Haydon v R

Judgment 1McClellan CJ at CL: I agree with Price J. 2Price J: Matthew Haydon seeks leave to appeal against the sentence imposed upon him in the District Court on 17 December 2010. 3The applicant had adhered in the District Court to a plea of guilty entered in the Local Court to a charge of aggravated break and enter with intent to commit a serious indictable offence, namely larceny, on 27 May 2010 contrary to s 113(2) Crimes Act 1900. The circumstances of aggravation were that he was in company with the co-offender David Davis. The maximum penalty for such an offence is 14 years imprisonment. 4Three matters on a Form 1 were taken into account by the Judge on sentence for the s 113(2) offence, being: (i)take and drive a white Toyota Hilux on 27 May 2010 without the consent of the owner contrary to s 154A(1)(a) Crimes Act, the maximum penalty for which is 5 years imprisonment; (ii)receiving a bullbar between 10 April 2010 and 14 April 2010 knowing it to have been stolen contrary to s 189 Crimes Act, the maximum penalty for which is 3 years imprisonment and; (iii)display altered number plate on 27 May 2010 contrary to s 85(2)(a) Road Transport (Vehicle Registration) Regulation 2007. This offence is punishable by 20 penalty units. 5The applicant was sentenced to imprisonment with a non-parole period of 2 years 2 months commencing on 25 July 2012 and expiring on 24 September 2014 with a balance of term of 13 months expiring on 24 October 2015. 6A plea of guilty had also been entered by the applicant to a charge of break and enter and commit a serious indictable offence, namely larceny on 27 May 2010 contrary to s 112(1)(a) Crime Act. The maximum penalty for the offence is 14 years imprisonment. For this offence, a non-parole period of 1 year 10 months commencing on 25 June 2011 and expiring on 24 April 2013 with a balance of term of 8 months expiring on 24 December 2013 was imposed. Davis was not involved in the s. 112(1)(a) offence. 7Davis was sentenced on the same day as the applicant for the s 113(2) offence by the Judge to imprisonment with a non-parole period of 13 ½ months commencing on 27 September 2010 and expiring on 12 November 2011 with a balance of term of 4 ½ months expiring on 26 March 2012. 8The sentencing proceedings for the applicant and the co-offender had been heard together and Davis was sentenced after the applicant. An agreed statement of facts for the s 113(2) offence had been tendered, which was recounted by the Judge in his sentencing remarks for each offender. 9The agreed facts are as follows: "Aggravated (in company) break and enter with intent to commit a serious indictable offence (steal) At about 9am on Thursday 27 May 2010, the offender Matthew HAYDON and the co-offender David DAVIS arrived at the Surfside Motel Ocean Drive, Lake Cathie. The offender HAYDON and co-offender DAVIS were in a white Nissan Patrol. A witness wrote down the registration of the vehicle (as they were acting suspiciously) and had a conversation with the co-offender DAVIS. The witness walked away from the vehicle and looked back a short time later. The witness could no longer see either the offender HAYDON or the co-offender DAVIS. The witness observed that the front registration number plate had been altered by using black electrical tape (see below and contained on a Form 1). The witness then observed the offender HAYDON in the rear yard of the adjoining semi rural property being the premises 1355 Ocean Drive, Lake Cathie. The offender HAYDON was observed near the rear shed and had a metal object in his pocket. The witness contacted Police. Entry was forced to the shed through a rear window. Once inside the shed a padlock and chain securing four motor bikes was cut. The motorbikes were 3 Honda CRF 250's and a Yamaha YZ 250. One of the Honda CRF 250 bikes was rolled towards the colourbond entry doors. A number of tools were also laying outside the shed. At about 10.25 am a police officer arrived at the premises. At the time the offender HAYDON was seen to be unscrewing the colourbond panels of the shed doors. On seeing the police officer, the offender HAYDON ran and jumped over the bonnet of a parked motor vehicle, back towards the Surfside Motel. The offender HAYDON was chased on foot by Police. The offender HAYDON then ran to the parked motor vehicle and drove away from the location at a high speed." 10The sole ground of appeal is that the sentence imposed upon the co-offender Davis has engendered a justifiable sense of grievance in the applicant. Argument 11The applicant complained that for the offence contrary to s 113(2), he is to serve an effective non-parole period of 2 years 2 months whereas the co-offender's non-parole period was 13 months. The applicant's head sentence is 3 years 3 months as against 18 months for Davis. It was contended that this considerable difference in penalty is not justifiable on account of the Form 1 matters or for any other reason. 12The applicant submitted that the agreed facts did not differ in any material respect and the objective criminality of each offender was indistinguishable. The Judge had not endeavoured in his sentencing remarks to distinguish their objective criminality. The applicant argued that the disparity in the respective sentences could not be explained by the different subjective features or criminal histories of the offenders. 13It was contended that the sentence imposed upon Davis was not ameliorated by totality principles, as the Judge declined to accumulate his sentence upon either Davis's balance of parole or the period to be served on account of the revocation of the s 12 bond. By contrast, the applicant's sentence was accumulated upon an effective 13 months imprisonment for a break and enter offence committed later on the same day of the common offence, and that sentence was in turn entirely accumulated but for one month, upon various Local Court sentences for driving matters committed on the day of the break and enters. The sentence imposed in the Local Court amounted to an effective non-parole period of 14 months. Having regard to the successive accumulation of sentences imposed in both the Local and District Courts, the effective period that the applicant must serve in continuous custody is 5 years 5 months with a non-parole period of 4 years 4 months. 14Ms Francis, who appeared for the applicant, in oral submissions said that the applicant did not complain about the accumulation of the applicant's sentence, but the Judge's attention in his sentencing remarks to the facts of the offence of dangerous driving for which he had been sentenced to imprisonment in the Local Court, appeared to have "clouded the proper assessment of the relative culpabilities confined to the facts in relation to the common offence": T 7.45-50 15The Crown submitted that the agreed statement of facts clearly demonstrated that the applicant had played a more active role in the common offence. The Crown contended that it was not necessary for the Judge to endeavour to distinguish each offender's criminality, as their criminality was obviously and easily distinguishable from the agreed facts. When the Judge's remarks for each offender are considered in their entirety, it was clear that the Judge considered the applicant's objective criminality to have been greater than the co-offender's. The Crown pointed out that, when sentencing the applicant for the common offence, the Judge took into account the offences on the Form 1. There were also some differences in their subjective cases. The Crown argued that an effective non-parole period that is 13 months greater than that imposed on his co-offender was just and proper having regard to their respective roles and the Form 1 offences. As to the accumulation of sentence, the Judge was entitled to impose a period of custody that adequately and fairly reflected the totality of criminality involved in all of the offences.