DGM v REGINA

CATCHWORDS: Sentence appeal - parity - effect of totality reduction on sentence of co-offender

LEGISLATION CITED: Crimes Act 1900 ss 97(2), 195B, 558 Crimes (Sentencing Procedure) Act 1995

Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Boney [2001] NSWCCA 432 CASES CITED: R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300 R v Diamond NSWCCA 18 February 1993 R v Kelly [2005] NSWCCA 280 R v Reardon (1996) 89 A Crim R 180 R v Steele NSWCCA 17 April 1997

PARTIES: DGM (Applicant) v REGINA (Respondent Crown)

COUNSEL: Ms J Dwyer (Respondent Crown) Mr P Boulton SC (Applicant)

SOLICITORS: S Kavanagh (Respondent Crown) S O'Connor (Applicant)

IN THE COURT OF CRIMINAL APPEAL 2005/2354

McCOLL JA ADAMS J LATHAM J

1 McCOLL JA: I agree with the judgment of Latham J and with the orders her Honour proposes. 2 ADAMS J:

On 29 June 2004 the applicant was convicted of the offence of robbery whilst armed with a dangerous weapon, an offence under s 97(2) of the Crimes Act 1900. This offence carries a maximum term of imprisonment of twenty-five years. On sentence, he asked that an offence of malicious damage by fire under s 195B of the Crimes Act 1900 should be taken into account on a Form 1. This offence carries a maximum term of ten years' imprisonment. The applicant had previously stood trial for the Form 1 offence but the jury was unable to agree and the matter was listed for a new trial which was, of course, no longer necessary. The applicant was sentenced to an overall term of imprisonment of six years with a non-parole period of four years and six months to date from 20 June 2004.

Facts 3 In substance, it is not disputed that an armed robbery took place as alleged by the Crown. The applicant's case was, however, that he was not one of the four perpetrators. At sentence, though the applicant continued to deny his guilt, the facts were not otherwise disputed. The following account is taken largely from the reasons for judgment of the learned sentencing judge. 4 The armed robbery occurred in a private home at Manly on 16 July 1997. (I do not name the victims for privacy reasons.) Before the robbery was undertaken, the offenders (the applicant, Kidd, Middleton and Smith - Smith was arrested first and gave evidence against the others) undertook sophisticated and meticulous planning, including surveillance of the targeted property. They had also obtained information as to the whereabouts of safes, the likely amount of money in the house and the fact that the male occupant would be overseas. They knew that, in addition to the adult female victim, there were young children in the house. Two earlier attempts to rob the premises had been made but were abandoned when the circumstances were considered to be unfavourable to the success of the enterprise. 5 Smith and Middleton stole a vehicle from a shopping centre and parked it near the victim's premises. On the night of the robbery, the applicant met Smith and Middleton nearby and a close watch was undertaken on the house until it was observed that the lights had been out for some time and it was likely that the occupants would be asleep. Entry to the ground floor was obtained by using oxyacetylene equipment. Kidd then instructed two of the offenders to search the house, locate the children and close their bedroom doors. This was done. The female victim was awoken by having the light in her bedroom turned on. She was confronted by three men, all wearing balaclavas, two armed with sawn-off shotguns and one of whom she believe was armed with a knife. 6 (Smith claimed to be unarmed and said that Kidd and Middleton carried the guns. He did not give evidence that he saw the knife. It seems to follow that the applicant was carrying the knife but it is uncertain, I think, that her Honour found that this was indeed so. This is of little significance since the applicant was plainly part of a plan which involved the use of guns to frighten anyone who was in the house.) 7 The female victim was assured that no harm would come to her provided she co-operated. She was asked about the location of the safes, which she gave and provided the combination to one of them. The offenders' attempts to open that safe were unsuccessful and the female victim was required to open it for them. The female victim was then taken to the cellar where she opened a safe which contained $275,000 cash in a number of plastic boxes together with some jewellery. However, the jewellery was returned to the safe when the victim became distressed at the potential loss of jewellery with family connections. She was taken back to her bedroom where she was tied up. She was assured that the police would be informed of her situation so that she would be freed before the children awoke in the morning. She was not physically harmed, although this was plainly a terrifying experience exacerbated by threats made as to the harm that would have befallen her husband had he been present. The offenders then used a two-way radio to summon another offender, Murray, who was in the stolen motor vehicle, to collect them. Before leaving, the phone lines to the house were cut. 8 The offenders then went to the applicant's home where the proceeds of the robbery were divided between them. Middleton then went with Murray to a phone box where Middleton called a taxi company and gave information that would ensure that the female victim was released. This happened shortly afterwards. I note that the weapons were loaded although there is no suggestion that the applicant was aware of this. The learned sentencing judge noted that the female victim suffered psychological sequelae was a result of the crime. It was necessary for her to give evidence and her distress was, as her Honour observed, "all too apparent". 9 The Form 1 offence occurred on 2 September 1997. The applicant and two other of the co-offenders in the robbery at Manly went to the home of a man with whom the applicant appears to have had a falling out. It appears that, at the offender's direction, Smith set fire to the victim's car which sustained considerable damage and necessitated the attendance of the fire brigade.

Subjective features 10 There was also little or no dispute about the subjective features relevant to the applicant. He was aged thirty-three years when he was sentenced but was twenty-six at the time he committed the offences. He had had the sole care of his children for some time and references tendered to the court spoke well of his dedication to the care of his children. The learned sentencing judge accepted that the applicant was a good father. She noted that the children were being cared for by their paternal grandparents. Her Honour considered that, although it was tragic that children aged eight and ten would be deprived of their father for some years she (rightly) concluded that this was not a circumstance which justified a reduction in the applicant's sentence. 11 The learned sentencing judge received into evidence a psychological assessment prepared by Mr John Jackman. The history in this report was, I think, accepted by her Honour as being substantially true. It appeared that the applicant was born in Australia, the child of Serbian parents. He had two brothers. He left school at the age of fourteen to take up an apprenticeship in butchery, at which he was successful and, after completing the apprenticeship, he went overseas for a period. Upon his return, he intended with family support to open his own butchery. However, before this could occur the applicant was seriously injured in a motor vehicle accident in September 1990. He suffered facial injuries and a severe closed head injury resulting in a lengthy period of amnesia. He suffered from consequential scarring to his face and other uncomfortable sequelae. The applicant informed Mr Jackman that he became a recluse as a result of this accident but, as the learned sentencing judge noted, this was inconsistent with the references provided by persons who had known the applicant for many years and were regularly in contact with him. Her Honour thought that the references were more reliable than the history given to Mr Jackman. Upon the basis of the history obtained from the applicant, Mr Jackman came to the view that the applicant suffered chronic post-traumatic stress disorder as a result of the accident and, to cope with the pain from which he suffered, he commenced using illicit drugs. Mr Jackman believed that the applicant was suffering from PTSD at the time he committed these offences. The learned sentencing judge concluded, however, that this did "not appear to provide a satisfactory explanation for his involvement in well-planned crimes of this nature". 12 In May 1992 the applicant was sentenced to a term of three months' imprisonment on three counts of supplying a prohibited drug but a recognizance under s 558 of the Crimes Act 1900 was substituted. It seems that the learned sentencing judge mistakenly thought that the applicant had served this sentence but nothing turns on this. Thereafter the applicant was convicted, fined or placed on a recognizance for a number of traffic offences, one offence of larceny, and involvement with supply of a prohibited drug for which he was sentenced to four hundred hours of community service. 13 In June 1993 the applicant married. He is the father of two children. After receiving damages for the injuries he suffered in the motor vehicle accident, the applicant with other family members purchased an investment home unit. He appears to have become increasingly paranoid and difficult and, ultimately, the marriage foundered. The house was sold and the applicant used the funds for a further property investment. The learned sentencing judge accepted that the applicant continued to suffer some level of psychological illness but this had not prevented him from caring for his children or functioning adequately in the community. Implicitly, her Honour did not consider that any particular allowance should be made for this aspect of the applicant's situation but I do not doubt that it was taken into account as part of the general picture. No complaint is made in this Court about this aspect of the case. 14 The learned sentencing judge reduced the sentence of the applicant, as provided by the Crimes (Sentencing Procedure) Act 1995. The circumstances appear sufficiently in the papers and it is not necessary for present purposes to refer to them. The discount allowed was one-third. There is no submission that this was not appropriate. Her Honour concluded that the applicant's prospects for rehabilitation were reasonable provided he continued to accept treatment for his PTSD. She also thought that the applicant's genuine concern for his children provided an additional incentive to remain law-abiding upon his release and accept treatment for the continuing symptoms of his disorder. 15 Her Honour decided that there were no special circumstances justifying the variation of the statutory non-parole periods. It is not submitted that this was in error.

The appeal 16 There are two grounds of appeal. The first and most substantial is that the sentence imposed on the applicant is excessive when compared to that imposed on Kidd and gives rise to a justifiable sense of grievance in the applicant. The second, which is conceded by the Crown, is an error in calculation arising out of the omission to take into account 20 days pre-sentence custody. 17 The learned sentencing judge had, on 30 July 2004, sentenced Kidd for his involvement in this robbery. Kidd was sentenced to a term of eight years with a non-parole period of six years. Kidd, who was seventy-one at the date of sentence, had an extensive and serious criminal record, which I will come to in a moment. In sentencing the applicant, the learned sentencing judge said - "Whilst acknowledging the differences between Kidd's record and this prisoner's prior criminal convictions, in an offence of such gravity as this count in the indictment, and having regard to the prisoner's role in this offence, that is not sufficient to displace the principles of parity of sentence." 18 Her Honour returned to the issue of parity towards the end of her reasons for sentence - "I see no reason other than to apply the principles of parity to the sentence and impose for the primary offence in the indictment the same penalty as was imposed on Kidd, with an additional year to reflect the form 1 matter. Thus the prisoner will be sentenced to a head sentence of nine years, which will be reduced by one-third…" 19 Since the sentence imposed on Kidd reflected both the objective and subjective features of his case, it was clearly an error, in my respectful opinion, for the learned sentencing judge to consider that the applicant should receive the same sentence for the offence when his subjective circumstances were substantially different, being both markedly less adverse in terms of his criminal history and far more favourable in terms of his prospects for rehabilitation. In treating the objective and subjective features of the applicant's case as equivalent to Kidd's, a serious error was made in the assessment of the appropriate sentence to be imposed on the applicant. 20 It is contended on the applicant's behalf by Mr Boulton SC that the learned sentencing judge erred also in assessing the applicant's involvement in the Manly robbery as being objectively as culpable as that of Kidd. It is submitted that Kidd was armed with a loaded firearm whilst the applicant was not and was unaware that the firearm was loaded. It also appears that Kidd was the directing influence during the robbery whilst the applicant played an apparently subsidiary role. With the exception of the firearm question, it is not possible from the material tendered in this Court to see any significant distinction between the roles played by Kidd and the applicant in the offence. Nor does it appear that such a distinction was contended for on his behalf at first instance. The applicant certainly knew that firearms were to be used in the robbery and the mere fact that he did not actually wield a weapon and may not have known that the guns were loaded does not, to my mind, significantly reduce his culpability. 21 However, there was a very substantial difference between Kidd's subjective circumstances and those of the applicant. These matters were all referred to by the learned sentencing judge when she dealt with Kidd on 3 July 2004 not only for his part in the Manly robbery but also for his involvement in three other very serious robberies. Kidd went to trial for these four offences and was convicted. 22 The first of these was an attempt to rob the National Australia Bank on 27 June 1997 and the second a count of stealing a motor vehicle on the same date to be used in the robbery. The attempted robbery involved both Smith and Middleton. Kidd was in possession of information about the time at which the main safe of the bank would be accessible. Oxyacetylene equipment was used to cut through iron bars protecting a window at the rear. On the following day, Smith and Middleton stole a car from a shopping mall and parked close to the bank. Murray was recruited to watch the bank to ensure that the cut windows were not discovered. Later that evening, the four men went to the vicinity of the bank. The applicant and Middleton attempted to gain access through the window, wearing balaclavas. They failed to break a sufficiently large hole in the glass to effect entry and abandoned the attempt. The learned sentencing judge observed that, although the attempt had failed, "it was a well planned operation based upon accurate information as to the layout of the bank and the practices adopted in relation to the safe". The motor vehicle which had been stolen for the purpose of enabling the offenders to get away was later recovered. 23 The third offence was "a very well planned robbery involving the home invasion of premises at Burraneer in the early hours of the morning of 11 September 1997". Six men were involved, including Kidd. Four men, of whom two were armed with sawn-off shotguns, gained entry to the home, all wearing balaclavas. Again, the perpetrators had substantial information about the victims and their premises and much pre-planning and surveillance was involved. The offenders knew the female victim was suffering from cancer, an illness that ended her life two or three years later. Entry was gained when the female victim opened a door to bring in one of her domestic animals. Almost immediately her husband was seriously assaulted. He was struck repeatedly on the head with a shotgun, was tied up in a particularly and deliberately uncomfortable manner and was severely beaten over a period of some hours. At one stage lighter fluid was poured into his eyes. He was seriously injured. Considerable damage was caused to the premises by the perpetrators who smashed numerous ornaments of value, slashed soft furnishings and caused substantial damage to two motor vehicles in the garage. The total damage was estimated at over $100,000. A quantity of cash, possibly in excess of $6,000 to $8,000 and jewellery worth about $140,000 was taken. 24 At the time Kidd came to be sentenced, he was serving a term of imprisonment imposed upon him for offences in Queensland. He was arrested on 12 December 1997 in the course of committing a serious armed robbery during which he tried to shoot his way out. He was sentenced to concurrent terms of seven years for the robbery and eleven years for the shooting offence. The non-parole period in respect of these offences expires on 26 September 2006. The learned sentencing judge noted that there were a number of features of the Queensland robbery that were similar to the modus operandi adopted in the offences for which the prisoner was to be sentenced by her Honour. 25 The learned sentencing judge noted that, although Kidd was then aged seventy-one, he had no health problems such that sentences less than those which adequately reflected the gravity of the offences should be imposed and did not reduce his sentences on this account. Kidd was sentenced as follows - (i) for the attempted bank robbery, a term of six years' imprisonment with a four years six months non-parole period, commencing 26 August 2003; (ii) for stealing the motor vehicle, a fixed term of twelve months commencing 26 August 2003; (iii) for the Manly robbery (for which the applicant was later also sentenced) eight years' imprisonment with a non-parole period of six years, commencing 26 August 2003; and (iv) for the Burraneer robbery, ten years' imprisonment with a non-parole period of seven years and six months, commencing 26 August 2009 and ending 25 February 2017. 26 The learned sentencing judge considered that, having regard to his age and health and the principle of totality, the sentences to be imposed on Kidd should be structured to result in a non-parole period of twelve years, which would be further effectively reduced by being made partly concurrent with the Queensland sentence. This resulted in an effective additional period of imprisonment before Kidd is eligible to be considered for release on parole of just under nine years. 27 It will be seen that of the non-parole period of six years imposed for the Manly robbery, only eighteen months was additional to the sentence imposed for the attempted bank robbery while only a little more than three years of it was not covered by the non-parole period imposed for the Queensland offences. 28 So far as Kidd's prior criminal convictions were concerned, the learned sentencing judge noted that he had a record not only in this State but also in Queensland and Victoria. Many of those offences were trivial and occurred some years ago and her Honour thought that they were not relevant to the present sentencing exercise. However, she noted that Kidd had served one earlier sentence of imprisonment in this State for breaking, entering and stealing (in 1978 - four years' imprisonment with a non-parole period of two years and three months), in Queensland, conspiracy (in 1983 - four years' imprisonment), in Victoria, breaking, entering and stealing (in 1971 - five years' imprisonment with a two years six months' minimum term), and for possessing a forged banknote (one year six months). These were obviously of some significance, despite their age. 29 It will be seen that, quite apart from the offences for which Kidd was sentenced on 30 July 2004 and earlier in Queensland, his entire criminal record was both more extensive and more serious than that of the applicant. Not surprisingly, the learned sentencing judge made no finding that Kidd had good prospects for rehabilitation. Old age apart, there does not appear to be any material that could have provided any support for such a possibility. This also was a point of real distinction between Kidd and the applicant. 30 Parity, of course, is not a mere matter of arithmetical comparison. Nevertheless, looking at this matter generally, it seems to me that in relation to the Manly robbery the applicant received a sentence which was, as a practical matter, markedly more severe that that imposed on Kidd, quite apart from the apparent disregard of his very different subjective features. This disparity is made even more stark when the discount applicable to the applicant's case is taken into account. 31 In Postiglione v The Queen [1997] 189 CLR 295 a majority of the court (Dawson, Gaudron and Kirby JJ) were of the view that in comparing the sentences imposed on co-offenders, all components of the sentence must be taken into account, including the non-parole periods and, as well, the total effective sentence imposed on the co-offender. The fact that, for reasons of totality, the co-offender's sentence effectively resulted in a much shorter actual period of imprisonment because it extended the term of imprisonment imposed on a prior offence is relevant might involve a disparity in outcome giving rise to a justifiable sense of grievance: ibid at 302, 304, 338, 342, 343. 32 As I have already said, in implicitly determining that the applicant's circumstances were not relevantly different from those of Kidd, the learned sentencing judge was in error. That error was, as it seems to me, compounded by imposing a sentence on the applicant which was - even with the discount - markedly more severe in real terms than that imposed on Kidd. In my view, the applicant has demonstrated that he has a justifiable sense of grievance requiring an adjustment to his sentence. 33 Although the applicant's sentence requires some downward readjustment, I think that it would be inappropriately lenient to impose upon him a sentence that reflected the effective additional term to be served by Kidd for his commission of the same offence. This would produce a sentence completely disproportionate to the objective and subjective criminality of the applicant. In Postiglione, Dawson and Gaudron JJ said (189 CLR at 301) - "…[T]he parity principle as identified and expounded in Lowe v The Queen 91984) 154 CLR 606 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' (154 CLR at 610, 613 and 623). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options."

Kirby J said (189 CLR at 341, omitting references) - "It has been recognised by this Court…that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. Risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred." 34 The requirement of parity depends, therefore, on a far more profound principle than the mere response to the aggrieved feelings of a more harshly punished offender. In Lowe v The Queen (1984) 154 CLR 606 Mason J said (at 610) - "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community…"

In Postiglione (189 CLR at 301) Dawson and Gaudron JJ said (citing with approval the passage from the judgment of Mason J in Lowe set out above), "The parity principle…is an aspect of equal justice…[which] requires that like should be treated alike but that, if there are relevant differences, due allowance must be made for them…" 35 On the other hand, as Wood CJ at CL said in R v Boney [2001] NSWCCA 432 - [15] Two further matters of sentencing principle do arise for consideration and application in this case. Firstly, where there is a degree of disparity as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved. In that regard, Simpson J said in Regina v. Steel NSW CCA 17 April 1997: "The frequently cited passage from the judgment of Mason J ( Lowe ) is not authority for the proposition that, in any case where such disparity is shown, a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sense of grievance in the more heavily sentenced co-offender, the appellate court has a discretion to do so." [16] The second relevant principle is that a stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one. See the observations to that effect by Hunt CJ at CL in Regina v. Diamond NSW CCA 18 February 1993. Further, as was made plain, for example, in Hopper NSW CCA 19 November 1998: "Where a co-accused has received a comparatively more lenient sentence than the applicant a Court may exercise its discretion by declining to interfere because it does not wish to duplicate what seems to have been gross error in the sentencing of the applicant's co-offender."

See also R v Kelly [2005] NSWCCA 280 at [11-12]; (2005) 155 A Crim R 499 at 502, where Johnson J usefully brings together a number of the relevant authorities on this point. 36 The difficulty is the attempt in a case where marked disparity is demonstrated (unexplained by the differences in offending or offender) to determine the point at which downward adjustment is "disproportionate to…the criminality involved", "inadequate" or duplicating a "gross error" such that a downward adjustment is illegitimate. It seems to me that these terms involve more than the mere fact that the resulting sentence might be appealably lenient. That an appealably lenient sentence might result from an adjustment to reduce disparity is regrettable but it is a reflection of the fact that, as coherent and rational as the administration of justice ought to be, especially in the area of criminal justice, there are rare occasions when important principles conflict. Where this occurs, of necessity, some adjustment in the application of one or other principle must occur. 37 It seems to me that the principle of equal justice and the requirement that justice be seen to be done (see Lowe 154 CLR at 610, per Gibbs CJ) are of such overriding importance that the principle that a sentence should be proportionate to the criminality involved in the offence must give way to it, even if the result is appealably low. However, where such a sentence would be so inappropriately lenient as to constitute an affront to the administration of justice itself, of which the principle of equal justice is a fundamental but not the only part, then the adjustment should not be made. 38 In the present case, it is not submitted that the sentence passed on Kidd was appealably inadequate, either considered alone or by virtue of the totality adjustments. I must confess, however, that I think that the sentences imposed on Kidd for the two home invasion offences were, in my respectful view, inappropriately lenient. However, Kidd will be about 84 years of age before he can be considered for parole. I would not, therefore, conclude that the ultimate overall result was inappropriately lenient. It is obvious that his age was by far the most significant feature in making the totality adjustments, although the learned sentencing judge did not articulate the matter in this way. (Looking at the matter practically, it is therefore perhaps not surprising that the Crown did not appeal against the inadequacy of Kidd's sentences.) Since the totality adjustment in Kidd's case is largely explained by his age, this represents a substantial subjective feature differentiating him from the applicant and limits, though it does not eliminate, the significance of the disparity arising from this adjustment. Turning to the applicant's sentence, I have no difficulty in accepting the Crown's submission that it could not be said that, considered by itself, it was excessive. Indeed, so much is conceded by Mr Boulton SC for the applicant. 39 As I have already pointed out, disparity is not the only problem with the sentence passed on the applicant. I think it is inescapable that the learned sentencing judge left out of account his favourable subjective circumstances. This was not only a disparity problem but was, itself, a significant error of law. The problem is exacerbated by the fact that her Honour's starting figure for the applicant was the same as Kidd's ultimate sentence even though Kidd's subjective circumstances were not only not as favourable as those of the applicant but were such as to deprive him of all mitigation under this head. It seems to me that this is one of those, hopefully rare, cases where the disparity between co-offenders is so marked that this Court must interfere or else condone "the badge of unfairness" (Lowe, 154 CLR at 611). 40 I accept that the sentence I propose must be regarded as very lenient, indeed, appealably low. The circumstances of the robbery, comprising as they did a planned and terrifying home invasion effected by armed, masked men on the hapless mother of two young children and the theft of a very large amount of money, calls for condign punishment. Nevertheless, the necessity for individual justice demands in this case a significant moderation of what is an otherwise appropriate sentence. In this respect, it should be noted that the applicant was relatively young, his prior record was relatively minor, that he was suffering from a significant psychological disorder, that he undertook conduct justifying a significant discount and that his prospects for rehabilitation are good. 41 This is the applicant's first experience of imprisonment. A number of relevant matters are revealed in the applicant's affidavit relevant to his personal safety but which it is unnecessary to detail here. He is also suffering from painful sequelae of the injuries he received in the car accident to which I referred above, which directly relate to the prison environment in which he is kept. In light of these factors and the desirability of an extended period of supervision to support his rehabilitation, I am of the view that there are special circumstances justifying a variation of the statutory ratio between the non-parole period and the balance of the term to be served. I would not vary the one year added to the sentence for the commission of the Form 1 offence. 42 I acknowledge that the non-parole period which I propose is still double that which was effectively imposed on the co-offender Kidd. But a lesser sentence would be to my mind so lenient as to be utterly inadequate. As I have mentioned above, part of the objective assessment of the legitimacy of a sense of grievance must be an acceptance that not all unfair disparity can be evened out and that the principle of totality may, in the end, lead to a sentence being imposed on a co-offender which simply cannot be imposed on an offender whose sentence is unaffected by those considerations without bringing the administration of justice into disrepute. 43 In my view, the starting point - by comparison with Kidd's sentence - should be six years and six months' imprisonment, to which should be added one year for the Form 1 offence giving a total of seven years and six months from which one-third should be deducted, giving an overall sentence of five years. As I have said, in my view, special circumstances exist justifying a variation of the statutory ratio. I would therefore impose a non-parole period of three years. This should date from 9 June 2004, to take into account the pre-sentence custody mistakenly not taken into account. 44 Accordingly, I propose the following orders - (i) leave to appeal be granted;

(ii) the appeal be upheld; (iii) the sentence be quashed and in lieu thereof the appellant be sentenced to serve three years imprisonment, commencing 9 June 2004 and ending 8 June 2007 before being eligible to released on parole and a balance of term of imprisonment of two years, imprisonment commencing 9 June 2007 and ending 8 June 2009.

45 LATHAM J: I have had the considerable advantage of reading the judgment of Adams J. in draft. I am grateful to his Honour for the summary of the facts and the subjective features relating to the applicant set out in his judgment. However, regrettably I cannot agree with his Honour's conclusion that the parity principle requires the intervention of this Court in the circumstances of this case. 46 In determining whether or not the parity principle has been offended in a particular case, it is important in my view to keep firmly in mind that it is only a marked disparity between the sentences imposed on the relevant co-offenders that generally gives rise to a justifiable sense of grievance, on the part of a reasonable person, looking at all the circumstances of the case: Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ. As was observed by Kirby J. at 337: - So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders. (italics not in original) 47 This Court has exercised appellate restraint on many occasions where a sentence is challenged on the basis of disparity. The Court's refusal to intervene has been expressed as a reluctance to "reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender" (per Dawson J in Lowe v The Queen (1984) 154 CLR 606 at 623; see R v Diamond NSWCCA 18 February 1993; R v Reardon (1996) 89 A Crim R 180; R v Steele NSWCCA 17 April 1997) or, on the basis that a reduction in the sentence imposed will produce a result disproportionate to the objective and subjective criminality involved ; R v Boney [2001] NSWCCA 432. In Boney, Wood CJ at CL applied these two discrete sentencing principles to the Court's consideration of a parity argument. 48 As Adams J. has observed, the sentence imposed upon the co-offender Kidd for the Manly robbery extended the non-parole period relating to the Queensland offences by approximately three years. It is therefore argued that Kidd effectively received a non-parole period in the order of three years for the Manly offence. By way of comparison, the non-parole period imposed upon the applicant for the same offence was one of four years and six months. The question is whether, when one has regard to the objective gravity of the offence and the different circumstances of the applicant and Kidd, the disparity is marked, in the Postiglione sense. Even if the answer to that question be "yes", the Court may decline to intervene where the sentence imposed upon Kidd is regarded as inadequate, or where any reduction in the applicant's sentence would fail to reflect the objective and subjective gravity of the offence. 49 I agree with Adams J that there is little practical utility in distinguishing between the respective roles of the applicant and Kidd in the commission of the offence. Objectively, this was a very grave offence. The degree of planning (involving the theft of a motor vehicle from a nearby shopping centre, and the use of oxy-acetylene equipment, balaclavas, weapons and two-way radios), the persistence displayed by the offenders in executing the robbery on the third attempt, the terrifying nature of the ordeal to which the adult female victim was subjected, and the theft of a considerable sum of money, all marked the enterprise as a home invasion in the upper range of objective gravity. Given the available maximum penalty of 25 years imprisonment, I regard a head sentence of 8 years (imposed upon Kidd and adopted as the "starting point" for the applicant) as a very generous one. 50 I accept that Kidd's criminal history was more serious and more lengthy than the applicant's, as did Karpin DCJ, but I can discern no error in her Honour's finding that such a difference was insufficient, taking into account the circumstances of the offence, to displace the parity principle. That finding was clearly open to her Honour, particularly after a trial lasting three weeks during which her Honour had the advantage of hearing all of the evidence, including the victim's account. The requirement to reflect the objective gravity of an offence in the sentence to be imposed can legitimately set at nought, or close to nought, relevant differences in the criminal history of co-offenders. 51 Nor can I find a basis for concluding, with the greatest of respect to Adams J, that her Honour failed to take account of the applicant's subjective circumstances. They were related comprehensively in the course of the remarks on sentence. I would not expect a judge of her Honour's experience to recite the subjective circumstances without factoring them into the sentencing exercise. Her Honour also noted that the applicant was barely half way through a three year recognisance when the offence was committed, a feature which appears to me to be inconsistent with a description of the applicant's subjective circumstances as favourable. In this regard, the applicant was in the same position as Kidd, who was also subject to conditional liberty at the time of the robbery. 52 It is relevant to consider precisely how her Honour arrived at the sentences imposed upon Kidd. At p 17 and following of the remarks on sentence delivered on 30 July 2004 in respect of Kidd, her Honour said: - [T]hese offences were committed over a relatively short period and having regard to the total sentence that will result from the individual sentences to be imposed upon the prisoner, I am persuaded that the principles of totality require a degree of accumulation and concurrency in the total sentence, which includes the calculation of the Queensland sentence. The prisoner is presently serving a term of imprisonment imposed upon him for the offences in Queensland. ……………………………………………………………………….. The offences for which the prisoner is to be sentenced today all occurred prior to the Queensland offences. However, each of the New South Wales offences and the Queensland offence are of the utmost gravity. The existence of the Queensland offence is, however, not a matter to be taken into account in dealing with the prisoner other than considering the total period of imprisonment that the prisoner is facing and determining the issue of totality. As I have already said, the prisoner is now aged 71. He will inevitably be some years older before the non-parole period for the sentences to be imposed upon him has expired. [Her Honour then considered the length of the individual sentences.] If applied cumulatively, [the individual sentences] would result in a total head sentence of 24 years, and applying the standard non-parole periods, the prisoner would serve 16 years before being eligible for release on parole. Having regard to the period of time he has already been in custody in relation to another serious offence, the principles of totality and to his age and health, those sentences should be structured to result in a non-parole period of 12 years. That will be further reduced by being made partly concurrent with his Queensland sentence, resulting in an effective additional period of imprisonment before he is eligible to be considered for release on parole of just under nine years. 53 Thus, the circumstances pertaining to the sentences to be imposed upon Kidd were wholly different to those applying to the applicant. The principle of totality required her Honour to make a series of adjustments to the individual sentences that were considered appropriate to reflect the objective and subjective criminality of the individual offences. Of course, the application of the totality principle does not, of itself, oust the operation of the parity principle. However, the fact that the totality principle applied to the sentences imposed upon Kidd, and not to the applicant, is a relevant factor in determining whether the applicant has a justifiable sense of grievance: - [I]t is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody. Postiglione at 303 per Dawson J and Gaudron J 54 It should not be overlooked, in my view, that in Postiglione the High Court was dealing with sentences imposed upon two co-offenders, in respect of each of whom the totality principle applied. Both offenders were sentenced for the same offence whilst serving lengthy sentences for prior offences. In that sense, the High Court was comparing like with like. It was the disparate effect of the application of the totality principle to each of Postiglione and Savvas that gave rise to significant differences in the length of their respective effective sentences. That is not this case. 55 There is another critical difference between the applicant and Kidd when seeking to draw a direct comparison between the relevant non-parole periods. The addition of one year, for the purposes of reflecting the Form One offence, to the eight years imposed for the robbery offence necessarily results in a corresponding elevation in the non-parole period. Absent the Form One offence, the applicant's sentence, after the deduction for assistance, would have been 5 years and 5 months, with a non-parole period (given that her Honour declined to find special circumstances) of 4 years. It is therefore incorrect to assert that the disparity is as marked as 18 months. 56 For these reasons, I do not regard the disparity between the non-parole period imposed upon the applicant and the effective non parole period imposed upon Kidd for the same offence as one giving rise to a justifiable sense of grievance on the part of an objective observer. 57 Had I reached the conclusion that there was such a disparity, I am nevertheless of the view that the Court should decline to intervene on the basis that no lesser non parole period is capable of adequately reflecting the objective and subjective circumstances of the offence. A non-parole period of four and a half years for what was, on any view, a "professional" home invasion, committed in company and whilst subject to a recognisance, taking into account the Form One offence (also committed in breach of the recognisance), is the very least period in custody that the applicant should serve. 58 In addition, assuming disparity and accepting for present purposes that the sentence passed on Kidd was "inappropriately lenient" according to Adams J, I would nevertheless decline to intervene on the alternative basis, articulated in the authorities referred to in par 3, and summarised succinctly in R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [289] where Heydon JA, Sully and Levine JJ said: A further principle in [the parity] context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J - as he then was - dissenting). 59 I would grant leave to appeal and allow the appeal, only so far as to take account of the applicant's pre-sentence custody. The orders I propose are:- 1. Leave to appeal granted.

3. Quash the sentence imposed on 19 November 2004 and sentence the applicant to a non-parole period of four years six months imprisonment to date from 9 June 2004, expiring 8 December 2008, with the balance of the term being 18 months, expiring 8 June 2010.

60. THE COURT: Since the Court delivered its Judgment on 15 September 2006, it has become apparent that a further order should be made as a consequence of adjusting the non-parole period imposed in the District Court by Karpin DCJ to take account of pre-sentence custody. This is necessary because on 27 January 2006 the applicant was sentenced in the District Court by Puckeridge DCJ to a sentence of one month imprisonment to date from 19 December 2008, expiring 18 January 2009, in respect of a breach of community service order.

As a result of this Court's decision, the non-parole period now expires on 8 December 2008, thereby leaving a gap between the expiration of that non-parole period and the commencement of the sentence for breach of community service orders.

The problem may be remedied by altering the commencement date of the sentence imposed by Puckeridge DCJ, pursuant to s 59 of the Crimes (Sentencing Procedure) Act.

The sentence imposed in the District Court on 27 January 2006 for breach of community service orders is to commence on 9 December 2008 and expire on 8 January 2009.

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