Thaver v The Queen
[2011] NSWCCA 106
•10 June 2011
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Thaver v R [2011] NSWCCA 106 Hearing dates: 24 March 2011 Decision date: 10 June 2011 Before: McClellan CJ at CL, Blanch & Davies JJ Decision: (1) Leave to amend to seek leave to appeal against the sentences imposed by Judge Knight refused.
(2) Leave to appeal against the sentences imposed by Judge McLoughlin granted.
(3) The additional term ordered by Judge McLouglin of 15 months imprisonment commence on 10 March 2013 and expires on 9 July 2014. On this sentence order that the Applicant be released to parole on 9 March 2013.
(4) The appeal is otherwise dismissed.
Catchwords: CRIMINAL LAW - sentence - parity principle - 3 offences - co-offender sentenced for all 3 by one Judge - Applicant sentenced for 2 offences by second judge - Applicant sentenced for third offence by third Judge - overall disparity of 3 months - no justifiable sense of grievance. Legislation Cited: Crimes Act 1900 Cases Cited: Lowe v R (1984) 154 CLR 606 Category: Principal judgment Parties: Krien Thaver (Applicant)
Regina (Respondent)Representation: I McLachlan (Applicant)
J Dwyer (Respondent)
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2009/73734 Decision under appeal
- Date of Decision:
- 2010-05-26 00:00:00
- Before:
- McLoughlin DCJ
- File Number(s):
- CCA 2009/73734
Judgment
McClellan CJ at CL: I agree with Davies J.
Blanch J : I agree with Davies J.
Davies J : On 18 March 2010 the Applicant pleaded guilty to a charge of robbery in company, contrary to s 97(l) Crimes Act 1900, that took place on 31 December 2007. The victim of the robbery was a taxi driver in whose taxi the Applicant and his co-offender had travelled.
He was sentenced by Judge McLoughlin to a period of imprisonment for 2 years with a non-parole period of 9 months. The sentence was to commence on 10 June 2012 with the non-parole period expiring on 9 March 2013. The Applicant appeals only on the basis that the sentencing judge was said to have erred in breaching the principle of parity.
The issue of parity is not a straight forward one because it involves other offences committed both by the Applicant and the co-offender. Further, it arises in a situation where the co-offender was sentenced for all the joint offences (together with another one where he alone was involved) by one judge (Judge Graham) and the Applicant was sentenced for 2 of the offences committed with the co-offender by another judge at an earlier time (Judge Knight).
Facts
There were 3 offences involving the Applicant and his co-offender Frederick Peters. All involved the robbery of taxi drivers. The first of the offences was committed on 31 December 2007 (in respect of which Judge McLoughlin sentenced the Applicant giving rise to the present appeal). The second was on 18 January 2008, and the third was on 27 January 2008.
(a) Offence of 31 December 2007
The victim in this matter was employed by Premier Cabs. At about 6.19pm on Monday 31 December 2007 a call was received from an unknown number, booking a cab for a pick up at 12 Chablis Place, Minchinbury by a male only referred to as 'Kevin'. The cab driver attended this address. He used his horn to get the attention of the persons and a short time later, the co-offender Peters walked out to the taxi and sat in the front passenger seat requesting that the driver wait for his friend.
Another male, shortly thereafter, walked out and the driver was directed to attend another address in Minchinbury, the home of the Applicant. The Applicant entered the taxi and the driver was then directed to attend an address in Colyton where the third male exited the vehicle and returned about ten minutes later. The 3 men requested the driver to drive them to Bondi for a seventy five dollar fare. The driver said that the fare to Bondi would be more than seventy-five dollars.
Ultimately it was agreed that the driver would take them in to Parramatta. During the course of the journey it would appear that the Applicant and Peters both either drank from, or had in their hands, a cardboard carton of apple juice.
After the taxi stopped at the car park at Lennox bridge in Parramatta and the driver requested fare payment Peters grabbed him by the throat. At this stage the apple juice carton was dropped and Peters placed his hands around the victim. The victim is of the view that all males were assisting in holding him down with Peters saying "Give me your money and wallet".
The victim handed money to one of the males, and Peters said "Give us the keys and your mobile". The victim handed the keys and his mobile phone to Peters. As this took place, Peters took the on-board camera and attempted to break it. All the males jumped out of the taxi and walked east along Parramatta River Bank.
At this stage the Applicant had the keys and threw them towards the victim before walking off. The victim lost sight of the assailants at Church Street, and drove his taxi to George Street securing it and then attending Parramatta Police Station.
Detectives, on inspecting the motor vehicle, located the apple juice carton which ultimately produced DNA profiles of the Applicant and Peters. At the time the Applicant was interviewed, he told police he could not remember the incident and he was under the influence of drugs, Ice and alcohol, at the time of the robbery with no recollection of this time in his life.
(b) Offence of 18 January 2008
At about 10.10pm on Friday 18 January 2008 Uma Chand was driving a taxi, registration T504. He was notified by his in-car radio to attend Traminer Place, Minchinbury, as there was a fare to Rooty Hill via Mount Druitt. He went to Traminer Place, Minchinbury, where he saw the Applicant and Peters. The Applicant took a seat in the rear of the taxi and Peters sat in the front passenger seat of the taxi. Peters handed the driver a $20 note, telling him that they could be trusted. The driver drove from the area before being told shortly afterwards by the Applicant to return to Traminer Place, as the Applicant had left his phone at that location. The driver turned his taxi around, returning to Traminer Place.
As he drove into Traminer Place, returning to the vicinity where he had first seen the Applicant and Peters, the Applicant took the driver in a headlock from the rear, pulling him into the rear seat of the taxi. Peters pulled the handbrake on, stopping the vehicle. Peters got on top of the driver, saying, "I've got a knife." The driver saw Peters remove an object that was shiny from his chest area. Peters said, "Don't move or I'll put this knife in your chest." He said, "Give me all the money." Peters then went through the pockets of the driver , removing money from his pants and his shirt pockets. Peters also removed cash from the sock of the driver, and both the Applicant and Peters placed pressure on the driver by pushing him into the seat and centre console area of the vehicle, preventing him from moving. He was asked about his wallet and he replied that he did not carry one. His mobile phone was removed from his pants belt, this being a black Nokia mobile phone. The Applicant and Peters then fled the area on foot.
Police were called, and the taxi was towed for scientific examination. The taxi had closed circuit television attached which depicted the entire incident.
As a result of the attack, the driver was distressed and suffered soreness to his upper body. He had a total of $375 and a Nokia mobile phone stolen from him.
(c) Offence of 27 January 2008
At about 12.30am on Saturday 27 January 2008 Numan Bhatti was driving a taxi, registration number T7105. He was notified by his in-car radio to attend McFarlane Drive, Minchinbury, as there was a fare to Rooty Hill. He drove onto McFarlane Drive, and Peters approached the driver and took a seat in the front of the taxi. The Applicant and an unidentified man entered the rear of the taxi and took a seat in the back. The driver was directed to follow a small white hatch vehicle that was in front of the taxi. That white vehicle was followed to the Doonside area and Peters then said that he wanted to go to the city. The driver said he would not take Peters there, and Peters and the Applicant then told the driver to drive them back to Minchinbury. The driver was directed to Traminer Place, Minchinbury, and told to stop his vehicle in an identical position to the offence of 18 January. That position enabled a quick escape of the offenders, as it was near a laneway.
Peters directed the driver to turn his vehicle lights off, which the driver declined to do. Peters then said, "I told you to turn them off," and the Applicant then pulled the driver from the front seat in a headlock towards the rear seat. The unidentified man struck the driver numerous times to the head with a bottle. Peters started to punch the driver to the upper body with his closed fist.
Due to the frenzied attack on him, the driver undid his bumbag and threw it at the Applicant, telling him to take it. It contained a Nokia mobile phone and $250 in cash. The unidentified man got out of the back of the taxi and pulled the driver from the vehicle. The driver fell onto the roadway. Peters then got out of the vehicle and the driver fled the area on foot, thinking he was going to be killed.
He sought the assistance of a passer-by, the police were called and later attended. The vehicle of the driver was secured for forensic examination. The taxi driven by the driver had closed circuit television attached which showed the whole entire incident.
As a result of the assault on him, the driver suffered numerous cuts and scratches. He sustained three significant lacerations that required eleven sutures. That constituted the wounding element of the offence. He sustained bruising to the hand as a result of attempting to prevent further assault with the bottle and the punches that were inflicted on him. He was extremely distressed as a result of the incident and was visibly shaken a number of days later.
Sentences
The Applicant was sentenced by Judge Knight on 10 December 2008 in respect of the offences of 18 January 2008 and 27 January 2008. In sentencing the Applicant for the offence of 27 January 2008 Judge Knight also took into account an offence of break, enter and steal committed on 14 August 2004. Judge Knight allowed a discount of 25% for the Applicant's plea of guilty, and a further discount of 10% for promised assistance.
In relation to the offence of 18 January 2008 the Applicant was sentenced to a fixed term of imprisonment of 18 months to commence on 10 December 2008 and expire on 9 June 2010. In relation to the offence of 27 January 2008, and taking into account the Form 1 offence, the Applicant was sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years 6 months commencing 10 December 2009 and expiring on 9 June 2012.
His Honour said that he wanted to make it quite plain that it was his intention that overall the Applicant should be sentenced to 6 years imprisonment with a 3 year 6 month non-parole period. His Honour added when addressing the Applicant that he had chosen to deal with the Applicant in what his Honour regarded as a lenient fashion.
The sentence imposed by Judge McLoughlin on 26 May 2010 commenced at the expiry of the Applicant's non-parole period of 9 June 2012 as fixed by Judge Knight. When the 3 offences are considered together the overall sentence was one of 7 years with a non-parole period of 4 years and 3 months.
The co-offender Peters
Peters was sentenced for the same 3 offences and a further offence of robbery committed on 18 October 2007 by Judge Graham on 8 April 2009.
Judge Graham gave a discount of 20% for the plea of guilty in respect of the offences of 18 and 27 January 2008. He gave a discount of 25% for a guilty plea in respect of the offence of 31 December 2007, the offence the subject of this appeal. When Judge Graham sentenced Peters he had available to him the Remarks on Sentence by Judge Knight in respect of the Applicant for the offences of 18 and 27 January 2008.
Judge Graham sentenced Peters as follows. In relation to the offence of robbery (which did not involve the Applicant) he was given a f ixed term of 18 months commencing on 30 January 2008 and expiring on 29 July 2009. In relation to the offence of 31 December 2007 ( the offence the subject of this appeal) he was sentenced to a fixed term of 2 years commencing 30 January 2009 and expiring 29 January 2011.
In relation to the offence of 18 January 2008 he was sentenced t o a fixed term of 18 months imprisonment commencing 30 January 2010 and expiring 29 July 2011. In relation to the offence of 27 January 2008 he was sentenced to a total term of imprisonment of 5 years with a non-parole period of 2 years commencing 30 January 2011 and expiring 29 January 2013.
If the offence of robbery on 18 October 2007 is ignored, having regard to the accumulation of the sentences, Peters received an overall term for the 3 offences common to him and the Applicant of 7 years with a non-parole period of 4 years.
Remarks on Sentence
Judge McLoughlin was very conscious of the principle of parity and mentioned it a number of times in the course of his Remarks on Sentence. His Honour first recited the facts and then noted the sentences which Peters had been given. He said that a matter of aggravation in relation to the 3 offences common to the Applicant and Peters was that Peters was on bail at the time of their offence for his earlier offence of robbery. He also noted that the Applicant was 15 months younger than Peters.
His Honour made reference to the discounts received by Peters and by the Applicant when Judge Knight sentenced him and said:
I repeat much of this in order that I can deal with the question of parity in this sentence.
His Honour said that both the Applicant and Peters had been under the influence of alcohol and drugs, that the Applicant had no relevant criminal history and had been in responsible employment until shortly before the commission of the offences.
His Honour then said this:
This offender was sentenced on 10 December 2008 with a total sentence of six years with three and a half years in custody, to be released on parole. The co-offender Peters was charged with this offence on 19 November 2008. When the police had harvested the DNA and there is no evidence as to why this offender was not charged before being dealt with by the court on 10 December 2008. If that had been the case this offender would have been dealt with in all matters at that time and he would have been sentenced at that time for this matter in addition to the others. It would also appear that in relation to this offence the co-offender Peters was the main aggressor.
His Honour then noted some remarks made by Judge Graham and said:
His Honour had facts before him which I do not have before this court as to there being an object held against the taxi driver. I only make reference to that in attempting to give parity to the sentence that I am going to give.
His Honour set out some further remarks from Judge Graham concerning the vulnerability of taxi drivers and then said:
This offender is charged with robbery in relation to this offence but I again have made reference to his Honour's comments in order to deal with the question of parity.
His Honour noted that for the offence committed on 31 December 2007 Peters was given a sentence of 2 years imprisonment. He went on to say:
I regard the offender's involvement in this offence as being a little below the middle of any scale constructed for such an offence. Mr Kennedy, learned counsel for the offender submits that the court in constructing the prison sentence would have regard to parity and this should result in this sentence being somewhat less than that given to the co-offender Peters because of the extra offence of Peters, Peters being older, his greater involvement in this offence and he has a record of some matters before the commission of these offences which this offender does not.
Notwithstanding the matters on the Form 1 which were taken into
account when this offender was sentenced, I agree to that submission. This offender was first convicted on 30 November 1999 at the Bidura Children's Court, for Enter prescribed premises without lawful excuse for which he was placed on a six month s 33(1)(b) bond and that is the only matter on his record until the commission of this offence.
His Honour set out the sentences given to Peters for the offence of 18 and 27 January 2008. He set out a long extract from the report of the Probation and Parole Officer in respect of the Applicant and then said this:
I accept that the offender has no real memory of this offence and it would have been preferable if this matter was dealt with at the same time as the other matters on 10 December 2008.
Whilst it may not be indicated by statute, to deal with his sentence in this way, because of the circumstances I propose to first refer to an overall sentence in order that the parity and my reasons for it can be ascertained and then to pass sentence as required.
Bearing in mind the matters to which I have referred I am of the view that this offender should serve a head sentence of some seven years with a non-parole period of some four years and three months. As the earlier sentencing judge has done I also find special circumstances because of his youth, his first time in prison and the reasonable prospects of rehabilitation.
Thereupon his Honour sentenced the Applicant to the 9 month non-parole period with an additional sentence of 15 months which his Honour said commenced on 10 March 2013 and expired on 9 December 2015. I will return to consider the expiry of the sentence later in this judgment.
The Applicant's submissions
The Applicant in his written submissions said that Judge McLoughlin ought to have imposed a sentence on the Applicant that would have meant the Applicant received overall a non-parole period of at least 1 year less than that imposed on Peters. The Applicant points to the following matters which, in total, it is submitted, should have resulted in a shorter non-parole period of at least 1 year.
a)Mr Peters had committed an additional offence, i.e. his count 1;
b)as at the time Mr Peters committed counts 2, 3 & 4, he was on bail in respect of his count 1;
c)Mr Peters was the older offender;
d)Mr Peters was the main aggressor in respect of the offence giving rise to count 1 against the applicant (i.e. the 31 December 2007 offence);
e)Mr Peters had been given a smaller discount for his guilty pleas -i.e. a 20% discount for his pleas of guilty, whereas the applicant had been given a discount of 25% for his guilty pleas;
f)the applicant had also been given a 10% discount for proposed assistance when sentenced for his count 2 and 3;
g)Mr Peters had a lengthier prior criminal record (the applicant had only one matter which occurred .when he was a minor); and
h)arising out of the 31 December 2007 incident, Mr Peters was charged with Armed Robbery with an Offensive weapon, whereas the applicant was charged with Robbery in Company, and although both constitute an offence under s.97 of the Crimes Act 1900 the sentencing facts for Mr Peters also included a reference to a sharp object being held against the victim's throat.
At the hearing of the appeal, and despite the year's reduction sought in the written submissions, counsel for the Applicant asked only that the non-parole period should be reduced by 3 months to bring it into line with the total non-parole period which formed part of Peters' sentence. The Applicant submitted that the sentence imposed by Judge McLoughlin was imposed in the light of the earlier sentences that had been imposed on the Applicant by Judge Knight. The Applicant submitted that the overall sentences imposed on both the Applicant and Peters should be taken into account, but when it was pointed out that there was no application to appeal against the sentences imposed by Judge Knight the Applicant sought leave to bring such an application. That leave was opposed by the Crown on the basis that the Crown had only come to argue parity in relation to the sentence for the offence of 31 December 2007. The Court indicated that it would reserve its decision both on the application to amend to seek leave to appeal against Judge Knight's sentences as well as on the application to appeal against Judge McLoughlin's decision.
The parity principle is not offended
(a) The sentence for the offence of 31 December 2007
Before this Court will intervene in relation to a disparity between sentences of co-offenders it must be shown that the disparity is such as to give rise to a justifiable sense of grievance or to give the appearance that justice has not been done. Ordinarily there will need to be a marked disparity in sentences before this Court will intervene: Lowe v R (1984) 154 CLR 606 at 609, 611 and 623.
If attention is confined to the sentences imposed only in respect of the offence of 31 December 2007, each of the offenders received a sentence of 2 years for the offence. Peters was required to serve a fixed term of 2 years but that was because the offence was dealt with in conjunction with all of the other offences including an offence with which the Applicant had no involvement. Nevertheless, the Applicant's sentence was no more onerous than that imposed on Peters and, in fact, the Applicant was only required to serve 9 months of that sentence before he was eligible for parole. Even if all of the matters enumerated by the Applicant about the differences between him and Peters are accepted as correct it cannot be said that there is any disparity, let alone a marked disparity, which works against the Applicant.
(b) Application to amend
The Crown says it is prejudiced by the late application to amend to seek leave to appeal against the sentences imposed by Judge Knight. When the Crown has not had the opportunity to put before the Court any further material concerning those sentences, and has not had any opportunity to prepare argument in relation to those sentences including how they relate to the sentences imposed against Peters, it would not be appropriate to grant the leave the Applicant now seeks to amend.
However, in fairness to the Applicant and to avoid any perception that the Applicant has been disadvantaged by the course of events that led to the 2 separate sentence hearings I will consider the relevant material available at the hearing of the present appeal.
On the imposition of the sentence by Judge Knight the position with regard to parity was that the Applicant had received a sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months whereas Peters had received a sentence of 6 years imprisonment with a non-parole period of 3 years. The difference is to be found in the non-parole period ordered in respect of the offence of 27 January. Some matters might suggest that this outcome was unfavourable to the Applicant including that Peters was the principal aggressor in relation to the 2 offences of 18 January and 27 January, that Peters committed those offences whilst on bail in respect of the robbery he had committed unconnected with the Applicant, and that Peters received a discount of 20% for those offences whereas the Applicant received a combined discount of 35%. One reason for the disparity may well have been that Judge Graham took the view that the 4 offences for which he sentenced Peters were:
... all part of the same burst of criminality on the part of a man of twenty-six or twenty-seven who had not previously exhibited such a serious disregard for the criminal law.
Perhaps because Judge Knight was only sentencing the Applicant for 2 offences, he does not seem to have regarded the offences in the same way with the result that the penalties for the 2 offences were accumulated except for a 6 month period.
However, there were subjective factors which might also explain the difference in the sentences. These are referred to in the remarks of Judge Graham when sentencing Peters. These matters included abandonment by his parents, physical abuse, a period of living on the streets, his alcohol and substance abuse and the fact that he suffered from post-traumatic stress disorder and depression. In relation to the post-traumatic stress disorder the psychologist said that his experience of maturing into a young adult had been severely inhibited and affected by his experience of PTSD. By contrast the Applicant, as noted by Judge Graham, had a good education and vocational qualifications and experience and had been employed until shortly before he was first sentenced in December 2008 by Judge Knight.
For those reasons Judge Graham said that, despite the more prominent role of Peters in the offences committed with the Applicant, those subjective matters meant that the sentence imposed upon Peters should not be greater than the sentence imposed upon the Applicant.
Moreover, as Judge Graham pointed out, when Judge Knight came to sentence the Applicant for the offence of 27 January he was taking into account an offence of breaking, entering and stealing where jewellery and other items totalling in value something over $2000 were taken and in the course of the robbery 4 rooms in the house were destroyed.
Other differences between the Applicant and Peters were relatively insignificant. Although Peters was older (but only by 16 months) both offenders were adults. Although Peters had more offences on his criminal record they were not offences of any great significance and Judge Graham accepted the Crown's concession that he did not have a significant criminal history.
These matters provide a sufficient explanation why there might have been some disparity in the sentences for the offences of January 2008. In the light of those matters the disparity was not such, in my opinion, as to give rise to a justifiable sense of grievance or to a view that justice had not been done. Even, therefore, if the Crown was not prejudiced by the late application without notice, I do not consider the material discloses any basis for a conclusion that the parity principle has been offended by reason of the sentences imposed by Judge Knight.
(c) Consideration of all 3 sentences
The Applicant says that the sentences imposed by Judge McLoughlin must be seen in the light of the sentence imposed by Judge Knight even if no appeal is brought against the sentence of Judge Knight. Although it was not articulated as such, that submission seems to suggest that when applying the totality principle the sentence imposed by Judge McLoughlin ought to have been a lower one. That would appear to be because, if the Applicant had been sentenced for all his offences at the same time, he would have been given a lower sentence than that given to the co-offender Peters.
The issue is one of determining whether the extra 3 month non-parole period required to be served by the Applicant compared with the non-parole period given to Peters, when taken in conjunction with the differences between the 2 offenders, amounts to a marked disparity or gives rise to a justifiable sense of grievance.
I drew attention above to a number of matters which might be thought to have justified the difference in the sentence given to the Applicant. The 2 significant matters were the subjective factors that favoured Peters and the Form 1 offence taken into account by Judge Knight when sentencing the Applicant. The nature of the Form 1 offence is likely to have had an effect on the sentence imposed on the Applicant where that Form 1 offence was taken into account.
What is of greater significance, however, is that, although there was a disparity in the sentences for the offences of 18 and 27 January, when Judge McLoughlin came to sentence the Applicant for offence of 31 December the non-parole period that he imposed had the effect of evening out the disparity at least to the extent of 3 months, with the result that, overall, the Applicant must serve 3 months more in prison for the 3 offences than the co-offender Peters.
It cannot be said that an overall sentence for the Applicant that involves him serving an extra 3 months non-parole period compared with that to be served by Peters represents a marked disparity or is such that it can give rise to a justifiable sense of grievance. A 3 months disparity in that regard is well within the appropriate discretion of the sentencing judge having regard to all of the appropriate matters to be considered in relation to the Applicant and Peters.
Expiry of the sentence
When Judge McLoughlin came to pronounce the sentence he said this:
Bearing in mind the matters to which I have referred I am of the view that this offender should serve a head sentence of some seven years with a non-parole period of some four years and three months.
He then sentenced the Applicant to a 9 month non-parole period from 10 June 2012 (the date on which his non-parole period ordered by Judge Knight expired) and expire on 9 March 2013. His Honour sentenced him to a further term of 15 months which his Honour said was to commence on 10 March 2013 (the day on which his non-parole period expired) and would expire on 9 December 2015. However, the additional sentence, if it was to commence on 10 March 2013, would expire on 9 July 2014.
The head sentence imposed by Judge Knight did not expire until 9 December 2014. The effect of the additional term imposed by Judge McLoughlin was that it would be entirely concurrent with the head sentence imposed by Judge Knight. That was inconsistent with Judge McLoughlin's stated view that the Applicant should serve a head sentence of 7 years. A 7 year head sentence would have expired on 9 December 2015.
If the head sentence expires on 9 December 2014 it is a period of 72 months with a non-parole period of 51 months. That is within the normal statutory ratio. If the overall head sentence was 7 years (84 months) the period of the non-parole period would be less than the statutory ratio although his Honour found special circumstances for the purpose of the sentence he imposed.
The Crown accepts that the correct date for the expiry of the additional sentence is 9 June 2014. In the light of the ambiguity in the Sentencing Judge's Remarks the Crown's concession should be accepted and the expiry date for the additional sentence should be altered to read 9 June 2014.
Conclusion
For the above reasons I propose the following orders:
(1) Leave to amend to seek leave to appeal against the sentences imposed by Judge Knight refused.
(2) Leave to appeal against the sentences imposed by Judge McLoughlin granted.
(3) The additional term ordered by Judge McLouglin of 15 months imprisonment commence on 10 March 2013 and expires on 9 July 2014 . On this sentence order that the Applicant is to be released to parole on 9 March 2013.
(4) The appeal is otherwise dismissed.
**********
Decision last updated: 10 June 2011
0