Wright, E.R. v The Queen

[1994] FCA 288

EDWARD ROSS WRIGHT v THE QUEEN
Nos. ACT G95 of 1993 and SCC80 of 1993
FED No. 288/94
Number of pages - 4
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
DAVIES(1), VON DOUSSA(2) AND HIGGINS(3) JJ

CATCHWORDS

Criminal Law - sentencing - appeal - fixing of non-parole period - parity of sentence - difference between offenders considered - lesser total criminality of appellant - greater prospects for rehabilitation of appellant - effect on parity of sentences.

R v Readman (1990) 47 A Crim R 181
Lowe v R (1984) 154 CLR 606
R v Grmusa and Others (1990) 50 A Crim R 358
Power v R (1973) 131 CLR 623
R v Tait (1979) 46 FLR 386).
R v Morgan (1980) 7 A Crim R 146
Bugmy v R (1990) 47 A Crim R 433

HEARING

CANBERRA, 11 April 1994
#DATE 12:5:1994

Counsel for the Appellant: Mr J Brewster

Instructing Solicitors: Legal Aid Office (ACT)

Counsel for the Respondent: Mr J Ibbotson

Instructing Solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The sentence imposed on the appellant be varied by reducing the period during which the appellant will not be eligible for parole from three years to two years.

3. The sentence as so varied be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J I have had an opportunity to peruse the reasons for judgment prepared by Higgins J. and I agree with them and with the orders proposed.

JUDGE2

VON DOUSSA J I agree with the orders proposed by Higgins J and with his reasons for judgment.

JUDGE3

HIGGINS J The appellant was, on 22 September 1993, sentenced by Miles CJ to three years imprisonment on a charge of robbery with violence. On a further charge of burglary, he was sentenced to a further term of one year. A non-parole period of three years was fixed as from 22 September 1993.

1. The offences were admitted by the appellant. He had pleaded guilty at the first opportunity and maintained that plea. The appellant had some prior criminal history as a juvenile including one burglary, theft and stealing a motor vehicle in 1989. He had not offended since then until the matters the subject of this appeal occurred.

2. Both offences arose out of the same fact situation.

3. The appellant had been persuaded to accompany two others, Hollingshead and Rodgers. He was told they wanted to commit a burglary. When he arrived at the place where the offence was to be committed he found that the proposed victim was present on the premises. This was about 9.00pm on 15 January 1993.

4. The offenders entered the premises. One of the appellant's co-offenders knew the victim. It was the co-offenders' intention to get money for drugs. The occupant was tied up by the appellant. The co-offenders threatened the occupant with a knife forcing him to hand over a wallet and cash card and reveal its pin number. The offenders left, ripping the telephone out of the wall, and the co-offenders later accessed funds using the cash card. A sum of $200.00 was stolen. The appellant was given $50.00. All were wearing balaclavas.

5. Subsequently, the co-offenders decided to commit a further robbery. The appellant refused to aid them in this. It seems he was already regretful of his participation in the events of 15 January 1993.

6. The co-offenders were both on parole at the time of these offences. Although a younger man without a prior history of violence, Rodgers was sentenced in respect of an additional offence of assault occasioning actual bodily harm committed on 13 January 1993. The second robbery took place on 17 January 1993. As a result, Miles CJ, on 11 May 1993, sentenced Rodgers and Hollingshead to identical terms although Hollingshead's record was the worse of the two.

7. Applying the totality principle, his Honour sentenced each to four years imprisonment for the robbery and two years for the burglary, the latter cumulative on the first sentence. Each was sentenced to three years imprisonment in respect of the threat to injure the victim and to six years in respect of the armed robbery committed on 17 January 1993. Rodgers was sentenced to one year in respect of the assault.

8. Each of the latter sentences was declared to be concurrent with the first two sentences. A non-parole period of four and a half years was fixed in respect of the total head sentence of six years.

9. It was clear that the appellant was, as Miles CJ found, "implicated to a serious extent" in the robbery, even though he did not venture forth with robbery in mind. That warranted an immediate custodial sentence, in his Honour's view, notwithstanding the lesser involvement of the appellant in the robbery and his personal mitigating factors.

10. His Honour was also of the view that "there is a chance of rehabilitation of this young man, which was lacking in the case of his co-offenders".

11. It was his Honour's opinion that given these matters and the need to demonstrate parity, the appellant should be sentenced to three years imprisonment on the charge of robbery and an additional 12 months on the charge of burglary.

12. The total of four years compared with the total of six years on the same matters in respect of the co-offenders seems appropriate.

13. A non-parole period of three years was fixed. That was directly proportionate to the non-parole period fixed in respect of the co-offenders.

14. It should be noted that on the totality principle, the six year sentence imposed on the co-offenders included a further offence of armed robbery. The total criminality of the co-offenders was markedly greater than that of the appellant. Whether it was twice as great or half as great again was, obviously, a matter within the sentencing judge's discretion to consider. The criminality of the co-offenders was further aggravated by the consideration that they were each on parole at the time of their offences (see R v Readman (1990) 47 A Crim R 181).

15. Another significant difference was that the present appellant had significant prospects for rehabilitation. The pre-sentence report suggested that the life problems of the appellant would require long term literacy education and counselling both to develop useful life skills and improve his employability. That development, and replacing reliance on cannabis and alcohol, was viewed as most important if future offending behaviour was to be avoided.

16. The sentences imposed would result in the co-offenders who displayed on sentence no reasonable prospects for rehabilitation, being given the benefit of a possible 18 months on parole. The appellant was given only 12 months possible release on parole. To my mind, that sentence fails, in its total effect, to reflect the significantly greater prospects for rehabilitation which the appellant had.

17. Parity in sentencing is, of course, important. As Gibbs CJ noted in Lowe v R (1984) 154 CLR 606, (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." (610) "The question is whether, ... the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

18. Parity does not mean equality. A failure to give a lesser sentence to persons less culpable or more deserving of leniency will "give rise to a justifiable sense of grievance".

19. The application of the parity principle must include the fixing of both head sentences and non-parole periods (see, for example, R v Grmusa and Others (1990) 50 A Crim R 358).

20. Whilst the same considerations apply both to fixing the head sentence and the non-parole period, the latter gives more scope to the public benefit arising from the successful rehabilitation of offenders. An element of punishment or retribution is appropriate (see Power v R (1973) 131 CLR 623; R v Tait (1979) 46 FLR 386).

21. I agree, with respect, to the formulation of the process as expressed by Jenkinson J in R v Morgan (1980) 7 A Crim R 146, (154) "The lesser term, or minimum term, is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify." (155) "They (the relevant factors) will be considered again when the minimum term is being fixed, when they will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice."

22. That approach has, it seems to me, been endorsed by the High Court in Bugmy v R (1990) 47 A Crim R 433.

23. Accordingly, whilst I agree with the Chief Justice that the offences charged were too serious to avoid an immediate custodial sentence of significant severity, it also seems to me that the differences between the offenders was not sufficiently recognised in the fixing of the non-parole period in respect of the appellant.

24. I would reduce the non-parole period from three years to two years. That would enable the appellant to have the benefit of two years supervision, counselling and instruction whilst on parole. I do not overlook the possibility of some rehabilitative measures being successfully completed in prison but it is clearly much more effective for such measures to be undertaken within a framework of conditional liberty rather than incarceration.