Haydon v R

Decision 16The appeal raises the issue of parity between the applicant's sentence and the sentence imposed on Davis, his co-offender for the aggravated break and enter contrary to s 113(2) Crimes Act. As Ms Francis pointed out, the applicant's head sentence of 3 years 3 months is more than 100 per cent greater than Davis's head sentence of 18 months and the non-parole period of 26 months is "just shy" of 100 per cent greater than the co-offender's non-parole period of 13 ½ months. 17A marked disparity between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 said at [31]: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted) 18Any dissimilarity in the subjective cases of the co-offenders is slight and could not justify the difference in sentence. When the offence was committed, the applicant was 25 years old and Davis was 29 years old. Both offenders had unattractive prior criminal histories. The applicant was on parole for an offence of break, enter and steal whereas Davis committed the offence whilst subject to a s 12 bond for a charge of intimidation and malicious damage and was on parole for an offence of break, enter and steal. Both had pleaded guilty and 25 per cent discounts on sentence had been allowed for the pleas. The Judge did not make positive findings on the prospects of rehabilitation for either offender nor did he find special circumstances in either case. 19The applicant and Davis were parties to a joint criminal enterprise to break into and steal from the shed. Differences in the relative conduct of co-offenders may lead to greater objective criminality being reflected in a lengthier sentence. However, there are limits to which a differential role might impact upon the sentence of offenders who have agreed to perform a joint criminal enterprise because of the common purpose to commit the crime: R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7 per Spigelman CJ at [166]. 20The Judge did not characterise the role of either offender in his separate sentencing remarks nor did he refer to the principle of parity. Although it would have been preferable that his Honour had done so, it is plain from the agreed facts and his Honour's remarks that the applicant's level of culpability was more than that of Davis. The agreed facts identified the applicant as being "observed near the rear shed" and having a "metal object in his pocket". At the time police arrived, the applicant "was seen to be unscrewing the colourbond panels of the shed doors". On the other hand, Davis was not described as having taken an active role in the offending nor was he seen in the rear yard of the premises. 21During his evidence in the sentence proceedings, the applicant told the Judge that he "had an idea that the bikes were there before", that he got that idea from a trailer that he had seen "in the side yard" a couple of days before, that he broke into the premises by getting under the front door of the shed and the only reason he did not take the motorbikes or any other equipment was because the police arrived. When sentencing the applicant, the Judge said (ROS at 3): "On inspection by police of the Nissan Patrol driven by the offender, it was evident that black electrical tape had been used in an attempt to alter the registration plates of the vehicle to avoid the vehicle being identified as that owned by the offender as being used in the offence at Lake Cathie." And (ROS at 4): "These matters are serious and prevalent and attended to with organisation, as the offender had obviously recognited (sic) the area before in Lake Cathie and knew what he was after, and where it was to be stolen from, at the time of the commission of the offence. The offender having formed a view that the premises may well contain bikes because he had observed trailers, hence it was organised and pre-arranged and there is a degree of criminal activity involved in it and a matter of some aggravation." 22Davis did not give evidence before the Judge. A submission was made on his behalf that "he went along for the ride". When sentencing Davis, the Judge did not refer to planning or organisation. There was no evidence that Davis had participated in a reconnaissance of the premises with the applicant nor had engaged in the preparation for the crime. The Judge observed that the Nissan Patrol, the registration number plate of which had been altered by the use of black electrical tape was owned by the applicant. The Judge accepted that Davis was easily led. 23It is evident that the Judge considered that the applicant played a more prominent role in the offending than Davis. In my opinion, his Honour was entitled to reflect that greater objective criminality in the applicant's sentence. As both offenders were participating in a crime they had agreed to commit, I do not think that the differentiation in their roles by itself justifies the significant difference in sentence. However, that was not the only matter of distinction between the applicant and Davis. 24When sentencing the applicant, the Judge took into account, as he was required to do three matters on the Form 1. Two of these matters were punishable by imprisonment. The agreed facts recounted that the offender stole a white Toyota Hilux from a premises at Rawdon Island, whilst the owner of the vehicle was on the roof of the premises painting at the time. He drove the vehicle to Wauchope where it was later found by police. This offence contrary to s 154A(1)(a) Crimes Act is punishable by imprisonment for 5 years. The other matter was an offence of receiving a stolen bullbar that had a previous number plate burnt into it which was unable to be removed or polished out. The applicant admitted purchasing the bullbar for $400 at a time he thought that it may have been stolen. The applicant returned the bullbar to the owner when he was asked to do so. This offence contrary to s 189 Crimes Act is punishable by imprisonment for 3 years. 25The Judge was entitled to increase the penalty for the common offence (the s 113(2) Crimes Act offence) because of the Form 1 offences. There were no matters on a Form 1 to be taken into account when Davis was sentenced. 26I am not persuaded that the Judge's assessment of the relative culpabilities of the co-offenders for the common offence was clouded by attention given to the dangerous driving offence. Both the applicant and Davis came before the Judge for sentence on 9 December 2010. His Honour recognised that a Magistrate had inappropriately committed the applicant for sentence for the offence of dangerous driving which he then remitted to the Local Court for sentence, together with two charges of driving whilst disqualified. The sentencing proceedings were adjourned to 15 December 2010. At the outset of the proceedings on the adjourned date, the Judge was informed that terms of imprisonment had been imposed in the Local Court for the offences that had been returned to the Magistrate. Although the facts of the offence of dangerous driving remained in the agreed statement of facts which the Judge recounted, his Honour made no other reference to this offence, other than to detail the sentences that had been imposed in the Local Court. 27Finally, I do not think that there is any merit in the applicant's complaint that the Judge accumulated his sentence for the common offence upon the sentence for the s 112(1)(a) offence and Local Court sentences for driving offences, whereas Davis's sentence was not accumulated either upon his balance of parole or the period to be served on account of the revocation of the s 12 bond. Davis neither stood for sentence for the s 112(1)(a) offence nor had he been sentenced for other offences in the Local Court. Different considerations of totality, accumulation and concurrence arose when the Judge came to sentence the applicant and his co-offender. 28All matters are not equal. In my view, the Judge made due allowance for the different roles which the co-offenders played in the common offence and the Form 1 matters that were singular to the applicant. These differences justify the disparity in sentence. The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified. 29I would grant leave to appeal, but I would dismiss the appeal. 30The Court was informed that one of the Local Court sentences was corrected by the application of the "slip rule" in the Local Court so as to result in an effective non-parole period of 13 months which expired on 24 June 2011. This correction was made after the applicant had been sentenced in the District Court. 31As a consequence of the correction, the concurrency of one month (from 25 June 2011 to 24 July 2011) that the Judge thought appropriate with the Local Court sentences has been extinguished. Both the applicant and the Crown ask that the applicant's sentence be backdated by one month so as to preserve the concurrency that had been intended. 32It seems to me that the Court's powers under s 52(1) Crimes (Sentencing Procedure) Act may be used to vary the non-parole period to correct this unintended result. To use s 52 in this facultative way assists the efficient administration of justice, rather than returning the sentences to the District Court for correction. The desired result may be achieved by bringing forward the commencement date of the non-parole period for the s 113(2) offence by one month. 33Accordingly, I propose the following orders: 1.Leave to appeal granted. 2.Appeal dismissed. 3.The commencement date of the sentence imposed by McLoughlin DCJ for the aggravated break and enter contrary to s 113(2) Crimes Act be varied pursuant to s 52 Crimes (Sentencing Procedure) Act so that the sentence is imprisonment for 3 years 3 months consisting of a non-parole period of 2 years 2 months commencing on 25 June 2012 and expiring on 24 August 2014 with a balance of term of 1 year 1 month expiring on 24 September 2015. 34The applicant is eligible to be released on parole on 24 August 2014. 35Button J: I agree with Price J.

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