 29 March 2011 and expiring on 28 March 2013, with an additional term of 1 year and 4 months expiring on 28 July 2014.

1. In respect of the second offence, the applicant was sentenced to a non-parole period of 2 years commencing on 29 June 2011 (i.e. 3 months after the commencement of the non-parole period in respect of the first offence) and expiring on 28 June 2013, with an additional term of 1 year and 4 months imprisonment expiring on 28 October 2014.

1. The total non-parole period was 2 years and 3 months. The applicant is eligible for release on parole on 28 June 2013.

1. The applicant now seeks leave to appeal against those sentences, on the grounds set out below.

THE FACTS

1. An agreed statement of facts was before the sentencing judge. The following summary of those facts is taken from his Honour's reasons (commencing at AB 10).

The first offence

1. At about 2:00am on 11 March 2011 a taxi driver named Ali Abdullah commenced his shift at Campbelltown. He received a message over the radio advising him that there was a job at the intersection of Chamberlain Street and Lindsay Street, Campbelltown. Mr Abdullah drove to that location and upon arrival he noticed a male, subsequently identified as the applicant's co-offender Mikey Hawly ("Hawly"), standing on Lindsay Street by himself.

1. Mr Abdullah pulled up in his taxi next to Hawly, who then entered the front passenger side of the taxi. Mr Abdullah asked Hawly where he wished to be taken, to which Hawly replied:

"Give me your money".

1. Hawly then placed his hand on the transmission shift of the taxi and moved it into the "park" position. Mr Abdullah then felt a blow to the right side of his face which had been struck by a second male, later identified as the applicant, who was standing at the driver's side door of the taxi. Mr Abdullah was then punched in the face a number of times causing severe pain to his nose, his eyes and his cheek bone. The blows were sufficiently forceful to break frame of Mr Abdullah's spectacles.

1. Hawly continued to demand money from Mr Abdullah. The applicant, who had remained outside of the driver's side window of Mr Abdullah's taxi, then reached in through the window of the taxi and tried to grab the keys from the ignition. Mr Abdullah hit the applicant's arm causing him to withdraw his hand, whereupon the applicant punched Mr Abdullah in the face again.

1. Mr Abdullah managed to put the vehicle transmission into the "drive" position and moved the taxi slowly forward. At the same time he commenced to sound his horn loudly in the hope that it might scare the applicant and Hawly away. Both the applicant and Hawly then ran off.

1. Mr Abdullah drove directly to the Campbelltown Police Station to report the matter. CCTV footage taken from inside the taxi depicted Hawly and the applicant, along with a third (unidentified) male who was standing a few metres behind the applicant.

1. As a result of the attempted robbery, Mr Abdullah received a swollen and blackened right eye, bruising to his nose, and scratches and cuts to his face, nose, and forehead. Those injuries were depicted in photographs tendered before the sentencing judge. No money or other property was taken during the commission of the offence.

The second offence

1. On the afternoon of 28 March 2011, Mr Noun Ros commenced his shift as taxi driver at Cabramatta West. At about 1:30am on 29 March 2011 Mr Ros received a message that there was a job available to pick up three passengers from premises in Tea Tree Place, Bossley Park. Mr Ros

drove to that location, where he saw three men standing outside a house.

1. One of the men, later identified as Hawly, approached the taxi, entered the passenger's side and sat down. He then grabbed the transmission shift and placed it into the "park" position. At the same time a second male opened the driver's side door of Mr Ros' taxi and removed the keys from the ignition. Hawly demanded money, simultaneously with which two other men (one of them being the male who had removed the keys) leant into the taxi through the driver's side and removed $120 in cash.

1. Mr Ros tried to get out of the taxi but was prevented from doing so by being struck on the head with a stick by one of the three men. He finally managed to get out of the vehicle at which time another of the men hit him, causing him to fall to the ground. The three men then ran off. As a consequence of trying to defend himself, Mr Ros suffered a lump on his head and a painful left arm.

1. The applicant was later identified by CCTV footage as one of the three men standing near the driver's side door of the taxi. Forensic evidence also established that the applicant's fingerprint was on that door. However, the applicant was not the man who was in possession of the stick which was used to assault Mr Ros.

The applicant's sentence proceedings

1. On 5 April 2012, the applicant appeared for sentence with another offender, Lawrence Sio Hausia ("Hausia"), who had been charged with similar offences. It was intended that Hawly would be sentenced on that same day, however his sentence proceedings were adjourned for a short period due to a delay in obtaining relevant medical evidence. Hawly was in fact sentenced some 8 days after the applicant.

1. During the course of both the applicant's sentence proceedings, as well those of Hawly, the sentencing judge made a number of references to the applicant, Hausia and Hawly being "co-offenders". In making such references, his Honour erred. Hausia's offences were not committed in the company of any other person. They were quite separate and distinct from the offences committed by the applicant and Hawly. However for the reasons set out below in relation to each of the grounds of appeal, I do not regard that error as material.

1. In sentencing the applicant, and having recounted the facts, his Honour made specific reference (at AB 18-19) to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346. In doing so his Honour, in reference to the decision in R v Thomson and Houlton (2000) 49 NSWLR 383, expressly recognized that the guideline judgement should be understood as involving a late plea of guilty. It is evident that his Honour was aware of the necessity to take into account the fact that in the present case, the applicant had entered an early plea.

1. His honour then turned to the applicant's subjective case and noted, in particular, that the applicant:

(i)   was 18 at the time of the commission of the offences, and was 19 years old at the time of sentence;

(ii) had previously committed an offence of possessing a prohibited weapon, namely a "spud gun", in respect of which he had been given the benefit of a bond pursuant to s. 10 of the Crimes (Sentencing Procedure) Act only a matter of days before the commission of the first offence, a circumstance which his Honour correctly identified as an aggravating factor;

(iii)   had no other criminal convictions and was essentially a young man of prior good character.

1. His Honour then dealt, at some length, with the applicant's subjective case. In doing so, he made reference to various aspects of the applicant's family upbringing as well the contents of a report of a psychologist which had been tendered on his behalf. He then turned to those factors relied upon by the applicant in support of a finding of special circumstances.

1. Having considered all of these matters, his Honour (at AB 25 ff) adopted a starting sentence of 4½ years, or 54 months. He applied a discount of 25 percent on account of the utilitarian value of the applicant's plea, which reduced the sentence by 13½ months, which was rounded up to 14 months in favour of the applicant. That left a head sentence of 40 months, or 3 years and 4 months imprisonment.

1. His Honour found special circumstances and proceeded (at AB 31) to impose the sentences previously outlined. I will return to consider specific aspects of his Honour's reasons when considering the two grounds of appeal.

Ground 1 - The sentencing judge failed to properly consider and apply the guideline judgment in R v Henry and Ors (1999) 46 NSWLR 346.

His Honour's reasons

1. Having outlined the facts, his Honour specifically referred to the decision in Henry before turning to the particular circumstances of the applicant's offending. In that regard he said (at AB 19):

"Here I have three young offenders with no or little criminal history. No weapon was used but they were in company at times with each other and at times other persons unknown. Thirdly, I accept that there was some degree of planning. There must have been to decide on to where to call the cab, to meet the cab driver there and perhaps, on occasions, to hide whilst one person initially approached the taxi driver. Here, there was limited actual violence. Each taxi driver was in a vulnerable position and the amounts of money and goods taken were generally not particularly great. Here, there was, in each case, a plea of guilty and as far as the two offenders who stand for sentence today are concerned, the Crown accepts that the pleas of guilty were entered at the earliest available opportunity. If one looks at the guideline judgment in R v Henry as involving a late plea of guilty, that would indicate a discount of only 10 percent. Allowing for such a discount, ranges between 4 years and 5 months imprisonment and 5 years and 6 months imprisonment"

1. This passage contained two errors. Firstly, his Honour's reference to the fact that "the amounts of money and goods taken were generally not particularly great" was not correct. In the commission of the first offence to which the applicant pleaded guilty, no money or goods were taken at all. Secondly, his Honour concluded that there was "limited actual violence" in the applicant's offending. As previously noted, there were a number of blows struck by the applicant to Mr Abdullah in the course of committing the first offence. Those injuries were depicted in a photograph which formed part of the evidence on sentence. In the course of the second offence, Mr Ros had been struck with a stick by a person in the applicant's company, albeit not by the applicant himself. In these circumstances, his Honour's conclusion that there was "limited actual violence" in the applicant's offending was also an error, albeit one that favoured the applicant. In the circumstances, I do not regard either of these errors as material.

1. His Honour later considered (at AB 23 - 24) the evidence relevant to a finding of special circumstances which he had been asked to make:

"Shortly after his being arrested the offender was incarcerated at Bathurst, commencing on 22 April 2011, and on 14 June 2011 was sent to Parklea Correctional Centre. Essentially, the offender has been in protective custody since that time. Exhibit 8 is from an officer at the Parklea Correctional Centre. It indicates that the offender is able to freely mix with other prisoners who are also in protective custody. He is "unlocked" for seven hours per day, which is the same as the normal prison population. He has access to programs including small business, literacy and numeracy, English, first aid, computer courses and therapeutic courses including drug and alcohol counselling. However, his work opportunities are limited. The only reason that I know of for the offender being in protective custody is that certain threats have been made to him. He is a young man, slightly built and one can understand that he may be the victim of other persons' attempted exploitation".

1. His Honour then said (at AB 24 - 25):

"Between the three young men in the dock, there are five taxi driver victims of either robbery in company, wounding with intent to robbery (sic) in company or attempted robbery in company. Young offenders and indeed all offenders must know that, if they attack persons in vulnerable positions such as taxi drivers, they will be liable to suffer significant penalties. Unfortunately crimes against taxi drivers in southwest Sydney are notorious. They are often the victims of robberies and assaults. Were the court to impose lenient sentences none would be deterred from carrying out similar crimes in the future."

1. His Honour then made reference to the application of the normal statutory ratio and found special circumstances (at AB 25):

"The fact is that this is a young man who was 18 at the time of his arrest and is now 19, who has spent over a year in custody already and the majority of it in protective custody. A first experience of imprisonment is alarming, upsetting, frightening, terrifying. It is that for a young man, equally that for a person who is much older".

1. His Honour then imposed the sentences previously outlined.

The submissions of the parties

1. The applicant submitted that the sentencing judge adopted an "inappropriately mechanistic approach" to the guideline judgment in Henry which, it was submitted, had resulted in a failure to give adequate weight to the applicant's reduced moral culpability, as well as what were described as his "compelling subjective circumstances". This submission was advanced by reference to a series of separate propositions, in which it was submitted that his Honour:

(i)   imposed an identical sentence upon Hausia;

(ii)   failed to explain the method by which he arrived at a starting sentence of 4½ years imprisonment;

(iii)   "globally" assessed all five of the offences affecting all three offenders, including those offences which had no connection to the applicant and in doing so had failed to adopt the approach set out in R v Kelly [2010] NSWCCA 259 and individually consider the applicant's offences, in circumstances where those offences could be distinguished from the those committed by Hausia and Hawly; and

(iv)   failed to take into account the reduced moral culpability and significant subjective circumstances of the applicant, including the fact that he was aged 18 at the time of commission of the offences.

1. In response, the Crown submitted that it was evident that his Honour had considered the judgment in Henry, and had done so by specific reference to the applicant's offending. The Crown pointed out that not only were there two separate offences to which the guideline applied, the applicant's offending had features which rendered it more serious than the offending contemplated by the Henry guideline. In this regard the Crown relied upon:

(i)   the number of offenders involved;

(ii)   the degree of planning; and

(iii)   the infliction of actual violence upon the victims.

1. The Crown also submitted that on a fair reading of his Honour's reasons, he had not dealt with the offending in a "global" way. By reference to that passage of his Honour's reasons set out at [28] above, The Crown submitted that his Honour had regard to particular aspects of the offending. The Crown also submitted that, but for those errors to which I previously referred (the most significant of which favoured the applicant) his Honour's findings as to the circumstances of the offending were correct.

CONSIDERATION AND CONCLUSION

1. In Henry, Spigelman CJ, in setting out a guideline for sentencing for offences pursuant to s. 97(1) of the Crimes Act said (at 380):

"It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for the purposes of determining a guideline:

(i)   young offender with no or little criminal history;

(ii)   weapon like a knife, capable of killing or inflicting serious injury;

(iii)   limited degree of planning;

(iv)   limited, if any, actual violence but a real threat thereof;

(v)   victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi)   small amount taken;

(vii)   plea of guilty, the significance of which is limited by a strong Crown case.

In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court."

1. His Honour went on to say (at 381):

"Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point.

In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:

(i)   nature of the weapon;

(ii)   vulnerability of the victim;

(iii)   position on a scale of impulsiveness/planning;

(iv)   intensity of threat, or actual use, of force;

(v)   number of offenders;

(vi)   amount taken;

(vii)   effect on victim(s)."

1. In R v Kelly (supra) Kirby J (with whom the other members of the Court agreed) having referred to these passages from the decision in Henry said (at [52]):

"The Chief Justice identified the sentencing range for offences of that character. Sentences should generally fall between 4 and 5 years for the full term (at 380). That range assumed a 10% discount for a late plea (R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161] ). Where, as here, there was an early plea, calling for a discount of 25%, the adjusted sentencing range is as follows:

5 years reduces to 3 years 9 months

4 years reduces to 3 years."

1. Having alluded to the aggravating and mitigating factors cited by Spigelman CJ in Henry (supra) Kirby J went on to say (at [54]):

"In sentencing the respondent, a number of issues therefore arose. First, the sentencing Judge was required to impose an appropriate sentence for each offence (Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610). A synthesis was required that reflected the circumstances of the individual offence (including the offender's state of mind), and whether it was better or worse than Henry, with appropriate adjustments for his subjective case (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357)."

1. In considering the submissions advanced on behalf of the applicant, it must be recognised that his Honour delivered judgment immediately following the hearing of evidence and submissions. This Court has said, on a number of occasions, that it is inappropriate to take an overly critical approach to reasons contained in ex tempore judgments which are made immediately following the hearing of submissions on sentence (see for example Gommesen v R [2012] NSWCCA 226 per Garling J at [37] - [38], McClellan CJ at CL and McCallum J agreeing); see also Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing).

1. In my view, bearing these matters in mind, none of the propositions advanced on behalf of the applicant establish that his Honour's approach was inappropriate in the sense which was submitted, or that such approach was otherwise erroneous.

1. Firstly, the fact that his Honour imposed identical sentences upon Hausia and the applicant is, in my view, not to the point. As I have already noted, Hausia was not a co-offender and accordingly, his offending, although of a similar nature, was separate and distinct from that of the applicant.

1. Secondly, and although his Honour did not set out, in specific terms, the reasons for adopting a head sentence of 4½ years imprisonment as a starting point, it does not follow that his Honour's reasoning process was not exposed. Having recited the facts his Honour made specific, and accurate, reference to the important aspects of the decision in Henry. He then considered certain aspects of the offending in the passage set out [26] above, before dealing comprehensively with the relevant aspects of the applicant's subjective case. He also, quite properly, recognised the need for both general and specific deterrence in the sentencing process. In all of these circumstances, his Honour's failure to explain, in precise terms, the method by which he arrived at a starting sentence of 4½ years imprisonment does not, in my view, reflect error.

1. Further in my view, his Honour's treatment of the offenders is not properly described as "global". It is evident from that part of his Honour's reasons extracted in paragraph [28] above that although his Honour dealt with the offences together, he cited specific features of the applicant's offending. As the Crown has correctly submitted, his Honour's findings as to the circumstances of the offending (but for those errors to which I previously referred) were accurate.

1. For these reasons I am unpersuaded that his Honour failed to follow the approach set out in Kelly (supra). To the extent that it was suggested that such a failure was reflected in his Honour's adoption of a starting point in excess of the "adjusted" guideline referred to by Kirby J in that case, it must firstly be remembered that his Honour was dealing with two separate offences, not one. Moreover, there is merit in the Crown's submission that the fact that there were multiple offenders, that there was a degree of planning, and that actual violence was perpetrated upon the victim in each case rendered the applicant's offending more serious than the typical case referred to in Henry. It must also be remembered that the guideline in Henry is a starting point, to be adjusted according to the circumstances of an individual case.

1. Finally, I do not accept that his Honour failed to have regard to the applicant's reduced moral culpability, or his subjective circumstances, including his age. His Honour devoted a considerable part of his reasons to detailing the applicant's subjective case. He commenced his consideration of those matters by expressly citing the fact that the applicant was aged 18 at the time of the offences, and was 19 years of age at the time of sentence.

1. For all of these reasons, this Ground is not made out.

Ground 2 - The sentences imposed upon the applicant give rise to a legitimate sense of grievance when compared with the sentences imposed upon his co-offender Hawly.

Hawly's sentence proceedings

1. In dealing with this ground it is necessary to make reference to some aspects of the reasons given by his Honour for the sentences imposed upon Hawly.

1. In determining Hawly's sentence, his Honour proceeded on the basis of the same facts as those I have previously outlined in respect of the applicant. In addition to the two offences which he committed in company with the applicant, Hawly also asked the sentencing judge to take into account a number of matters on a Form 1. They included a further offence of robbery in company (which did not involve the applicant) as well as a series of narcotics and firearms offences which arose as a consequence of prohibited substances and items which had been discovered by police at Hawly's premises.

1. His Honour accepted that at the time of his commission of two of the three robberies Hawly was affected by cannabis, and on another occasion was affected by alcohol. He further accepted that Hawly's commission of the offences was out of character, and had been precipitated by substance abuse and poor peer associations, due to the trauma of a break down in his family unit.

1. In comparing Hawly's position with that of the applicant, his Honour said (at Hawly ROS 5):

"There is some difference between this offender and his co-offenders who was sentenced on 5 April. Lawrence Sio Hausia was aged 23 at the time of sentence but (the applicant) was only 19 years old at the time of sentence. (The applicant) and the co-offender were born in the same month.

Hausia committed his offences whilst bound by (a) bond to be of good behaviour pursuant to s. 12. (The applicant) committed his offences whilst bound by a bond to be of good behaviour pursuant to s. 10.

Mikey Hawly comes before me as a young man of prior good character. He has no previous convictions nor any subsequent charge. Having said that, Mr Hawly asked me to take into account on a Form 1 a third robbery in company whilst the other two co-offenders were only sentenced in respect of two armed robberies each and the current offender asked me to take into account a number of other matters on the Form 1. However, I accede to the submission put to me by (counsel for the applicant) that the Crown's knowledge of the offender's involvement in the offence on 21 March 2011 stems only from his own admission of it rather than from any evidence obtained by the Crown."

1. Subsequently, and in reference to the special circumstances which applied in Hawly's case his Honour said (at Hawly ROS 9):

"Parity has a role to play. Clearly I cannot and would not sentence him to any lengthier period of imprisonment than I did for his co-offenders, Matthew Samuel Rose and Lawrence Sio Hausia. It has not been submitted otherwise. On behalf of the offender submissions have been put to me about the appropriate non-parole period. Here there is some reason to impose a different non-parole period on this offender and his co-offenders.

The first thing is to note that the offender was bashed shortly after he was first admitted to custody at Bathurst Goal. He has also been put under pressure to bring drugs into the prison, a pressure to which he has not succumbed. As I said he is an intelligent young man, he is slightly built, he is well presented and there are certain risks he runs in any custodial establishment."

1. His Honour (at Hawly ROS 10) then commenced with a head sentence of 4½ years imprisonment, to which he applied a discount of 25 percent on account of the pleas of guilty. He went on to say:

"In the cases of Rose and Hausia, I found special circumstances and fixed a non-parole period of 2 years with an additional term of 1 year and 4 months for the current offender I believe the appropriate non-parole period is 20 months or 1 year and 8 months and an additional term of 1 year and 8 months.

There are two offences and there must be, as I said, some partial accumulation. The partial accumulation will be 3 months, as in the case of his co-offenders."

The submissions of the parties

1. It was submitted on behalf of the applicant that he had a justifiable sense of grievance when his sentence was compared with that of Hawly. In advancing this submission, counsel for the applicant focussed on the fact that although Hawly was sentenced for the same two offences as the applicant, he had also asked the court to take into account five offences set out in a Form 1 which, as previously noted, included a further offence of robbery in company.

1. Counsel further submitted that although the difference in the non-parole periods was one of only four months, this was, nevertheless a significant period.

1. In response, the Crown pointed to the reasons expressed by the sentencing judge (at Hawly ROS 9 in paragraph [53] above) for the difference in the non-parole periods which were imposed. The Crown submitted that, in contrast to Hawly's position, the applicant had been placed in protection at his own request following threats being made to him and that this was markedly different from Hawly's circumstances for a number of reasons, not the least of which was that conditions of the applicant's custody were not demonstrably different to those of the normal prison population.

1. In a broader sense, the Crown relied upon a series of factors which, it was submitted, differentiated between the respective positions of the applicant and Hawly. In particular, the Crown submitted that Hawly:

(i)   had played a lesser role than the applicant in the commission of the first offence;

(ii) had no prior criminal history and was not subject to conditional liberty at the time of the commission of the offences, whereas the applicant had a criminal history and was subject to a bond under s. 10 of the Crimes (Sentencing Procedure) Act which had been imposed only a matter of days before the commission of the first offence;

(iii)   had brought the fact of his involvement in the robbery offence which was included on the Form 1 to the police, in circumstances where there was no other evidence which linked him to the commission of that offence.

CONSIDERATION AND CONCLUSION

1. As the Crown set out in its written submissions, the parity principle is based upon the proposition that, as far as the law permits, like cases should be treated alike, and there should be different outcomes whether there are relevant differences (see generally Green v The Queen (2011) 244 CLR 462). In the present case, the head sentence imposed on each of the applicant and Hawly was the same. There was a difference, of four months, in the non-parole periods which were imposed.

1. The sentencing judge was obviously aware of the sentences which had been imposed on the applicant and he indicated in clear terms why it was that in sentencing Hawly, he had chosen to depart from the non-parole period imposed upon the applicant. In those circumstances, the observations of Howie J in Tatana v R (2006) NSWCCA 398 (with whom Sully and Latham JJ agreed) at [28] are relevant:

"That leaves a consideration of the issue of parity between the applicant and the co-offenders. This is a ground where there are considerable obstacles placed before the applicant in circumstances where the sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and in the remarks indicates why the judge is departing from the sentences imposed upon the others. Those obstacles became even greater where, as here, the difference is a result of legitimate fact finding on the part of the second judge."

1. The applicant placed some reliance upon on a further passage of Howie J in Tatana where his Honour said (at [32]):

"However, at the end of the day the applicant is to spend six months longer in custody before being released to parole notwithstanding that he was sentenced for less criminal activity than his co-offenders. That is on the face of it a somewhat surprising and troubling outcome. It cannot be explained other than by a failure on the part of Acting Judge Boulton to find remorse or that the applicant had good prospects of rehabilitation. To that extent there was a difference between the applicant and the co-offenders. But to my mind that difference could not warrant the applicant being required to serve a substantially longer period in custody than persons who had committed significantly more crime".

1. Counsel for the applicant submitted that in the present case, a situation similar to that considered by his Honour in Tatana had arisen. In particular, it was submitted that the applicant was in the position of having to serve a longer period of imprisonment than Hawly, even though the criminal activity for which he had been sentenced was less.

1. In my view, that submission should be rejected for two reasons.

1. Firstly, there were, as I have set out, a number of factors which differentiated the respective positions of the applicant and Hawly. Those differentiating factors were to be found not only in a comparison of their respective offending, but also in a consideration of those matters which led his Honour to find special circumstances in each case.

1. Secondly, there can be no breach of the parity principle simply because, as is the case here, different non-parole periods were imposed as a consequence of different findings being reached as to the existence, and extent, of special circumstances (see Gill v R [2010] NSWCCA 236 at [62] per McColl JA (with whom Hulme and Latham JJ agreed).

1. For these reasons, this ground is not made out.

1. I should also observe that even if I had come to the view that either ground of appeal was made out, I would not have concluded that some other sentence was warranted in law (Criminal Appeal Act: s. 6(3)). The applicant's offending was serious, and in my view, the sentences imposed upon him by the sentencing judge are properly regarded as falling towards the lower end of the scale.

ORDERS

1. I propose the following orders:

(1)   leave to appeal granted;

(2)   appeal dismissed.

**********

Amendments

17 April 2013 - The word "expiration" has been replaced with "commencement".

Amended paragraphs: 6

Decision last updated: 17 April 2013