Taylor v The Queen

[2003] WASCA 167

TAYLOR -v- THE QUEEN [2003] WASCA 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 167
Court:	COURT OF CRIMINAL APPEAL	Published:	04/08/2003
Case No:	CCA:213/2002	Heard:	22 JULY 2003
Coram:	MURRAY ACJ ANDERSON J STEYTLER J	Delivered:	4/08/03
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for leave to appeal against sentence allowed
Category:	B
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Parties:	DAVID JASON TAYLOR THE QUEEN
Catchwords:	Criminal law Armed robbery Sentence Parity Both co-offenders receiving 8 years Applicant's role significantly less Sentence reduced to 7 years on parity grounds
Legislation:	Nil
Case References:	Postiglione v The Queen (1997) 189 CLR 295 Cabassi v The Queen [2000] WASCA 305 Cameron v The Queen [2002] WASCA 81 Castagna v The Queen [2001] WASCA 142 Kezkiropulos v The Queen [2002] WASCA 352 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Miles v The Queen (1997) 17 WAR 518 Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TAYLOR -v- THE QUEEN [2003] WASCA 167 CORAM : MURRAY ACJ

ANDERSON J
STEYTLER J

HEARD : 22 JULY 2003 DELIVERED : 4 AUGUST 2003 FILE NO/S : CCA 213 of 2002 BETWEEN : DAVID JASON TAYLOR

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Armed robbery - Sentence - Parity - Both co-offenders receiving 8 years - Applicant's role significantly less - Sentence reduced to 7 years on parity grounds

Legislation:

Nil

Result:

Application for leave to appeal against sentence allowed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : In person
Respondent : Ms L Petrusa & Mr S F Rafferty

Solicitors:

Applicant : In person
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Postiglione v The Queen (1997) 189 CLR 295

Case(s) also cited:

Cabassi v The Queen [2000] WASCA 305
Cameron v The Queen [2002] WASCA 81
Castagna v The Queen [2001] WASCA 142
Kezkiropulos v The Queen [2002] WASCA 352
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998

(Page 3)

1 MURRAY ACJ: I agree with Anderson J that, for the reasons given by his Honour, to which I have nothing to add, leave to appeal should be granted. The appeal should be allowed and the sentence imposed for the offence of armed robbery in company should be quashed. A sentence of 7 years imprisonment should be imposed, backdated to 5 September 2002, with eligibility for parole.

2 ANDERSON J: This is an application for leave to appeal against an aggregate sentence of 8 years imprisonment handed down in this Court on 31 October 2002 in respect to a count of armed robbery in company and a count of stealing a motor vehicle.

3 These offences were committed with a co-offender by the name of Edwards, with whom the applicant was jointly charged. The sentence followed pleas of guilty by both Edwards and the applicant and the sentencing of both men took place contemporaneously. Each were represented by experienced counsel before the learned sentencing Judge.

4 The applicant appeared in person before us. The formal grounds of appeal plead that "in all the circumstances the sentence is manifestly excessive". However, the applicant made it clear that his true grievance is not that his sentence is manifestly excessive (which it is not) but that he had received the same sentence as his co-offender when the degree of his criminality was much less than that of his co-offender.

5 The offences were committed on 17 April 2002 when Edwards and the applicant used a vehicle they knew to be stolen to go to a bank in Belmont in order to rob it. The applicant drove the vehicle to the bank and Edwards went in wearing a balaclava and armed with a sawn off double barrelled shotgun. He held up the bank tellers with the gun demanding that they put money into a cotton bag which Edwards had taken into the bank for the purpose. He took $11,195 and was driven away from the bank by the applicant who later received a little less than half of the stolen money as his share of the robbery proceeds.

6 Both Edwards and the applicant have bad criminal records and are of approximately the same age and there is nothing much in their antecedents which would distinguish them for sentencing purposes. His Honour thought that Edwards' record of convictions was worse than the applicant's, in the sense that whilst the applicant had no previous convictions for armed robbery (although many convictions for other serious offences) Edwards had two previous armed robbery convictions.

(Page 4)

7 The applicant argued that the real point of distinction between them which should have led to different sentences was that the robbery had been planned by Edwards and had been committed by Edwards using disguises prepared for the purpose and a shotgun which was Edwards' shotgun and which Edwards had modified for use as a robbery weapon by cutting down the barrel and the butt.

8 The applicant's submissions as to the circumstances of his involvement were stated by his counsel to the learned sentencing Judge in the following terms:

"What happened on 17 April of this year is that he [the applicant] was hanging around a car park with some friends. He received a telephone call from his co-accused, who he had known from gaol. A proposition was put to him that he could make some easy money…. He had no part in the stealing of the motor vehicle. He had no part in obtaining the firearm that was used in the armed robbery … he didn't enter the bank … he didn't threaten the people in the bank. He remained in the car at all times and was the getaway driver."

9 These statements were not challenged. In his sentencing remarks the learned Judge said of Edwards:

"I have little difficulty in concluding that you were the ringleader in relation to these offences and primarily responsible for the commission of them."

10 His Honour then detailed certain facts which clearly pointed to careful preplanning on the part of Edwards. There was however no finding that the applicant was involved in any of that preplanning.

11 In my opinion, the degree of criminality as between the co-offenders was sufficiently different to require that it be reflected in different sentences: Postiglione v The Queen (1997) 189 CLR 295 at 301 - 302. Whilst the applicant's participation as getaway driver makes him guilty as a principal offender, the level of his criminality as regards the entire enterprise was appreciably less than that of Edwards and this should have been marked by a somewhat lower sentence.

12 Justice will be sufficiently served if the applicant's sentence is set aside and a sentence of 7 years' imprisonment with parole substituted. There is no suggestion that the order for backdating should be interfered with so that the 7 years should commence from 5 September 2002. I

(Page 5)

would not interfere with the sentence of 1 year's imprisonment, concurrent, imposed on the applicant with respect to the use of the stolen getaway vehicle.

13 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them. There is nothing I wish to add.