Burrows v R

The Proceedings in the District Court

1. The Crown tendered a statement of facts, statements from Mr and Mrs Higgins, photographs of Mr Higgins' injuries and the damage to the house, a certificate noting Mr Higgins' injuries, a transcript of the interview given to police by the applicant, a statement noting that he had no prior criminal history, and a pre-sentence report. Information was also provided as to the co-offenders, none of whom had been dealt with at that stage. A victim impact statement was given to the Court.
2. The pre-sentence report noted that the applicant was a 19 year old man with no criminal history. (He was 18 years and 2 months at the time of the offence.) The author stated that the applicant lived with his mother and other family members; his partner and their new born baby also resided with the applicant. He had completed Year 10 and a later TAFE course in building and construction, being then employed on a casual basis at a fast food restaurant.
3. The applicant gave a history of cannabis use from age 15, and said that the likelihood of obtaining cannabis was his motivation for participation in the offence. He claimed to have stopped using that drug in November 2014 and was unwilling to accept a referral for drug counselling. As to the offence, the applicant reported that he now felt "bad" about it. He demonstrated some insight into the impact the offence would have had on the victims.
4. The author of the pre-sentence report considered the applicant to have changed his life by ceasing drug use, and entering into a stable relationship, in which he was taking his parenting role seriously. He was assessed as at "low/medium risk" of re-offending.
5. The offender gave evidence before the sentencing judge, conceding the accuracy of the statement of facts, and stating that he had been truthful when speaking with the author of the pre-sentence report. He extended an apology to the victims of the offence.
6. The applicant said that he no longer used prohibited drugs, and worked 15 hours per week. He said that he had committed no criminal offences since the home invasion, although he was forced to concede in cross-examination that in fact he had continued using drugs for some months after the home invasion, and he had stored an illicit firearm in his house for one of his co‑offenders for a time from August 2014.
7. The applicant said that he had agreed to join in the home invasion because he thought he would get cannabis. He said that he had not been armed, and had not himself inflicted any violence on Mr or Mrs Higgins. He said his role was to look for valuables in the roof cavity, and to help the group "look more formidable". He acknowledged that, although he thought the group had the wrong house, he did nothing to stop the offence, from a sense of self preservation.
8. Sentence was imposed on 17 August 2015. The sentencing judge set out the facts of the offence, and noted that, on arrest, the applicant had made extensive admissions. She referred to both the content of the recorded interview, and the applicant's sworn evidence. Her Honour concluded that the applicant had sought to minimise his knowledge of what took place in the house, and she did not accept his claims in evidence to not having seen or heard the assault upon Mr Higgins or the threats made to him. She said the motivation for participation in the offence was a desire to obtain cannabis.
9. Her Honour noted that, "It is accepted that he was not armed and took quite a passive role during the course of this home invasion." (ROS 3)
10. She said, however, that "he went into this venture, albeit reluctantly, with his eyes wide open." (ROS 7)
11. The sentencing judge concluded that the offence fell above the mid-range of seriousness for such an offence. She referred to the level of planning and organisation, and to the infliction of unnecessary violence and damage to the property. Her Honour regarded the victims as vulnerable because of their age, and the impact of the crime on them as very serious.
12. The applicant's subjective case was set out, with the sentencing judge referring to the fact that the applicant was a young man who had been 18 at the time of the home invasion. She accepted that he had commenced the process of rehabilitation by giving up drugs and ceasing to associate with his co-offenders. She noted his admissions to police and willingness to assist the authorities, although without that offer having been accepted by the Crown. She concluded that the applicant was unlikely to re-offend.
13. Her Honour said: "The Court must have regard to the various purposes of sentencing as outlined in the legislation and to what has been said in the authorities as to the predominant purposes in sentencing an offender for an offence as serious as this. Whilst he is a very young offender in the scheme of things at the age of 18, and 19 now, with no prior record and good prospects of rehabilitation those matters cannot outweigh the objective seriousness of this offence. General deterrence and the protection of the community in relation to these types of offences are the overriding considerations." (ROS 8)
14. The sentence that would otherwise have been imposed was reduced by 25% in recognition of the utilitarian value of the applicant's early plea of guilty. A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was made, and the ratio of sentence varied favourably to the applicant.

The Proposed Appeal

1. The applicant seeks to advance three grounds: 1. The learned sentencing judge failed to properly assess the applicant's culpability with regard to his role in the joint criminal enterprise. 2. The learned sentencing judge erred in failing to give adequate weight to the applicant's youth in the sentencing exercise. 3. The applicant has a justifiable sense of grievance as a result of sentences imposed on his co-offenders Jacob Huxstep, Dale Egan, and Blake Wood.
2. The last ground was amended by leave granted on the hearing date.

Ground 1: The learned sentencing judge failed to properly assess the applicant's culpability with regard to his role in the joint criminal enterprise.

1. Although the applicant concedes that he made no submissions on this point at his sentence hearing in the District Court, he now asserts error in the purported failure of the sentencing judge to understand and properly assess the basis for his culpability for the offence. The applicant submits that the legal basis for culpability was an extended joint criminal enterprise and, whilst his plea contemplated the possibility that a participant to the enterprise would wound an occupant, it did not necessarily contemplate that it would be done with the severity or gratuitous violence actually involved. It is contended that the sentencing judge failed to make that assessment.
2. As a general statement, all joint participants in the commission of a crime other than the agreed crime will be equally guilty regardless of the individual part played by each in its commission, provided that: (i) the accused had contemplated the other crime as a possible incident in the execution of the agreed crime, and (ii) that, with that state of mind, he had continued to participate in the enterprise even though he may have expressly rejected any agreement that that other crime be committed.
3. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk that it will be committed.
4. See generally R v Tangye (1997) 92 A Crim R 545 at 556-557.
5. Where those matters are established, an offender is liable for the crime committed as part of the extended joint criminal enterprise.
6. On sentence, it is necessary for a sentencing judge to refer to the particular conduct of an individual offender with a view to identifying the level of culpability of that offender and for which the offender is to be sentenced: R v JW [2010] NSWCCA 49 at [161]; Sheen v R [2014] NSWCCA 42 at [14].
7. The principle was stated in R v Wright [2009] NSWCCA 3, at [28]-[29]: "If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act."
8. Whilst some differentiation in culpability amongst co-offenders in a joint enterprise is ordinarily appropriate, the very existence of the enterprise and the participation of each in it provides a limit to the extent to which this can occur with respect to the objective seriousness of the offence.
9. In sentencing the applicant, the sentencing judge referred to his role as "quite a passive one". She observed that he had not been involved in the planning and organisation of the crime and that, unlike his co-offenders, he had not been armed. Although her Honour noted that the applicant had checked a roof cavity for money and drugs, she accepted that his understanding on joining the enterprise was that he would "make up the numbers" and aid the group to "look formidable". There was no suggestion that her Honour concluded that the applicant had personally inflicted violence on either of the occupants.
10. However, her Honour also noted that the applicant well understood the type of violent home invasions his co-offenders had committed in the recent past, and was well aware that weapons including a firearm were to be used. There was evidence before her Honour sufficient to establish both that the applicant had joined an enterprise to commit the offence charged, and that he had contemplated the possibility of it occurring as it in fact did.
11. In cross examination before her Honour on 5 August 2015 the applicant gave the following evidence: "Q. You knew they were going to commit acts of violence because you knew what they'd been up to previously? A. Yes. Q. You knew there were weapons involved? A. Yes. Q. There were firearms involved? A. Yes. Q. There were drugs involved? A. Yes. Q. This was an organised gang wasn't it? A. Yes. Q. They had boasted about these sorts of home invasions on supposed drug dealers didn't they? A. Yes." (T19:12-30)
12. Later, in answer to questions from her Honour, the applicant gave this evidence: "HER HONOUR Q. How may [sic] times would you have gone to the home, to the house where these people used to gather together prior to this home invasion? A. I don't know. Q. Sorry? A. Too many to count. Q. Too many to count so you were-- A. I was all the time. Q. Sorry? A. I was there all the time. Q. You were there all the time, so you were well familiar with their activities? A. Yes. Q. Engaging in home invasions correct? A. Yes. Q. Going into homes in groups, is that right? A. Yes. Q. And using weapons on people? A. Yes." (T22:03-28)
13. With that knowledge, the applicant joined the enterprise, and continued in it as physical violence was inflicted on the occupants, including the assaults upon Mr Higgins using a bat. That violent attack was clearly within the scope of the original enterprise, that the applicant joined, and continued in.
14. Her Honour referred to all of these features of the applicant's participation in the crime. Whilst she did not characterise the analysis by reference to a precise determination of the basis of his legal liability for the crime, there was no issue about that during the sentence proceedings, and there was no need for the sentencing judge to resolve any dispute on that aspect of the matter.
15. She did, however, give attention to the basis of the applicant's culpability in the careful delineation of his personal participation in the crime and his state of mind. The sentence imposed reflects that careful consideration.
16. No error has been established, and I would not grant leave to advance this ground.

Ground 2. The learned sentencing judge erred in failing to give adequate weight to the applicant's youth in the sentencing exercise.

1. The applicant submits that the sentencing judge impermissibly allowed considerations of general deterrence and the protection of the community to outweigh the principles applicable to sentencing young offenders.
2. He relies upon the following passage from the judgment to assert error: "Whilst he is a very young offender in the scheme of things at the age of 18, and 19 now, with no prior record and good prospects of rehabilitation those matters cannot outweigh the objective seriousness of this offence. General deterrence and the protection of the community in relation to these types of offences are the overriding considerations". (ROS 8)
3. It is that last sentence, and particularly the word "overriding" that, in the applicant's submission, bespeaks error.
4. A ground of appeal which asserts that insufficient or inadequate weight was given to a particular feature imports a tacit concession that some weight was given to it. If that is so, it is difficult to successfully maintain that the overall sentencing discretion miscarried. Questions of weight in the exercise of the sentencing discretion are very much matters for the sentencing judge. It will be a rare case where considerations of the weight given to a particular feature justifies appellate intervention. In Majid v R [2010] NSWCCA 121 Johnson J (with whom Simpson and McCallum JJ agreed) said, at [40]: "The second, third and fourth grounds of appeal complain that the sentencing Judge had given "insufficient weight" to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]."
5. See also Bland v R [2014] NSWCCA 82; Yang v R [2012] NSWCCA 49 at [25]; and DF v R [2012] NSWCCA 171 at [77].
6. Here, the sentencing judge plainly did have regard to the applicant's age. She early referred to his age at the time of sentence, 19 (ROS 1). Later she referred to him as "a young man" who was 18 at the time of the offence, and who had fallen in with a group of older men, attracted to them by his use of cannabis (at ROS 5). Her Honour referred again to that feature of the matter at ROS 7, noting that the applicant provided a very real example of a young man who had fallen in with "the wrong crowd", older persons engaged in serious criminal activity. At ROS 8 the sentencing judge again referred to the fact that the applicant was, at 18 and 19 at the time of sentence, "a young offender", and she noted the importance of not imposing "a crushing sentence […] on this young man".
7. Her Honour made a finding of special circumstances in the applicant's favour, on the basis of "his prior good record, his prospects of rehabilitation, and his age" (at ROS 8).
8. Arguably, having taken the applicant's youth into account when making a finding of special circumstances, it could be regarded as double counting to give any significant weight to it when assessing the sentence to be imposed: R v Loveridge (2014) 243 A Crim R 31, at 49 [136]; R v Fidow [2004] NSWCCA 172 at [18].
9. As the ground of appeal as framed by the applicant implies, it could not be said that her Honour was not alive to the issue of the applicant's youth and did not take it into consideration when determining sentence and the ratio of sentence.
10. In considering the claim that she gave inadequate weight to that feature, it should firstly be noted that the applicant was not a child; at 18 he was a young adult. The principles that apply to the sentencing of children and the considerations referred to in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), did not apply to him.
11. Whilst it is well settled that allowances may be made for the youth and immaturity of an offender, considerations of punishment, general deterrence, and the protection of the community are not thereby rendered nugatory. Indeed, they may in an appropriate case remain significant and even "overriding" considerations.
12. Although in the hearing before us senior counsel for the applicant referred to the crime as "a youthful aberration", there was nothing childish or immature about the crime or the applicant's participation in it. A "youthful aberration" might designate the failure of an otherwise diligent student to attend to homework; it cannot sensibly be applied to a very violent home invasion by masked offenders using weapons and force.
13. There was nothing to suggest that the applicant's participation in this offence was borne of his youth or immaturity. His choice to associate with an older group of men whom he well knew to be engaged in the commission of very serious crime arose from his drug habit, not from immaturity. His choice to continue with his participation in the offence even after the extent of the violence to be employed was clear to him arose from a keen sense of self preservation, not his age or immaturity.
14. Indeed, there was no evidence before the sentencing court that established that the applicant was immature for his age. He did not present as such in his evidence before the sentencing court, and there was evidence that, at 19, he was a responsible partner and father who was employed part-time in gainful employment. Immaturity was not a significant feature.
15. The applicant's crime was an extremely grave one. As in Pham and Ly v R (1991) 55 A Crim R 128: "[…] the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, i.e., coercive action is fundamental to correctional treatment in our society." (at 135)
16. See also R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [28]; and R v AEM Snr & Ors [2002] NSWCCA 58 at [97]-[98].
17. I can discern no error in the consideration given by the sentencing judge to the question of the applicant's age, nor in the weight she ascribed to it. I would not grant leave to advance this ground.

Ground 3. The applicant has a justifiable sense of grievance as a result of sentences imposed on his co-offenders Jacob Huxstep, Dale Egan, and Blake Wood.

1. When sentence was imposed upon the applicant, on 17 August 2015, none of the other persons charged had been sentenced. Subsequently, Jason Huxstep was sentenced on 16 October 2015, Dale Egan was sentenced on 4 April 2016, and Blake Wood was sentenced on 2 September 2016. All of the offenders were sentenced by her Honour Judge Wells SC.
2. When dealing with the applicant, her Honour had information as to the respective roles of the offenders, and she was provided with the criminal histories for Huxstep, Egan, and Woods. When sentencing the co-offenders her Honour referred to the sentence imposed upon the applicant and the differing objective and subjective cases of the respective offenders. It is clear that she was conscious of the application of the parity principle and at pains to address it.
3. Given that, the applicant faces a difficult task in establishing a parity ground. As was noted by Howie J in Tatana v R [2006] NSWCCA 398 at [28], with the agreement of Sully and Latham JJ, "This is a ground where there are considerable obstacles placed before the applicant in circumstances where the sentencing judge is fully aware of sentences imposed upon co-offenders, the reasons for those sentences, and in the remarks indicates why the judge is departing from the sentences imposed upon the others."
4. See also Gill v R [2010] NSWCCA 236 at [58] per McColl JA (with whom RS Hulme and Latham JJ agreed).
5. In part, the applicant relies upon those matters advanced in support of grounds 1 and 2, in submitting that "significantly greater differentiation was required". In light of the conclusions already reached, his task is even more difficult.
6. A table prepared by the Crown, and accepted by the applicant to be accurate, provides a useful comparison of the sentences imposed upon each offender, and the respective conclusions of the sentencing court: Applicant Jacob Huxstep Dale Egan Blake Wood 6 years, 6 months imprisonment 9 years imprisonment 7 years imprisonment Aggregate sentence of 10.5 years imprisonment Sentence for subject offence NPP 4 years NPP 5 years NPP 4 years, 6 months NPP 7 years. Indicative sentence for this offence 7 years with NPP of 4.5 years. (sentence is accumulated by one year on a fixed term of 3 years for another home invasion) (sentence includes two other offences - 1 x s 112(3) and 1 x s 111(3) Crimes Act) Age 18 years 22 years old 23 years old 24 years old Plea 25% discount 25% discount 25% discount 25% discount Planning Not participate in planning Participated in the planning Participated in the planning Participated in the planning (ROS 5) (ROS 2) (ROS 8) (ROS 3) Participation Unarmed (ROS 1) Struck the first blow to the head of James Higgins with a bat, causing a very serious laceration (ROS 3) Drove others to the scene, following another vehicle (ROS 2) Not principal, in terms of inflicting violence, but stood by and did nothing (ROS 11). Boosted into the roof cavity to search for drugs money (ROS 2) Armed with a bat (ROS 8) Owned the gun which was used (ROS 13) Motivation Gain a share of the cannabis and money obtained (ROS 6) Need cash for and/or illegal drugs (ROS 10) $40,000 debt and substance abuse issues (ROS 5 & 7) Financial gain (ROS 9) Objective Seriousness Above the mid-range of objective seriousness (ROS 5) Falls in the worst category (ROS 10) Upper range of objective seriousness (ROS 7) Falls in the worst category (ROS 11) Post Offence Conduct Not applicable. Charged with possession of a knife in November 2014 (ROS 4) Threatened a female witness. Instructed a member of their group (not a co-offender) on how to avoid police detection (ROS 3) 16 institutional offences whilst on remand (ROS 6) Criminal History No prior record (ROS 5) Juvenile matters in 2007; AOABH and Common Assault in 2011 (ROS 7) No prior record of significance (ROS 5 & 11) Offences including common assault and destruction of property. Psychological History Nothing recorded. Two admissions to psychiatric ward at age 10. Diagnosed with PTSD, personality disorder, and other psychiatric conditions (ROS 8) Depression. Nothing recorded. Her Honour found it did not mitigate the seriousness of the offence or amount to hardship (ROS 7) Upbringing "Nothing to explain or excuse his behaviour" (ROS 5) Severe chronic and psychological and emotional disturbance from a young age (ROS 8). "Nothing to explain or excuse his involvement in the offence" (ROS 5) Physically abused by father and sexually abused by one of father's friends (ROS 7). Excluded from proper appreciation of his Aboriginality (ROS 8) Abuse, sexual assault, foster care (ROS 6-7) Remorse Deeply remorseful (ROS 7) Remorseful (ROS 12) "He is developing remorse" (ROS 10) Appreciation of distress caused to victims (ROS 9) Prospects of Rehabilitation Good prospects of rehabilitation (ROS 8) Modest. "He has prospects of rehabilitation" (ROS 10) Good prospects of rehabilitation (ROS 14) Her Honour expressed a "very guarded view" (ROS 12) Other Subjective Factors Young offender (ROS 8) Unemployed, ongoing substance abuse issues (ROS 7) Previously employed, ongoing substance abuse issues (ROS 10) Previously employed, ongoing substance abuse issues (ROS 9) Special Circumstances Yes - age, lack of prior record and good prospects of rehabilitation (ROS 8) Yes - longer period of supervision due to psychological and substance abuse issues (ROS 11) Yes - age and first time in custody (ROS 11) Yes - to assist in rehabilitation (ROS 15)

1. As can be seen from the table, the offenders received different sentences, with Huxstep, the offender who had struck Mr Higgins, receiving the longest sentence. Her Honour was not able to attribute responsibility to any of the offenders for possession of the firearm, and nor could she apportion blame for each act of violence beyond the first blow struck to Mr Higgins.
2. As the crime was committed by offenders participating in a joint criminal enterprise, each bore responsibility for acts done in furtherance of the enterprise. In that, there was commonality between each offender. The question is whether the differential treatment accorded each offender by her Honour represents a proper reflection of the differences in culpability, and appropriate recognition of the different subjective cases.
3. The principles underlying the parity principle are well established. It is "an aspect of equal justice [which] requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301) per Dawson and Gaudron JJ. See also Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [28].
4. Mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court, rather the difference between the sentences must be manifestly excessive so as to engender a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; (1984) CLR 606 (at 610) per Gibbs CJ; (at 611) per Mason J; (at 624) per Dawson J (with whom Wilson J also agreed); Postiglione v The Queen per Kirby J (at 338). Appellate intervention is only justified where the applicant demonstrates "gross", "marked", "glaring" or "manifest" disparity: England v R; Phanith v R [2009] NSWCCA 274 (at [61]-[67]) per Howie J (McClellan CJ at CL and Fullerton J agreeing).
5. The sentence imposed upon the applicant was a lesser sentence than that imposed upon any of the other offenders. That difference comprehended his lesser role in the commission of the offence, his youth, and his generally positive subjective case. A lesser sentence could not in my opinion be justified by the parity principle or any other sentencing principle.
6. Her Honour was well aware of the parity principle. She made a careful comparison of the objective and subjective cases of each offender and adjusted the sentences imposed to reflect the differing culpability and subjective cases. The level of differentiation was appropriate; certainly there is no "glaring" disparity such that the applicant is entitled to feel aggrieved.
7. No error is established.
8. I would not grant leave to advance this ground.
9. The orders I propose are: Leave to appeal is refused.

Amendments 27 March 2017 - Changed to correct Date of Orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2017