Sharp v The Queen
[2018] VSCA 327
•6 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0261
| GLEN SHARP | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2018 |
| DATE OF JUDGMENT: | 6 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 327 |
| JUDGMENT APPEALED FROM: | DPP v Sharp (Unreported, County Court of Victoria, Judge Gucciardo, 17 November 2017) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Armed robbery – Appellant sentenced to 5 years’ imprisonment – Co-offender sentenced to 4 years’ imprisonment – Whether parity principle infringed – Whether judge found appellant was controlling mind – Whether open to differentiate between appellant and co-offender based on different roles in execution of offence – Appeal allowed – Re-sentenced to 4 years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J F Chisholm | Balmer & Associates |
| For the Respondent | Ms S M K Borg | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
The appellant pleaded guilty in the County Court to four charges and, on 17 November 2017, was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1
Armed robbery(Crimes Act 1958 s 75A)
25 years
4 years
12 months
2
Armed robbery(Crimes Act 1958 s 75A)
25 years
5 years
Base
3
Possess drug of dependence (Drugs Poisons and Controlled Substances Act 1981 s 73(1))
30 penalty units or 1 year imprisonment or both
3 months
1 month
4
Armed robbery
(Crimes Act 1958 s 75A)
25 years
4 years 6 months
18 months
Total Effective Sentence:
7 years 7 months’ imprisonment
Non-Parole Period:
4 years 6 months
Pre-Sentence Detention:
659 days
6AAA Declaration:
8 years 6 months’ imprisonment, with a non-parole period of 6 years
Other Orders:
Disposal order
The appellant applied to this Court for leave to appeal against his sentence on the sole ground that the disparity between the sentence imposed on him and a co-offender in respect of the armed robbery the subject of charge 2 gave rise to a justifiable sense of grievance. On 9 March 2018, a judge of this Court granted the appellant leave to appeal.[1]
[1]Sharp v The Queen (Unreported, Victorian Court of Appeal, Kyrou JA, 9 March 2018).
For the reasons that follow, we would allow the appeal.
The offending
The relevant facts, and the basis on which the judge was invited to sentence the appellant, were set out in the prosecution written opening.
The armed robbery that was the subject of charge 2 took place on 16 January 2016.[2] The victim, Joshua Hill, was driving through St Kilda in a Holden Astra sedan which belonged to his friend. One of the appellant’s co-offenders, Rebecca Robertson, asked Mr Hill for help, telling him that she needed to get home to South Melbourne to administer insulin to her diabetic son. Mr Hill agreed to drive Robertson (who introduced herself as ‘Alannah’), and she began to direct him to South Melbourne.
[2]The appellant’s ground of appeal concerns only the sentence imposed on charge 2, however it will also be necessary to make brief reference to the offending that was the subject of charges 1 and 4.
Mr Hill stopped at a Caltex service station on Kings Way in South Melbourne to purchase cigarettes and a drink. He observed that Robertson was continually texting on her phone. Robertson asked him to drive to a BP service station nearby to enable her to purchase a phone charger.
By the time Mr Hill and Robertson arrived at the BP service station, the appellant was already there in a Daihatsu vehicle. The appellant followed Mr Hill and Robertson in the Daihatsu as they drove out of the BP service station. Robertson then directed Mr Hill to drive to an Officeworks store in South Melbourne. The appellant arrived a short time later. He got out of the Daihatsu wearing a balaclava and holding a long-armed rifle, and approached Mr Hill who was sitting in the driver’s seat of the Astra.
As the appellant opened the door of the Astra, Robertson advised Mr Hill to ‘do as [the appellant] says and you won’t get hurt’. The appellant held the rifle across his body before swinging it at Mr Hill, striking him in the cheek with the barrel. Mr Hill tried to negotiate with the appellant. The appellant looked down at the rifle and fiddled with the trigger in an apparent attempt to load it. While this was happening, Mr Hill grabbed his wallet from inside the driver’s door. The appellant swung the rifle around and pointed it at Mr Hill, before using the butt of the gun to strike Mr Hill on the head.
Mr Hill stepped out of the Astra. Robertson climbed into the driver’s seat and drove away, followed by the appellant in the Daihatsu. Mr Hill sought help at the Caltex service station. He received medical attention for the injuries inflicted on him by the appellant.
Before turning to the reasons for sentence, it is convenient to make brief reference to the other two armed robberies to which the appellant pleaded guilty. The first occurred three days before the Hill armed robbery. The victim had parked his car at approximately 3:00 pm at Port Melbourne beach and gone for a swim. On returning to his car about 20 minutes later, the victim was seated in the driver’s seat when the appellant approached the vehicle, motioned to the victim to open the car window, before opening the door and handing over a note which read ‘get out of the car or I will show you something funny’. The appellant then lifted his singlet to reveal a hunting knife. He removed the hunting knife from his pants and told the victim to ‘get out of the car and leave the key in there’. The victim fled the vehicle and the appellant drove it away.
The third armed robbery occurred later on the same day as the Hill robbery and involved the appellant and an unknown male. The appellant and his co-offender arranged to meet their two victims in order to arrange for the purchase of a motorbike. After making arrangements for the victims to attend at an address with the motorbike, the unknown male raised a shotgun to the victims and demanded the keys to the motorbike. The victims ran off and were chased by the unknown male who was still pointing the shotgun at them. As this unfolded, the appellant was sitting in the Daihatsu. After the victims had left the scene, the unknown male stole the victims’ utility. The appellant drove off in the Daihatsu at speed.
The judge’s reasons for sentence
After detailing the offending that was the subject of the four charges,[3] the judge described the armed robberies (including that which was the subject of charge 2) as ‘very serious examples of this type of criminal offence’.[4]
[3]DPP v Sharp (Unreported, County Court of Victoria, Judge Gucciardo, 17 November 2017) [4]–[25] (‘Reasons’).
[4]Reasons [30].
His Honour observed that:
The second and third armed robbery shows a much more involved, planned and thought-out implementation. A significant degree of pre-meditation, agreement and planning is gleaned by the way you worked together with the others in relation to the treatment to which both Hill and [the victims of the third armed robbery] were treated. You used your co-accused Robertson as bait, in effect, in order to effect the armed robbery on [the victim of the first armed robbery] and Hill, and you had a disguise, a balaclava, and you were in possession of a long-arm rifle. Without showing hesitation or provocation or reason, you struck Hill more than once with the rifle, and you were also seen to be apparently trying to load it.[5]
[5]Reasons [33].
The judge stated that he had not received a victim impact statement from Mr Hill, but noted that one had been tendered before Judge Lawson on the sentencing of Robertson. In that statement, Mr Hill described suffering from ongoing anxiety, fear of public places, and mood problems.[6]
[6]Reasons [35]–[37].
The judge recorded that there had been a contested committal in December 2016, during which only the informant had been called. After the committal, plea negotiations were ongoing for nine months before the appellant agreed to plead guilty to the four charges. The judge accepted that the appellant’s plea had utilitarian value and constituted evidence of remorse. His Honour stated that he would apply a discount to sentence on account of the plea, but noted that the appellant might have been entitled to a greater benefit had he disclosed to police the identity of the co-offender involved in the third armed robbery.[7]
[7]Reasons [46]–[47].
The judge stated that, in assessing the appellant’s rehabilitative prospects, he would take into account the appellant’s remorse, as demonstrated by his plea of guilty and statements made by him to a forensic psychologist and his family.[8]
[8]Reasons [47]–[48].
In relation to the appellant’s criminal history, the judge recorded that the appellant had one appearance in February 2016 in relation to charges of burglary, theft, theft of a vehicle, possessing a prohibited weapon and possessing methylamphetamine (among others). His Honour observed that the appellant’s prior offending went both to his prospects for rehabilitation and the application of the principle of specific deterrence.
The judge then turned to the appellant’s personal circumstances. The appellant was born in 1989 and had ‘an unremarkable and happy childhood’. He left school after Year 10 and undertook a plumbing pre-apprenticeship. He could not find employment in that field so he worked as a cabinet-maker for three years before undertaking other jobs, including delivery work and factory work.[9]
[9]Reasons [52]–[53].
The appellant went into business with his brother-in-law when he was 22. While the business was being established, he attended a night course in roof plumbing and worked elsewhere so that he would not need to draw an income from the business. The appellant began to use ice during this period to enable him to work longer hours.[10]
[10]Reasons [54].
At the age of 22, the appellant began a relationship with a woman who had a daughter from a previous relationship. He built a house to live in with the woman and her daughter. The relationship ended in 2014.[11]
[11]Reasons [53].
When the appellant’s relationship floundered, he began to socialise more and take more drugs. His performance at work declined, which affected the partnership with his brother-in-law.[12] In January 2015, the appellant’s finger became infected and the top part of his finger was amputated. His drug use increased while he was off work. He isolated himself from his family and friends, stopped working, and sold his interest in the business to his brother-in-law.[13]
[12]Reasons [55].
[13]Reasons [56].
The judge observed that the appellant had used ice to ‘self-medicate and block the reality of the break-up’.[14] At the height of his drug use, he was taking about two grams of ice each day and GHB in large quantities. He also sold drugs.[15]
[14]Reasons [57].
[15]Reasons [57].
The appellant had tested positive for drugs on one occasion while in custody. The judge observed that the appellant’s rehabilitation was dependent on him abstaining from drug use, but that he had good rehabilitative prospects in light of the positive changes described by his family and friends, the support he would receive from them, and the growing insight that he had about his drug use.[16]
[16]Reasons [58]–[62].
The judge was satisfied that the appellant did not have any mental health issues which would enliven Verdins considerations.[17]
[17]Reasons [64].
His Honour stated that the main sentencing objectives were denunciation and general deterrence. Specific deterrence was also identified as a relevant sentencing objective having regard to the appellant’s prior offending.[18] The judge said he would impose a slightly longer than usual parole period in light of the appellant’s relative youth and his degree of social support.[19]
[18]Reasons [66].
[19]Reasons [67].
The sentence imposed on Robertson
Given the terms of the ground of appeal, it is necessary to make some reference to the sentence imposed by Judge Lawson on the co-offender Robertson.[20]
[20]DPP v Robertson [2016] VCC 1389 (‘Robertson Reasons’).
Robertson pleaded guilty to one charge of armed robbery and one charge of attempted armed robbery. The former charge related to the armed robbery of Mr Hill (charge 2 on the appellant’s indictment).
Judge Lawson commenced her reasons for sentence by referring to Robertson’s criminal record. Robertson was 31 at the time of the offending and 32 at the time of sentence.[21] She admitted a criminal history which spanned from 9 August 2001 to 18 December 2009 and included court appearances in Queensland for drug-related offending, theft and breach of bail. There were also a number of Victorian convictions, including convictions in 2001 for assault with intent to rob, robbery, theft of a motor vehicle, drug-related offending, unlicensed driving and other driving-related offending. For those offences, Robertson was given six months’ detention in a youth training centre.[22]
[21]Robertson Reasons [4].
[22]Robertson Reasons [5]–[6].
In 2009, Robertson was imprisoned for three months (wholly suspended) for robbery. Later that year, she was convicted of armed robbery and attempted armed robbery and sentenced to a term of imprisonment of three years and nine months with a minimum term of 20 months.[23]
[23]Robertson Reasons [7]–[8].
Judge Lawson then turn to the circumstances of the offending. The factual basis on which Robertson was sentenced was materially the same as that on which the appellant was sentenced, and Judge Lawson’s account of the offence was effectively in the same terms as that given by the judge in the present case.[24]
[24]Robertson Reasons [14]–[16].
Judge Lawson next detailed the ‘difficult childhood and extremely unfortunate family circumstances’ endured by Robertson.[25] That history included being subjected to sexual abuse at the hands of her stepfather and physical abuse from other family members. She had been made a ward of the state and lived in multiple foster care and group homes until she ran away at the age of 14. From about 14, she had developed a heroin habit and became a street sex worker.[26]
[25]Robertson Reasons [30].
[26]Robertson Reasons [31]–[33].
Following Robertson’s release from prison in 2010, her compliance with parole conditions had been sporadic and she had relapsed into heroin use and street work.[27] In the light of Robertson’s history, the judge was guarded in her conclusions as to Robertson’s prospects for rehabilitation.[28]
[27]Robertson Reasons [34]–[38].
[28]Robertson Reasons [48].
Relevantly for present purposes, Robertson was sentenced to a term of imprisonment of 4 years on the armed robbery charge. A sentence of 2 years imprisonment, with 6 months cumulative on the armed robbery, was imposed for the attempted armed robbery. The total effective sentence was 4 years and 6 months’ imprisonment with a 3 year non-parole period.
The ground of appeal
On 9 March 2018, a judge of this Court gave the appellant leave to appeal on the ground that it was not reasonably open to the judge to create the disparity between the appellant and Robertson on charge 2, and thus the appellant had a justifiable sense of grievance. It was not contended that the individual sentences or the total effective sentence were outside the range or that the judge failed to take into account a relevant matter or misapplied any relevant principle.
As formulated in writing, there were two limbs to the appellant’s parity argument.
The first is that the judge concluded that the appellant had played a leading role in the armed robbery against Mr Hill in the sense of being the controlling mind and primary planner and that there was no proper evidentiary basis for that conclusion. It was also said that this issue was not specifically raised with the proper parties prior to sentence, resulting in a denial of procedural fairness.
The second aspect of the argument is that the difference between the sentences imposed on the appellant and Robertson is inexplicable having regard to the significant prior convictions of Robertson. It was said that the judge failed to give sufficient weight to Robertson’s prior convictions when applying the principle of parity, resulting in a manifest discrepancy between the sentence of the appellant on charge 2 and the sentence imposed on Robertson for the same armed robbery.
In developing the first aspect, the appellant submitted that the sentence imposed on the appellant was higher than that imposed on Robertson because the judge had concluded that the appellant was the controlling mind of the offence. That submission was based on two passages in the reasons for sentence.
In paragraph 33, the judge said this:
The second and third armed robbery shows a much more involved, planned and thought-out implementation. A significant degree of pre-meditation, agreement and planning is gleaned by the way you worked together with the others in relation to the treatment to which both Hill and the Rostonkovski’s were treated. You used your co-accused Robertson as bait, in effect, in order to effect the armed robbery on Trinh and Hill, and you had a disguise, a balaclava, and you were in possession of a long-arm rifle. Without showing hesitation or provocation or reason, you struck Hill more than once with the rifle, and you were also seen to be apparently trying to load it.[29]
[29]Reasons [33] (emphasis added).
The second passage relied on by the appellant is found in paragraph 68 and is in these terms:
I note that Robertson, who was sentenced by Her Honour Judge Lawson, received four years for the Hill armed robbery alone (here Count 2). She had relevant priors, and her history and background is set out in her sentence. I consider that in the context of parity, your sentence is a fair reflection of the leading role you played in that armed robbery. … [30]
[30]Reasons [68] (emphasis added).
The appellant fastened in particular on the highlighted parts of those extracts.
It is also relevant in considering the ground to note an exchange between the judge and defence counsel during the course of the plea. After defence counsel referred to the sentencing remarks of Judge Lawson, the following exchange took place:
[COUNSEL]:The question of how does that assist Your Honour with parity? I’m not sure if it assists greatly because it’s a situation where [Robertson has] pleaded guilty to a single armed robbery and an attempted armed robbery. The second offence is not something that [the appellant is] co-accused for. He’s co-accused for the first one and then he has [his] own two separate ones in addition. Whereas, I mean, everyone’s personal details — sorry, personal circumstances are unique
…
[S]o she might have some things that are more mitigatory, or some personal aspects of a — something that adds to a difference is that, I understand it, she has a prior from 2009 for armed robbery and attempted armed robbery. So she had what could only be described as highly relevant priors a fairly short period of time ago. And I haven’t gone through all her sentencing remarks, but having a look, and having a look previously at the 2009 one, you have someone who has a much more serious criminal history, but perhaps has a more disadvantaged aspect, and there’s — the judge would have come to a weighing exercise. So for those purposes I don’t think it greatly assists a parity purpose.
HIS HONOUR: Well, so there’s unlikely to be a sense of — a justifiable sense of grievance.
[COUNSEL]: No.
The appellant argued that, taken together, the passages in paragraphs 33 and 68 of the reasons for sentence reveal that the judge sentenced the appellant on the basis that he was the controlling mind and primary planner of the armed robbery, including by directing Robertson to act as bait for the victim.
In the course of oral argument before us, the appellant developed an alternative submission that, if the judge had differentiated between the offenders on the basis of the execution of the robbery and the different roles played by the offenders on the day, it was not open to differentiate on that basis given that it was a joint criminal enterprise. It was said that each offender is liable for the conduct of the other and there was no factual basis to conclude that the appellant had gone outside the agreement in using the rifle to strike the victim.
In the further alternative, it was submitted that the difference in the respective roles played by the appellant and Robertson during the robbery did not support the extent of the difference in sentence.
The respondent submitted that the judge did not proceed on the basis that the appellant was the controlling mind of the robbery. Rather, the judge differentiated between the offenders on the basis of the different roles played by them on the day. In particular, it was submitted that the appellant had been the aggressor and that, on the facts set out in the prosecution opening, Robertson had played a more passive role, effectively receding into the background once the appellant had arrived at the scene of the robbery and confronted the victim. In that regard, the respondent submitted that the advice given by Robertson to the victim that he should ‘do as [the appellant] says and you won’t get hurt’ demonstrated that the appellant was performing the primary role in the execution of the robbery.
It is necessarily implicit in the respondent’s submissions that there was no basis upon which the judge could have properly concluded that the appellant was the controlling mind or driving force behind the armed robbery.
Applicable principles
In order to resolve the ground of appeal, it is necessary to set out the applicable principles.
It is often said that the principle of parity is engaged where there is a differential treatment of co-offenders that gives rise to a justifiable sense of grievance (objectively determined).[31] To pose the test as an inquiry into whether an offender might justifiably feel aggrieved by the sentence imposed upon him or her has the potential to mask the correct legal inquiry, which is whether it was open to the judge to impose a sentence which differed from the sentence imposed on a co-offender for the same offence.
[31]Lowe v The Queen (1984) 154 CLR 606, 609–610 (Gibbs CJ); Taudevinv The Queen [1996] 2 VR 402, 404 (Callaway JA, with whom Winneke P agreed); Postiglione v The Queen (1997) 189 CLR 295, 309 (McHugh J), 323 (Gummow J), 342 (Kirby J); Green v the Queen (2011) 244 CLR 462, 474–5 [31].
Different treatment, like discrimination generally, can take the form of treating the same things differently or in treating different circumstances in a way that does not pay due regard to the differences.
A ground alleging breach of the parity principle does not require an appellate court to undertake a line-by-line comparison between the various weightings given to different aspects of the two sentences that are being compared. The appellant has to establish a justifiable sense of grievance which is to be considered objectively.
The rationale for overturning a sentence on the basis of a marked and inexplicable discrepancy with a sentence imposed on a co-offender was explained by Mason J in Lowe v The Queen in the following oft-cited passage:
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.[32]
[32](1984) 154 CLR 606, 610–11.
The requirement of equal justice is fundamental and, as Vincent JA said in R v Djukic:
It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses.[33]
However, the process of sentence is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA went on to observe in Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[34]
[33][2001] VSCA 226 [25].
[34]Ibid.
The ground cannot be made good if it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.[35]
[35]Dickman v The Queen [No 2] [2017] VSCA 351 [49] (Whelan JA), citing McCloskey-Sharp v The Queen [2015] VSCA 87 [17].
Analysis
The difference in sentence imposed on the appellant and the co-offender Robertson for the armed robbery of Mr Hill was a relatively significant one. Given that the offence involved a joint criminal enterprise of some planning and foresight in which both the appellant and Robertson participated, the difference of one year in the sentences imposed was material and could only be justified by some difference in the respective positions of the two offenders.
We are not persuaded that the judge differentiated between the two offenders on the basis of a conclusion that the appellant was the primary planner or controlling mind of the robbery. We do not consider that the judge made any finding, either express or implicit, as to the provenance of the plan or the relative hierarchy between the offenders in the steps leading up to the robbery. Neither of the passages relied on by the appellant, either alone or in combination, establish that the judge sentenced the appellant on the basis that he was the controlling mind of the offending.
First, the judge did not make an express finding to the effect contended for, nor was he asked to do so.
Second, read as a whole, paragraph 33 does not entail a finding that the appellant was the instigator or planner of the armed robbery against Mr Hill. The judge expressly noted that the second and third armed robberies to which the appellant pleaded guilty involved a significant degree of planning but went on to say that the appellant worked together with the others in relation to the treatment to which both Mr Hill and the victims of the third robbery were subjected. The reference to Robertson being used as bait reflected the fact that it was clearly part of the plan (to which all offenders were party) that Robertson would identify and entice a victim to drive her on a fictitious errand to enable the robbery to occur.
It is to be noted that the reasons for sentence were directed to the appellant and his role in the offending. By saying that ‘[y]ou used your co-accused Robertson as bait’ the judge was not implying that Robertson was herself being used or directed by the applicant. Read in context, the passage does not relatively diminish the role played by Robertson in the formulation or implementation of the plan.
The reference in paragraph 68 of the reasons to the ‘leading role’ played by the appellant in the Hill armed robbery reflected the judge’s assessment that the appellant had a significantly greater role in the execution of the robbery on the basis that it was he who brandished the rifle and used it to strike Mr Hill twice to the face.
It follows that the premise of the first aspect of the appellant’s argument has not been established. We turn then to consider the alternative aspect, namely that the judge erred in imposing a different sentence based on the differing roles each offender played in the execution of the Hill armed robbery.
The issue of principle that arises is whether it was open to the judge to attribute a higher degree of criminality or culpability to the appellant on the basis of that difference in role. If it was open to the judge to do so, the subsidiary issue arises whether it was open to the judge to differentiate to the extent that he did given the prior convictions of Robertson as against the appellant’s less extensive criminal history and the judge’s more positive findings as to his prospects for rehabilitation.
There is no doubt that both the appellant and Robertson were engaged in a joint criminal enterprise and were acting in concert. For the purposes of s 324 of the Crimes Act, they were each a person involved in the commission of the armed robbery and were to be taken to have committed that offence and be liable to the maximum penalty. Each was criminally liable for the conduct of the other in the execution of the agreement, arrangement or understanding to commit the armed robbery against Mr Hill.[36]
[36]See Johns v The Queen (1980) 143 CLR 108, 125 (Mason, Murphy and Wilson JJ), quoted in IL v The Queen (2017) 91 ALJR 764, 783 [73] (Bell and Nettle JJ).
There is no rule or principle that each person involved in the commission of an offence for the purposes of s 324 of the Crimes Act must be treated for the purposes of sentence as being equally culpable for the offending. The circumstances in which the law treats a person as involved in the commission of an offence extends to each of the circumstances identified in sub-ss 323(1)(a) to (d) and are too diverse to permit the application of such a general rule. Further, the degree of criminality involved in the commission of the offence is only one factor of many which informs the sentencing process.
Many examples can be found where different levels of culpability have been ascribed to co-offenders involved in a joint criminal enterprise.
In a written submission filed by leave after the hearing, the respondent referred to the decision of the Court of Criminal Appeal of New South Wales in Baird v The Queen[37] in support of its submission that the role played by an offender in a joint crime is generally a consideration in the assessment of that offender’s moral culpability. In that case, Street CJ (with whom Maxwell J and Hunt J agreed) contrasted an offender who played a subordinate or non-consequential role in the performance of the crime with co-offenders who were more closely involved in the transaction in question.[38]
[37](1985) 32 A Crim R 67.
[38]Ibid 70–1.
The respondent also relied on the decision of this Court in R vAndrakakos[39] as providing an example of where two offenders involved in a murder were sentenced on the basis of their differing roles in the killing of the victim. The sentencing judge (Nettle J) had considered that one of the offenders, Arkan, was the principal perpetrator of the attacks on the victim and that her co-offender, Andrakakos, had been involved only as an aider and abettor.[40] Ormiston JA (with whom Winneke ACJ and Buchanan JA agreed) noted that the judge did not expressly find that Andrakakos’s culpability was much less than that of Arkan, although he saw some distinctions in their respective roles which were reflected in the sentences he imposed.[41]
[39][2003] VSCA 170.
[40]Ibid [21], [28] (Ormiston JA, with whom Winneke ACJ and Buchanan JA agreed).
[41]Ibid [28].
Even in cases of a joint criminal enterprise, consideration of a lack of parity will call for a determination of the part played by each of the offenders and the resultant degree of culpability on the part of each of them.[42] As recognised by Crockett J in R v Jabbour,[43] the fact that one offender plays a more active physical role in the commission of an offence such as armed robbery may provide a basis for a valid distinction to be made in sentence, but each case will turn on its own facts.
[42]R v Jabbour (Unreported, Supreme Court of Victoria Court of Criminal Appeal, 7 April 1989, Crockett, Gray and McDonald JJ) 4 (Crockett J, with whom Gray and McDonald JJ agreed).
[43]Ibid 4–5 (Crockett J, with whom Gray and McDonald JJ agreed).
Buchanan JA’s observations in Hafner v The Queen with regard to co-offenders facing the same charges are also relevant. His Honour said:
While it is obviously desirable that persons who are parties to the commission of the same offence should receive the same sentence, matters such as age, background, previous criminal history, character and the role played in the commission of the offence have to be taken into account. Some disparity between sentences imposed upon co-offenders is not in itself a ground for intervention by an appellate court. The difference between the sentences must be manifestly excessive. The Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused on whom the heavier sentence is imposed or on the ground the disparity gives the appearance that justice has not been done.[44]
[44][2012] VSCA 190 [17].
The type of complicity involved here was a joint criminal enterprise in which both offenders participated. The appellant and Robertson were each charged with the same offence and the facts put forward on their respective pleas were the same. The conduct of each was indispensable to the fulfilment of the criminal design.
There was nothing in the prosecution opening, either before Judge Lawson or before the judge on the appellant’s plea, that permitted a finding that the use of the rifle to strike Mr Hill fell outside the common purpose which the offenders had jointly set upon.[45] It will be recalled that the striking of Mr Hill formed part of the factual basis on which Robertson was sentenced.
[45]See IL v The Queen (2017) 91 ALJR 764, 781 [63] (Bell and Nettle JJ).
The respondent submitted that Robertson, although not withdrawing from the offence so as to escape criminal responsibility, had played a lesser role. We do not agree. Robertson played an essential role in luring the victim into a position that enabled the robbery to occur. We would not ascribe a benevolent motive to her advice to the victim to comply with the appellant’s demands so as to avoid harm. That comment was intended to have the victim succumb to the robbery without resistance, but was hardly given with the interests of the victim in mind.
During the robbery, Robertson remained in the victim’s car, and when the victim abandoned the car in fear, she moved into the driver’s seat and drove the victim’s car away, allowing the appellant to return to his own car to complete the get away.
It follows that there was no proper basis to differentiate between the co-offenders solely on the basis of the different roles played by them in the execution of the offence. Read fairly, it was this difference in role that provided the reason for the heavier sentence the judge imposed on the appellant as compared to that imposed by Judge Lawson on Robertson.
Of course, the judge was not bound to give the appellant the same sentence for the robbery as that which Judge Lawson gave to Robertson. There were clearly differences in the particular circumstances of the two offenders, and it was open to the judge to take a different view as to the gravity of the offending committed by both offenders.
The fact that Robertson had a number of relevant prior convictions for armed robbery and theft was an important part of the context in which she was sentenced. Those convictions were obviously relevant to sentence in that they potentially went to her moral culpability, prospects for rehabilitation, the danger of propensity, the need for protection of the community, and the increased importance of specific deterrence as a factor in sentencing.[46] Relatedly, Judge Lawson was guarded in her assessment of Robertson’s prospects for rehabilitation. On the other hand, Robertson had an extremely deprived childhood which contributed to her offending and ameliorated, at least to some extent, the full force of her prior convictions.
[46]See R v O’Brien [1997] 2 VR 714, 718 (Charles JA, with whom Winneke P and Southwell AJA agreed).
The appellant’s prior offending (which had been dealt with in February 2016) involved charges of burglary, theft, theft of a vehicle, possessing a prohibited weapon and possessing methylamphetamine (among others). The judge accepted that these offences took place at a time when the appellant’s life ‘ran off the tracks’.[47] The appellant had also tested positive for drugs in prison on one occasion. Notwithstanding those matters (to which the judge drew attention), his Honour nevertheless found that the appellant’s prospects for rehabilitation were good.[48]
[47]Reasons [50].
[48]Reasons [62].
To the extent there were differences between the offenders, they tended to favour the appellant rather than Robertson. The judge’s own assessment of the gravity of the offence cannot adequately explain the difference in sentence.
In conclusion, it was not open to the judge to visit the appellant with such a markedly higher sentence for the Hill armed robbery. This is not one of those cases where the sentence imposed on the co-offender was unreasonably light.[49]
[49]See, eg, Farrugia v The Queen (2011) 32 VR 140, 147–8 [31].
The consequences
The appellant submitted that success on this ground would only affect the sentence imposed on charge 2 and would not warrant this Court interfering with any of the other sentences or the orders for cumulation.
On charge 2, the sentence imposed must be set aside. In the circumstances, we would resentence the appellant to a term of imprisonment of 4 years on charge 2. In reaching that conclusion, we give considerable weight to the sentence imposed on Robertson.
We would set aside and reimpose the sentences imposed in respect of the other charges.
Given that the sentence imposed on charge 2 constituted the base sentence and that after re-sentencing that sentence will be less than that imposed on charge 4, we would make orders for cumulation as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Armed robbery 25 years 4 years 12 months 2 Armed robbery 25 years 4 years 12 months 3 Possess drug of dependence 30 penalty units or 1 year imprisonment or both 3 months Nil 4 Armed robbery 25 years 4 years 6 months
Base
In the result, there should be a total effective sentence of 6 years and 6 months’ imprisonment. We would impose a non-parole period of 4 years.
Pursuant to s 6AAA of the Sentencing Act 1991, a declaration will be made that, but for the applicant’s plea of guilty, we would have sentenced him to a total effective sentence of 8 years’ imprisonment with a non-parole period of 6 years.
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