Charlesworth v Regina

CITATION: Charlesworth v Regina [2009] NSWCCA 27

R v O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59 R v Sagiv (1986) 22 A Crim R 73 at 81 Liberti (1991) 55 A Crim R 120 Osland v The Queen [1998] HCA 75: (1998) 197 CLR 316 Tangye (1997) 92 A Crim R 545 Stokes and Difford (1990) 51 A Crim R 25 Giorgianni v Regina (1985) 156 CLR 473 CASES CITED : Davis v Regina [2006] NSWCCA 392 R v Reid [1973] QB 299; (1972) 2 All ER 1350 R v Campbell and Brennan [1981] Qd R 516 R v MAK; MSK [2006] NSWCCA 381: (2006 167 A Crim R 159 Lowe v The Queen (1984) 154 CLR 606; (1984) 12 A Crim R 408 Postiglione v The Queen (1997) 189 CLR 295; (1997) 94 A Crim R 397 SZ v Regina [2007] NSWCCA 19; (2007) 164 A Crim R 249 MacDonald v Regina [2007] NSWCCA 105

Were the admitted facts capable of supporting Count 1: Aggravated Robbery? 25 A plea of guilty is an admission by the accused of the essential elements of the offence (R v O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59). Indeed, a plea has been described as the most cogent admission of guilt that can be made (R v Sagiv (1986) 22 A Crim R 73 at 81). Nonetheless, in certain circumstances, it can be set aside on appeal. In Liberti (1991) 55 A Crim R 120, Kirby P (Grove and Newman JJ agreeing) said this: (at 121/2) "This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears: (a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or (b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26. For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81." 26 The appellant filed an affidavit in which he said that he relied upon his solicitor's advice. His solicitor negotiated the plea on his behalf. The appeal was argued by his counsel, based upon paragraph (b) in Liberti. The following was said on his behalf: (AS: 10) "26 … The agreed facts were substantially based on admissions made by the appellant in his ERISP. Detective Senior Constable Moir was of the opinion that these admissions were an accurate account of events and that he did not deflect his involvement in any way (R/S 3). The problem is that the offences charged are not supported by the agreed facts (or the admissions made by him)." 27 Each charge must be considered in turn. Count 1 charged aggravated robbery under s 95 of the Crimes Act 1900. The elements are conveniently set out in Howie and Johnson's Annotated Criminal Legislation NSW in these terms (omitting alternatives, not material): (2008/2009 Ed: p787/8) 1. The accused with intent 2. took property 3. from the victim's immediate control or presence 4. by the use of violence, or by putting the victim in fear; and 5. in circumstances of aggravation which involved the accused immediately before, at the time of or immediately after, the assault: (ii) intentionally or recklessly inflicting actual bodily harm to any person. 28 Count 1 was put to the sentencing Judge upon the basis of a joint criminal enterprise (T4: 15.3.07). A convenient statement concerning the nature of a joint criminal enterprise (approved in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316) was made by Hunt CJ at CL in Tangye (1997) 92 A Crim R 545: (at 556/7) "1. The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. 2. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. 3. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. 4. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission." 29 Counsel for the appellant asserted that there was no basis upon which an inference could be drawn that Mr Charlesworth was complicit in a joint criminal enterprise to commit robbery with the infliction of actual bodily harm. According to the appellant, the Crown case at its highest was capable of supporting a charge that he was an accessory after the fact to robbery, in that he shared in the money withdrawn from the victim's bank account, using the keycard at the ATM. 30 Counsel for the appellant, in submissions, analysed each paragraph of the agreed statement of facts. The agreement, when they left Gorokan, was to "steal something". It was not an agreement to rob. It was submitted that it was certainly not an agreement to commit a robbery involving actual violence. When the victim was stopped, the appellant remained in the rear of the vehicle. He did nothing, according to his counsel, to assist or encourage Hearn. His failure to stop Hearn did not amount to complicity. Whilst the agreed statement contained general phrases such as "all three offenders then followed the complainant flashing their headlights at him", the precise role of the appellant was made clear by the additional material which had been tendered. The answers he provided to the police furnished no basis for inferring that he had encouraged Hearn in his further pursuit of the victim (ERISP 140-142; 152-153). 31 It was further argued that the robbery was complete once the wallet with the keycard was taken by Hearn. The wallet was taken when the complainant was stopped the first time, at which time the appellant was still in the back of the car. When the victim was stopped a second time, after the pursuit, the appellant got out of the car (as did Molloy and Hearn) and addressed the victim saying, "Just give him the money and you can go". The appropriate inference, according to the appellant, was that he was endeavouring to ensure the safety of the victim. It was not, it was submitted, an act intended to encourage or assist Hearn. In any event, no further property was stolen. If there was an offence, it was aiding and abetting an attempted robbery, which had not been charged. 32 Further, there was no evidence that the appellant could have foreseen the possibility of Hearn's assault upon the victim, when he kicked the victim in the head. His Honour remarked, when sentencing the appellant, that he ran off immediately after because "no doubt he was alarmed" (ROS 2). 33 Nor was there evidence, according to the appellant, that Mr Charlesworth knew anything about the theft of the mobile phone. That occurred much later, when the victim was sexually assaulted by Hearn at a time that the appellant was not present. 34 Finally, a joint criminal enterprise to commit robbery with the infliction of actual bodily harm could not be inferred from the acceptance by the appellant of part of the proceeds when the PIN number was used to gain access to the victim's bank at the ATM. Such evidence, at its highest, supported a charge of accessory after the fact to robbery. 35 The Crown answered these submissions by drawing attention to the issue. In the context of a plea of guilty, the issue was whether there was evidence capable of supporting the charges. That should not be confused with the question of whether, at a contested hearing, the offence had been proved. There was, according to the Crown, evidence in respect of each element. The robbery, from the viewpoint of the appellant, was not complete until he ran off. Alternatively, if the view were taken that the robbery was complete before the vehicle stopped for a second time, the indictment should have been amended. Whereas it alleged that the actual bodily harm was inflicted "at the time of such robbery", if the robbery was complete it should have alleged that it was inflicted "after the time of the robbery". The Crown, in written submissions, said this: (CS p 8) "[28] … Whether it was 'immediately after' the robbery is a question of fact and degree in the light of all the evidence: R v Attard (unreported CCA 20.4.1993). The actual time between the two incidents is not stated in the agreed facts but the assault which caused the injury occurred after what appears to be a brief car chase and it would have been open to a Jury to conclude that it was 'immediately after'. The offence would have been effectively the same and no miscarriage of Justice has been occasioned." 36 The appellant, in a written reply, answered that submission in these words: (Reply p 2) "2. As to C/s [28], if the appellant had stood trial on the present indictment and the Crown sought to amend the robbery count … so as to plead that the infliction of actual bodily harm occurred 'immediately after' the robbery rather than 'at the time of' the robbery, this amendment may have been allowed. If it was, this was a matter for the jury to determine. However, whilst it may have been open to a jury to be satisfied that the assault was occasioned immediately after the robbery, this is a matter of fact for the jury to determine. In this case no amendment was sought and the plea was entered to the charge alleging the aggravating circumstance occurred 'at the time of the robbery'. It cannot be said that there was no miscarriage of justice." 37 The Crown, when dealing with the sharing of money once the keycard had been used at the ATM, asserted that it was material from which an inference could be drawn that all three were part of the joint enterprise which included robbery with violence. 38 Dealing with these submissions, it should be said at once that there was no evidence that the appellant was party to stealing the victim's mobile phone. On the agreed facts, that appears to have occurred later, after the appellant had run away. However, the theft of the phone was a particular of the indictment. The issue was whether there was evidence that the appellant was party to a robbery that concerned the wallet which included the keycard. 39 The agreed facts described the joint enterprise as the three men setting out for Sydney "to steal something". Once Hearn had succeeded in stopping the complainant's vehicle, and had alighted from the vehicle, the appellant believed, according to the statement of facts, that Hearn intended "to steal money from the complainant" (Q/A 143) (supra [11]). The stealing amounted to robbery. If one supposed that the wallet contained cash, and the proceeds had been distributed between the three, one would readily infer that there was a joint enterprise to rob. If there had been no money but a keycard, and the PIN number had been supplied by the victim and was later used, with the proceeds being distributed between the three, again one would readily infer a joint enterprise to rob. In the context of this case and the issue arising on this appeal, one would say that there was evidence to support the charge of robbery. 40 Here, the matter evolved in a different way. The victim had no cash. His wallet contained the keycard. Hearn snatched the wallet and pushed the victim over the guardrail. The victim got to his feet, returned to his car and drove off. Hearn then drove his vehicle (with Molloy sitting beside him and the appellant in the back seat) in pursuit. The victim was stopped for a second time. On this occasion all three got out. The appellant, whatever his precise motivation, made the demand: "Just give him your money and you can go." (supra [12]). If the victim had handed over money, which had then been distributed between the three, again there would be evidence of a joint criminal enterprise to rob. Had he provided the PIN number for the keycard and all three went to the bank and obtained money, again there would be evidence of a joint criminal enterprise to rob. 41 There was, in my view, one robbery. Hearn, it may be noted, was charged with one count which, in his case, was the more serious robbery in company with wounding. His offence comprehended each phase of the robbery, the stopping of the victim the first time (when his wallet was snatched), pursuing him and stopping him a second time (when the wounding was inflicted) and, later, (in the absence of the appellant) securing by fear the PIN number for his bank account. 42 It would, I believe, be artificial to break up the offence into a series of robberies, or attempted robberies. If someone were stopped in the street and robbed, and then broke away and were chased and caught further down the street, where further demands were made, it would be reasonable in my view to regard that sequence as the one episode, and charge the one offence. In this case, the action of Mr Charlesworth in getting out of the vehicle and, in company, making a demand upon the victim for money, provided a basis for an inference as to his complicity, not only in respect of that demand but in respect of that which had gone before. 43 Here, the offence charged was aggravated robbery. Hence the Crown was obliged to prove that, as an incident of the joint enterprise to rob, Mr Charlesworth foresaw the possibility that actual bodily harm would be intentionally or recklessly inflicted upon the victim. Was there material capable of supporting that inference? I believe there was. Two things came to the notice of Mr Charlesworth concerning Mr Hearn when the victim was stopped on the highway on the first occasion. Both signalled that Hearn was prepared to use violence in pursuit of the primary objective, which was money. It will be remembered that Hearn left the victim standing at the rear of the vehicle whilst he spoke to Molloy and Charlesworth, who were inside the vehicle. He said that he would have to kill the victim. Mr Charlesworth assumed he said that because the victim knew the registration plate of his vehicle. Shortly after, Hearn snatched the wallet and pushed the victim over the guardrail. 44 The statement of facts does not say, in terms, that Mr Charlesworth saw that occur, although one would assume that the vehicle had windows. In the ERISP, the appellant was asked by the police what he saw. His answers were somewhat contradictory. There was, nonetheless, evidence from which it may be inferred that he did see Hearn push the victim over the fence. He said: "Q129 Front passenger. Yeah. And what happened then? A. … And then he pulled him over, said he was Constable so and so. And then, and I was just sitting there in the car. And then Brett got out but he did, wasn't doing, he wasn't in on it. And Mick fuckin', the next thing I seen he was over the railing, the, the young bloke was over the railing and Mick tackled him and then, and then from there he got, he got back in his own car and, and he drove off and then Mick pulled him over again. And then that's when, yeah, and then that's when I said, yeah, 'cause the car was like that on the highway. 45 Later, Mr Charlesworth said this: "Q145 OK. I think you said that at one stage you saw the young kid fall over the rail. Did you see how that happened? A. No, no. 'Cause I was in the back, I didn't fuckin', I was just thinking what's going on, you know. Q146 Right. So when that young kid's fallen down the first time you're still in the back of the car? A. Yeah." 46 There was, in my view, evidence in respect of each element of the first count (aggravated robbery). The plea should not be set aside. The appeal in respect of the conviction on that count should be dismissed.

Were the admitted facts capable of supporting Count 2: Detain for Advantage? 47 Count 2 charged the appellant with aiding and abetting Hearn in the offence of aggravated detention for advantage. The issue is the same as in respect of Count 1, that is, having pleaded guilty, was there material before the sentencing Judge capable of supporting each element of the offence? 48 The offence, broadly, involved two aspects. There must be evidence of the principal offence, as well as evidence that the appellant aided and abetted that offence. Hunt J in Stokes and Difford (1990) 51 A Crim R 25, said this: (at 37) "To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused) by aiding and abetting him, the Crown must establish: (1) the commission of that crime by the principal offender, and (2) that the accused was present at the time when the crime was committed , and (3) that (subject to an exception which I discuss later) the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime), and (4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory's intention to assist or encourage the principal offender must be based upon that knowledge (emphasis added)." 49 His Honour elaborated upon the state of mind required in the case of an aider and abetter, referring to the High Court decision in Giorgianni v Regina (1985) 156 CLR 473. He said: (at [38]) "Although some of the older authorities suggest that the accused need be aware of only the physical acts done by the principal offender, it is now clear that he must be aware also of the existence of any state of mind on the part of the principal offender which must be established by the Crown to show that the crime was committed by him." 50 His Honour added: (at [39]) " ... it is strictly with the accessory's awareness of the principal offender's intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past." 51 The offence of aggravated detention by Hearn, in the context of this appeal, involved the following elements: (cf Howie & Johnson (supra) p 748: s 86(2) Crimes Act) "1. Hearn detained the victim, JC; 2. The detention was without the victim's consent; 3. Hearn did this with the intention of obtaining an advantage; 4. Immediately beforehand, the offence of actual bodily harm had been occasioned to the victim." 52 Here, although the appellant had witnessed Hearn kicking the victim in the face (thereby inflicting actual bodily harm), he then ran off. It was submitted by the appellant that the detention of the victim therefore began in his absence. There was no basis, in these circumstances, for suggesting that he had encouraged or assisted Hearn in that detention. He could only be liable once he became aware of Hearn's detention and rendered assistance. Further, the appellant argued that, since the advantage specified was "steal property", by the time the appellant became aware of Hearn's continued detention of the victim, the property had already been stolen. The key card had been used and money withdrawn from the account. The offence was therefore complete. In written submissions, the appellant said this: (AS p10) "25 ... The appellant's assistance was to provide a sheet to conceal the complainant whilst Hearn drove him to a suitable venue to allow him his freedom. His actions are consistent with him being an accessory after the fact to a detention for advantage, rather than an aider and abetter." 53 The Crown, in response, pointed out that the principal offence (detention for advantage) was a continuing offence (Davis v Regina [2006] NSWCCA 392). The detention arguably began when the victim was first stopped on the freeway, at a time that the appellant was present. It continued until his ultimate escape. According to the Crown, it was not necessary for the appellant to be present, aiding and abetting Hearn, for the whole time that the victim was detained. Even if the view were taken that the detention began after the victim had been kicked by Hearn, the appellant later became aware of his detention. He also became aware of the advantage which Hearn sought to derive from that detention. The advantage was specified as "steal property". The property he intended to steal, according to the Crown, was either the victim's car (as in fact occurred), or the further withdrawal of money from the victim's bank account, through the ATM. 54 The appellant, in reply, stated that the Crown's uncertainty as to the advantage arising through the detention of the victim, demonstrated that the advantage was really "a matter of speculation". It highlighted the miscarriage of justice occasioned by the plea. The advantage, according to counsel for the appellant, could plainly not have been the car. Hearn returned to the Gorokan property driving the victim's car. He had taken the vehicle without the owner's consent. Even if there were uncertainty as to the point at which Hearn formed the intention of permanently depriving the victim of that vehicle, there was no advantage in terms of stealing the car through the continued detention of the victim. Indeed, the victim's continued presence was, according to the appellant, a hindrance and inconsistent with an intention to permanently deprive the victim of that vehicle. 55 Further, it was said by the appellant that Davis (supra) had no relevance to the facts of this case. There was no question of accessorial liability in that case. 56 A number of issues arise from these submissions. When did the detention of the victim begin? Is it possible, as the Crown suggests, to view the facts as suggesting that his detention began, for the purposes of Count 2, when the vehicle was first stopped by Hearn on the freeway? I do not believe that view is open. The detention began, for the purposes of the indictment, after Hearn kicked the victim in the face. Count 2 charged that Hearn: " ... did, without consent, detain (JC) with the intention of obtaining an advantage, namely to steal property, and immediately beforehand actual bodily harm was occasioned to the said (JC) ..." (emphasis added) 57 What was the advantage which arose from the victim's detention? I accept the appellant's submission that detaining the victim in order to perfect the stealing of his car cannot be regarded as a possibility. Hearn drove the victim's car from the location on the freeway where he had kicked JC. He returned to the house at Gorokan. He thereafter drove that vehicle throughout the evening. In other words, he had possession. In the course of the evening he addressed a number of questions to the victim, which were answered (whether the car took leaded or unleaded fuel and the location of the petrol tank). However, one would infer that he did so as a matter of convenience, instead of making his own investigation. The continued presence and detention of the victim was, as the appellant suggests, a disadvantage when it came to stealing the motor vehicle. 58 It follows that the only possible advantage from the continued detention of the victim arose from the repeated attempts by Hearn, Molloy and the appellant to obtain further funds from the victim's bank account using the ATM. I will return to this issue below. 59 Before analysing the agreed statement of facts and the other material before the sentencing Judge, it may be useful to say something about Davis (supra). The accused and the victim in that case had been in a relationship which had ended. The victim thereafter obtained an apprehended violence order. Some months later the accused drove to the victim's place of employment. As she arrived at work, he physically forced her into his vehicle. He then drove off, constantly reaching into the rear of the vehicle attempting to strike her in order to ensure that she lay on the back seat. He told her that he was taking her to Mt Druitt where she would be raped. He said that there was no-one there to protect her and he could kill her if he wished. He ultimately drove to a lonely track where he attempted to have sex with her. There was a physical altercation, after which he drove to Parramatta and allowed her to leave. 60 Howie J, referring to the English Court of Appeal decision in R v Reid [1973] QB 299; (1972) 2 All ER 1350 and to R v Campbell and Brennan [1981] Qd R 516, said this: "64 Neither Reid nor Campbell supports the proposition that a taking ceases to be a taking at the moment that the kidnapper becomes criminally liable for the offence. The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been 'taken', in the sense that he or she has been compelled to go where he or she did not want to go, the 'taking' continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper's conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention." 61 Here, as mentioned, the appellant was not present when the victim was first detained. He became aware of the victim's vehicle upon his return to Gorokan, where he linked up again with Hearn and Molloy. He was not aware, at that stage, that the victim was still inside that vehicle and had been threatened. He only became aware of the detention of the victim after the group had obtained money from the ATM and set out for the local hotel. On that journey they travelled in separate vehicles, Hearn driving the victim's vehicle. Once they stopped, the appellant heard Hearn threatening a person at the rear of the vehicle. It may be inferred that he immediately realised that Hearn had detained the victim from the time he had taken his vehicle at the freeway. 62 After some time spent in the hotel, the group returned to Gorokan in the two vehicles. Before that return journey, Hearn told the appellant that he needed a blanket. Once at Gorokan the appellant obliged, providing a sheet. The sheet was given to Hearn, who then ordered the victim to cover himself as he lay in the back of the vehicle. All three then got into the victim's vehicle, with Hearn driving. The agreed statement, it will be remembered, included these words: "Charlesworth told police that he did not look at the complainant during any of the journey because he did not want to and 'blocked' this from his head (Q/A 501). However he knew he was all covered with the sheet and was lying down in the back of the vehicle. He also told police that he had noticed the state of Hearn's clothing and noticed blood on Hearn's 'T' shirt." 63 They drove to Canton Beach where Charlesworth watched Hearn take the complainant to an area at the edge of the Tuggerah Lakes. Hearn then returned and the three drove off in search of marijuana. They then returned to the bank and tried once more to use the key card, although without success. The appellant, at this point, decided to leave, walking away from Hearn and Molloy. 64 On these facts there can be no doubt that the appellant provided Hearn with assistance. His assistance extended beyond simply providing the sheet. During the journey to the lake his presence, in company with Hearn and Molloy, assisted Hearn by deterring the victim from offering resistance. When providing that assistance, the appellant was aware that the victim had been detained without his consent after the vehicle had been stopped for the second time on the freeway. He was aware that Hearn had viciously kicked the victim in the face at that location. He had later seen blood on Hearn's clothing. One would infer that he was aware that actual bodily harm had been inflicted immediately before the detention. 65 Was there evidence capable of establishing that Mr Charlesworth also was aware of Hearn's state of mind in continuing to detain the victim? I believe there was. The victim had a bank account, which he could access by means of his key card, using his PIN number. Until the group had removed all money from the account, the victim was potentially useful in completing that objective. I infer that the appellant readily appreciated that common sense objective. It was argued that since the appellant was not present for the whole time that Hearn had detained the victim, the second requirement of Hunt J's description of the offence in Stokes and Difford (supra) had not been satisfied (supra at [47]). It will be remembered that the second requirement was expressed by Hunt J in these terms: "2. That the accused was present at the time when the crime was committed." 66 However, that statement of the principle, I believe, requires refinement. In the context of the continuing offence of detain for advantage (s 86 Crimes Act 1900), it is enough, in my view, if the accused is present during some part of that detention and, knowing of that detention, provided assistance and otherwise satisfied the requirements as set out in the judgment of Hunt J in that case. 67 There was, in my view, evidence in respect of each element of Count 2 (aid and abet aggravated detention for advantage). The plea should not be set aside. It follows that the appeal against conviction in respect of both counts fails and should be dismissed. 68 Let me turn to the application for leave to appeal against sentence, dealing with each ground in turn.

75 However, these were sentences imposed after allowing discounts to each offender. It will be remembered that the offences were committed on 25 and 26 March 2006. Once the victim reached safety, his ordeal received significant publicity. On 6 April 2006, Mr Charlesworth surrendered himself to the police. He described what had occurred. The police were satisfied that he held nothing back. He identified Hearn and Molloy and agreed to give evidence against each. Mr Charlesworth later pleaded guilty in the Local Court. His Honour allowed a 50 percent discount which was expressed to be for the plea of guilty and assistance (including, inappropriately, 5 percent for remorse) (cf R v MAK; MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [44]). 76 Hearn was arrested in the ACT on 13 April 2006. He refused to be interviewed. He was then extradited to New South Wales. He later entered an early plea and was given a 25 percent discount (Hearn ROS: 23). Using these discounts to calculate his Honour's starting point in each case, the comparison is as follows:

77 The selection by his Honour of almost the same starting point for each offender ignored, according to counsel for Mr Charlesworth, important differences between them. It gave rise to a justifiable sense of grievance on the part of Mr Charlesworth (Lowe v The Queen (1984) 154 CLR 606; (1984) 12 A Crim R 408; Postiglione v The Queen (1997) 189 CLR 295; (1997) 94 A Crim R 397). 78 The Crown, in response, said that the Court should have regard to the end result, rather than any notional starting point (SZ v Regina [2007] NSWCCA 19; (2007) 164 A Crim R 249 at 257, approved in MacDonald v Regina [2007] NSWCCA 105 at [46]). The greater criminality of Hearn, according to the Crown, was recognised in the longer sentences imposed upon him. The real question was whether this Court could be satisfied that a less severe sentence was warranted in law and should have been passed (s 6(3) Criminal Appeal Act 1912). 79 I accept that for each offence the starting point in sentencing Hearn should have been significantly greater than in the case of Mr Charlesworth. First Hearn, as mentioned, faced a more serious alternative to the same offence on each count with a higher maximum penalty (25 years as opposed to 20 years). The robbery offence against Hearn included a standard non parole of 7 years. 80 Secondly, there were obvious differences between the role which each played in the commission of each offence. Hearn led at every stage. It was Hearn who threatened the victim and later viciously assaulted him, inflicting significant injuries including a fracture of the cheek bone. The appellant was largely passive. He got out of the vehicle (as did Molloy) when the victim was stopped a second time and then addressed certain remarks to him. The words he used may suggest that he had mixed motives. He told the victim to pay and that he would then be allowed to go. One may infer that Mr Charlesworth recognised Hearn's potential for violence and saw payment as in the victim's interest as well as his own. The difference between the position of Hearn and that of Mr Charlesworth was even more stark in the context of the detention offences, as the indictment recognised. Hearn was the principal offender. Mr Charlesworth had a supporting role. He was not aware of the victim's presence, nor the demands that had been made upon him, until towards the end. 81 Thirdly, there were also striking differences in the subjective cases of each offender, again favouring the appellant. The appellant had never been to gaol. He had a criminal record which his Honour described as "not of a serious nature" (ROS: 9). He had been convicted of offensive behaviour and fined. In February 2003, he was fined for possessing equipment for administering prohibited drugs, possessing such drugs and self administering them. His Honour said this: (Charlesworth ROS: 9) "... I am of the view that his antecedents will not materially effect the sentence to be imposed, other than perhaps to confirm that he has an addiction to illicit drugs." 82 Hearn, in contrast, had a criminal record which his Honour described as "extensive". He had been convicted of offences involving dishonesty and violence in New South Wales, the ACT and Queensland. On a number of occasions he had served terms of imprisonment. His Honour said this: (Hearn ROS: 16/17) "The current offences represent a marked escalation in his criminal behaviour. His record is such that it does disentitle him to leniency. It also illustrates that the current offences are not an uncharacteristic aberration, but represent a continuing attitude of disobedience to the law." 83 Hearn had no remorse. There was nothing to mitigate his offences except his plea of guilty (Hearn ROS: 22). Mr Charlesworth, in contrast, showed remorse from the moment he handed himself to the police. His Honour accepted that his remorse was genuine (Charlesworth ROS: 3). He also accepted that Mr Charlesworth was alarmed by the level of violence displayed by Hearn towards the victim, and that was the reason he ran off (Charlesworth ROS: 10). His Honour further accepted that Mr Charlesworth was unlikely to reoffend (Charlesworth ROS: 10). Because of the assistance provided to the Crown, Mr Charlesworth was in protection and was subject to a number of restrictions. 84 The use by his Honour, in these circumstances, of approximately the same starting point when fixing each sentence was erroneous. I believe this Court should intervene. It is unnecessary to deal with Ground 3, manifest excess.

(1998) 197 CLR 316

(1985) 156 CLR 473

(1984) 154 CLR 606

(1997) 189 CLR 295

(1988) 49 SASR 465

[2007] NSWCCA 105