Crystal Lee ENGLAND v R, Sackda PHANITH v R

1. The Applicant was left with a justifiable sense of grievance so far as the sentence imposed upon his Co-offender is concerned.

2. His Honour the sentencing Judge made findings of fact which were not open upon the evidence.

3. His Honour the sentencing Judge erred when he found that the objective seriousness of the offence committed by the Applicant was increased by reason of the use of corporal violence by a co-offender. 22 It is appropriate to deal with the second and third grounds of appeal first as a ground concerned only with the issue of parity assumes that the sentence is otherwise appropriate. If the Court concludes that there is error, it will take into account the issue of parity in deciding whether some other sentence is warranted. 23 The second ground of appeal complains of the following finding by the sentencing judge:

A conclusion can also be drawn beyond reasonable doubt that prior to entry, as part of the contemplated joint criminal enterprise, the offender considered and agreed to the use of a high level of intimidation by threat of violence, to ensure the victims would surrender property. 24 The full passage in the sentencing remarks in which this passage occurs is as follows:

The offender had known [the victim] since their schooldays and continuing to the date of the offence. The female co-offender similarly knew [the victim], but neither of the other two male co-offenders did. The Court is satisfied beyond reasonable doubt that the offender was the first to approach the house and did so in order to ensure that easy access could be obtained for all of the offenders.

A conclusion can also be drawn beyond reasonable doubt that prior to entry, as part of the contemplated joint criminal enterprise, the offender considered and agreed to the use of a high level of intimidation by threat or violence, to ensure that the victims would surrender property, including a bankcard and the relevant PIN number and be dissuaded from reporting the offence to the police. The offender was well known to the victim [ ] and Leah Johnson. He was readily identifiable to the other victims from the duration of the time spent in the house and in particular from his distinctive tattoos, "one life" and "one chance" on each arm. As the offender was on parole at the time and could so readily be identified to the police, he must have contemplated and agreed to a high level of intimidation by threat or violence to ensure he was not reported to the police for the offence. 25 I can see nothing wrong with this reasoning and I am unpersuaded that it was not open to his Honour to make the finding that he did, even beyond reasonable doubt. Further, it is clear that the applicant never raised any objection to the use of violence by the other men and did not desist from his involvement in the robbery when that violence occurred. Rather he continued to assist the co-offenders in carrying out the robbery. His Honour referred to these additional facts later in his remarks as further evidence justifying his finding that the applicant contemplated that violence or threats of intimidation would occur once they entered the house. In any event, it would not have been a matter of great significance in my opinion whether or not the applicant contemplated the possibility of violence or threats before he entered the premises in light of the fact that he clearly continued with the robbery notwithstanding the violence that had taken place in his presence. Further, when people embark upon a robbery in premises where it is known that there are a number of people present, I find it impossible to understand how at least the possibility of violence of some form was not contemplated by all of the participants in the robbery. This ground fails. 26 The third ground of appeal complains that the Judge took into account in assessing the objective seriousness of the offence the fact that a co-offender used corporal violence on the victim. In light of my rejection of the second ground of appeal, this complaint has no merit. If it were in his contemplation that a co-offender might use actual violence in the course of the robbery, it was a matter aggravating the objective seriousness of the offence that such violence was in fact used, whether it involved a weapon or not. 27 The second and third grounds of appeal in my view confuse the task of finding facts for the purpose of sentencing and the task of finding facts for the purpose of extending criminal liability for a different offence committed during the course of a joint criminal enterprise. In the present case it must have been well within the contemplation of the offender that there was the possibility that physical violence would occur. I do not think that it is of major significance for the purpose of sentencing whether that violence occurs with or without the use of a weapon. That distinction might be an important one if, for example, the victim had died by the use of a weapon. Then the issue would be whether the applicant should be found legally responsible for the killing. But in any event the applicant made no complaint to his co-offender about the use of the weapon, he took no steps to protect the victim and he did not withdraw from the enterprise after the weapon was used. In those circumstances I cannot see why he should not be sentenced on the basis that a weapon was used during the course of the robbery. This ground also fails. 28 In my opinion the sentence imposed was well within the sentencing judge's discretion. There is a complaint that the sentence was at the very top of the range contemplated by the guideline judgment in Henry. If the Henry guideline had any relevance, and I doubt that it was a significant consideration in determining the sentence, it was to indicate that this offence fell well outside the nature of the offending and the type of offender that was considered in the guideline. On almost every aspect of the factors considered in Henry this offence was more serious and the offender's subjective circumstances less helpful to him. In light of his age and his criminal record, the applicant's psychological problems and use of drugs had little mitigatory effect. 29 The matters on the Form 1 were serious and had to have a significant impact upon the ultimate sentence imposed. As against a maximum penalty of 20 years imprisonment and in light of the seriousness of the conduct for which the applicant was before the Court, the sentence was in my opinion a lenient one. 30 The complaint on the basis of disparity arises from the fact that Judge Sides sentenced Ms England for this offence to a sentence of imprisonment for 5 years with a non-parole period of 3 years. Curiously the applicant England complains that she has a justifiable sense of grievance by reason of the sentence imposed upon the applicant by Judge King. 31 One of the major differences between the two sentences was that Ms England received a discount of 25 per cent and had a very favourable finding of special circumstances. The applicant received a discount of 15 per cent and no finding of special circumstances. Those two differences would not give rise to a justifiable sense of grievance on the part of the applicant about the difference in the sentences imposed upon him and the applicant England for this robbery offence. 32 I will say a little more about the task of this Court when considering a ground of appeal that asserts unacceptable disparity when dealing with the application by Ms England. It is enough to dispose of this ground of appeal to indicate that I am unpersuaded that there were such differences between the two applicants in either their criminality or their subjective circumstances that there is any basis for a justifiable sense of grievance to be held by the applicant. In any event this Court's power to intervene to correct apparent disparity is a matter of discretion. I would not reduce the sentence imposed upon the applicant, which, as I have indicated, is a lenient one. 33 I propose the following orders: the extension of time to apply for leave to appeal is granted, leave to appeal is granted but the appeal is dismissed.

The applicant England Robbery of 17 November 34 At about 4am on 18 November 2006, the victim, her two children and a male friend were sleeping in a unit at Liverpool. The victim was awoken by the sound of the security door intercom. She used the intercom to ask who was at the door. The applicant replied: "It is Crystal, I just want to talk to you." The two women had met about two weeks earlier. 35 The victim allowed the applicant to enter the unit. As she went to close the door, three men forced their way inside. When the victim asked the applicant what was wrong, she shook her head. One of the men grabbed the victim by the arm, pulled her away from the door and told her to get down on the floor. She begged them not to injure her children. The same male offender demanded money. She told him the only money in the unit was in her purse. The men tied her hands. She said to the applicant: "I know you are part of this." The applicant denied that she was. 36 At the same time another man, who wore a balaclava, grabbed the male friend around the throat as he left the bathroom and threw him to the ground. With the assistance of another man, they tied his hands and legs. He was kicked once in the head, after being told to keep his head down, and he was searched for money. 37 The men brought the two children into the lounge room and sat them down next to the applicant, who had also been tied up to give the impression that she was not a party to the offence. The three men ransacked each room in searching for money and other property. As they did so they demanded money. One of the men tied the victim's legs with a video cord. He told her to shut up, and hit her with a cushion. He threatened her that she would be raped and he placed a pillowslip over her head. 38 Before leaving, the men told the victim that they were taking the applicant as hostage and would kill her if anything happened. She replied: "You are taking her because she is part of it." She watched the assailants fill a blue sports bag with an Xbox, two mobile phones, jewellery, a wallet containing a small sum of money, personal cards and a set of house keys. After they left, the victim and the male freed themselves and he ran across the road to a public phone box and telephoned the police. Form 1 matters 39 In respect of the robbery of 10 November the applicant asked that four matters be taken into account; three offences of detaining contrary to s 86(2)(a) of the Crimes Act and a negligent driving. In respect of the robbery of 17 November the applicant asked that four matters be taken into account being an offence of detaining, an offence of supplying methadone, an offence of possessing a prescribed substance and an aggravated break and steal offence. This last offence involved the theft of a large amount of jewellery valued at almost $40,000 on 21 October 2006. Breaches of bonds 40 The applicant was sentenced on 4 October 2006 for two offences concerning the breaking and entering of commercial premises. She was in the company with her then boyfriend. Judge Goldring found that she had a minor involvement in the offences. His Honour had before him a psychiatric report and noted that the applicant had mental health problems. Her mother gave evidence that there had been a change in her behaviour. The Judge having regard to the length of time since the commission of the offences determined to place her on bonds. He noted that she was not going to be supervised but suggested that she seek help from a psychologist or mental health team. Subjective circumstances 41 The applicant was born on 10 July 1979. She has a criminal record dating back to 1998 for offences of dishonesty including break and enter offences. She served short terms of imprisonment in 2000. In 2004 she received suspended sentences for offences of receiving with a condition of the associated bond that she place herself under supervision with drug counselling. All offences up to this stage in her record had been dealt with in the Local Court. As I have already noted, she was placed on bonds in the District Court in 2006. 42 There was a pre-sentence report in which it is noted that the applicant is a single mother of two children. She has been in a number of relationships all of which have involved the use of drugs. The applicant stated that she had used illicit drugs since leaving school and all of her associates use drugs. The report contains the following passage:

[The applicant] appears to have matured during the remand period and presents as ashamed and disgusted by the results of her drug lifestyle. It would seem that the offender has demonstrated some change in both attitude and willingness to address her drug addiction and provide for herself a better foundation for the future since undertaking courses in custody and by applying to rehabilitation facilities. 43 There was a report of a psychologist. It contains a detailed account of her background. Her father was of the Aboriginal race and an alcoholic. Her parents' relationship was subject to domestic violence and they separated when the applicant was aged 12. She maintains a strong relationship with her mother who visits her in gaol frequently. The applicant reported abusing alcohol and drugs from the time her parents separated. She has a lengthy psychiatric history involving anxiety and depression. At the age of 21 she was diagnosed with bipolar disorder. She has taken a variety of medications over the years and was at the time of the report taking Zyprexa. She was diagnosed with cervical cancer in 2005. She was on a methadone course while in custody. The psychological test showed that she had an IQ score in the Above Average range. 44 The applicant gave evidence before Judge Sides. She stated that she had completed a number of courses in custody in order to better herself. She hoped to go to live with her mother on release at Watanobbi in the Central Coast in an attempt to break from her drug associates. She had made enquiries about rehabilitation programmes. Her mother also gave evidence and stated that she had noticed a change in her daughter over the period she had been on remand. She indicated a willingness to assist her daughter when she was released from custody. The grounds of appeal 45 The following grounds of appeal were relied upon by the applicant:

1. The applicant has a justifiable sense of grievance when considering the sentence imposed upon the co-accused, Simon Phanith, in relation to the robbery on 10 November 2006 (Count 1).

2. The individual sentences and the effective sentence are manifestly excessive given the applicant's role in the offences, her remorse and her subjective case including her prospects of rehabilitation. 46 In relation to the second ground of appeal it was contended that the Judge had erred in deciding that her criminality for each offence was within the mid range of seriousness as it was below that range. It was submitted that the Judge ought to have given more significance to the applicant's drug addiction as it had occurred at a very young age before she had the ability to exercise appropriate judgment, relying upon what Wood CJ at CL said in R v Henry (1999) 48 NSWLR 346 at [293]. 47 It was submitted that her role in the offences was consistent with the dynamics of her relationship described by the psychologist as being "characterized by servile behaviour" when the applicant allowed others "to exploit or mistreat her". 48 It was submitted that the starting sentences before applying the discount for the pleas of guilty were manifestly excessive having regard to the statistics from the Judicial Commission. These, it was said, show that sentences for this offence range from 6 months to 12 years and in only 1 per cent of cases was a sentence of over 8 years imposed. 49 The statistics reveal once again that the sentences being imposed bear almost no relationship to the prescribed maximum penalty. Here the maximum was 20 years imprisonment yet the statistics reveal that, even having regard to consecutive sentences, the highest sentence imposed was 12 years imprisonment. A sentence of 5 years, that is a sentence amounting to a quarter of the maximum penalty, exceeded almost 75 per cent of the sentences imposed for this offence. Of 1583 sentences imposed, 62 per cent fell below 4 years, that is a fifth of the maximum penalty. 50 Each of the offences in which the applicant was involved was an offence towards the most serious type of offences for robbery in company. They were planned offences committed in the homes of the victims. There were multiple victims and there was both the actual and threatened use of violence. The second offence was committed in the presence of the victim's children. Of course one of the most serious aspects of both offences, the fact that the victims were tied up was placed on a Form 1, in my opinion inappropriately so. 51 In both robberies the applicant was involved in a significant way. In the first she was actively involved in stealing property from the house while the hapless victims were tied up and threatened. She was involved in placing stolen property into the mother's vehicle. Some weeks after the robbery the offender was driving the stolen vehicle when she was involved in an accident. 52 In the second offence the applicant made the robbery possible by tricking the victim into opening the door. Certainly thereafter she took no part in what occurred, but that was on the pretext that she herself was a victim. In those circumstances she was morally and legally responsible for what happened in that house. She knew from the earlier robbery how the victims would be treated. I do not accept that her role was a minor one rather her culpability should have been treated as being the same as her co-offenders. 53 During the period that she was on the bonds she was supplying methadone for profit, an offence on the Form 1. She was actively engaged in the robbery of the jewellery store and her DNA was found on a claw hammer left at the scene. 54 The offences before Judge Sides amounted to a very substantial criminal enterprise over a period of about a month, even disregarding the offences for which she was subject to the bonds. Her mental health problems and drug usage should have been given less significance than might otherwise have been the case, in light of the fact that she had previously been given the benefit of a suspended sentence subject to counselling and that she was on bonds at the time of the robberies and other offences being taken into account. 55 When placing her on the bonds, Judge Goldring said:

This matter has been before a court since December last year, when she pleaded guilty and was convicted. Ms Duffy, a psychologist, saw her in December and prepared a report for the court. Ms Verrender, a psycho social worker with the Legal Aid Commission, saw her in June this year and prepared another report. Both of those reports indicate that Miss England has some mental health issues. She has tendencies to become depressed and to be anxious. She has had a number of events in her life which have been traumatic, including being the victim of at least two very serious crimes, and as a result of that her relationship with the Probation and Parole Service has not been terribly good.

It seems to me that rather than placing her under the supervision of the Probation and Parole Service, that would be to invite disaster, I would simply advise her that she probably does have some mental health issues and to see a psychologist or someone in the Community Mental Health Team could be a very big benefit to her.

……….. She now has a house in the Campbelltown area and she lives there with her daughter. Her relationship with [her co-offender] is well and truly over, apparently even if he were not in jail. Miss England's mother has been here today and she says she has noticed a change in Miss England's behaviour. 56 I have quoted this passage to show that the personal considerations that are now being put forward with such force before this Court, as they were before Sides DCJ, were almost identical to those taken into account by Judge Goldring in placing the applicant on a bond notwithstanding that one of the offences before him carried a standard non-parole period of 5 years. Despite the opportunity and advice given to the applicant on that occasion, just 17 days later she committed the offence on the Form 1 of aggravated break and enter of the jewellery store. 57 She received this opportunity from Judge Goldring notwithstanding that she had breached bonds given to her in 1999 and 2004 by reason of failing to attend programmes and not reporting to the Probation Service. The 2004 bond was a result of a suspended sentence, yet no action was taken to revoke the suspension of the sentence because of the breach of the bond. In light of this history less significance could be placed upon her personal circumstances. The substantial leniency that is evident in the sentences imposed upon her by Judge Sides, particularly having regard to the overall non-parole period imposed, was completely unjustified. 58 She was given the benefit of a number of findings in her favour that cannot be supported. The Judge found that her criminality in both offences fell within the mid range of seriousness. Because there was no standard non-parole period applicable, it was not strictly speaking necessary to make such a finding. But in any event it was clearly wrong. The offences were well above mid range for offences of robbery in company and in the second offence she provided the means for the robbery to occur. The Judge said that he took into account the Henry guideline. As I have earlier indicated, that guideline was irrelevant to a determination of the sentences for these offences unless it was to indicate that the sentences to be imposed should be well above that suggested in the guideline. 59 The Judge made the sentences for the offences for which Judge Goldring had placed her upon the bond concurrent with the robbery sentences because "the Court took into account the breach of the bond as an aggravating feature and to avoid an unduly crushing sentence". The first of those reasons had no validity at all. There is no sense of double punishment in taking into account that an offence was committed in breach of a bond and then imposing a proper sentence for the offence in respect of which the bond was breached. There was no justification in making those sentences concurrent with the robbery sentences on the basis of the totality principle. 60 In my opinion a non-parole period of 4 years 6 months, being the minimum sentence to be served for all the criminality that was before his Honour, was so lenient that it is arguably inadequate. It failed sufficiently to reflect the seriousness of her conduct and said nothing about personal deterrence let alone general deterrence. The second ground should be rejected. 61 The first ground is without merit. A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated having regard to the sentence passed upon the co-offender. Yet frequently, as in this case, the Court is asked to trawl through the sentencing remarks and the facts and circumstances of the two offenders in detail in order to dissect and weigh every aspect of their competing objective and subjective facts to see whether some variation, however minor, should be made to the sentence of the person who, it is asserted, has a grievance. 62 It should be borne in mind that the High Court's decisions on this area of appellate intervention speak of "gross", "marked", "glaring" or "manifest" disparity. These terms are used throughout the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done: per Gibbs CJ at 610 and Dawson J at 623. It should be recalled that the sentences being compared in that case were, on the one hand, a sentence of 6 years imprisonment and, on the other, a non-custodial sentence. 63 No different approach was taken in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. Dawson and Gaudron JJ in their joint judgment stated at 301:

……………However, the parity principle, as identified and expounded in Lowe v The Queen recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

His Honour then quoted with approval from a decision of Callaway JA in R v Taudevin [1996] 2 VR 402 in which it was pointed out that the important words in considering the issue of disparity were "manifestly" "justifiable" and "objective" and emphasising that the difference between the sentences must be "clearly excessive". 64 It should be borne in mind that in Postiglione the different sentences being compared were, on the one hand, an effective total sentence of 30 years 10 months and, on the other, 24 years 2 months. 65 Kirby J in Postiglione referred to "the removal of serious and unjustifiable disparities". He stated at 336 (my underlining and footnotes are not reproduced):

3. Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that, when performing their function, sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts. 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 ……………. 66 And later, after referring to numerous decisions on this issue, he wrote at 338 (my underlining and footnotes are not reproduced):

6. Those tests express the criteria for intervention in language which is necessarily very broad. Mere disparity is not enough . What is needed is that the disparity engenders a "justifiable sense of grievance" on the part of the prisoner or "give the appearance that justice has not been done". It has been stated many times that the fact that the prisoner feels a sense of grievance is not determinative. Say what they may, appellate courts cannot "prevent an unjustified sense of grievance from arising in the minds of sentenced persons". But the object of the language chosen is to make it plain that some disparities, being inevitable, must be tolerated out of respect for the discretion of sentencing judges and a modest appreciation of the capacity of appellate courts to rectify discrepancies without causing new or different problems…………………….. 67 With respect it seems to me that on occasions this Court has sought to address disparity that could not be said to be "manifest", "glaring", or "gross". In one case, to which the Court was taken in the application by Phanith, this Court intervened even though it described the difference in the sentences as "small". 68 Whatever be the disparity between the sentence imposed upon this applicant and that imposed upon Phanith, I do not consider it is of such a degree that it would warrant this Court intervening. The simple fact is that the applicants were involved in a joint criminal enterprise to rob the victim and his family in their own home and they both continued in that enterprise notwithstanding that they were aware of violence being inflicted upon one of the persons and the members of the family being tied up. They were both drug addicts who had been given ample opportunities to address their addictions and both were in breach of conditional liberty. They also had offences on a Form 1 of a similar type. Judge King was aware of the sentence imposed upon this applicant when sentencing Phanith and purported to apply parity. This Court should pay due regard to the exercise of his sentencing discretion and that of Judge Sides. 69 In any event, Judge Sides ordered an accumulation between the sentences for the two robberies of a period of only 2 years. Having regard to the seriousness of the two offences this was a very lenient result. Even if the Court were to reduce the sentence for the first robbery, in my view it would not make the slightest difference to the overall effective sentence imposed upon the applicant. I have already indicated my view that the non-parole period was very lenient and it could not possibly be reduced. 70 Leave should be granted to appeal but the appeal dismissed. 71 FULLERTON J: I agree with Howie J. **********

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