Waterson v Regina

[2007] NSWCCA 284

New South Wales
Court of Criminal Appeal

CITATION:	WATERSON v REGINA [2007] NSWCCA 284 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 October 2007
JUDGMENT DATE:	16 October 2007
JUDGMENT OF:	Hodgson JA at 1; Hislop J at 2; Latham J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed
CATCHWORDS:	Sentence - Parity - Co-offender given discount for assistance - No basis for justifiable sense of grievance.
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 Lovelock v The Queen (1978) 19 ALR 327 Postiglione v The Queen (1997) 189 CLR 295 R v Diamond NSWCCA 18 February 1993 R v Reardon (1996) 89 A Crim R 180 R v Steele NSWCCA 17 April 1997 R v Boney [2001] NSWCCA 432
PARTIES:	Applicant - Darren Arthur WATERSON Respondent - Regina
FILE NUMBER(S):	CCA 2006/00002771
COUNSEL:	Applicant - S Kluss Respondent - N. Adams
SOLICITORS:	Applicant - S. Moran & Co. Respondent - S. Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/71/0078
LOWER COURT JUDICIAL OFFICER:	Charteris SC DCJ
LOWER COURT DATE OF DECISION:	29.11.2006

2007/00002771

HODGSON JA
HISLOP J
LATHAM J

16 October 2007

DARREN ARTHUR WATERSON v REGINA

Judgment

1 HODGSON JA : I agree with Latham J.

2 HISLOP J : I agree with Latham J

3 LATHAM J : The applicant seeks leave to appeal against the sentences imposed upon him by Charteris SC DCJ following pleas of guilty to two counts of Armed Robbery with an Offensive Weapon, each carrying a maximum penalty of 20 years imprisonment.

4 On the first count, the applicant was sentenced to a non parole period of two years and eight months, to date from 20 May 2006, expiring 19 January 2009, the balance of term being one year and ten months, expiring 19 November 2010. On the second count, the applicant was sentenced to a non parole period of two years, to date from 20 November 2007, expiring 19 November 2009, the balance of term being two years and six months, expiring 19 May 2012. Thus, the aggregate sentence was one of six years, with an aggregate non parole period of three years and six months.

5 Whilst the written submissions sought to articulate three grounds of appeal, they were manifestations of the one ground to which the hearing of the appeal was confined by the applicant’s counsel, namely, alleged disparity with the sentences imposed upon the co-offender, which was said to give rise to a justifiable sense of grievance on the part of the applicant.

6 Given the narrow scope of this application, it is unnecessary to recount the facts of the offences in any detail. It is sufficient to note that each offence was constituted by assaults upon two taxi drivers in the township of Wagga Wagga on the same day. On each occasion, the offenders stole knives from a Woolworths store, after discussing the commission of a robbery to obtain money for a trip to Mildura. The first victim, a semi-retired 71 year old one-armed man, was threatened by both offenders, who each confronted him with a knife and demanded his takings, after the victim had driven them to their stated destination at about 5:30pm. The second victim, an employed male taxi driver, was engaged by the offenders at about 8:30pm to drive the offenders to the airport caravan park. Once again, the victim was told to pull over and was threatened by the use of a knife by each offender, whilst demands were made for the cash takings. This victim required hospitalisation for high blood pressure and anxiety attacks. He suffered a considerable degree of post traumatic stress.

7 No issue was taken with his Honour’s findings that the criminality inherent in the offences was substantial and that the offences were aggravated by a degree of planning, the commission of the offences in company and the vulnerability of each victim. There was nothing to distinguish the applicant and the co-offender in terms of their objective criminality. His Honour expressly found that their respective contribution to each of the offences was almost identical.

8 A further aggravating circumstance in the case of the co-offender was the fact that these offences were committed whilst he was subject to a recognisance to be of good behaviour. This, and the assistance to the authorities rendered by the co-offender, were the two factors that differentiated his case from that of the applicant.

9 The co-offender received a sentence of three years and three months imprisonment on the first count, comprising a non parole period of two years, and the same head sentence on the second count, comprising a non parole period of eighteen months. The partial accumulation of these sentences resulted in an aggregate sentence of four years and three months with an aggregate non parole period of two years and six months.

10 Before passing to a discussion of the issue of parity, it should be noted that the applicant and the co-offender were represented by the same experienced counsel before his Honour. It was conceded by that counsel, in my view entirely appropriately, that the respective subjective cases of the applicant and the co-offender were relevantly similar. The applicant was aged 27 at the time of sentence, whilst the co-offender was aged 30. Both offenders had a criminal history consistent with long term abuse of cannabis and amphetamines. Both had experienced a disturbed family environment, marked by alcohol abuse and domestic violence. Both had failed to respond to supervision in the past but had more recently expressed a willingness to undergo rehabilitation programs. Both pleaded guilty at an early stage and both expressed their remorse for their offending behaviour. They were both accepted by his Honour as genuinely contrite.

11 It was faintly submitted on the hearing of the appeal that counsel should not have made the concession that he did. Whether or not that is so, counsel for the applicant conceded that it was, in any event, a finding that was open to his Honour. In these circumstances, nothing turns upon the subjective circumstances of the applicant and the co-offender for the purposes of the parity argument.

The Issue of Parity

12 It is necessary to restate matters of principle upon which all parity considerations ultimately rest. In the course of his judgment In Lowe v The Queen (1984) 154 CLR 606, Gibbs CJ said at 609 :-

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal , receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. (bold not in original)

13 Similarly, Brennan J in Lowe at 618 repeated what he had said in Lovelock v The Queen (1978) 19 ALR 327 at 331 :

Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. (bold not in original)

14 Finally, in Postiglione v The Queen (1997) 189 CLR 295, Gaudron and Dawson JJ, at 301 and 303, stated :-

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. ..
… different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused . If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody………… (bold not in original)

15 In the instant case, there was a very significant aspect of the co-offender’s circumstances that had no counterpart in the applicant’s case. The co-offender had provided assistance to the authorities in respect of unrelated matters that was described by his Honour as “extraordinary” and “exceptional”, and “potentially resulted in the saving of a life”. For that reason, the co-offender was on protection within the prison system and was likely to continue serving his sentence in that restrictive regime. His Honour allowed a discount of 25% for that assistance, in addition to the 25% discount accorded to both offenders for their early pleas of guilty.

16 It appears that his Honour commenced at a notional starting point of 6 years imprisonment for each count in respect of each offender. The application of a 25% discount for the pleas of guilty to those head sentences in the applicant’s case resulted in sentences of four years and six months on each count. The application of a 25% discount for the pleas of guilty to those head sentences, and a further discount for the assistance in the co-offender’s case resulted in sentences of three years and three months on each count. The applicant’s sentences were accumulated by 18 months, while the co-offender’s sentences were accumulated by 12 months. The same ratio of 58% was preserved between the aggregate non parole periods and the aggregate head sentences in each case.

17 An additional one year of custodial time to that imposed upon the co-offender does not constitute a marked disparity when proper account is taken of the co-offender’s considerable assistance, notwithstanding that the co-offender was subject to conditional liberty at the time of the offences. The extent to which that factor elevated the importance of specific deterrence in the sentences imposed upon the co-offender was a matter within the discretion of the sentencing judge. His Honour referred to it a number of times in the course of his remarks. There is nothing to indicate that his Honour did not pay due regard to it in arriving at the overall sentence.

18 As was observed by Kirby J. in Postiglione v The Queen at 337 :-

So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders. (italics not in original)

19 Assuming that the applicant was able to demonstrate a marked disparity, the Court should refuse to intervene on the basis that to do so would “reduce a sentence which it regards as proper in itself” (per Dawson J in Lowe v The Queen (1984) 154 CLR 606 at 623 ; see R v Diamond NSWCCA 18 February 1993 ; R v Reardon (1996) 89 A Crim R 180 ; R v Steele NSWCCA 17 April 1997) or, on the basis that a reduction in the sentence imposed will produce a result disproportionate to the objective and subjective criminality involved ; R v Boney [2001] NSWCCA 432.

20 The orders I propose are :-

1. Leave to appeal granted.

2. Appeal dismissed.

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16/10/2007 - Date of Judgment omitted on coversheet - Paragraph(s) Coversheet