Hiron v R

Court of Criminal Appeal (NSW)|2017-10-11|Before: Leeming JA, Johnson J, Adamson J

Judgment

LEEMING JA: I agree with Johnson J.
JOHNSON J: The Applicant, Shannon Michael Hiron, seeks leave to appeal with respect to a sentence passed at the Penrith District Court on 31 March 2016 for an offence of assault with intent to rob whilst armed causing wounding contrary to s.98 Crimes Act 1900.
Following the Applicant's plea of guilty entered on the first day of his scheduled trial, the Applicant was sentenced to a term of imprisonment for six years and three months commencing on 31 March 2016 and concluding on 30 June 2022 with a non-parole period of four years and eight months commencing on 31 March 2016 and expiring on 30 November 2020.
The maximum penalty for an offence under s.98 Crimes Act 1900 is imprisonment for 25 years and a standard non-parole period of seven years applies.

Ground of Appeal

By Notice of Application for Leave to Appeal filed on 12 May 2017, the Applicant communicated the following grounds of appeal: 1. Ground 1 - The Applicant suffers a justifiable sense of grievance when comparing the sentence upon him with the sentence imposed upon his co-offender, Matthew Johnson. 2. Ground 2 - The sentencing Judge erred in imposing, in all the circumstances, a sentence which was manifestly excessive.
At the commencement of the hearing before this Court on 11 October 2017, Senior Counsel for the Applicant abandoned the second ground of appeal. The sole ground of appeal is the parity ground.
The co-offender, Matthew Johnson, was sentenced by the same Judge for an offence of reckless wounding whilst in company contrary to s.35(3) Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years with a standard non-parole period of four years. Following the delivery of sentencing remarks on 31 March 2016, Mr Johnson was sentenced to two years' imprisonment with an order being made on 27 June 2016 that the sentence be served by way of intensive correction order.

Facts of Offence

The Applicant pleaded guilty to a charge that on 12 May 2014 at Colyton, he did assault Jeremy Moss with intent to rob Mr Moss of property, a set of keys to a Nissan Skyline motor vehicle, whilst armed with an offensive weapon, a knife, and at the time of the assault, he wounded Mr Moss.
An Agreed Statement of Facts was tendered at the Applicant's sentencing hearing. Background to Offence
The victim, Jeremy Moss, had met the Applicant several years prior to the commission of the offence on 12 May 2014. By May 2014, a relationship existed whereby the Applicant would supply drugs to Mr Moss.
It was the Crown case that on 7 May 2014, Mr Moss purchased a quantity of a prohibited drug from the Applicant.
On 8 May 2014, Mr Moss complained in a text message to the Applicant that the "stuff was shit house" and told the Applicant that he wanted his money back. It was the Crown case that, during that day, the Applicant decided that Mr Moss was trying to rip him off as he had complained about the quality of drugs on another occasion.
At about 1.30 pm on 8 May 2014, the Applicant contacted a friend, Rhys Bagley, by way of text message in which he informed Mr Bagley that he would have some parts for Mr Bagley's motor vehicle (a Nissan Skyline). The Applicant told Mr Bagley that he was going to take a car from a person who reckoned that he had given him "shit stuff" for the second time. The Applicant had formed the view that Mr Moss was trying to get free drugs. At that time, Mr Moss drove a Nissan Skyline motor vehicle which was registered in his father's name. The Applicant's plan was to take Mr Moss' Nissan Skyline from him to use as the Applicant saw fit.
At about 8.00 pm on 8 May 2014, the Applicant contacted Mr Moss by text. He told Mr Moss to come over, but Mr Moss did not turn up.
Further text messages passed between the Applicant and Mr Moss on 9 and 10 May 2014, but Mr Moss did not attend the Applicant's house as suggested. Events on 12 May 2014
On 12 May 2014, the Applicant contacted Mr Bagley and told him he should have the Nissan Skyline in the next couple of days. The description of the Nissan Skyline provided by the Applicant corresponded with the description of the vehicle driven by Mr Moss.
On the same day, the Applicant contacted his co-offender, Matthew Johnson, both by text message and by telephone.
On 12 May 2014, the Applicant contacted Mr Moss and told him he was at home and invited him to come around. Mr Moss agreed to attend and drove to the Applicant's premises. He arrived at about 8.00 pm and sent the Applicant a text message saying that he had arrived. The Applicant told him to turn off the motor vehicle and that he would be there shortly.
At 8.17 pm, the Applicant contacted Mr Johnson on his mobile phone and spoke to him. The Applicant left his house and entered Mr Moss' Nissan Skyline. Before leaving the house, the Applicant picked up a knife and then walked to Mr Moss who was in his vehicle.
Mr Moss drove the Applicant in the Nissan Skyline to a park in Colyton. The co-offender, Mr Johnson, attended the park at the request of the Applicant. The Applicant had sent a text message to Mr Johnson asking him to come to the park and to walk past as if he was starting a fight. The Applicant said in a series of text messages to "start a fight" and "then I'll just stab him". When Mr Johnson attended, the Applicant produced the knife and demanded the keys to Mr Moss' car. In the course of a melee, Mr Moss received a wound to his throat from the knife that was in the Applicant's hand.
Mr Moss fled from the park and ran to a house across the road where he asked the occupant to call the police.
The Applicant and Mr Johnson fled the park as well.
At the nearby house, Mr Moss realised that he was bleeding from the neck and an ambulance was called. He was taken to Westmead Hospital. He was admitted to the Emergency Department and treated for a two centimetre laceration to the anterior triangle of his neck. There was no arterial injury and he remained in hospital overnight for observation.
On 13 May 2014, Mr Moss was found to be bleeding internally. An operation was performed in which it was discovered that there was bleeding to the left vertebral vein. Mr Moss was placed in an induced coma and remained in the Intensive Care Unit until 16 May 2014. He was discharged from hospital on 20 May 2014.
In a victim impact statement tendered at the sentencing hearing, Mr Moss stated that he had been left with a scar on his neck that was clearly visible even with a high collar and with weakness to his left shoulder.
At 9.35 pm, Mr Bagley sent the Applicant a text asking him to come over if it (the acquisition of the Nissan Skyline) had gone to plan. The Applicant replied "It didn't bruva. I stabbed him and he got away from me bruva. Don't know how he is still standing". The Applicant then asked Mr Bagley to be his alibi and to delete the text messages.
When the Applicant returned home at about 10.00 pm, he had blood on his hands and he placed the jumper he had been wearing into the washing machine. The Investigation and Arrest of the Applicant
Between 12 May and 23 September 2014, police conducted investigations with respect to the offence which included the use of telephone intercept warrants.
On 23 September 2014, the Applicant attended Penrith Police Station where he was interviewed by police. In the interview, the Applicant denied knowing anyone by the name of Jeremy Moss and denied any involvement in the stabbing of Mr Moss. He said he was unable to explain various incriminating text messages. He admitted knowing Mr Johnson and Mr Bagley and that Mr Bagley had a Nissan Skyline motor vehicle.
The Applicant was arrested and charged with this offence on 23 September 2014 and was released on conditional bail. He remained on bail until sentence was imposed on 31 March 2016.

The Applicant's Subjective Circumstances

The Applicant was 28 years old at the time of the offence and 30 years old at the time of sentence.
The Applicant has a prior criminal history. In 2004, he was sentenced in the Blacktown Local Court for offences of assault occasioning actual bodily harm and contravening an apprehended domestic violence order for which he was ordered to perform 100 hours community service. In addition, for offences of common assault and larceny, he was placed on a 12-month good behaviour bond.
In October 2008, the Applicant was placed on a further 12-month good behaviour bond for an offence of destroying or damaging property.
In 2009, the Applicant was fined for offences of larceny and obtain money by deception. In May 2009, he was sentenced at the Penrith Local Court for an offence of destroying or damaging property by way of a suspended sentence of imprisonment for six months.
In March 2011, the Applicant was sentenced at the Penrith Local Court to six months' imprisonment for an offence of larceny.
In November 2014, the Applicant was sentenced at the Penrith Local Court for an offence of destroying or damaging property by way of a fine of $500.00 and an order for compensation in the sum of $2,000.00.
A presentence report was tendered at the sentencing hearing with respect to the Applicant together with a report of Dr Sujatha Chandrasekaran, consultant psychiatrist, dated 19 February 2016. In addition, a number of references were tendered together with a letter from the Applicant addressed to the victim in which he expressed contrition. The Applicant gave evidence at the sentencing hearing.

Some Findings of the Sentencing Judge

The sentencing hearings with respect to the Applicant and Mr Johnson proceeded together on 31 March 2016. Her Honour delivered remarks on sentence for the Applicant and Mr Johnson on that day, with the latter being sentenced to imprisonment to be served by way of intensive correction order on 27 June 2016 after receipt of the relevant assessment report.
In the course of the sentencing remarks concerning the Applicant, the sentencing Judge described the role of Mr Johnson in the criminal enterprise in the following way (ROS2): "Mr Hiron shortly prior to the commission of this offence sought the assistance of his co-offender Mr Johnson. And I will refer to Mr Johnson's involvement in this offence some time later. But certainly from a planning point of view, from Mr Hiron's point of view he sought the assistance of Mr Johnson to assist in the commission of the offence and he sought the assistance of another in order to make arrangements for the disposal in some way of the motor vehicle which he intended to take by taking the keys of the motor vehicle from Mr Moss. By prior arrangement Mr Hiron arranged to meet Mr Moss at his home. Mr Moss drove his motor vehicle to the Offender's home. They together went to a park area. Mr Hiron took a knife with him from the home. While in the park area Mr Hiron sent a text to his co-offender Johnson asking him to come to the park and to walk past and behave as if he was starting a fight. Showing an intention to stab Mr Moss, Mr Hiron said by text to Mr Johnson, 'Come and start a fight' words to that effect and he then said, 'Then I'll just stab him' (meaning Mr Moss). As events transpired that is exactly what happened after Mr Moss was stabbed, he took flight. Mr Hiron took flight and Mr Johnson took flight."
The sentencing Judge found that the Applicant's offence lay towards the mid-range of seriousness for this offence (ROS5). Her Honour found (ROS6): "This offence was to some extent part of an over-arching organised criminal activity because the meeting of Mr Moss and the dispute about drug supply was part of Mr Hiron's activities at that time where he was providing drugs for money. He was in the business of drug supply."
The following findings were also made (ROS3): "The circumstances of this offence are of course very serious. The injuries occasioned by the victim were substantial, not so substantial as to amount to a separate aggravating circumstance, but nevertheless he was placed in an induced coma. He took a considerable time to, for his physical injuries to resolve and the Victim Impact Statement shows that there are, apart from the physical injuries there is scarring which remains. There is, he says an emotional and psychological impact that continues to this day. The Court will have regard to the serious nature of the injuries and of course to some extent the foreseeability of very serious injury occurring as a result of the decision of Mr Hiron to use a knife, and to use that knife in the way he did, that is to stab the victim towards the neck area is a very dangerous set of circumstances indeed."
The sentencing Judge took into account the Applicant's own history of drug usage and the steps which he had taken towards rehabilitation (ROS9-10).
A discount of 10% was allowed for the Applicant's plea of guilty (ROS11). The sentencing Judge declined to make a finding of special circumstances (ROS11). A recommendation was made that the Applicant be assessed for the compulsory drug treatment prison if he was eligible (ROS10, 11-12).

The Sole Ground of Appeal - A Claim of Impermissible Disparity Submissions of the Parties

Mr Turnbull SC acknowledged that the Applicant and Mr Johnson were to be sentenced for significantly different offences. He submitted, however, that even allowing for the difference in the offences and the differences between the objective facts of the offences and the subjective circumstances of the Applicant and the co-offender, there was nevertheless a proper foundation for this Court to find that a justifiable sense of grievance arose having regard to the difference between the sentences imposed upon the two men.
The Crown submitted that the parity principle was not engaged in this case but that, even if it was, there were substantial differences between the two offenders and their offences so that the Applicant had not demonstrated a justifiable sense of grievance so as to give rise to a basis for this Court to intervene. Decision
It is noteworthy that counsel who appeared for the Applicant in the District Court did not advance a submission by reference to the parity principle. Further, counsel for Mr Johnson submitted during the sentencing hearing (T16, 31 March 2016): "As to parity, it appears that there's not really a parity issue where there's different offences, different records, so I don't think I need to say much about that."
Counsel for the Applicant at first instance did not make a contrary submission in the course of his detailed submissions on sentence (T41-47).
Consistent with the manner in which the sentencing hearing had been conducted by the legal representatives for each offender, her Honour noted that parity was not an issue, but proceeded nevertheless to point to differences between the two offenders and their offences in a manner which served to confirm why it was said that parity did not arise in this case. Her Honour said (ROS16): "Parity is not an issue in this case. Mr Hiron was charged with a different offence. His involvement in the far more serious offence was greater. The offence that he was charged with had a maximum penalty of over twice the maximum penalty for this offence and, as I said, his involvement was far different than this offender. Mr Hiron also had a prior criminal record. Mr Johnson does not have a prior criminal record. As I have noted, he is a person of prior good character. He has family support, he has employment support, he has community support and he has no prior criminal record. All of those matters going together make it possible to find that he has good prospects of rehabilitation."
The general principles to be applied when considering a ground of appeal which asserts a justifiable sense of grievance by reason of disparity were summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261 at [39]-[41]: "39. The reference in this ground of appeal to a 'justifiable sense of grievance' invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, 'Lowe'). The parity principle holds that there should not be a 'marked disparity' between the sentences imposed on co-offenders such as to give rise to 'a justifiable sense of grievance' in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford 'equal justice' (Green The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, 'Green'). 40. Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that 'are relevantly identical'. It also seeks 'different outcomes in cases that are different in some relevant respect' (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, 'Wong'). Thus, in this case, the applicant accepts that his overall sentence was not materially different from that imposed on Choy but contends that his circumstances were relevantly different to those of Choy. 41. Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed 'by considerations of substance rather than form' (Green at [30]). Nevertheless, the 'greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]' (Green at [30])."
The Court is not concerned with whether the Applicant alone actually feels a sense of grievance (a subjective test) but rather whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to "that impassive representative of the community, the objective bystander": Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).
In Lloyd v R [2017] NSWCCA 303, RA Hulme J (Payne JA and Garling J agreeing) said at [87]-[89]: "87. It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ). 88. The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ). 89. A court will refuse to intervene where the degree of 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: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ)."
Here, the same sentencing Judge proceeded to sentence the two offenders together and in doing so made assessments of the relevant objective and subjective factors for the purpose of passing the sentences. Courts have emphasised the desirability of related offenders being dealt with by the same Judge and preferably at the same time: Lowe v The Queen at 617, 622; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 320; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at 501 [110].
As Beech-Jones J noted in Wan v R at [39] (see [49] above), the concept of "marked disparity" has been mentioned in the context of the parity principle in Lowe v The Queen. The term "marked disparity" has been used, as well, in Postiglione v The Queen at 301-302 (Dawson and Gaudron JJ) and at 322 (Gummow J) and in Green v The Queen (French CJ, Crennan and Kiefel JJ) at 475 [32]. To determine this appeal, it is not necessary to consider the appropriateness of the use of other descriptive terms which has come under challenge in Cameron v R [2017] NSWCCA 229 and Miles v R [2017] NSWCCA 266.
It may be taken that the Applicant and Mr Johnson were, in a broad sense, involved in the same criminal enterprise so that the parity principle was not entirely irrelevant. However, as the sentencing Judge observed correctly (at [48] above) there were significant differences between the offences for which each of them was to be sentenced, their objective roles and their subjective circumstances.
The sentencing Judge proceeded to sentence Mr Johnson by reference to the Agreed Statement of Facts tendered in his case and evidence which he gave at the sentencing hearing. Apart from the substantial difference between the maximum penalties applicable to the two offences and the significant differences in the objective facts of the two offences, Mr Johnson was able to call in aid, as well, his prior good character and relative youth (he was 22 years old at the time of the offence) together with his earlier plea of guilty (for which a 20% discount was applied) and his stronger subjective case.
Further, the Applicant carried a knife to the scene of the crime and expected to use it as he indeed did. Mr Moss suffered a significant injury. The sentencing Judge was entitled to observe that a stabbing injury to the neck was very dangerous: R v Dennis [2015] NSWCCA 297 at [31].
A description of the differences between the offences and the offenders may serve to explain why counsel for the Applicant in the District Court did not advance any argument that the parity principle had a role to play on sentencing of the two offenders. The principles considered in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at 477-478 [79]-[82] have some application to this case. What occurred at first instance was, in reality, an accurate barometer of the real issues in the proceedings.
In Lloyd v R, RA Hulme J said at [95]-[97]: "95 It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. 96 It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. 97 In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative."
There was an entirely explicable foundation for the differences between the sentences ultimately imposed upon the Applicant and Mr Johnson. The sentencing Judge was seized of all relevant objective and subjective considerations when called upon to pass sentence upon the two offenders. It has not been demonstrated that the differentiation made by the sentencing Judge was not open to her in the exercise of her discretion. The Applicant has not made good his claim of an objective legitimate sense of grievance arising from the sentence imposed upon Mr Johnson.
I reject the sole ground of appeal.

Conclusion

I propose that leave to appeal be granted, but that the appeal be dismissed.
ADAMSON J: I agree with Johnson J.

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: 12 February 2018

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