Stuart v The Queen

[2016] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Stuart v R [2016] NSWCCA 72
Hearing dates:	24 March 2016
Date of orders:	10 May 2016
Decision date:	10 May 2016
Before:	Hoeben CJ at CL at [1]; Harrison J at [2]; Davies J at [19]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal – appeal against sentence – parity – whether offender can demonstrate that he has grounds for a justifiable sense of grievance
Legislation Cited:	Crimes Act 1900
Cases Cited:	Glover v R; Stuart v R [2015] NSWCCA 285 Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 Loader v R; Dunn v R [2013] NSWCCA 215 Tatana v R [2006] NSWCCA 398
Category:	Principal judgment
Parties:	Nathan Stuart (Applicant) Crown (Respondent)
Representation:	Counsel: G Brady SC (Applicant) N Adams (Respondent)   Solicitors: Nyman Gibson Miralis (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2011/294024
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 29 November 2013 Before: Garling ADCJ File Number(s): 2011/294024

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J.

2. HARRISON J: Mr Stuart seeks leave to appeal to this Court against the sentence imposed upon him by Garling ADCJ on 29 November 2013 on the single ground that his sentence, when compared to that imposed upon a co-offender Laurence Glover, gives rise to a justifiable sense of grievance.

Background

3. Mr Stuart and Laurence Glover appealed unsuccessfully against their convictions to this Court: Glover v R; Stuart v R [2015] NSWCCA 285. The factual background to the charges faced by each man is conveniently summarised at [8] – [20] in the judgment of Basten JA as follows:

“[8]    Count 1 alleged the theft of a black Audi RS4 Avant station wagon MS 2530, which, together with the car keys, was stolen from the home of its owner on the night of 3 May 2011. Carr and Stuart (but not Glover) were charged with that offence, but were acquitted. There followed three robberies at hotels in the eastern suburbs of Sydney between 4 May and 7 June 2011. The prosecution alleged that the black Audi was used as a getaway car in each case. All three accused were charged in relation to each offence, the prosecution case being that Mr Carr drove the motor vehicle and Messrs Stuart and Glover entered the respective hotels.

[9]    The first robbery (counts 2 and 3) occurred at the Nelson Hotel on Oxford Street, Bondi Junction, shortly after 10pm on the evening of 4 May 2011. The two offences resulted from separate acts of robbery involving the deputy manager of the hotel, from whom an amount of some $10,000 was taken, and a bar attendant, from whom the contents of the bar till were taken, being a little under $4,000. In submissions, the two counts were referred to as the first robbery.

[10]    The second robbery (count 4) took place on the same evening at about 10.30pm at the Sands Hotel, Maroubra. An amount of $12,800 was taken from the general manager, who had been counting the daily tills at the time one of the offenders kicked in her office door.

[11]    The third and fourth robberies occurred some five weeks later, on 7 June 2011. The third robbery (count 5) involved the Rose of Australia Hotel at Erskineville. Two offenders entered the hotel at about 10.50pm and escaped with a small amount of money from a till (about $1,250). Some 15 minutes later, offenders robbed the Excelsior Hotel at Surry Hills, taking approximately $7,688 (count 6). Police were alerted to the robbery as it was taking place and drove in front of the Audi which was parked outside the hotel. In seeking to escape, the Audi was driven into the police vehicle, mounting the pavement and, as described by Constable Scrymgour, the Audi ‘climbed up and over the bonnet of the police vehicle’ before driving off. Police recovered a screwdriver which had been used by the offenders.

[12]    Prior to the robberies on 7 June, the black Audi with its correct number plates, MS 2530, had been observed in a secure underground car park in Cowper Street, Randwick. On 8 June 2011 a police officer inspected the vehicle, which then bore number plates AWC 07T.

[13]    On 10 June 2011, shortly after 9.00am, Mr Carr visited the police website on which there were details of the robberies at the Rose of Australia and Excelsior Hotels. On the morning of 27 June 2011, he again visited the website and accessed a media release relating to an armed robbery in Randwick. Shortly after midnight (on 28 June), the black Audi was taken from the car park in Cowper Street, driven to a nearby lane and set alight. Mr Carr was charged with destroying the Audi motor vehicle (count 7). Another person was also said to have been involved in the torching of the motor vehicle; neither Glover nor Stuart was charged with that offence.

[14]    On 4 July 2011 there was a break-in at a house in South Coogee, car keys were stolen from the house and the motor vehicle, another Audi, registration number BLE 66F, was stolen. Messrs Carr and Stuart were charged with breaking and entering the house and stealing the keys and the vehicle (count 8). Both were acquitted, but the stolen vehicle was involved in subsequent offences with which the three accused were charged.

[15]    A fifth robbery occurred on Monday, 18 July 2011 at the Malabar RSL. Shortly after the club opened (at about 11.30am) two men, alleged to be Glover and Stuart, entered the premises and required staff of the club to open a safe and an ATM from which approximately $94,550 was taken (count 9). A different staff member was required to empty money from a till: approximately $6,420 was taken (count 10). There was significant evidence linking Mr Stuart in particular to the robbery. That included CCTV footage taken two days earlier which revealed a number of people, including Mr Stuart, at the club and signing the visitor’s book, which he did in his own name.

[16]    Mr Stuart returned to the Malabar RSL on 5 September 2011, again signing in in his own name. At about 7.58am on Wednesday, 7 September 2011, two offenders entered the club, a third offender remaining outside in a stolen high performance Mercedes sports car, without registration plates. The two men who entered the club were wearing hooded jumpers and triangular handkerchiefs tied over their faces, but no balaclavas. No money was taken: the offence (count 11) was identified as attempted armed robbery with a dangerous weapon. Bradley Carr had been arrested on 12 August 2011 and remained in custody on 7 September. Messrs Glover and Stuart were charged in relation to this offence.

[17]    The final offence (count 12) occurred on 12 September 2011 when two men wearing hooded jumpers and masks entered the Regent Hotel, Kingsford shortly after 10am. An amount of some $59,000 was taken. A witness observed the men leaving the Hotel, both wearing hoods, one clutching a bag and the other an iron bar. They ran to a Mercedes sports car which drove them away. The witness took a note of the front number plate, AP 234, and called the police. Messrs Glover and Stuart were charged with this offence.

[18]    Various arrests and searches were made on 12 September 2011. A search warrant was executed at Stuart’s home in Pitt Street, Waterloo. Police located $5,000 in cash, a pair of red and black gloves, a key to a stolen Mercedes BNN 77U and a pair of Adidas black track suit pants with three white stripes down the leg. The cash was found in bundles held with elastic bands, said to be consistent with money taken from the Regent Hotel. Mr Stuart was arrested and interviewed at Redfern police station. He was charged with the Regent Hotel robbery. In formal admissions dated 5 June 2013 he admitted stealing the Mercedes BNN 77U.

[19]    Mr Glover was arrested at about the same time leaving premises on Gardeners Road, Kingsford, leased by his girlfriend, Dayna Jennings. He had $1,850 in his wallet and a key to his own motor vehicle, which was located at 43 Dacre Street, Malabar. The unit occupied by Ms Jennings at Gardeners Road was searched; the garage to the unit was also searched, revealing the stolen black Mercedes BNN 77U, displaying stolen plates AP 234. A pair of pink washing-up gloves which contained DNA consistent with that of Mr Glover was found in the vehicle. Similar DNA was found on an interior door handle in the Mercedes. A small black crow bar was located on the passenger side front floor. In addition, number plates from the stolen Audi BLE 66F were also located in the Mercedes.

[20]    The third man alleged to have been involved in the robbery of the Regent Hotel was Kane Hoskin. At 11.50pm on 12 September 2011, police attended at the Matraville home of Hoskin’s girlfriend, Siobhan Kelly. Hoskin was asleep in her bedroom, but was woken and arrested. Police asked if there was cash on the premises and were told there was no large amount present. After his arrest, the bedroom was searched and $18,100 was located in a gift box in the wardrobe, together with an additional $1,500 in a brown bag hanging from the bedpost.”

4. Mr Stuart was sentenced to an aggregate sentence of 16 years imprisonment commencing on 12 September 2011 and expiring on 11 September 2027 with a non-parole period of 10 years expiring on 11 September 2021. Mr Glover was sentenced to an aggregate sentence of 11 years and 6 months imprisonment commencing on 12 September 2011 and expiring on 11 March 2023 with a non-parole period of 7 years and 2 months expiring on 11 November 2018.

Submissions

5. Mr Stuart submitted that there was a lack of proportionality in the aggregate sentences imposed upon him and Mr Glover. That lack of proportionality was said to be so marked as to give rise to a justifiable sense of grievance. For example, there was no difference at all in their respective culpability for the trial offences and “not a lot” of difference in their subjective cases. The only real differences were the additional charges faced by Mr Stuart and the fact that he was at the time on conditional liberty. Mr Stuart contended that those differences were insufficient to justify the disparate sentences.

6. Mr Stuart also emphasised that his Honour indicated in the course of the sentencing proceedings that Mr Stuart’s sentences for the additional offences would be served concurrently and be accumulated by a term of 18 months on the common robbery charges. Mr Stuart submitted that while it was unusual for a judge to specify the amount of accumulation when imposing an aggregate sentence, his Honour’s comments served to demonstrate the extent of the difference between his sentence and that imposed upon Mr Glover. The further offences were also less serious than the trial offences.

7. Mr Stuart conceded that the fact that he was on a community service order at the time was an aggravating feature unique to him. He submitted that it should aggravate his offending to a minor degree only, having regard to the nature of the charges and the seriousness of the offending. In summary, the 40 percent difference of 4 years and 6 months between the aggregate head sentences and 2 years and 10 months in the non-parole periods demonstrated such a marked lack of proportionality as to give rise to a justifiable sense of grievance.

Consideration

8. In his remarks on sentence concerning Mr Glover, his Honour adverted to the question of parity with his co-offenders Mr Stuart and Mr Carr in the following terms:

“I accept there are special conditions. He will need assistance when he leaves prison after a lengthy sentence. He has never been to gaol before and will need some help, and therefore I find special circumstances.

The next question is one of parity. Stuart and Carr, I have already sentenced them. The Crown case was that it was a joint criminal enterprise, that is, they all played a part in the armed robberies. It was an agreed and planned series of robberies. Each part was vital to the commission of the offences. Carr was the driver. Stuart and Glover go into the hotels and clubs. One has a gun, the other has a weapon. Carr was involved in aggressive driving, especially after the armed robbery at the Excelsior Hotel. Evidence clearly shows that Carr was fully involved. He knew one of the others was carrying a gun and the other another weapon, and knew exactly what was going on. Glover also was fully aware and taking part in what was going on. I believe that each played a similar role of importance in the carrying out of the offences and there is no difference in criminal responsibility.

It was submitted to me that Mr Glover played a lesser part. He was described at one stage as a gofer. I reject that submission. I am satisfied on the evidence in the trial that Glover was clearly involved to the same extent as the others. They were all involved in it together and that is why I am satisfied that there is no difference in criminal responsibility.

I sentenced Carr to 15 years with a non-parole period of nine years and four months, Stuart to 16 years with a non-parole period of ten years. Each had additional matters which Glover has not been charged with. Mr Glover was arrested and has been in custody since 12 November 2011.

There are some differences in the sentence. Mr Carr was not involved in the last two attempted armed robberies. However, he had to face other serious charges. He has a far more serious criminal record than Stuart and Glover. Carr was also convicted of arson of a motor vehicle. The offenders are roughly the same age. Mr Carr was on parole at the time, Stuart was subject to a community service order.” [Emphasis added]

9. Correspondingly, when sentencing Mr Carr, his Honour said this in his remarks on sentence:

“The offenders are all about the same age. Mr Carr was on parole at the time. Mr Stuart was subject to a community service order. There are some differences in the subjective matters, but not a lot. Mr Stuart clearly is taking part in the robberies, and I have concluded that, as far as parity is concerned, the parts they played are all very similar and should be treated in the same way, that is, as far as the trial matters are concerned.”

10. Mr Stuart pleaded guilty to two additional offences. The first was a charge of receiving a Mercedes motor vehicle stolen from Manning Road, Double Bay on 6 July 2011 that he subsequently stored in the garage of Jessica Mylne. That vehicle was under electronic surveillance at the time. The second was a charge of aggravated break, enter and steal on 9 August 2011 at Brighton-Le-Sands. Mr Stuart stole car keys with which he was then able to steal a high performance Mercedes motor vehicle which was later used in two of the offences for which he stood trial, being the attempted armed robbery at the Malabar RSL Club on 7 September 2011 and the armed robbery of the Regent Hotel on 12 September 2011. In sentencing Mr Stuart for these two offences, which were additional to those with which Mr Glover was charged, his Honour remarked as follows:

“As far as the other charges to which Carr and Stuart have pleaded guilty they should also be partially accumulated on top of the armed robbery charges. They are totally different offences.”

11. It seems apparent that his Honour at all times had the issue of parity clearly in mind when sentencing all of these offenders. Mr Stuart therefore faces the considerable obstacle that his Honour was fully aware of the differences between and among these individuals and accordingly gave clear reasons for departing from the sentences imposed upon Mr Stuart and Mr Carr when he came to sentence Mr Glover: see Tatana v R [2006] NSWCCA 398 at [28] and Loader v R; Dunn v R [2013] NSWCCA 215 at [91] – [95].

12. The significant reason for the difference in the sentences is the additional offences for which Mr Stuart was sentenced. Mr Glover had no additional offences or any matters on a Form 1. By reference to the indicative sentences it is clear that his Honour intended Mr Stuart and Mr Glover to serve the same terms for the offences for which they had both been convicted. Mr Stuart was also subject to a community service order to which his Honour specifically referred in his remarks on sentence. However, it is also important to note that Mr Stuart was on a good behaviour bond at the time of the commission of the offences for which he stood to be sentenced. His Honour did not refer to that fact, and it amounts to a further feature of distinction between Mr Stuart and Mr Glover.

13. Apart from his concern about parity, Mr Stuart makes no complaint that his Honour erred in any other particular respect, such as that he inappropriately accumulated sentences or failed properly to have regard to the principles applying to aggregate sentences. Mr Stuart does not contend that his sentence is manifestly excessive. Mr Stuart’s complaint about the percentage mark up on his sentence is not a separate complaint of error, as much as a method by which to emphasise or justify his sense of grievance.

14. Mr Stuart’s argument in this appeal must necessarily confront what was discussed by Campbell JA in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [203] as follows:

“[203]    There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1.    It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them…

2.    If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy…

3.    It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low…

4.    There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant…” [Citations omitted]

15. Mr Stuart’s head sentence is 4.5 years longer than Mr Glover’s and his non-parole period is 2 years and 10 months longer. The difference is referable to the two further offences with which Mr Stuart was charged and for which he was sentenced. Mr Stuart contended that the difference demonstrated a lack of proportionality that is so marked as to give rise to a justifiable sense of grievance. I am however unable to agree.

16. It is trite to observe that the sense of grievance that would warrant appellate intervention must be justifiable, not merely a general dissatisfaction with the fact that a co-offender in a series of joint criminal activities may for legitimate and understandable reasons not have received a comparable sentence. Mr Stuart was sentenced to a longer term of imprisonment than Mr Glover because he committed further offences. One of the additional charges faced by Mr Stuart that was not faced by Mr Glover, being an offence contrary to s 112(2) of the Crimes Act 1900, carried a standard non-parole period of 5 years by itself.

17. The sentence imposed upon Mr Stuart is not otherwise attacked. In the circumstances it is not possible to say that his Honour erred in sentencing comparable offenders to different terms of imprisonment. Mr Stuart has not demonstrated that there is any basis for him to have a justifiable sense of grievance in the circumstances.

Conclusion and orders

18. In my opinion the following orders should be made:

1. Grant leave to appeal.

2. Dismiss the appeal.

19. DAVIES J: I agree with Harrison J.

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Decision last updated: 10 May 2016