Gray v R

Court of Criminal Appeal (NSW)|2021-08-23|Before: Payne JA, Garling J, Wright J

Judgment

PAYNE JA: I agree with Garling J.
GARLING J: On 27 May 2019, the applicant, Matthew Shane Gray, to whom I shall refer as the appellant, entered a plea of guilty in the District Court of NSW to three offences.
The first was an offence of aggravated break, enter and steal in company contrary to s 112(2) of the Crimes Act 1900, which carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years. The other two offences were each contrary to s 97(1) of the Crimes Act, being robbery in company, the first of which occurred on 7 December 2016, and the second on 20 April 2017. The maximum penalty for each of these offences was imprisonment for 20 years. No standard non-parole period is fixed for these offences.
The appellant asked Wells SC DCJ ("the Judge") to take into account on a Form 1 on the third offence, three further offences contrary to s 97(1) of the Crimes Act of conspiracy to commit a robbery in company on three occasions in 2016 - namely 10 March, 20 June and 29 August.
The Judge imposed an aggregate sentence for the three offences, including the Form 1 offences, of 12 years with a non-parole period of 8 years. The sentence was fixed to commence on 25 July 2017. The non-parole period will expire on 24 July 2025, and the whole sentence on 24 July 2029.

Notice of Appeal

The appellant seeks leave to appeal against the sentence on two grounds: 1. The sentence is manifestly excessive. 2. Following the decision of Dungay v R [2020] NSWCCA 209, there is a disparity in the sentence of the applicant with his co-offender, Mr Dungay, that gives rise to a justifiable sense of grievance on the applicant's behalf.
The appellant seeks the imposition of a less severe sentence which, he submits, is warranted in all of the circumstances.
For the reasons which I have set out below, I am of the opinion that leave to appeal ought be granted, the appeal upheld on Ground 2 and that the sentence imposed by the Judge ought be quashed. The Court should proceed to re‑sentence.

Proceedings on Sentence

The appellant was sentenced together with two other offenders. The first, Mr Dungay, was sentenced for the same offences as the appellant although he had an additional Form 1 offence. The second, Mr Hoskins, had participated in some, but not all, of the offences in which the appellant and Mr Dungay had participated, and had committed other separate offences as well.
With respect to each of the appellant and Mr Dungay, in addition to the formalities of arraignment and tendering of appropriate documents, the Crown tendered their criminal histories and a Statement of Agreement Facts. That Statement referred to the facts for all three offenders.
The proceedings on sentence commenced in February 2019 but were then stood over until 17 May 2019, when they were completed.
In May 2019 a number of Victim Impact Statements were tendered, one of which was read. Written submissions were provided to the Court on behalf of the Crown.
The appellant did not give oral evidence. His brother Burt Gray did. Burt Gray described in detail the nature of the appellant's upbringing and childhood. He was not cross-examined on that evidence by the Crown. In addition, some certificates of courses that the appellant had completed whilst in custody were tendered. The Court was also provided with a custodial history which noted that the appellant had not been charged with any disciplinary offences whilst in custody.
Mr Dungay gave oral evidence. His evidence was the subject of some, but not extensive, cross-examination. In addition to that evidence, a psychological report from Ms Julie Dombrowski was tendered.
Written submissions on behalf of Mr Dungay were handed to the Court.
The Court then received oral submissions on behalf of each of the three offenders from their representatives and from the Crown. The proceedings were then adjourned for 10 days for the delivery of sentence.

The Facts of the Offences

It is convenient to set out here, in a reasonably concise way, the facts relevant to the offending taken from the Agreed Facts.

First Offence - Wauchope Country Club

This offence was one of aggravated break, enter and steal. On the day of the offence, Monday 2 May 2016, the appellant and Mr Dungay were in telephone communication during which they discussed undertaking the robbery. The appellant also, through text messages, arranged to meet with Mr Hoskins, the third offender.
At about 10.30pm on that evening, the appellant, Mr Dungay and Mr Hoskins, who were wearing facial disguises and were armed with knives and poles, smashed in the front door of the Wauchope Country Club. A fourth male was posted outside as a lookout. At the time of the forced entry, a staff member was counting the takings. The staff member escaped via an internal stairwell and rear exit. The three offenders entered the strong room and stole in excess of $30,000.00. The three offenders left the Club on foot and ran away.

Second Offence - Macksville Ex-Services Club

This offence, being one of robbery in company, occurred on 7 December 2016. At about 10pm, whilst staff at the Macksville Ex-Service's Club were completing procedures to close the Club for the evening, four males, including the appellant and Mr Dungay, smashed the bottom glass panel of the rear entry doors. All four males were wearing facial disguises and a variety of dark clothing. Two were armed with knives. Three of the males entered the Club whilst the fourth stood at the entry as a lookout.
The perpetrators approached two staff members. They were told to take the offenders to the safe or else they would be stabbed. The offenders were taken to the office where the safe was. The staff were forced at knife point to put money into a bag and a plastic container being carried by the offenders. The staff were then made to lie on the ground. A staff member's purse and mobile phone were stolen. The offenders then ran from the office, met up with the fourth offender and then fled the scene. The proceeds of the armed robbery totalled approximately $14,000.00.

Third Offence - Toormina Hotel

This offence, which was also a robbery in company, occurred at the Toormina Hotel on 20 April 2017.
The three offenders were in contact with each other during the course of 20 April 2017, making arrangements to undertake this robbery.
At about 11.50pm on that day, two staff members were completing procedures to close the Hotel for the evening. There were two patrons inside who were playing the poker machines.
Four males, including the appellant and Mr Dungay, entered the Hotel. They were each armed with knives and were each wearing facial coverings and dark clothing. Two of the perpetrators approached the staff members and they were ordered to take the offenders to the safe. When that order was given, a large knife was pointed at those two staff members.
At the same time, two other perpetrators approached the two patrons in the poker machine area and ushered them into another part of the Hotel. As that was occurring, a large kitchen-style knife was held to the back of one of the patrons and he was warned against attempting to do anything. The patrons were made to lie on the ground facing away from each other.
Once inside the office which contained the safe and cash register tills, the staff members were told to lie on the ground and were threatened with being stabbed if they moved. The safe and the tills were emptied, together with a large amount of cash and coins, into gray coloured plastic buckets. All four offenders left the Hotel via the front door and made their escape on foot.
The total proceeds of this armed robbery exceeded $30,000.
So far as the appellant was concerned, there were three Form 1 offences.

Form 1 Offences

Each of these offences was constituted by a conspiracy to commit an armed robbery.
The first occurred on 10 March 2016 and the target of the robbery was the Five Mile Hotel in the South Grafton area. The arrangements for this armed robbery were similar to those described above. The appellant and Mr Dungay made arrangements over the telephone during the day to undertake the armed robbery. Mr Hoskins was included. The phone calls were being intercepted lawfully by the police. As a result of what the police heard, and because of surveillance conducted on motor vehicles, a number of marked police vehicles were deployed to the Five Mile Hotel. As a consequence, although the appellant and Mr Dungay drove to the vicinity of the Hotel, no actual robbery occurred.
The second Form 1 offence was a conspiracy to commit an armed robbery at the Park Beach Bowling Club in Coffs Harbour on 20 June 2016. Arrangements were made by telephone, lawfully intercepted, between the appellant and Mr Dungay and Mr Hoskins, to meet in the Coffs Harbour area. The appellant and Mr Dungay drove to Wauchope to collect Mr Hoskins. They returned to the Coffs Harbour area in a vehicle which was being kept under surveillance by the police. It parked near the Club from where the activities within the Club could be observed. A number of marked and unmarked police vehicles were deployed to the vicinity of the Club. The planned armed robbery was not committed due to the number of police vehicles there at the time.
The final Form 1 offence with respect to the appellant, was a further conspiracy to commit armed robbery at the Five Mile Hotel in the South Grafton area on 29 August 2016.
During the afternoon of that day, the appellant agreed with Mr Dungay to carry out the armed robbery. The appellant and Mr Dungay met up with three other people that evening at a house in Grafton. The five offenders left the house in Grafton and travelled towards South Grafton. Police investigators, fearing that an armed robbery was imminent, directed a marked police vehicle to perform a vehicle stop. The vehicle was followed by the marked police vehicle, and other vehicles joined in. The vehicle in which the appellant was travelling accelerated rapidly, completed a U-turn at a roundabout and then headed in the opposite direction. A number of items were thrown from the front passenger window onto the kerb. Those items were seized by the police. They consisted of three large kitchen knives, dark coloured t-shirts and a black pillowcase. The vehicle was stopped and searched.
It was clear that the five offenders intended to undertake an armed robbery of the Five Mile Hotel but were prevented from doing so by the deployment of the police vehicles.

Remarks on Sentence

The Judge delivered her remarks on sentence with respect to all three offenders at the same time.
It is unnecessary to refer to what the Judge said about Mr Hoskins because it is accepted, both on sentencing and on appeal, that no parity question arose with respect to the sentence imposed on Mr Hoskins. It is unnecessary therefore to consider that sentence or the facts and matters upon which it was based.
The Judge noted the pleas of guilty. She summarised the Facts of each of the offences, including the Form 1 offences. She referred to the relevant Victim Impact Statements and then came to consider the subjective circumstances of the appellant and Mr Dungay. The Judge commenced the outline of those objective circumstances by saying that the appellant and Mr Dungay: "share a number of common background features, including extremely deprived and dysfunctional upbringings, along with significant substance abuse problems and mental health issues, all of which attract considerations found in Bugmy [2013] HCA 37 and Fernando (1992) 76 A Crim R 58."
Speaking of Mr Dungay's case, the Judge accepted the evidence which he gave and regarded it as an honest and frank account genuinely given of himself and his deeds but for one matter, which was whether or not anything was planned. The Judge found, contrary to Mr Dungay's evidence, that the crimes were all planned. That was based on the Agreed Facts which included reference to the telephone conversations.
The Judge noted that Mr Dungay had expressed regret for his part in the offences; that his remorse was confirmed in his sworn evidence to the Court during which he apologised to those he had affected. The Judge thought that the apology carried considerable weight because he was able to be cross‑examined about it.
The Judge then turned to consider the appellant's subjective case. It is apparent that she accepted the evidence of Mr Burt Gray and was satisfied of early and significant deprivation in his life.
The Judge noted, having recounted the subjective circumstances of both Mr Dungay and the appellant, that their early deprivation, their addiction problems, their mental health problems and other issues, tempered: "… their suitability for a good deal of emphasis to be placed on general deterrence."
The Judge then moved on to consider the objective seriousness of the offences, drawing attention as she did so to the relevant features set out in the decision of Regina v Henry & Barber (1996) 46 NSWLR 346; [1999] NSWCCA 111. The Judge formed the view that each of the robbery offences, and the aggravated break and enter at Wauchope Country Club, fell within the mid‑range of objective seriousness.
The Judge noted that the pleas had been given which, because of their late timing, warranted only a 10% discount on the sentence that might otherwise have been imposed. The Judge referred to the respective ages of the offenders but noted that she did not classify any of them as "young offenders". That was a particular reference to one of the criteria referred to in Henry.
The Judge found that the offences involved planning and execution that was careful, effective but not necessarily the most professional that could be seen. The Judge found that the offenders knew that this was serious criminal conduct.
In particular, her Honour noted that the planning involved a degree of organisation in respect of the transport used to commit the offences. The Judge noted that the offenders drove some considerable distance to the target premises and that prior to entry they waited and watched with the objective of ensuring that the offences were committed close to closing time.
The Judge then turned to consider the principle of parity. She said this: "The objective offending in relation to each of the offenders with respect to the offences was very similar in terms of their roles and their involvement, as demonstrated by their discussions."
The Judge then pointed out significant differences between Mr Hoskins on the one hand, and the appellant and Mr Dungay on the other. She went on to say, referring to the appellant and Mr Dungay: "Otherwise, in terms of their subjective circumstances, there are many similarities in terms of their dysfunctional upbringings and the long term impact of that upon them."
The Judge found special circumstances in the cases of the appellant and Mr Dungay because this was their first time in full-time custody. She noted that sentences of full-time imprisonment were appropriate. She also noted that she proposed to impose an aggregate sentence bearing in mind the principles of totality.
The Judge then came to the question of the imposition of sentences. She said this: "I am going to deal with Jason Dungay and [the appellant] at the same time, because I am going to impose the same sentences, bearing in mind their circumstances, both subjective and the objective cases there is little to distinguish between them. There are differences and there are similarities."
The Judge then indicated the sentences she proposed for each of the three offences including the Form 1 offences being taken into account on the Toormina Hotel offence. She then announced the aggregate sentence. The details of these sentences are set out at [5] and [6] above.
Subsequently, an issue arose as to the correct date when the appellant's sentence ought to commence. The Judge later, by application of the slip rule, amended the date to that which I have set out earlier.

Ground 1

The appellant submits that the sentence imposed was manifestly excessive.
It is unnecessary to set out at length the principles upon which this Court acts when considering a ground of appeal such as this. They are well known and do not need to be constantly repeated.
It is sufficient to say that it is only when this Court concludes, after considering the sentence which was imposed, that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the Judge, or else where the sentence imposed is so far outside the range of sentences available, that there must have been some error on the part of the Judge: see Hughes v R [2018] NSWCCA 2 at [86].
The appellant argues, essentially by reference to statistics extracted from the Judicial Information Research System compiled by the Judicial Commission of NSW that, even accepting the limited purposes for which such statistics can be used, nevertheless having regard to them, the sentence imposed on the appellant demonstrated that it was either at or above the highest end of the range for like offences.
In particular, the appellant submitted that the aggregate sentence which was imposed was manifestly excessive having regard to the total criminality of the appellant's conduct and his subjective circumstances.
The Crown in its submissions pointed to the difficulties with the use of statistics in circumstances where there were a number of offences, the subject of the aggregate sentence, and also a number of offences taken into account on a Form 1.
The Crown pointed to the fact that the statistics related to particular defined offences against particular sections of the Crimes Act and did not always reflect the objective seriousness of each of the offences. If one was to examine that, the Crown submitted, it would be necessary to look at the cases which formed the group from which the statistics were derived. In short, the Crown submitted that in the circumstances of this aggregate sentence, no meaningful comparison could be made between the statistics and the sentences either indicated or imposed.
The Crown noted that each of the offences was found by the Judge to be well into the mid-range of objective seriousness; that each offence involved three or four offenders and the use of multiple weapons; and that the offences involved a degree of planning and took place over a relatively broad geographic area over a 14 month period.
The Crown submitted that having regard to the objective seriousness of each of the offences, it could not be said that the aggregate sentence imposed, or any of the indicative sentences, were outside the permissible range.
I am unpersuaded by the appellant's submissions that this ground has been made out.
As has been noted, each of the offences, including the Form 1 offences, occurred over a period of about 14 months and across a broad geographical area. They involved planning, transport arrangements, coordination of different participants, waiting until the appropriate time to effect the robberies or, in the circumstances of the Form 1 offences, determining not to commit robberies in light of the police presence.
The offences were rightly regarded by the Judge as falling within the mid-range of seriousness.
In those circumstances, although it may be said that the sentences were stern, I am not persuaded that either the individual indicative sentences or the aggregate sentence were not open to the Judge to indicate or impose having regard to all of the objective and subjective circumstances of the offence. No error or miscarriage of justice has occurred in this respect.

Ground 2

This ground calls attention to the fact that after the original sentencing occurred, Mr Dungay appealed to the Court of Criminal Appeal, and that the Court in a judgment published on 21 August 2020, quashed the sentence which had been imposed and substituted a lesser one.

Court of Criminal Appeal Judgment

In considering this ground, it is appropriate to commence with a consideration of that judgment: Dungay v R [2020] NSWCCA 209.
In his appeal, Mr Dungay identified three grounds. The first was a discrete error by the Judge in that contrary to the statute, she admitted evidence of and had regard to Mr Dungay's Children's Court criminal history. This ground was conceded by the Crown and upheld by the Court.
The second ground was one of manifest excess, which the Court found it unnecessary to consider in light of the fact that resentencing was necessary upon the conceded first ground.
The third ground was a lack of parity with the sentence imposed upon Mr Hoskins. That ground was not established.
In coming to re-sentence, the Court recorded the effect of the Judge's sentencing remarks. In particular, N Adams J (with whom Bell P and Davies J agreed) recorded that the Judge had noted the similarities between Mr Dungay and the appellant. The parity between them was also noted.
On the appeal there was additional evidence to that which was before the Judge who sentenced Mr Dungay. In particular, those affidavits noted that Mr Dungay had participated in educational programs and had completed a number of certificates of qualification. It was further noted that he was trying to learn about his culture and language.
N Adams J recorded some difficulties with Mr Dungay's health - which were of a temporary nature.
Her Honour also recorded the effects of COVID 19 on the interruption to Mr Dungay's personal visits. This is a factor which is common to all prisoners during any COVID 19 related lockdown, including the appellant.
N Adams J proceeded to re-sentence. She adhered to the findings of objective seriousness made by the sentencing Judge. Her Honour noted this at [131]: "The thrust of the applicant's submissions on re-sentence is that this Court would place significant weight on four mitigating factors which would lead to the imposition of a lesser sentence than that imposed by the sentencing judge. Those four factors are: his age, his childhood of dysfunction, his mental condition and his criminal and custodial history to date."
Dealing with Mr Dungay's age, her Honour noted that whilst he was the youngest of the offenders, at 23-24 years of age, it was not appropriate to ameliorate the sentence significantly on the basis of youth.
Her Honour went on to consider the Bugmy principles. She remarked [at 138] that it is a matter of settled principle "… that the effects of 'profound childhood deprivation' are to be '"given full weight"' in every sentencing decision". Her Honour then remarked [at 139]: "Although Bugmy factors must be given 'full weight' in every sentencing decision, this does not mean that they need to be given the same weight in every case. The extent to which the applicant's moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead be taken into account in other ways."
N Adams J noted that Mr Dungay had had a childhood of profound deprivation and that there was material to show that Mr Dungay was the victim of child sexual assault. However, her Honour did not find, and was not asked to find, that there was a direct causal link between Mr Dungay's childhood of profound deprivation and the criminality for which he was being sentenced.
Her Honour took into account all of the other relevant factors, including the same discount of 10% which the sentencing Judge had allowed.
Her Honour proposed the following orders, which became the orders of the Court: "Offence 1, indicative sentence of 5 years and 6 months with a non-parole period of 3 years and 8 months; Offence 2, indicative sentence of 5 years and 5 months; Offence 3 (taking into account the four Form 1 matters), indicative sentence of 6 years and 6 months."
Her Honour proposed that an aggregate sentence of 10 years imprisonment with a non-parole period of 6 years and 6 months be imposed.

Parity Principle

This ground of appeal calls up the principle of parity in its application to the appellant and the sentence which he is currently serving having regard to the sentences imposed on Mr Dungay by the Court of Criminal Appeal.
The parity principle is an aspect of equal justice which requires that there be consistency in punishment. That is because unequal treatment under the law is likely to lead an erosion of public confidence in the integrity of the administration of justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]-[30] per French CJ, Crennan and Kiefel JJ.
Not every discrepancy between sentences imposed on co-offenders gives rise to a justifiable sense of grievance. The discrepancy required is one which is regarded as "marked" or "clearly unjustifiable" or "manifest … such as to engender a justifiable sense of grievance" or else it "[appears] that justice has not be done": Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Green at [31] per French CJ, Crennan and Kiefel JJ; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 381 per Dawson and Gaudron JJ, at 335 per Kirby J.
In considering a parity argument where an aggregate sentence has been imposed, it is appropriate for the Court to look at the indicative sentences as well for each of the offences: Why v R [2017] NSWCCA 101 at [55]; R v Clarke [2013] NSWCCA 260 at [68].

Submissions

The appellant submits that the sentencing Judge was correct to regard all of the features of the offending and the subjective cases of Mr Dungay and himself as being, as a matter of substance, the same.
He submits that there is no suggestion that the Court of Criminal Appeal in its judgment imposed a lesser sentence on Mr Dungay because it in any way identified any significant difference between him and the appellant.
The appellant submits that, having regard to the significant amount by which Mr Dungay's aggregate sentence was reduced (and the three indicative sentences), objectively the existence of a justifiable grievance is demonstrated.
The appellant accepts in his submissions that, where parity is a principle which is applied, a court will not reduce a sentence below that which is appropriate having regard to the criminality. There is no reason to think that a like reduction in the appellant's sentence to that received by Mr Dungay from the Court of Criminal Appeal, would result in such a consequence. In short, the appellant submits that this Court should adjust his sentence so that it is identical to that imposed upon Mr Dungay by the Court of Criminal Appeal save for the respective starting dates.
The Crown submits that there are sufficient differences in the subjective cases of each of Mr Dungay and the appellant which, when compared, mean that no justifiable sense of grievance could arise from the differential between these sentences.
The Crown notes, as is the fact, that Mr Dungay when originally sentenced asked the Court to take into account one additional offence on a Form 1, namely that of knowingly deal with proceeds of crime. However, the Crown points to the fact that the appellant engaged in a similar spending of the proceeds of his offences and that, accordingly, this Court would not take the view that on that basis the appellant's crimes would be regarded as being of a lower level of criminality than that of Mr Dungay.
The Crown drew attention to the fact that when considering the respective subjective cases, whilst both the appellant and Mr Dungay had a deprived and dysfunctional upbringing, there was no evidence that the appellant had experienced mental health issues or substance abuse problems, whereas the position with respect to Mr Dungay was markedly different.
Ultimately, the Crown submitted that whilst there was some similarity between the objective cases of the appellant and Mr Dungay, there were also notable differences. If those differences were borne in mind, then the necessary extent of disparity sufficient to cause a justifiable sense of grievance had not been identified.

Discernment

I am persuaded that this ground of appeal ought to be upheld.
Whilst there were some differences between the appellant and Mr Dungay, they were both young men in the same decade of their life who had each come from a background of profound childhood deprivation which resulted in their upbringing and attitudes, particularly towards the commission of offences of the kind in which they engaged, as being the same. Their criminality in each of the offences was identical. They both engaged in the planning of the offences, they both participated in them and they both shared in the benefits of the stolen proceeds.
The Judge, when sentencing both Mr Dungay and the appellant at first instance, was correct in my view to regard them as being the same. She was correct to impose the same indicative and aggregate sentences upon them. Whilst there was some additional evidence taken into account by the Court of Criminal Appeal when it re-sentenced Mr Dungay, my assessment is that that material was not so significant as to justify any differential on sentence.
In my view, the application of the principle of parity and equal justice requires this Court to uphold the appeal on this ground and to re-sentence the appellant so that he receives the same indicative and aggregate sentences as did Mr Dungay from the Court of Criminal Appeal.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Sentence imposed on the appellant in the District Court on 27 May 2019 is quashed. 4. The appellant is sentenced to an aggregate term of imprisonment of 10 years commencing 25 July 2017 and expiring on 24 July 2027 with a non-parole period of 6 years and 6 months to expire on 24 January 2024. 5. Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999, the indicative sentences are:

Count 1 - 5 years and 6 months with a non-parole period of 3 years and 8 months;
Count 2 - 5 years and 5 months;
Count 3 (taking into account the three Form 1 matters) - 6 years and 6 months.

WRIGHT J: I agree with Garling J.

Amendments 01 February 2022 - Amendment to expiry date on sentence DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2022

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Judgment (17 paragraphs)

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Cases Cited (13)