Russell Tilley v The Queen

[2012] ACTCA 57

RUSSELL TILLEY v THE QUEEN
[2012] ACTCA 57 (5 November 2012)

APPEAL AND NEW TRIAL – appeal against sentence – parity – where subjective circumstances not significantly different to co-offender’s – where co-offender’s sentence reduced on appeal – appeal upheld.

APPEAL AND NEW TRIAL – jurisdiction, practice and procedure – appeal against sentence – Crown concession alone insufficient to justify upholding appeal – Postiglionev The Queen (1997) 189 CLR 295.

Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Sherd (Unreported, Supreme Court of the ACT, Nield AJ, 22 June 2011)
Welchv The Queen [2012] ACTCA 14

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 20 – 2012
No. SCC 17 of 2011

Judges:         Refshauge ACJ, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:            5 November 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2012

)          No. SCC 17 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RUSSELL TILLEY

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  5 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld in part.

1. The head sentences imposed on Russell Lee Tilley be confirmed.

1. The non-parole period be varied so that it be for a period of two years, the first 12 months, from 8 November 2011 to 7 November 2012, to be served by full-time imprisonment, and thereafter for a period of 12 months from 8 November 2012 to 7 November 2013 it be served by periodic detention, the first period of detention to commence at 7.00 pm on 9 November 2012 when Mr Tilley should report to the Symonston Periodic Detention Centre.

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2012
  )          No. SCC 17 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RUSSELL TILLEY

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  5 November 2012
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE ACJ:

1. Russell Lee Tilley appeals to this Court against the sentences imposed for three offences of assault occasioning actual bodily harm on three victims on 13 March 2010. 

2. The circumstances of the appeal are somewhat unusual in that the Crown concedes the appeal and joins with the appellant in seeking a specific sentence, namely, the same sentence as imposed on one of two co-offenders of Mr Tilley. 

3. The offences arose out of an altercation which occurred at about 4.00 am on 13 March 2010.  Three victims had been celebrating the birth of a baby to the partner of one of the victims when they met one of Mr Tilley’s co-offenders, Benjamin Thomas Sherd, and also David John Welch.  The victims later left and returned to the house of one of them, and Mr Sherd and Mr Welch later arrived and Mr Welch performed a “burnout” on the front lawn of the victim’s residence. 

4. One of the victims then urinated on Mr Welch’s car, which resulted in a brief fight following which Messrs Welch and Sherd left the scene.  Later Mr Welch, in company with Mr Sherd, Mr Tilley and the third co-offender, Stephen Paul Beattie, returned to the victim’s house armed with a wooden axe handle, a hollow metal bar, a baseball bat and a machete. 

5. They eventually found the victims and Messrs Beattie, Sherd and Tilley began attacking them using the weapons.  During the attack the three victims were struck numerous times on their bodies and faces and the assault only came to an end when a neighbour yelled out words to the effect of “I’m calling the cops.”  The three victims were seen bleeding heavily from wounds to their faces and heads and an ambulance was called.  The facts are set out in more detail in the decision of the Court of Appeal: Welchv The Queen [2012] ACTCA 14.

6. Messrs Sherd, Beattie and Tilley were each charged with three counts of assault occasioning actual bodily harm, one charge in respect of each of the three victims.  Ultimately Mr Welch pleaded guilty to three charges of aiding and abetting the assault occasioning actual bodily harm on each of the victims, one charge for each victim.  He was sentenced on the basis that he was not an active participant in the attacks. 

7. Messrs Sherd and Beattie were sentenced on 22 June 2011: R v Sherd (Unreported, Supreme Court of the ACT, Nield AJ, 22 June 2011).  They each received the same sentence.  On the first count they were each sentenced to two years imprisonment, on the second count to one year and seven months imprisonment to be cumulative as to five months on the first count, and to one year and seven months on the third count to be cumulative as to four months on the second count.  A single non-parole period of one year and nine months was set in each case. 

8. For reasons not entirely apparent, Mr Tilley was sentenced separately.  Mr Tilley contested certain of the facts alleged by the Crown and a separate hearing as to the contested facts proceeded on 13 September 2011.  Burns J, who heard the sentencing proceedings, reserved his decision and, on 9 November 2011, imposed sentence.  His Honour made findings that in general terms reflected the Crown’s statement of facts on which Messrs Sherd and Beattie had been sentenced. 

9. A Pre-Sentence Report was prepared.  It showed that Mr Tilley had an unremarkable childhood, though his parents separated when he was two years old and both parents later remarried.  He had a significant relationship when he was 19 years old, producing a daughter who is now 12, but drug use by himself and his former partner, in addition to her mental health problems, contributed to their separation after four years.  He had a further relationship, also resulting in the birth of a daughter who is now aged five, but which ended also after four years. 

10. Mr Tilley has been employed as a paver, plumber, labourer and cabinetmaker and at the time of sentencing managed his own roofing business, running another business for a friend.  He drinks alcohol socially and commenced smoking cannabis when he was 15, continuing to use that drug at about one gram a day on a regular basis.  He has used methamphetamines but ceased using those drugs in 2007. 

11. Mr Tilley has a short criminal history, having been convicted of assaults in April 2001 and September 2007.  He expressed some remorse for the injuries he inflicted on the victims in the current offences, but also expressed concern about the likely effect on his business were he to be incarcerated. 

12. In his sentencing remarks Burns J summarised the personal circumstances of each of the co-offenders and concluded:

    There is no significant distinction to be drawn between the prisoner and his co-offenders Benjamin Sherd and Stephen Beattie so as to suggest that any sentence imposed upon the prisoner should differ significantly from that imposed on Benjamin Sherd and Stephen Beattie. 

    I consider that the sentences imposed by Nield AJ and his approach to the cumulation of those sentences so as to rely on an overall sentence marking the criminality of these co-offenders to have been appropriate.

1. His Honour then proceeded to impose the same sentences on Mr Tilley, that is, on the first count, two years imprisonment to commence on 8 November 2011, on the second count, one year and seven months imprisonment commencing on 8 August 2012, that is, cumulative as to five months on the first sentence, and on the third count, one year and seven months imprisonment commencing on 8 May 2013, that is, to be cumulative as to four months on the second sentence.  He imposed a single non-parole period of one year and nine months to commence on 8 November 2011. 

1. Both Mr Sherd and Mr Beattie appealed against the sentences imposed on them, apparently, inter-alia, on the grounds that the sentences were manifestly excessive.  The Court of Appeal upheld the appeals.  It held that there was no error in the head sentences imposed on either offender.  In the case of Mr Sherd, however, it considered (at [32]) that

his Honour’s sentencing of Mr Sherd miscarried by reason of his failure fully to appreciate the appellant’s remorse in the evidence that we have quoted, the dependence of his family unit upon him as an income earner, his frank acknowledgement of his own role and use of weapons in the incident, part of which his Honour used in rejecting Mr Beattie’s evidence that sought to depart from the account of the offending in the agreed facts.

As a result, it resentenced Mr Sherd so as to serve a period of full-time imprisonment for one year concluding on 21 June 2012 followed by a period of nine months’ periodic detention to conclude on 21 March 2013 with a “coterminous non-parole period”.

1. In relation to Mr Beattie, the Court concluded (at [37]) that

   having regard to Mr Beattie’s recanting from the agreed facts, his assertions to his Honour that he had only used his fists in the assaults of the victim, and that [one of the victims] was armed with a mop during these attacks, for which there was no supporting evidence, his Honour’s finding of lack of remorse by Mr Beattie was not shown to be erroneous.  Indeed, we would observe that Mr Beattie appeared to lack real insight into his own wrongdoing.

   Accordingly, the Court of Appeal upheld the appeal and confirmed the head sentence but directed that Mr Beattie should serve a period of full‑time imprisonment for one year to conclude on 21 June 2012 and, having regard to Mr Beattie’s lack of remorse and insight, followed by a period of one year’s periodic detention to conclude on
   21 June 2013 also with a “coterminous non-parole period”. 

   
   

2. Mr Tilley has appealed against the sentence on the grounds that

   (a) alternatives to full-time imprisonment by suspension of a period of imprisonment or for imprisonment to be served by way of periodic detention were not properly considered;

   (b) the sentences were manifestly excessive and consideration was not given to the structure of the sentence and how they were to be served; and

   (c) there should be parity with sentences imposed on co-offenders Messrs Sherd, Beattie and Welch following their appeal. 

3. The unusual feature of the appeal is that in this case the Crown concedes that the varied sentences for Mr Tilley’s co-offenders did give rise to issues of parity and in joint submissions prepared and signed by both counsel for the appellant and counsel for the Crown it was submitted:

   With respect, it is jointly submitted that the appeal should be upheld and the sentences imposed by his Honour Burns J on 8 November 2011 be varied so that the existing non-parole period be served as full-time imprisonment for one year starting on 8 November 2011 and concluding on 7 November 2012 and a period of periodic detention for one year to commence on 8 November 2012 and to conclude on 7 November 2013.

4. There is no doubt that the relativities between sentences imposed on co-offenders is important.  As Mason J (as his Honour then was) said in Lowe v The Queen (1984) 154 CLR 606 at 610–11.

   Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.  It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. 

5. Dawson J said in the same case (at 623):

   There is no rule of law which requires co-offenders to be given the same sentence of the same offence even if no distinction can be drawn between them.  Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for.  But justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence should not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.

   His Honour then referred to a number of authorities from Victoria, South Australia, New South Wales, United Kingdom and New Zealand. 

6. Clearly, Burns J felt that parity was important and hence imposed the same sentence on Mr Tilley as that imposed on Messrs Sherd and Beattie. 

7. The fact, however, that the Crown has conceded that the appeal should be upheld is not sufficient in itself to justify this Court upholding the appeal.  The High Court had to consider a similar position in Postiglione v The Queen (1997) 189 CLR 295. In that case the Crown also conceded that parity required moderation of the sentence imposed on Mr Postiglione. McHugh J, however, pointed out (at 310):

   Regardless of whether the Crown’s concession was properly made, it is not entitled to automatic recognition of consequence.  Courts must impose criminal sentences in accordance with their perception of what the public interest requires.  The constitutional arrangements of this country or England do not accord the Crown any monopoly in knowing what the public interest requires.  Moreover, as Gleeson CJ pointed out in R v Gallagher [(1991) 23 NSWLR 220 at 232], special care needs to be taken to avoid the giving of uncritical assent to arguments for leniency which are urged by both the Crown and the accused.

8. To the same effect, Kirby J said (at 341) that “the fact that the Crown supports the grievance voiced by the prisoner is not, of course, conclusive of the issue in the appeal, which must be judged by the Court, not the parties.”

9. Nevertheless, it is clear that the part played by Mr Tilley in the altercation as found by Burns J was not significantly different from that played by Messrs Sherd and Beattie.  Further, an examination of the materials both in the sentencing remarks of Nield AJ, the findings of the Court of Appeal and the decision of Burns J show that the subjective circumstances of Mr Tilley were not significantly different from those of Messrs Sherd and Beattie. 

10. Further, Mr Tilley controverted the facts, though unsuccessfully, in a similar fashion to that course taken by Mr Beattie which, the Court of Appeal found, significantly reduced the reduction in sentence that his remorse and insight could otherwise have provided.  As noted above (at [11]), while Mr Tilley expressed some remorse, his main concern appeared to be for the likely effect on his roofing business were he to be incarcerated. 

11. It seems to me that, as agreed by both the Crown and the appellant, the leniency for substantial remorse afforded Mr Sherd but denied Mr Beattie should also be denied Mr Tilley. 

12. In other circumstances it may have been appropriate for the sentences to have been set aside and remitted to the Supreme Court for resentencing to take into account the issue of parity.  If, however, a resentence structured along the lines of that imposed on Mr Beattie is to be imposed, then that should take effect on 7 November 2012, that is, very shortly and probably beyond the time when the Supreme Court could resentence Mr Tilley. 

13. In those circumstances, I am satisfied that the sentence should be varied as proposed.  That is to say, the head sentences imposed on Mr Tilley should be confirmed but the non-parole period should be varied so that it be for a period of two years, the first 12 months from 8 November 2011 to 7 November 2012 to be served by full-time imprisonment and thereafter for a period of 12 months from 8 November 2012 to 7 November 2013 to be served by periodic detention, the first period of detention to commence at 7.00 pm on 9 November 2012 when Mr Tilley should report to the Symonston Periodic Detention Centre. 

    I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.

    Associate:

    Date:  8 January 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 20 – 2012
  )          No. SCC 17 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RUSSELL TILLEY

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  5 November 2012
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J:

1. I agree with his Honour the Acting Chief Justice that the appeal should be upheld and the appellant resentenced as proposed.  I wish to record my particular endorsement of his Honour’s comments about the respective roles of the Court and the parties in the exercise of the sentencing discretion.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

   Associate:

   Date:  8 January 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA – 20 of 2012
  )          No. SC                   of
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RUSSELL TILLEY

Appellant

AND:THE QUEEN

Respondent

Judges:  Refshauge ACJ, Penfold and Buchanan JJ
Date:  5 November 2012
Place:  Canberra

REASONS FOR JUDGMENT

BUCHANAN J:

1. I agree with the presiding judge.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Buchanan.

   Associate:

   Date:  8 January 2013

Counsel for the Appellant:  Mr K Archer
Solicitor for the Appellant:  BevanSnell Lawyers
Counsel for the Respondent:  Mr T Jackson
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  5 November 2012
Date of judgment:  5 November 2012