Sheather v The Queen
[2009] NSWCCA 173
•30 June 2009
New South Wales
Court of Criminal Appeal
CITATION: Sheather v R [2009] NSWCCA 173 HEARING DATE(S): 1 May 2009
JUDGMENT DATE:
30 June 2009JUDGMENT OF: McClellan CJatCL at 1; Grove J at 30; Buddin J at 31 DECISION: 1.Application for leave to appeal allowed and sentence imposed in District Court quashed:
2.The applicant is sentenced to a non-parole period of 12 months commencing on 6 June 2008 and expiring on 5 June 2009 when the applicant is to be released to parole. There will be a balance of term of 12 months which will expire on 5 June 2010.CATCHWORDS: CRIMINAL LAW - appeal - assault with intent to rob - guilty plea - sentence excessive when compared to co-offender although direct comparison inappropriate as co-offender a juvenile - appeal allowed LEGISLATION CITED: Crimes Act 1900
Children's (Criminal Proceedings) Act 1987CATEGORY: Principal judgment CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Colgan [1999] NSWCCA 292
R v El Hani (2004) NSWCCA 162
SZ v R (2007) NSWCCA 19; 168 A Crim R 249
TJ V R [2009] NSWCCA 99PARTIES: Charles George Sheather (Applicant)
The CrownFILE NUMBER(S): CCA 2007/10957 COUNSEL: M Dennis (Applicant)
N Noman (Crown)SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/10957 LOWER COURT JUDICIAL OFFICER: McGuire A/DCJ LOWER COURT DATE OF DECISION: 6 June 2008
2007/10957
TUESDAY 30 JUNE 2009McCLELLAN CJ at CL
GROVE J
BUDDIN J
1 McCLELLAN CJ at CL: This application was heard on 1 May 2009 when the court made orders granting leave to appeal and upholding the appeal. The relevant orders are set forward at the conclusion of these reasons. These are my reasons for joining in the orders which the court made on that day.
2 The applicant was sentenced in relation to the following offence:
- “That he, on or about 4 January 2007 at Burra in the State of New South Wales, did assault Graham Barrett with intent to rob Graham Barrett and at the time of that assault used corporal violence.”
3 The offence is contrary to s 95 of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment.
4 The day after the offence the applicant went to the police and told them of his involvement in it. He was committed for trial and only on the date fixed for hearing entered a plea of guilty. He was sentenced to 3 years imprisonment with a non-parole period of 1 year and 4 months.
5 The facts before the sentencing judge were agreed. The applicant has provided a summary of those facts which I have utilised in the following summary.
6 On the evening of 3 January 2007 the applicant was at his home with three other young persons. He had a discussion with the others and the four of them agreed to order a taxi, travel in it to an isolated area, rob the driver and then go joy riding in the stolen car.
7 Several calls were made to the local taxi company in Queanbeyan before the applicant made the final call at about 12.37 am on the morning of 4 January 2008. The applicant used the name “Charlie” and ordered a taxi to an address that was two doors from the applicant’s residence.
8 The victim answered the call and attended the nominated address. The applicant and his co-offenders entered the taxi and directed the victim to a property in an isolated location. On arrival at that destination the victim stopped the taxi and the applicant and two of the co-offenders got out and moved a short distance away. JJS, a co-offender, remained in the taxi.
9 At this stage the victim felt a blow to his head, which was delivered by JJS. JJS had entered the taxi carrying a mallet which he used to strike the victim.
10 The victim saw two of the people who had left the taxi moving back towards it. He managed to start the taxi and drive away. The applicant denies that he was one of the two persons who moved back towards the taxi. He claims to have panicked at this stage and had not wanted anything more to do with the enterprise.
11 The applicant attended Queanbeyan police station of his own accord at about 3 pm on 4 January 2008. He supplied information to the police about the offence and made admissions concerning his involvement in the robbery. He denied knowledge of the mallet being taken to the scene.
12 The victim suffered soreness to his head but although he was very scared at the time of the offence and feared for his safety, he did not receive any permanent injuries.
13 The police were of the opinion that the information given to them by the applicant was significant and led to the arrest of the three co-offenders. The applicant also assisted authorities by giving evidence in the Children’s Court against the co-offender JJS.
14 As I have previously stated it is surprising that the applicant did not enter an early plea. It may be that there were negotiations about the particular offence to which he would plead guilty but this Court has not been provided with any relevant information. In any event the sentencing judge allowed the applicant a “slight discount for the utilitarian value for the plea”. His Honour was mindful of the applicant’s expression of remorse to a psychologist. His Honour also attributed particular significance to assistance to the authorities given by the applicant when he attended the police station and informed the officers of his role in the events. At the time he approached the police it would appear that they did not have him in mind as a suspect for the offence.
15 The applicant was 4 days short of his 19th birthday at the time of the offence and was aged 20 at the time of sentence. There was only one matter on his criminal record being an offence of possessing a prohibited drug for which he received a bond.
16 The sentencing judge did not quantify the percentage discount in respect of any of the matters for which the applicant was entitled to a discount on his sentence. Nor did he indicate the overall combined discount. The applicant did not contend that this was an error but submitted that having regard to the decisions of this Court in R v El Hani (2004) NSWCCA 162 and SZ v R (2007) NSWCCA 19; 168 A Crim R 249 the appropriate discount for his Honour to have provided would have been in the order of 40-50%. If this was the case it was submitted the notional starting point for the applicant’s sentence was between five and six years.
17 The applicant submitted that when analysed in this manner it was apparent that the sentence imposed on him was excessive when compared with the sentence of his co-offenders giving rise to a justifiable sense of grievance. In particular it was argued that he could legitimately submit that his sentence was excessive having regard to the sentence imposed on the co-offender BW. BW was sentenced to a control order of 9 months which was suspended upon him entering into a bond pursuant to s 33(1)(b) of the Children’s (Criminal Proceeding) Act 1987 NSW.
18 At the date of the offence BW was aged 2 weeks short of his 17th birthday. He had a criminal history consisting of offences related to goods in custody and an offence of unlicensed driving. He was also sentenced in relation to an offence of break, enter and steal at the same time as he was dealt with for the present matter.
19 The role of BW in the offence is not made entirely clear in the agreed facts. However, it was JJS and not the applicant, or BW who carried the mallet and inflicted the blow to the victim’s head. The sentencing judge concluded that it was obvious that the offenders contemplated violence if, as they intended, they were to subdue the cab driver. Although he did not make a finding adverse to the applicant with respect to the mallet he said “I find it difficult to accept the offender’s claim that he was ignorant of the presence of the mallet.”
20 The applicant did not enjoy a normal childhood. He was the youngest of six children. His father died from lung cancer when he was about 10 and he left school at age 15. He has not been able to sustain any long-term employment. His Honour considered it a matter of concern that the applicant consumed and continues to consume large amounts of alcohol on a regular basis and is a regular substance abuser.
21 The sentencing judge concluded that a prison term was appropriate but recognising the need to encourage the applicant’s rehabilitation varied the usual ratio between the parole and non-parole periods.
22 When sentencing the applicant the sentencing judge was mindful of the sentences imposed on all of the co-offenders. BM who was aged 14 at the time of the offence and had no prior criminal history was sentenced to a 12 month bond. JJS who was 15, and was on bail at the time of the offending was sentenced to an 18 month control order with a six month non-parole period.
23 There is no doubt as the respondent submitted that the offence which the applicant committed was serious. It occurred at night when the offenders lured a taxi driver to an isolated place intending to rob him and take possession of his taxi. Violence was inflicted on the victim.
24 These matters required a sentence which appropriately reflected considerations of general and specific deterrence. This Court has on many occasions expressed concern about offences committed on taxi drivers late at night. They provide an essential service for many people but are vulnerable and have little capacity to defend themselves if attacked, particularly by someone armed with a weapon.
25 It is important to appreciate, as this Court said in TJ V R [2009] NSWCCA 99, that the co-offenders were sentenced as juveniles whereas the applicant was 18 years of age at the time of the offending. Because the sentencing regime for juveniles is different to that for adults a direct comparison between BW’s sentence and that of the applicant was not appropriate. However, notwithstanding those differences it is necessary to ensure that the sentence imposed on the adult offender is in all the circumstances proportionate to that imposed on the juvenile: R v Colgan [1999] NSWCCA 292 per Spigelman CJ at [13].
26 The Crown submitted that the role of BW in the offence was less than that of the applicant. It was the applicant who made the phone calls to the taxi company and, so it would seem, it was the applicant who was the leader amongst the group. It was submitted that these differences were such, together with the fact that BW was a juvenile, as to justify the disparity in their sentences (Postiglione v The Queen (1997) 189 CLR 295). Accordingly the respondent submitted that the applicant could have no legitimate sense of grievance.
27 Notwithstanding the serious nature of the applicant’s offending there were a number of matters which required careful consideration when his sentence was imposed. Although an adult and required to be sentenced as such he was 19 years of age and the offence could not be seen as an entirely isolated incident, his personal history suggests that he may have prospects of effective rehabilitation. Of particular significance is the fact that the applicant gave himself up to the authorities and both assisted in their inquiries and gave evidence in respect of at least one of his co-offenders. There can be no doubt that although he was required to be punished his sentence needed to be carefully structured to ensure an adequate opportunity for him to develop as a mature and responsible member of the community.
28 The effective sentence imposed on BW was significantly less than that which was imposed on the applicant. Although for reasons I have indicated a direct comparison was inappropriate, I am satisfied that the applicant is legitimately entitled to consider that his sentence was out of proportion to that imposed on BW. BW’s sentence of nine months was wholly suspended whereas the applicant received a minimum period of full time custody of 16 months. Although the applicant probably had a greater role in initiating the offence, he made the phone calls, his part in the crime was no greater than BW, once the victim had picked up his passengers. By giving himself up and assisting the police he has demonstrated genuine remorse and has given every indication that he will avoid offending in the future. Although a term of full time imprisonment was appropriate the length of the applicant’s sentence was required to be proportionate to that of the co-offenders. To my mind the sentence imposed on the applicant was excessive to the extent that this Court should intervene.
29 In my judgment the sentence imposed on the applicant should be quashed and he should be re-sentenced to a non-parole period of 12 months with a total term of 2½ years.
1. Application for leave to appeal allowed and sentence imposed in District Court quashed:
Orders
2. The applicant is sentenced to a non-parole period of 12 months commencing on 6 June 2008 and expiring on 5 June 2009 when the applicant is to be released to parole. There will be a balance of term of 12 months which will expire on 5 June 2010.
30 GROVE J: I agree with the reasons of McClellan CJ at CL for the orders made by the court on 1 May 2009.
: I agree with the reasons of McClellan CJ at CL for the orders made by the court on 1 May 2009.
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