Stuart Gordon Apps v The Queen
[2006] ACTCA 16
STUART GORDON APPS v THE QUEEN
[2006] ACTCA 16 (1 September 2006)
CRIMINAL LAW – offences against the person – robbery – aggravating factors – offence undertaken in company – whether common purpose for another offence sufficient
CRIMINAL LAW – appeal against sentence – guilty plea to aggravated robbery – tendered under mistake of law
CRIMINAL LAW – appeal against sentence – cooperation with investigating authorities – discount in head sentence only – none to non-parole period – whether discount for future cooperation correctly prescribed
Criminal Code 2002 (ACT), s 309, s 310
Crimes Act 1900 (ACT), s 20, s 342, s 358
R v Farrar (1983) 78 FLR 10
R v Haigh (unreported, CCA (NSW), 4 August 1995)
R v Button and Griffen (2002) 129 A Crim R 242
Taufahema v The Queen [2006] NSWCCA 152
R v Perrier (No 2) (1991) 1 VR 717
R v Waga (No 2) [2005] NSWCCA 33
R v Barakat [2004] NSWCCA 201
R v Macdonnell [2002] NSWCCA 34
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1 - 2006
No. SCC 118 of 2005
Judges: Higgins CJ, Gray and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date: 1 September 2006
| IN THE SUPREME COURT OF THE | ) | No. ACTCA 1 - 2006 |
| AUSTRALIAN CAPITAL TERRITORY | ) | No. SCC 118 of 2005 |
| COURT OF APPEAL | ) |
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: STUART GORDON APPS
Appellant
AND: THE QUEEN
Respondent
ORDER
| Judges: | Higgins CJ, Gray and Ryan JJ |
| Date: | 1 September 2006 |
| Place: | Canberra |
THE COURT ORDERS THAT:
The appeal be upheld.
The sentences imposed upon the appellant be set aside.
In lieu thereof, the plea to aggravated robbery be set aside and a plea to robbery substituted.
The sentence for robbery be two years and six months. All other sentences confirmed.
Non-parole period be set at 12 months. Sentences to commence on 7 October 2005. Non-parole period to conclude on 6 October 2006.
| IN THE SUPREME COURT OF THE | ) | No. ACTCA 1 - 2006 |
| AUSTRALIAN CAPITAL TERRITORY | ) | No. SCC 118 of 2005 |
| COURT OF APPEAL | ) |
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: STUART GORDON APPS
Appellant
AND: THE QUEEN
Respondent
| Judges: | Higgins CJ, Gray and Ryan JJ |
| Date: | 1 September 2006 |
| Place: | Canberra |
REASONS FOR JUDGMENT
THE COURT:
This is an appeal against a sentence imposed by a judge of the court consequent upon the conviction of the appellant pursuant to a plea of guilty on one count of aggravated robbery and five counts of obtaining property by deception. On the charge of aggravated robbery, the appellant was sentenced to three years and six months imprisonment with a non-parole period of 18 months. On each charge of obtaining property by deception, he was sentenced to 12 months imprisonment, each sentence to be served concurrently with the sentence imposed for aggravated robbery and with each other.
The appellant had arranged by telephone to meet the victim, Thomas Glanville, at Manuka. The appellant also arranged for a friend, Lindsay Kelly, to accompany him to the meeting and had asked Kelly to bring a baseball bat. When the meeting occurred, the appellant engaged the victim in conversation and then opportunistically took Mr Glanville’s wallet. Mr Kelly then hit the victim on the head with the baseball bat. The offenders fled the scene and later used a credit card taken from the victim’s wallet to purchase DVDs from two stores in Fyshwick. Later, on the same evening, they used the same card to purchase some items of clothing and later still to purchase food from the KFC outlet in Fyshwick.
The victim impact statement, which had been received into evidence before the sentencing judge, indicated that the victim had been,
… confined to hospital for one week, with a fractured skull and inner ear bone, leaving me without hearing in my left ear for a month, and a vertigo that is still periodically affecting me with sudden changes in my position.
The appellant, who was aged 18 years and one month at the time of the subject offences, had earlier been dealt with in the ACT Children’s Court in respect of charges that he committed burglary with intent to steal (two charges), minor theft and theft, possession of a knife without reasonable excuse and trespass on premises. Those offences were committed on 16 November 2001 when the appellant had been aged 14. The charges were found proved without a conviction being recorded. Later, on 16 March 2004, he was convicted again in the ACT Children’s Court, fined $200.00 and disqualified from holding or obtaining a driver’s licence for six months on charges of being a special driver with a prescribed concentration of alcohol in his blood and being an unaccompanied learner driver.
The issues on the appeal
Counsel for the appellant identified the following three questions as having been raised by the appeal:
1. Whether the sentence imposed below was appropriate to the culpability of the appellant?
2. Whether the sentencing judge was entitled to find a fact, namely that the victim’s injuries were very serious, when the source for making that finding was a victim impact statement which was not sworn testimony and included more injuries than in the agreed statement of facts?
3. Whether offences charged in the Children’s Court committed 3½ years before the offence for which the prisoner was being sentenced, and which had been dealt with by dismissing the charges without conviction were of significance in dealing with an aggravated robbery charge.
Culpability of the offender
In relation to the first issue, Mr Salmon QC, who appeared as counsel for the appellant, pointed out that the force used by the appellant on the victim had been in “grabbing” his wallet. He also acknowledged that the appellant had been “in company with” the other offender within the meaning of s 310 of the Criminal Code 2002 which provides:
A person commits an offence (aggravated robbery) if the person –
(a) commits robbery in company with 1 or more people; or
(b)commits robbery and, at the time of the robbery, has an offensive weapon with him or her.
Maximum penalty: 2 500 penalty units, imprisonment for 25 years or both.
Just on that basis, there would not seem to be any justification for this court to intervene.
The victim’s injuries
However, it was submitted that the appellant could not be taken to have known, or anticipated, that his co-offender would strike the victim with the baseball bat. It was also said that the arrangement which involved the co-offender bringing the bat to the scene had contemplated only a common enterprise to “scare” the victim whom the appellant perceived as having harassed his (the appellant’s) sister. In that context, it was said that the sentencing judge should have been more cautious in finding, on the basis of the victim impact statement, that the victim had suffered very serious injuries and had been left “bloodied and unconscious on a footpath”. It was said that there were sound forensic reasons why the victim had not been cross-examined on his statement and why the appellant had not otherwise sought to contradict the assertion in it. Nevertheless, it could hardly be disputed that the victim suffered serious injury. The issue really is the degree of responsibility that the appellant should bear in respect of those injuries.
The Children’s Court offences
It was also submitted in relation to the third of the identified issues that the offences for which the appellant had been dealt with by the Children’s Court were not significant in assessing his culpability, as an adult, on a charge of aggravated robbery. No conviction had been recorded on the first set of those charges. The absence of evidence of any further property-related offences was said to support the view that he should have been regarded by the sentencing judge as a first offender. However, his Honour said, in the course of his sentencing remarks:-
You don’t come before the courts with a prior clean record and your prior record in the Children’s Court did involve some property offences which is of significance in dealing with an aggravated robbery charge, and also it seems to me the offence of possessing a knife. So again, there’s some prior history of going about armed and you’ve got to understand that going about armed with a knife or a baseball bat is something the courts take very seriously indeed.
Those remarks are entirely unexceptionable in the circumstances. Their force is not affected by the further submission made by Mr Salmon that the fact that the appellant, although a sufferer from Attention Deficit Hyperactivity Disorder (ADHD), had not committed any further similar offences should have led to his being treated, for practical purposes, as a first offender.
Promised cooperation
In the course of the hearing of the appeal, the question was raised whether the learned sentencing judge, in reducing the appellant’s sentence because of promised co-operation in the investigation of the offence by his co-offender, had complied with s 358 of the Crimes Act 1900. That section provides:
(1)If a sentence or a nonparole period is reduced because of the person’s promised cooperation, of the kind referred to in section 342 (1) (h), the court shall—
(a)in relation to the sentence—specify the reason for the reduction and the sentence that would have been imposed apart from the reduction; and
(b)in relation to the nonparole period—specify the reason for the reduction and the period that would have been fixed apart from the reduction.
(2) If—
(a)a sentence or nonparole period is reduced because the person has undertaken to cooperate with law enforcement agencies; and
(b)after sentence, the person does not cooperate in accordance with the undertaking;
the director of public prosecutions may, at any time while the person is under sentence, if the director is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the nonparole period.
(3) The court hearing the appeal—
(a)if it is satisfied that the person has failed entirely to cooperate in accordance with the undertaking—shall substitute for the reduced sentence or nonparole period the sentence or nonparole period that would have been imposed on, or fixed in respect of, the person apart from the reduction; and
(b)if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking—may substitute for the reduced sentence or nonparole period the sentence or nonparole period it thinks appropriate.
(4)The sentence or nonparole period that may be substituted under subsection (3) (b) shall not exceed that that may be imposed or fixed under subsection (3)(a).
Consequent upon that intimation, leave was sought and granted for the appellant to add to his grounds of appeal. The respondent was given leave to respond to these amended grounds by way of written submissions. Those submissions were delivered on 18 May 2006 and were replied to, again in writing, on 23 May 2006.
A number of issues have, as a result, been identified which touch upon each of the original questions which Mr Salmon sought to have agitated before this court.
Level of culpability of the Appellant
The appellant’s plea to aggravated robbery was based on the form of the charge alleging that he had committed the robbery he did, snatching the victim’s wallet, in company with the second offender.
It was common ground that the robbery was opportunistic. It was not part of any prior common purpose. Indeed, the second offender, it would seem, merely aided and abetted the robbery after the fact by beating the victim with the baseball bat. Both shared, thereafter, the proceeds of the robbery as referred to in the remaining counts on the indictment to which pleas of guilty were accepted.
There was a common purpose which led to the second offender being present with a baseball bat. That was to “warn off” the victim from associating with the appellant’s sister. That involved a common purpose to brandish or display the bat to reinforce the “warning”. It may be accepted that there was no common purpose to use the bat to effect a robbery, though it was clearly intended to be a threat of battery and, hence, an assault.
The references made by the learned trial judge to the victim having been, in fact, bloodied or bleeding, are arguably inaccurate, albeit that the appellant was aware, as he fled, that the victim had been beaten unconscious and took no steps to render or obtain assistance. For all the appellant knew, the victim could have been bleeding profusely and dangerously. To that extent, his culpability was, as Mr Salmon conceded on his behalf, exacerbated. Nevertheless, he had not instigated or anticipated that beating and that is a point of some moment.
It may also be accepted that his Honour had given somewhat undue weight to the appellant’s prior Children’s Court record. It had been a long time previous that the “possession of a knife” conviction was recorded. It was not an element of the other charges that he faced at that time.
In the present case, it is of importance to identify whether there was a “common purpose”. There appears to be a serious question about the aggravating element of being “in company”. Whilst the plea was not challenged on this basis, it does seem to be a real question whether being in company for the purpose of another offence, namely assault, satisfies the element of being “in company” for the purpose of robbery.
As Kelly J noted in R v Farrar (1983) 78 FLR 10, 15, the element of being “armed” implies possession of an item intended for use as a weapon “that it may be used for [the] offence”. That is confirmed by R v Haigh (unreported, CCA (NSW), 4 August 1995) where a knife used to effect a breaking and entering did not make the offence aggravated burglary by reason of being “armed”. In this case, the appellant was not “armed” in the relevant sense simply because he had invited his companion to attend with a baseball bat.
No doubt for that reason, the Crown chose to charge the appellant relying on the aggravating circumstance of being “in company” rather than that of having an offensive weapon “with him”.
However, the element of being “in company” raises a similar troubling issue. The appellant was “in company” for the common purpose of assault (by threats). The two offenders did not share the common purpose of robbing the victim any more than they shared a common purpose of inflicting violence upon the victim after the robbery. This view of “common purpose” was affirmed in the New South Wales Court of Criminal Appeal by Kirby J, Heydon JA and Greg James J agreeing, in R v Button and Griffen (2002) 129 A Crim R 242 at [120]. The two offenders must relevantly share the “common purpose” of robbery to be “in company” for the purposes of the robbery. The difference is that robbery (s 309 Criminal Code 2002) carries a maximum penalty of 14 years, whereas aggravated robbery (in company or armed, under s 310) carries 25 years as a maximum.
The concept of “common purpose” has recently been further examined by the New South Wales Court of Criminal Appeal in Taufahema v The Queen [2006] NSWCCA 152 (8 May 2006).
Adams J, Beazley JA and Howie J concurring, stated, at [20], after examining the “common purpose” authorities –
… it is essential to firstly identify the foundational crime alleged to be the subject of the agreement between the alleged offenders, the incidental crime which occurred and the mode by which it is contended by the prosecution that the incidental crime is within the scope of the common purpose.
In this case, the foundational crime was assault. The incidental crime was, first, the robbery, so far as the second offender was concerned, and the reckless inflicting of grievous bodily harm (contrary to s 20(1) Crimes Act 1900 – maximum penalty 10 years) so far as the appellant was concerned.
The foundational crime in this case could have been said to have included a blow with the bat. Hence the appellant could have been regarded as complicit in the offence of recklessly inflicting grievous bodily harm. He was not charged with that offence. It carries but 10 years as opposed to 25 years for aggravated robbery. Nor was he or the other offender charged with robbery whilst armed. It follows that, so far as the robbery was concerned, neither offender was alleged to have had a common purpose involving the use of or threat to use the bat.
The effect of these considerations is that it appears that the plea tendered by the appellant to the robbery charge may well have been tendered under a mistake of law. Hence the parties were invited to make submissions in writing as to whether the plea of the appellant to the first count on the indictment should be rejected and a plea of guilty to a charge of robbery (simpliciter) substituted.
The respondent has advanced no persuasive argument against that result.
That consideration leads to the conclusion that the Court must reconsider the sentence for the charge of robbery on the basis that it carries a lower statutory maximum.
Further, though the fact that the victim suffered injury adds in general terms to the seriousness of the offence the appellant committed, he is not directly responsible for that injury.
The Discount for Cooperation
It was apparent that the appellant, with encouragement from the prosecutor, had made a genuine offer of future cooperation. That cooperation was seen to be valuable for the successful prosecution of the second offender. It was not, as matters transpired, necessary for the appellant to give evidence. The prosecution accepted a plea to recklessly inflicting grievous bodily harm from the second offender. The learned sentencing judge acknowledged that cooperation as warranting a reduction of the head sentence from five years to three and a half years. However, although a non-parole period of 18 months was set, it was not stated by his Honour what, if any, reduction in any non-parole period, undiscounted for co-operation, that represented.
It was common ground that, both at common law and by statute in this Territory, (s 342(1)(h) Crimes Act 1900) an offender who cooperates with the authorities so as to assist in the detection, investigation and/or prosecution of other offences and offenders should be given the benefit of a discount of the sentence which he or she would otherwise receive.
As the Director of Public Prosecutions (DPP) submitted, this principle is well-supported by public policy. To quote the DPP’s submission –
As was said in James (1913) 9 Cr App R 142 at 144 “it is expedient that [offenders] should be persuaded not to trust one another.” See to the same effect The Queen v Golding (1980) 24 SASR 161 at 172. Indeed, as was said in Salameh (1991) 55 A Crim R 384 at 386-7, it is often the case that the only way of detecting offences and obtaining convictions is through obtaining information from other offenders. It follows, as was pointed out in R v Perez-Vargas (1986) 8 NSWLR 559 at 562, that one of the ways to stimulate others to inform and to destroy the precept that there should be honour among offenders is by making allowance in sentencing for co-operation with law enforcement authorities. See also Schioparlan (1991) 54 A Crim R 294 at 304-5.
The question of weight to be given to the assistance offered by the appellant does not directly arise. His Honour’s assessment of that matter, so far as the head sentence is concerned, is not challenged as inaccurate.
It may, therefore, be accepted that the proposed head sentence itself represents an appropriate sentence subject to the consideration of the question whether the plea should be regarded as being a plea to robbery simpliciter.
In general, it has been said that cooperation merits up to one-half of the maximum sentence which would otherwise be imposed (see R v Perrier (No 2) (1991) 1 VR 717, 725). Nevertheless, it is a discretionary judgment.
What of the failure to specify the non-reduced non-parole period?
Section 342(1)(h) Crimes Act 1900 provides that a sentencing court shall take into account –
the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences; …
Promised cooperation, of the kind with which the learned sentencing judge was concerned in this case is dealt with under s 358, Crimes Act. That section has been reproduced at [10] above.
In this case, the reduction given by the sentencing judge in relation to the promised cooperation was specified in respect of the head sentence reducing it from five years to three years and six months. No such reduction was specified in the case of the non-parole period.
It follows that, even if the sentencing judge had intended that the specified 18 months non-parole period should reflect a discounted figure, a difficulty would have arisen had the promised cooperation not been given, wholly or partially.
A right of appeal is given to the DPP against the discounted sentence in those circumstances (s 358(2)). The powers of the court hearing the appeal are, however, limited by the terms of s 358(3) (supra). The effect of that sub-section for present purposes is that, whilst a head sentence up to five years could be substituted if promised cooperation were not forthcoming, the non-parole period could not be increased beyond eighteen months, absent a successful appeal against the original sentence (see also subs 358(4)).
It is true, as the DPP submitted, that 18 months could be taken as the non-parole period for either or both of the head sentence undiscounted as well as discounted. Nor does it follow that, if the non-parole period of 18 months represented a discounted sentence, the undiscounted non-parole period was intended to bear the same ratio to the head sentence as the discounted non-parole period bore to the discounted head sentence. (A direct ratio would increase the non-parole period to an improbable two years one month and 22 or 23 days) (see for example, R v Waga (No 2) [2005] NSWCCA 33; R v Barakat [2004] NSWCCA 201). As the DPP submitted, to apply a cooperation discount only to a non-parole period would be erroneous (see R v Macdonnell [2002] NSWCCA 34).
A fortiori, it seems to us, that to apply a discount for cooperation only to a head sentence would, by reason of the provisions of s 358 be erroneous unless there was reasoned justification for doing so.
That error would, of itself, require the sentence imposed to be set aside and the appellant to be re-sentenced.
We accept, contrary to the DPP’s submission, that no error can be identified in his Honour’s evaluation of the promised assistance at 30 per cent. A range between 20 per cent and 50 per cent was, probably, open.
In those circumstances, the appeal must be allowed and the appellant re-sentenced. It is no longer necessary to specify a reduction of sentence for cooperation.
It further seems to us that the original sentence should be considered on the basis that the plea be to a charge of robbery. The plea is formally rejected as to aggravated robbery, the charge amended to robbery and the plea accepted as applicable to that reduced charge.
Having regard to that, it seems to us that the head sentence must be reduced and be fixed at two years and six months. The sentences for the other offences should not be altered. They are concurrent.
The non-parole period should be set at 12 months. The commencement date for the sentence and non-parole period will remain unaltered from that set by the trial judge.
Additional Issues
On 15 August 2006, the appellant sought to add a ground of appeal complaining of lack of parity with the appellant’s co-offender. The latter was sentenced to 15 months on the charge of recklessly inflicting grievous bodily harm and three terms of one month each for the deception matters, wholly suspended. The 15 month sentence was to be served by way of periodic detention.
That sentence was imposed on 28 July 2006. Leave is required to raise the issue. The sentences are not self-evidently disparate. The appellant has now withdrawn his application to amend the Notice of Appeal to add that ground. It is, accordingly, unnecessary to consider it.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.
Associate:
Date: 1 September 2006
| Counsel for the Appellant: | Mr B J Salmon QC |
| Solicitor for the Appellant: | Legal Aid Office (ACT) |
| Counsel for the Respondent: | Mr R Refshauge SC |
| Solicitor for the Respondent: | Director of Public Prosecutions, ACT |
| Date of hearing: | 9 May 2006 |
| Date of written submissions: | 18 May, 23 May and 6 June 2006 |
| Date of judgment: | 1 September 2006. |
5
6
0