Somba v Regina
[2012] NSWCCA 214
•23 November 2012
Court of Criminal Appeal
New South Wales
Case Title: Somba v Regina Medium Neutral Citation: [2012] NSWCCA 214 Hearing Date(s): 26 July 2012 Decision Date: 23 November 2012 Jurisdiction: Criminal Before: Beazley JA at [1]
Hall J at [2]
SG Campbell J at [87]Decision: 1)Leave to appeal be granted.
2)The appeal be dismissed.Catchwords: CRIMINAL LAW - appeal - appeal against sentence - parity of sentences in relation to sentences imposed on the applicant and on each of the two co-offenders - whether severity of sentence imposed on applicant gave rise to justifiable sense of grievance - whether sentencing judge erred in application of Pearce v The Queen [1998] HCA 57 - whether total sentence imposed in respect of one count excessive - whether total effective sentence manifestly excessive - error not established. Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedures) Act 1999Cases Cited: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Johnson v R [2010] NSWCCA 124
Lowe v The Queen [1984] HCA 46; 154 CLR 606
McIvor v Regina [2010] NSWCCA 7
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Qing An v Regina [2007] NSWCCA 53
R v Bavadra [2000] NSWCCA; 115 A Crim R 152
R v Hoschke [2001] NSWCCA 316
R v JW [2010] NSWCCA 49
R v Swan [2006] NSWCCA 47Texts Cited: Category: Principal judgment Parties: Hans Christian Somba (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
Ms J Manuell SC (Applicant)
Deputy Director Mr J Pickering (Respondent)- Solicitors: Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)File number(s): 2008/84619 Decision Under Appeal - Court / Tribunal: - Before: Hock DCJ - Date of Decision: 04 March 2011 - Citation: - Court File Number(s) Publication Restriction:
JUDGMENT
BEAZLEY JA: I agree with Hall J.
HALL J: The applicant, Hans Christian Somba, seeks leave to appeal from three sentences imposed on him by the District Court, her Honour Hock DCJ on 4 March 2011. He was charged with three offences under s 97(2) of the Crimes Act 1900 ("the Act") as follows:
Count 1: Aggravated armed robbery in company, namely being armed with a dangerous weapon on 16 August 2008; s 97(2) of the Act.
Count 2:Aggravated assault with intent to rob, namely being armed with a dangerous weapon on 27 August 2008; s 97(2) of the Act.
Count 3: Aggravated assault with intent to rob, namely being armed with a dangerous weapon on 27 August 2008; s 97(2) of the Act.The above offences were committed on the dates and at the branches of the Bank of Queensland as follows:
(i) Kensington branch on 16 August 2008 (Count 1).
(ii)The Rocks branch on 22 August 2008 (Count 2).
(iii)The Newtown branch on 27 August 2008 (Count 3).In respect of the counts:
(i)Count 1 was particularised as robbery being armed with a dangerous weapon and being in company (with co-offender Carlo Dizon).
(ii)Counts 2 and 3 were each particularised as assault with a dangerous weapon with intent to rob, in company with Dizon and another co-offender, John Birch.The applicant asked for offences under ss 154A(1)(a)/ 117 of the Act (relating to Take and Drive Conveyance without the consent of the owner, maximum penalty 5 years imprisonment) to be taken into account on a Form 1. The first offence was attached to a Form 1 in relation to Count 1. The second was attached to a Form 1 in respect of Count 3.
The sentences
The particulars of the sentences imposed are as follows:
(i) Sentence in respect of Count 1: Taking into account the first matter on the Form 1, a term of imprisonment of 5 years 6 months to commence on 1 September 2008 and to expire on 28 February 2014.
(ii) Sentence in respect of Count 2: A term of imprisonment of 5 years to commence on 1 September 2010 and expire on 31 August 2015.
(iii) Sentence in respect of Count 3: Taking into account the second matter on the Form 1, a total term of imprisonment of 8 years comprising a non-parole period of 5 years to commence on 1 September 2011 and to expire on 31 August 2016. A parole period of 3 years to commence on 1 September 2016 and to expire on 31 August 2019.
The total effective sentence of imprisonment imposed for the three counts was a non-parole period of 8 years to date from 1 September 2008 to 31 August 2016 and a balance of 3 years to expire on 31 August 2019.
A statement of agreed facts was tendered on sentence (Exhibit C).
In her Remarks on Sentence, the sentencing judge set out in summary the relevant facts concerning each offence as follows:
"Count 1
On Saturday 16 August 2008 the offenders entered the Bank of Queensland located at Anzac Parade, Kensington. Dizon was armed with a single barrel shot gun. He demanded money and access to the inner area of the bank. Bank staff then let both offenders into the area restricted to staff where they stole in excess of $21,870. The event was captured on closed circuit television, although Dizon wore a cap and sunglasses. The offenders made their escape in a dark coloured hatchback, the first matter on the Form 1 and to be taken into account on this count. Only $500 of the money stolen was ever recovered.
Count 2
On Wednesday 27 August 2008 both offenders entered the Bank of Queensland situated at The Rocks in Sydney. A co-offender John Birch, after initially entering the bank, kept watch outside. A staff member observed Dizon remove a pistol from the backpack he was carrying. He rushed to the service area and pointed the firearm at an employee and demanded money. At this point, the security screens were activated blocking the staff only area. Dizon and Somba left the premises, met up with Birch and were later seen to enter a Toyota Starlet hatchback bearing stolen plates ... That event was captured on CCTV, however, the offenders wore sunglasses and hats.
Count 3
Later the same day these two offenders and the co-offender Birch entered the Bank of Queensland situated in Newtown. The manager ... observed them to be wearing gloves. Having been alerted to the offence committed at The Rocks branch, he immediately activated the security screens. Dizon then discharged the automatic pistol he was carrying firing into a door in an attempt to gain entry to this service area. Projectiles lodged in the door and the wall. This is the third matter on the Form 1 and relates to Dizon only. The discharge of the weapon is a serious matter which must be reflected in a greater penalty being imposed on Dizon on this Count." (Emphasis added)
The Crown at the hearing of the proceedings in this Court produced an "Amended table of comparative sentences imposed" which conveniently sets out the details of the sentences imposed on the applicant by Hock DCJ and by her Honour in respect of the co-offender Carlo Dizon on 4 March 2011 and the sentence imposed by his Honour Norrish DCJ on 11 June 2010.
| Offences | Sentences imposed | ||
| Applicant (Hock DCJ - 4 March 2011) | Carlo Dizon (Hock DCJ - 4 March 2011) | John Birch (Norrish QC DCJ - 11 June 2010) | |
| Crimes Act 1900 ss 154A(1)(a)/117, max penalty 5y) | 5y 6m imprisonment, commencing 1 September 2008 and expiring on 28 February 2014 (no NPP) | 5y 6m imprisonment commencing 27 July 2009 and expiring on 26 January 2015 (no NPP) | |
| Crimes Act 1900 s.97(2) - Bank of Queensland, Sydney (The Rocks) branch, 27 August 2008 | 5y imprisonment, commencing 1 September 2010 and expiring on 31 August 2015 (no NPP) | 5y imprisonment, commencing 27 July 2011 and expiring 26 July 2016 (no NPP) | |
| Crimes Act 1900 s.97(2) - Bank of Queensland, Newtown branch, 27 August 2008 | 8y imprisonment, commencing 1 September 2011 and expiring 31 August 2019, NPP 5 years expiring on 31 August 2016 (+ Form 1 offence: Crimes Act ss.154A(1)(a)/117, max penalty 5y) | 6y imprisonment, commencing 27 July 2012 and expiring 26 July 2018 (no NPP) (+ 2 x form 1 offences: Crimes Act ss.154A(1)(a)/117, max penalty 5y; Crimes Act s.93G(1)(b) (discharge firearm), max penalty 10y) | 6y 9m imprisonment, commencing 25 September 2010 and expiring 24 June 2017, NPP 3y 3m expiring on 24 December 2013 (+ 2 x Form 1 offences: Crimes Act s.97(2), max penalty 25 years (BOQ, the Rocks Sydney branch, 27 August 2008;) Crimes Act ss.154A(1)(a)/117, max penalty 5y |
| Crimes Act 1900 s.96 - Robbery with wounding ("drug ripoff" at Ingleburn, 25 August 2008) - max penalty 25y | 10y imprisonment, commencing 27 July 2013 and expiring 26 July 2023, NPP 6y expiring 26 July 2019 | ||
| Drug Misuse and Trafficking Act 1985 ss.25/32 - Knowingly take part in supply ("drug rip-off" at Ingleburn on 25-26 August 2008) - max penalty 15y/$220,000 (+ Form 1 offence: Crimes Act 1900 s.316, max penalty 2y) | 2y 3m imprisonment, commencing 25 June 2009 and expiring 24 September 2011 (no NPP) | ||
| Road Transport (Driver Licensing) Act 1998 s.25A(1) (Drive while disqualified) - between 25-26 August 2008 at Ingleburn - max penalty 2y/$5,500 | 6m imprisonment, commencing 25 March 2009 and expiring 24 September 2009 (no NPP) | ||
| Road Transport (Driver Licensing) Act 1998 s.25A(1) (Drive while disqualified) - 1 September 2008 at Bondi Junction (s.166 certificate) | 1y imprisonment, commencing 27 July 2009, expiring 26 July 2010 (no NPP) | ||
| Total effective sentences | 11y imprisonment, commencing 1 September 2008 and expiring 31 August 2019, with a NPP of 8y expiring 31 August 2016 | 14y imprisonment commencing 27 July 2009 and expiring 26 July 2023, with a NPP of 10y expiring 26 July 2019 | 8y 3m imprisonment, commencing 25 March 2009 and expiring 24 June 2017, with a NPP of 4y 9m expiring 24 December 2013. |
Remarks on the sentence
The sentencing judge observed in the Remarks on Sentence (at page 3):
"These three offences are objectively very serious. Employees at financial institutions are entitled to conduct their business without being terrorised by offenders who confront them with a weapon. No victim impact statement has been tendered but none is required to comprehend the terrifying experience that staff of these banks must have undergone. It is an aggravating circumstance in respect of Count 1 that a large sum of money was taken and not recovered. As to Count 3 it is an aggravating feature that the weapon was actually loaded. I have not treated the fact that the offenders were in company as an aggravating factor of any of the offences as it is averred, unnecessarily in the indictment and therefore has become an element of the offence.
The sentences to be imposed must deter not only these offenders but those of like mind from committing or being tempted to commit offences such as these. I find that Dizon played a slightly greater role in the offences on the basis that it was he who brandished a weapon and indeed discharged it on the last occasion."
Her Honour noted that in addition to the three counts referred to above that the co-offender Dizon stood trial for an offence of robbery under s 96 of the Act at which time he intentionally inflicted actual bodily harm and wounded the victim of that offence. He had been found guilty by a jury. The offence took place between the occurrence of Counts 1 and 2. The maximum penalty for such an offence is a term of imprisonment of 25 years. The offence occurred on 25 August 2008 in the course of a drug deal in which the co-offender, Birch, was a purchaser. Birch had arrived at the premises in question at Ingleburn in the company of Dizon.
In relation to the applicant's subjective factors, her Honour noted that, at the time of sentence, he was 32 years of age. His criminal history as an adult included an offence of knowingly taking part in the supply of a prohibited drug and, significantly, three convictions for robbery in company in 2003 for which he was imprisoned for 6 years. His non-parole period concluded in April 2008, only four months before the first of the three offences in question. Her Honour noted "his record does not entitle him to leniency": Remarks on Sentence at p 5.
Her Honour also noted that it was difficult to assess his prospects for rehabilitation.
The co-offender, Birch, was sentenced separately from both the applicant and Dizon. On 11 June 2010 he was sentenced by his Honour Norrish QC DCJ in respect of three offences, two of which were:
(i) An offence relating to a "drug rip-off" committed with Dizon (and not with the applicant). The applicant was sentenced for an offence of assault with intent to rob whilst armed with a dangerous weapon to a term of imprisonment involving a non-parole period of 3 years and 3 months with a balance of term of 3 years 6 months.
(ii) The offence under s 97(2) of the Act which he committed at the Newtown branch of the Bank of Queensland on 27 August 2008, together with the applicant and Dizon.In relation to the offence under s 97(2) of the Act, committed at the Newtown branch, Birch also requested his Honour Judge Norrish to take into account on a Form 1, the further s 97(2) offence which he committed with the applicant and Dizon at The Rocks on 27 August 2008. It is to be noted that Judge Norrish observed that the s 97(2) offence contained in the Form 1, was "of equal seriousness" to the primary offence under s 97(2) and "really should have been a committal for sentence matter:" Remarks on Sentence at p 1.
On 11 June 2010, Birch was sentenced to a (partially cumulative) sentence of 6 years 9 months, with a non-parole period of 3 years 3 months, in respect of the Newtown offence (and the Form 1 offence at The Rocks). The sentencing judge (Norrish DCJ) allowed Birch a discount of 25 per cent for his guilty plea.
It was noted in the applicant's written submissions that a copy of Judge Norrish's Remarks on Sentence in Birch's matter were not available to her Honour, Judge Hock, at the time the sentencing submissions were made on 15 October 2010. The Crown did, however, tender a copy of Birch's criminal history (Exhibit D). The Crown had indicated that it would obtain Judge Norrish's remarks and provide them to her Honour. The applicant's submissions noted that it is apparent that her Honour had access to Judge Norrish's remarks prior to sentence.
Grounds of appeal
In the Notice of Application for Leave to Appeal dated 14 February 2012, the applicant relied upon the following ground of appeal:
Ground 1:The applicant has a justifiable sense of grievance at the disparity between the sentence imposed upon him in respect of the "Newtown Offence" and the sentences imposed upon his co-offenders Dizon and Birch.
Ground 2: Her Honour erred in her application of Pearce v The Queen [1998] HCA 57; 194 CLR 610.
Ground 3: The total sentence imposed upon the applicant in respect of the "Newtown Offence" was excessive.
Ground 4: The total effective sentence imposed upon the applicant was "manifestly excessive".In the written submissions for the applicant in this Court it was noted that during the sentence proceedings before her Honour on 15 October 2010, the applicant's counsel had submitted that the roles of the applicant and Birch were similar, and lesser than the role of Dizon. The basis for that submission was that it was Dizon who carried the firearm and discharged it during the course of the Newtown offence.
The sentencing judge referred to the applicant's prior convictions in 1999 and 2003 for robbery in company offences which distinguished his position from that of Birch. (Her Honour also noted that Norrish DCJ, allowed Birch a 25 per cent discount for his guilty pleas.)
The sentencing judge allowed 15 per cent for the utilitarian value of the pleas of guilty in respect of Counts 1, 2 and 3.
Ground 1
Submissions for Applicant on the parity issue
The written submissions for the applicant summarised the sentences imposed in respect of the three offenders as follows:
(i) The applicant; 8 years imprisonment with a non-parole period of 5 years.
(ii) Dizon; 6 years imprisonment (no non-parole period specified).
(iii) Birch; 6 years 9 months imprisonment, with a non-parole period of 3 years 3 months.The submissions included a comparison of the sentences imposed on the applicant with particular attention being given to the sentences imposed for the Newtown offence on the applicant and on Dizon.
It was noted in the submissions to this Court that the sentencing judge found that the offender Dizon had the greatest culpability in respect of the Newtown offence because it was he who carried and discharged the firearm during the commission of the offence.
Additionally it was noted that Dizon was separately charged in respect of his discharge of the firearm at the Newtown branch. It was this latter offence that he asked be taken into account on the sentence but to be separately assessed. On the proper application of principle, the effect of the Form 1 matter, it was submitted, must have been to increase the sentence imposed on Dizon, so that it was greater than the sentence imposed on the applicant (all other things being equal).
Despite this, however, Ms Manuell SC, who appeared in this Court for the applicant, noted that the total sentence imposed on her client for the Newtown offence was one of 8 years imprisonment, whereas the total sentence imposed on Dizon was one of 6 years imprisonment.
In written submissions it was submitted that there were no relevant differences to warrant the imposition of a higher sentence on the applicant for the Newtown offence. It was contended that a more severe sentence should have been imposed on Dizon for four reasons:
(i) The offence under s 93G(1)(b) of the Act, must have properly had the effect of increasing Dizon's sentence;
(ii) Dizon was the instigator of the offence;
(iii) Dizon's record of prior convictions was more serious than the applicant's.
(iv) Dizon was on bail at the time of the offence.It was contended that the more severe sentence imposed on the applicant for the Newtown offence gave rise to a justifiable sense of grievance on his part.
The submissions for the applicant also included a comparison of the sentence imposed on him and Birch in respect of the Newtown offence. In that respect it was noted that his Honour, Judge Norrish, had also found that Dizon had the greatest culpability in respect of the Newtown offence. He allowed a 25 per cent discount for his guilty plea. His Honour observed that, but for Dizon's guilty plea, he would have imposed a total sentence of 9 years imprisonment.
It was observed that, in respect of the applicant, the sentencing judge imposed a total sentence of 8 years, after allowing a discount of 15 per cent. On that basis the nominal starting point for the sentence was about 9 years 5 months. Accordingly the submission was that, for comparative purposes, the nominal sentence imposed on the applicant for the Newtown offence was one of 9 years 5 months and the nominal sentence imposed on Birch was 9 years.
It was noted in the submissions for the applicant that although the objective circumstances of the applicant's and Birch's Newtown offences were all but identical, there were two relevant differences in their subjective circumstances. These differences, it was observed, militated for both a greater and a lesser sentence to be imposed on the applicant than Birch, in that:
(i) The imposition of a higher sentence on the applicant was warranted by reason of the applicant's more serious record of convictions, including a previous term of imprisonment for a similar offence. This was to be Birch's first lengthy prison term;
(ii) The imposition of a lower sentence on the applicant was warranted by the inclusion of the s 97(2) offence on Birch's Form 1. The s 97(2) offence was the offence committed by Birch at The Rocks together with the applicant and Dizon; in respect of that offence, both the applicant and Dizon received a sentence of 5 years imprisonment (no non-parole period specified). The Form 1 offence, it was contended, had to be, and was, reflected in Birch's sentence for the primary (Newtown) offence, consistently with the principles expressed in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
It was submitted for the applicant that given the seriousness of the offence committed at The Rocks branch of the Bank, greater weight had to be given to the Form 1 offence in determining the appropriate sentence to be imposed on Birch. The more severe sentence imposed on the applicant than Birch, it was submitted, also gave rise to a justifiable sense of grievance on his part.
Crown submissions on parity
The Crown observed that the factual basis for the Newtown offence clearly showed that the applicant, Dizon and Birch were part of a criminal enterprise to rob the Bank of Queensland at its Newtown branch whilst armed with a dangerous weapon.
It was noted that Dizon carried the firearm and that it was he who ultimately discharged it. As between the applicant and Birch there was little to distinguish between their roles.
The Crown also noted that despite each party to a joint criminal enterprise being equally liable, it will often not be appropriate to give each party the same sentence: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 609.
The Crown also noted that it is important to keep in mind in relation to the four grounds of appeal that "a fixed term represents the equivalent of a non-parole period"; McIvor v Regina [2010] NSWCCA 7 per Howie J at [23]. It was submitted that the applicant's written submissions, in the criticism of the sentencing judge's sentence, appeared to ignore that reality.
The Crown submitted that the sentencing judge was uniquely positioned to consider the question of the appropriate sentence for each offender given that she dealt with both the applicant and Dizon at the same time when determining the appropriate sentence for each and the appropriate parity for each offender.
It was also submitted that the sentencing judge had clearly outlined her approach in dealing with the respective co-offenders differently. In such circumstances it was contended that this Court would be reluctant to come to the view that the applicant has a justifiable sense of grievance because of the differing outcomes.
The Crown noted:
·That the sentencing judge made a finding that Dizon played a greater role in the offences for reasons that were identified.
·The findings made by the sentencing judge indicated that Dizon, if all other circumstances were equal, should receive a higher sentence than the applicant but that not all circumstances were equal.
The Crown relied upon the following matters;
(i) The applicant's prior criminal history was more significant than that of Dizon. He had only just completed his parole period for three robbery in company offences for which he had been sentenced on 6 March 2003.
(ii) It is apparent that the sentencing judge, in real terms, imposed a higher sentence on Dizon as opposed to the applicant.
(iii) Hock DCJ was involved in a different kind of sentencing exercise for the applicant than for Dizon. The latter's conviction on the offence under s 96 of the Act, on which he went to trial, did not involve the applicant. This, the Crown noted, was an important additional matter that her Honour was dealing with in relation to Dizon.
(iv) The issue of totality, in taking into account Dizon's other criminal activity, loomed large in her Honour's approach in determining the sentences to be imposed. This, the Crown submitted, was always going to make the comparison "when looking at the overall structure of the sentence, complex".
(v) It was submitted that the approach taken by the applicant in comparing the ultimate sentences and making the conclusion that the applicant's sentence was actually longer than that of Dizon was misleading. In this respect it was observed that the applicant's sentence for the Newtown offence involved a non-parole period of 5 years. Dizon's effective "non-parole period" (that is, the fixed term) was 6 years, given that the fixed term was the type of sentence imposed. The imposition of one extra year to Dizon on the effective "non-parole period" on him was, the Crown submitted, an appropriate reflection of the greater involvement in the offence by Dizon, whilst balancing all other circumstances.The Crown additionally submitted that it was misleading to compare the 8 year total term imposed on the applicant for the Newtown offence with the 6 year fixed term imposed on Dizon and suggest that the difference created a disparity in the sense of one which gave rise to a justifiable sense of grievance.
The Crown observed that the reality was that in the manner in which her Honour dealt with Dizon, including in particular the s 96 offence, for which the Applicant was not involved, it was "redundant" for her Honour to fix a balance of term for the Newtown offence upon Dizon (as her Honour had acknowledged at p11 of the Remarks on Sentence).
It was submitted that no basis for a justifiable sense of grievance exists when:
(i)the sentence imposed on Dizon is fully analysed in context, and
(ii) the totality comparison with the Birch sentence (imposed by Judge Norrish) is properly considered.
Consideration
In reviewing the sentencing of an offender in a joint criminal enterprise it is necessary to take into account that:
(i) It is not the case that the participants in such a joint criminal enterprise are necessarily to be regarded as having had the same objective criminality: Johnson v R [2010] NSWCCA 124 per James J at [4].
(ii) The objective of such an enterprise cannot be achieved unless each participant plays his or her assigned role. It would be unfair to treat one offender, who happens to have an assigned role that involves his participation in the actual crime, more leniently than those whose task it was, for example, to carry out the essential act constituting the crime: Johnson, (supra) per Simpson J.
(iii) It will be inappropriate in some such cases to attempt to assess with any degree of precision the role which each played in achieving the objective of the criminal enterprise: R v Hoschke [2001] NSWCCA 317 per Carruthers AJ; R v JW [2010] NSWCCA 49 per Spigelman CJ.(iv) It remains necessary to refer to and take into account the particular conduct of each participant with a view to determining the level of culpability to which each must be sentenced: R v JW, (supra) at [161].
The matters that were required to be taken into account in sentencing the applicant and Dizon included the following:
(i) The applicant's prior convictions
The sentencing judge was required, as earlier noted, to consider and take into account the applicant's prior convictions, in particular his three prior convictions for robbery in company in 2003. In respect of one of those offences he had been sentenced on (6 March 2003) to an overall term of imprisonment of 6 years imprisonment (non-parole period of 3 years and 6 months).
(ii)Recent expiration of the non-parole period
The non-parole period in respect of those sentences had expired only four months before the subject offence.
(iii)The criminal history of the co-offender (Dizon)
The criminal history of the co-offender Dizon was not as significant as that of the applicant, though it is noted that in 2003 he was sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years for an offence of robbery whilst armed with a dangerous weapon in 2002.
(iv)The Form 1 matters
The overall sentence of 8 years imprisonment imposed on the applicant took into account two Form 1 matters - Take and Drive Conveyance without the consent of the owner. A proper application of principle meant that the effect of the Form 1 matters would increase the sentence imposed: Attorney General's Application under s 37 (supra) at [42].
The co-offender Dizon, on the other hand, requested that three matters on a Form 1 be taken into account (two under ss 154A(1)(a)/117 and one under s 93G(1)(b) (firing a firearm in a public place), (maximum penalty 10 years imprisonment.)
In respect of the latter, the co-offender Dizon discharged an automatic pistol he was carrying by firing into a door in an attempt to gain entry into the secure area of the bank (the third matter on the Form 1 in relation to Count 3). This was a serious matter which was reflected in a greater penalty being imposed with respect to Count 3.
The co-offender Dizon was accordingly found to have the greater culpability in respect of the Newtown offence by reason of his having carried and discharged the firearm during the commission of the offence. If this had been the only material issue and all other circumstances were equal, then a higher sentence in respect of Dizon's offending than that of the applicant would have been appropriate. However other circumstances needed to be considered in order to determine how they operated with respect to the applicant and Dizon.
The co-offender Dizon, as noted above, went to trial in relation to an offence of robbery with wounding under s 96 of the Act. His conviction for that offence (which did not involve the applicant) was a significant matter to be considered when he was sentenced in respect of Count 3. Dizon was accordingly being sentenced by Hock DCJ for that offence as well as the offence under s 97(2). The s 96 offence was a serious offence for which Dizon was sentenced to a 10-year term of imprisonment (with a 6-year non-parole period). Additionally, the sentencing judge was also required to consider and give effect to the principle of totality, which required her to consider what would constitute an appropriate adjustment in the sentences to be imposed.
A comparative analysis of the sentences imposed on the applicant and on the co-offender Dizon must also bring into account the fact of the non-parole period of 5 years as part of the sentence imposed on the applicant in respect of Count 3 as against the fixed term of 6 years imposed on Dizon.
A comparison between the 8 year total term of imprisonment imposed on the applicant and the 6 year fixed period imposed on the co-offender does not, in itself or taken in isolation, create the basis for a justifiable sense of grievance. In respect of the 6 year fixed term imposed on the co-offender, Dizon, the sentencing judge stated at page 11:
"No parole period will attach to those three sentences as to do so would serve no useful purpose."
That 6 year term was expressed as commencing on 27 July 2012 and expiring on 26 July 2018. The 10 year term of imprisonment in respect of the s 96 offence commenced 12 months into the sentence in respect of Count 3 (namely on 27 July 2013) will expire on 26 July 2023.
The approach taken by the sentencing judge, based upon the agreed facts, does not, in my opinion, demonstrate error. Her Honour:
(i) Identified the material facts with respect to Counts 1, 2 and 3 including in particular the role and conduct of the three offenders in relation to each.
(ii) Evaluated the objective criminality characterising the three offences as "objectively very serious" taking into account the relevant aggravating factors (including the fact that a large sum of money was taken in respect of Count 1 and, in respect of Count 3, that a loaded weapon was carried by Dizon).
(iii) Took into account the circumstances in which the weapon was discharged.(iv) Compared the roles of Dizon and the applicant before finding that Dizon had played "a slightly greater role in the offences on the basis that it was he who brandished the weapon and indeed discharged it on one occasion:" Remarks on Sentence at page 3.
Her Honour as the sentencing judge in respect of both the applicant and Dizon was in a position to determine the culpability of both offenders. No error was identified in the factual findings made and upon which the comparable criminality of the offenders could be determined.
The sentencing exercise in relation to Dizon was significantly different to that involving the applicant. Firstly, Dizon stood for sentence in respect of both Count 3 under s 93G(1)(b) and, after trial, for the offence of robbery with wounding under s 96. That meant, as discussed above, that in determining the sentences for both offences committed by Dizon, her Honour was required to consider and apply the principle of totality.
The sentence structure involving Dizon differed from that involving the applicant. Firstly, a fixed term of 6 years was imposed on Dizon whilst a sentence involving a non-parole period of 5 years was imposed on the applicant. Secondly, the longer period of 6 years in the case of Dizon may be considered as appropriately reflecting the finding as to his role. Thirdly, as noted above, the sentences in respect of Dizon were structured upon the basis that the 10 year term of imprisonment for Dizon's offence under s 96 commenced 12 months into the term of imprisonment imposed with respect to the s 97(2) offence for Count 3.
Where the same judge sentences two offenders at the same time, gives detailed reasons for imposing the sentences, and takes into account the differing criminality of each, as well as other differing circumstances, an appellate court will be cautious and not overly willing to conclude that one of the offenders has a justifiable grievance, simply because there are differing sentencing outcomes: R v Swan [2006] NSWCCA 47 at [71].
The criminal histories of the applicant and Dizon, which appropriately were taken into account, weighed against the applicant more so than Dizon. Dizon's history of offending did not entitle him to leniency. However, the applicant's criminal history carried even greater significance than that of Dizon. His history as an adult offender, as previously noted, consisted of one offence of knowingly taking part in the supply of a prohibited drug and more significantly three convictions for robbery in company in 2003 for which he was imprisoned for 6 years. The fact that his non-parole period had concluded only a short while before Counts 1, 2 and 3 (namely April 2008) was a further matter that operated adversely to him.
On examination the applicant's subjective factors were, in my opinion, of greater significance from a sentencing point of view than those of Dizon.
The submissions for the applicant, with respect, placed undue emphasis on the total term of 8 years imposed with respect to the applicant and the fixed term of 6 years imposed on Dizon. Given that Dizon had also to be sentenced for the s 96 offence involving a head sentence of 10 years, the more appropriate comparison is between the 5 year non-parole period imposed on the applicant and the 6 year fixed term imposed on Dizon. There was no point in the sentencing judge imposing a balance of term in respect of Count 3 as the Crown submitted.
In relation to the question of parity with the sentence imposed on Birch (by his Honour Judge Norrish) an evaluation of all relevant matters, including countervailing factors, fails, in my opinion, to reveal sentencing error. The written submissions for the applicant noted that Birch was allowed a discount of 25 per cent for his guilty plea. The applicant was allowed a discount of 15 per cent for his plea of guilty. The nominal starting point for the sentences for Count 3 for the applicant, was one of 9 years 5 months whilst for Birch it was 9 years.
The comparison with Birch brings into account the fact that he was aged 23 years at the time of the offences whereas the applicant was 30 years, that Birch had no prior offences involving dishonesty or violence and had not served time in custody. The applicant's prior offending, as discussed was significant and attracted substantial sentences.
It is accordingly clear that a number of factors weighed against the applicant in the comparison with Birch. The pre-discounted starting points for the sentences ultimately imposed on the applicant and Birch, after allowing for their discounts for their guilty pleas, were close to being the same. This was against the background of the submission made on behalf of the applicant to the effect that he was objectively equally liable for his role in the offence with Birch. This, as the Crown observed, was a generous approach given the applicant's past criminal history.
In this case it is clear that the sentencing judge was aware of and took into account the levels of culpability and antecedents of each offender and the Form 1 matters involving, as they did, disparate considerations. The evaluation required the sentencing judge to balance and give such weight to each relevant factor as she considered appropriate, there being no fixed rule that determines what weight is to be given to one over the other. Upon consideration of the detailed submissions made on behalf of the applicant I have concluded that no error has been demonstrated in the sentencing process.
When all relevant sentencing matters are taken into account there is, in my opinion, no basis for the Ground 1. That Ground should, in my opinion, be dismissed.
Grounds 2, 3 and 4
These grounds were addressed in the applicant's submissions together. It is convenient to proceed on that basis.
At paragraph [42] of the applicant's written submissions the structure of the applicant's sentences were set out as follows:
| Count | Sentence | Dates |
| 1 (+ 1 x Form 1 offence - ss.154A(1)(a)/117, max penalty 5y) - "Kensington offence" | 5 years 6 months | Commencing 1 September 2008, expiring 28 February 2014 (no NPP) |
| 2"The Rocks offence" | 5 years | Commencing 1 September 2010, expiring 31 August 2015 (no NPP) |
| 3(+ 1 x Form 1 offence - ss.154A(1)(a)/117, max penalty 5y) - "Newtown offence" | 8 years, NPP 5 years | Commencing 1 September 2011, expiring 31 August 2019, NPP expiring 31 August 2016. |
It was submitted by the applicant that the seriousness of the applicant's conduct was essentially the same in each offence, except that money was stolen during the offence constituting Count 1. It was accepted that the stealing of the money may explain why the sentence for that offence was 6 months higher than the offence constituting Count 2 (where no money was stolen).
It was submitted that there was no apparent reason for as to why the sentence imposed on the applicant for the offence constituting Count 3 was so significantly greater than the sentences imposed in respect of the other two offences. It was noted that although two shots were fired during the offence at the Newtown branch, it was Dizon who fired the shots for which he was separately charged. It was submitted that there was no evidence that the applicant knew that the firearm was loaded in any of the three offences (other than his knowledge after the event constituting Count 3).
In submissions for the applicant it was observed that the sentencing judge did not expressly find that a more severe sentence was warranted by reason of the fact that Count 3 demonstrated an "accelerating criminality": R v Bavadra [2000] NSWCCA 292; 115 A Crim R 152 at [37], [50]. It was submitted that it was apparent that her Honour did not make such a finding because it was not applied in the sentencing of Dizon.
In the absence of any other explanation, it was submitted that it appeared that her Honour had inflated the applicant's sentence for Count 3 in order to structure the applicant's parole period, rather than to identify the appropriate period to be imposed and then consider the question of totality.
The submissions for the applicant referred to other cases in which consideration had been given to the issues of totality and manifest excess in respect of sentences imposed for multiple armed robbery offences: Qing An v Regina [2007] NSWCCA 53 (per Beazley JA at [102]-[105]); McIvor v Regina per Howie J at [21]-[22].
On the issue of totality it was noted that the offences were committed within a period of 11 days, with the last two offences being committed on the same day. The applicant's objective circumstances, it was noted, had not substantially changed over that period. Additionally, the offences were said to be very similar in their commission and the finding of accelerating criminality was not warranted.
Finally, it was submitted that although each of the applicant's offences were serious, none were particularly serious examples of s 97(2) offences. In terms of the applicant's objective criminality (as opposed to Dizon's), the first offence was the most serious because money was actually stolen.
It was noted that with partial accumulation there was a period of 3 years between the commencement date of the first and third of the applicant's sentences. It was submitted that the degree of accumulation was too great in all of the objective and subjective circumstances of the applicant's offending.
The Crown, in respect of Grounds 2 and 3, submitted that those grounds were misconceived. The Crown contended that the sentencing judge did not give a "more severe sentence" for the Newtown offence when compared to the Kensington and Rocks offences. Her Honour had imposed fixed terms in respect of the latter two offences which may be regarded as equating to the non-parole period of the Newtown offence. It was submitted that the sentencing judge clearly had not regarded any of the three offences as more serious as the other. The reason for not imposing a parole period in respect of the Kensington and Rocks offences arose by reason of the approach taken to structuring the sentences.
The difference of an additional 6 months imposed in respect of the Kensington offence was said to be accounted for by reason of the Form 1 attached to it.
The Crown submitted that no error in terms of Pearce v the Queen (supra) existed.
In this regard it was argued that her Honour had considered each offence and appropriately determined to impose fixed sentences in respect of the first two offences and for sentencing in respect of the third, that her Honour had expressly considered the issue of totality.
Furthermore, it was observed that no contention was made on the appeal that the sentences imposed in respect of what are referred as the Kensington and the Rocks offences were excessive.
The Crown further submitted that a sentence of "8 years with a non-parole period of 5 years" for an offence as serious as the Newtown offence could hardly be described as an excessive sentence having regard, in particular, to the applicant's background.
I have concluded that no error has been demonstrated in respect of the sentences imposed and I do not consider that any of the sentences were manifestly excessive. Furthermore, her Honour expressly considered and applied the principles of totality.
It may be accepted that whilst more serious offences under s 97(2) may be envisaged, it cannot be said that any of the three offences were other than objectively serious offences.
No challenge has been made to the above stated factual conclusion arrived at by the sentencing judge nor, in my opinion, could there have been a basis for doing so. In particular, the three offences were planned and the particular branches of the Bank were targeted with a view to demanding, with the use of a weapon, the handing over of considerable amounts of money. Staff members at the individual banks and potentially members of the public were put at risk. Once again, the applicant's history of prior convictions for similar matters evidenced a complete disregard for the law.
In the circumstances, I do not consider that either the individual sentences or the overall sentence has been demonstrated as being unreasonable or unjust.
I have concluded that Grounds 2, 3 and 4 are without merit and should be dismissed.
Orders
I propose the following orders:
1)Leave to appeal be granted
2)The appeal be dismissed.SG CAMPBELL J: I agree with Hall J.
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