Mendoza v R

Court of Criminal Appeal (NSW)|2020-09-14|Before: Basten JA, Price J, Wright J

Judgment

BASTEN JA: I agree with the reasons of Price J.
PRICE J: On 19 December 2019, Eduardo Rual Diaz Mendoza ("the applicant") was sentenced by Norrish QC DCJ ("the judge") to a total effective sentence of 8 years' imprisonment with a non-parole period of 4 years and 9 months.
Two co-offenders, Diana Elizabeth Veloso Hernandez ("Hernandez") and Guiovanni Hernan Saladrigas Garcia ("Garcia") were sentenced by the judge at the same sentencing proceedings as the applicant. Hernandez was sentenced to a total effective sentence of 5 years with a non-parole period of 2 years and 9 months whereas Garcia was sentenced to a total effective sentence of 7 years with a non-parole period of 4 years and 3 months.

The sentence of 9 months' imprisonment for the Commonwealth offence was wholly concurrent with the aggregate sentence imposed for the State offences.
Hernandez pleaded guilty to seven offences ("Hernandez's principal offences"). At the time of sentence, she asked the judge to take into account a further five offences on three Forms 1.
The sentence imposed on Hernandez is summarised in the following table: Hernandez - principal offences are emboldened Aggregate sentence: 5 years' imprisonment with a non-parole period of 2 years and 9 months (State offences) Offence Sequence Form 1 Sentence / (Indicative sentence) False statement in connection with entry of non-citizen - Migration Act s 234(1)(b) Seq 1 8 months' imprisonment Knowingly deal with the proceeds of crime - Crimes Act s 193B(2) Seq 8 Seq 11 - participate in criminal group - Crimes Act s 93T(1) (15 months' imprisonment) Aggravated break, enter and steal (in company) Seq 4 Seq 30 - break, enter and steal (Brighton-Le-Sands) - Crimes Act s 112(1)(a) (2 years and 3 months' imprisonment (Castle Hill) - Crimes Act s 112(2) Seq 40 - break, enter and steal (South Hurstville) - Crimes Act s 112(1)(a) NPP 1 year and 3 months) Break, enter and steal Seq 42 (18 months' imprisonment) (South Hurstville) - Crimes Act s 112(1)(a) Break, enter and steal Seq 34 (3 years and 6 months' imprisonment) (South Hurstville) - Crimes Act s 112(1)(a) Break, enter and steal Seq 35 (18 months' imprisonment) (Bellevue Hill) - Crimes Act s 112(1)(a) Aggravated break, enter and steal (in company) Seq 6 Seq 39 - aggravated break, enter and steal (Castle Hill) - Crimes Act s 112(2) (2 years and 6 months' imprisonment NPP 1 year and 5 months) (Drummoyne) - Crimes Act s 112(2) Seq 36 - enter lands with intent to steal (Bellevue Hill) - Crimes Act s 114(1)(d)

The sentence of 8 months' imprisonment imposed for the Commonwealth offence was wholly concurrent with the aggregate sentence imposed for the State offences.
Garcia pleaded guilty to eight offences ("Garcia's principal offences"). At the time of sentence, he asked the judge to take into account a further six offences on three Forms 1.
The sentence imposed on Garcia is summarised in the following table: Garcia - principal offences are emboldened Aggregate sentence: 7 years' imprisonment with a non-parole period of 4 years and 3 months (State offences) Offence Sequence Form 1 Sentence / indicative sentence False statement in connection with entry of non-citizen - Migration Act s 234(1)(b) Seq 1 9 months' imprisonment Knowingly deal with the proceeds of crime - Crimes Act s 193B(2) Seq 8 Seq 11 - participate in criminal group - Crimes Act s 93T(1) (18 months' imprisonment) Break, enter and steal Seq 34 (2 years and 3 months' imprisonment) (Waverley) - Crimes Act s 112(1)(a) Break, enter and steal Seq 35 Seq 36 - break, enter and steal (Birchgrove) - Crimes Act s 112(1)(a) (3 years' imprisonment) (Castle Hill) - Crimes Act s 112(1)(a) Seq 33 - break, enter and steal (Brighton-Le-Sands) - Crimes Act s 112(1)(a) Aggravated break, enter and steal (in company) Seq 4 (3 years' imprisonment (Castle Hill) - Crimes Act s 112(2) NPP 1 year and 10 months) Break, enter and steal Seq 46 (2 years and 3 months' imprisonment) (South Hurstville) - Crimes Act s 112(1)(a) Break, enter and steal Seq 40 - break, enter and steal (South Hurstville) - Crimes Act s 112(1)(a) (South Hurstville) - Crimes Act s 112(1)(a) Seq 48 Seq 41 - break, enter and steal (Bellevue Hill) - Crimes Act s 112(1)(a) (3 years and 6 months' imprisonment) Seq 42 - enter lands with intent to steal (Bellevue Hill) - Crimes Act s 112(1)(a) Aggravated break, enter and steal (in company) Seq 6 (3 years' imprisonment (Drummoyne) - Crimes Act s 112(2) NPP 1 year and 10 months)

The sentence of 9 months' imprisonment for the Commonwealth offence was wholly concurrent with the aggregate sentence imposed for the State offences.

The joint offences

The summary of the offences in which the applicant, Hernandez and Garcia were involved reveals differences in prosecutorial decisions as to how the applicant and his co-offenders were charged.

False statement contrary to s 234(1)(b) of the Migration Act

As stated at [8] above, each of the co-offenders made a false declaration to immigration officials in relation to their intended address by nominating the same hostel which none of them attended.
This was charged as a principal offence for each of the co-offenders; the applicant (Cth Seq 1), Hernandez (Seq 1) and Garcia (Seq 1).

Participate in criminal group contrary to s 93T(1) of the Crimes Act

Between 12 October 2018 and his arrest on 27 November 2018, the applicant participated in a criminal group with Hernandez and Garcia to commit burglaries knowing that his participation contributed to the occurrence of criminal activity.
This offence was placed on a Form 1 (Seq 11) to be taken into account on sentence for the principal s 193B(2) offence for the applicant (Seq 8), Hernandez (Seq 8) and Garcia (Seq 8).

Knowingly deal with proceeds of crime contrary to s 193B(2) of the Crimes Act

The applicant, Hernandez and Garcia sent money to Chile as stated at [8] above. Each co-offender was charged for the amount of money that he or she had sent to Chile. This was charged as a principal offence for each of the co-offenders; the applicant (Seq 8), Hernandez (Seq 8) and Garcia (Seq 8).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (Henson Street, Brighton-Le-Sands)

Between 8pm and 10pm on 17 October 2018, the applicant, Hernandez and Garcia were party to a joint criminal enterprise to break into a home at Brighton-Le-Sands and steal property. Two of the offenders were captured on CCTV in the backyard of the property looking into windows. Soon after, one of the co-offenders broke into the home by forcing open a rear locked door, ransacked the premises and stole a variety of items stored in a safe. The items stolen included expensive jewellery and watches, approximately $3,000 cash, perfume, designer bags and documents including birth and marriage certificates, wills and passports. The CCTV footage was not capable of establishing which of the offenders were captured on CCTV.
This was charged as a principal offence for the applicant (Seq 30). For Hernandez, the offence was placed on a Form 1 (Seq 30) for the principal offence of aggravated break, enter and steal (in company) at Castle Hill (Seq 4). For Garcia, it was placed on a Form 1 (Seq 33) for the principal offence of break, enter and steal (Seq 35).

Aggravated break, enter and steal contrary to s 112(2) of the Crimes Act (Chiltern Crescent, Castle Hill)

The following day, 18 October 2018 the applicant and Garcia were captured on CCTV breaking into a residence at … Chiltern Crescent, Castle Hill. They entered via a rear sliding door, ransacked the property, and stole expensive jewellery and watches. Hernandez was waiting near the location at the time and was a party to the joint criminal enterprise as she acted as a lookout while the offence was committed.
This was charged as a principal offence for the applicant (Seq 4), Hernandez (Seq 4) and Garcia (Seq 4).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (The Esplanade, South Hurstville)

Between 7pm and 9pm on 27 October 2018, the applicant, Hernandez and Garcia were parties to the joint criminal enterprise to break into a home at … The Esplanade, South Hurstville and steal property. One of the co-offenders gained entry by damaging a locked rear sliding door, ransacked the premises, and stole jewellery worth at least $5,000.
On 1 November 2019, a parcel was sent from Broadbeach, Queensland to an address in Chile in the name of Hernandez which contained items stolen from the home.
This was charged as a principal offence for the applicant (Seq 40) and Garcia (Seq 46). It was included on a Form 1 for Hernandez (Seq 40) and taken into account on sentence for the aggravated break, enter and steal (in company) at Castle Hill (Seq 4).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (The Appian Way, South Hurstville)

At around 8:20pm on 21 November 2018, the applicant, Hernandez and Garcia were captured on CCTV footage approaching a home at … The Appian Way, South Hurstville. Hernandez walked around nearby while the applicant and Garcia walked up to the house. One of the offenders (the applicant or Garcia) broke into the house by forcing a locked rear door, ransacked the premises and stole items of jewellery as well as $900 cash. Hernandez, who it was agreed was a party to a joint criminal enterprise to commit the offence, was acting as a lookout.
This was charged as a principal offence for the applicant (Seq 42), Hernandez (Seq 42) and Garcia (Seq 48).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (The Esplanade, South Hurstville)

On the same evening at about 9pm, the applicant, Hernandez and Garcia were captured on CCTV footage approaching a home at … The Esplanade, South Hurstville. Hernandez waited outside the home and appeared to act as the lookout, while the applicant and Garcia entered the rear court yard. One of the offenders forced a lock on the rear door, ransacked the premises and stole a large number of valuable items worth over $100,000 including jewellery, watches, a computer and $3,000 cash. Some of the property was located at the home shared by the co-offenders.
In the applicant's case, this offence was included on a Form 1 (Seq 34) and taken into account on sentence for the principal offence of break, enter and steal at The Appian Way, South Hurstville (Seq 42). It was included on a Form 1 for Garcia (Seq 40) and taken into account on sentence for the principal offence of break, enter and steal at The Appian Way, South Hurstville (Seq 48). It was charged as a principal offence for Hernandez (Seq 34).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (Rosslyn Street, Bellevue Hill)

At about 7:40pm on 22 November 2018, the applicant, Hernandez and Garcia were captured on CCTV footage approaching a home at … Rosslyn Street, Bellevue Hill. All were parties to a joint criminal enterprise to commit the offence. One of the three co-offenders turned off power to the premises before breaking in by forcing a locked rear door. The premises were ransacked and items of jewellery and designer goods were stolen.
This was charged as a principal offence for the applicant (Seq 35) and Hernandez (Seq 35). It was included on a Form 1 for Garcia (Seq 41) and taken into account on sentence for the principal offence of break, enter and steal at South Hurstville (Seq 48).

Enter lands with intent to steal contrary to s 114(1)(d) of the Crimes Act (Fairweather Street, Bellevue Hill)

After committing the offence at Rosslyn Street, the three co-offenders were captured on CCTV walking past a home at … Fairweather Street, Bellevue Hill multiple times between 8pm and 9pm. At about 9pm, CCTV footage captured the three co-offenders as they approached the home. Hernandez waited near the location, while the applicant and Garcia walked to the rear of the house, one of them switched off the power, which prompted the owner to look outside. Upon seeing the applicant and Garcia near a glass sliding door, the owner screamed, prompting the co-offenders to leave.
This offence was included on a Form 1 for each of the co-offenders. It was taken into account on sentence for the applicant (Seq 36) for the offence of break, enter and steal at Bellevue Hill (Seq 35), whereas for Hernandez (Seq 36) it was taken into account on sentence for the aggravated break, enter and steal (in company) at Drummoyne (Seq 6) and for Garcia (Seq 42) on sentence for the aggravated break, enter and steal at South Hurstville (Seq 48).

Aggravated break, enter and steal contrary to s 112(2) of the Crimes Act (Gipps Street, Drummoyne)

At about 7:15pm on 26 November, Hernandez was captured on CCTV footage approaching a home at … Gipps Street, Drummoyne. Fifteen minutes later, the applicant and Garcia approached the residence. Half an hour later they jumped a gate, turned off power to the home and broke in through a locked window. They ransacked the home and stole items of jewellery and designer goods.
This was charged as a principal offence for the applicant (Seq 6), Hernandez (Seq 6) and Garcia (Seq 6).

Individual offences - the applicant

In addition to the joint offences, the applicant's aggregate sentence included three offences for which Hernandez and Garcia were not alleged to be co-offenders and they did not form part of their aggregate sentences.

Aggravated break, enter and damage property contrary to s 112(2) of the Crimes Act (St Peters)

At about 1:30am on 22 October 2018, the applicant was captured on CCTV footage breaking into a KFC store in St Peters with an unknown person. The offenders attempted to smash open the front sliding doors, damaging them in the process, before gaining entry at the rear of the store. The offenders forced open a safe but were unable to access an internal section containing money. They attempted to open a second safe, which they damaged. The offenders looked through the office area and cut the wiring to the CCTV and alarm systems.
The applicant and his unidentified co-offender left the store at about 1:45am, leaving behind a spanner, screwdriver, torch, angle-grinder, power board gloves and backpack. DNA matching that of the applicant was located on one of the gloves. They caused $15,000 worth of damage to the store.
This was charged as a principal offence for the applicant (State Seq 1).

Enter land with intent to steal contrary to s 114(1)(d) of the Crimes Act (Crawford Street, Blakehurst)

At about 8pm on 10 November 2018, the applicant and two other unknown people attended the residence at … Crawford Street, Blakehurst. The offenders were captured on CCTV footage which showed one of them waiting outside the residence while the other two spent nine minutes investigating the rear door and windows, causing some damage to the exterior of the building. All three then left.
This offence was placed on a Form 1 for the applicant (Seq 47) and taken into account on sentence for the principal offence of break, enter and steal at South Hurstville (Seq 42).

Aggravated break, enter with intent to steal contrary to s 113(2) of the Crimes Act (Rickard Street, Five Dock)

At 8:45am on 26 November 2018, the applicant and an unknown offender were captured on CCTV footage breaking into a home at … Rickard Street, Five Dock by forcing a rear door. They ransacked the home but no items were identified as having been stolen.
This offence was placed on a Form 1 (Seq 7) for the applicant and taken into account on sentence for the principal offence of aggravated break, enter and steal at Drummoyne (Seq 6).

Individual offences - Hernandez

In addition to the joint offences, Hernandez's aggregate sentence included one offence for which the applicant and Garcia were not alleged to be co-offenders and it did not form part of their aggregate sentences.

Aggravated break, enter and steal contrary to s 112(2) of the Crimes Act (Ballintore Road, Castle Hill)

Sometime on the night of 20 November or during the early hours of 21 November 2018, an offender broke into the residence at … Ballintore Road, Castle Hill. An offender gained entry by a window or door that was closed but not locked.
Mr XX, aged 83, was asleep in the residence when it was broken into. The offender stole a necklace worth $2,800 as well as $1,175 in cash. Call charge records from Hernandez's phone service placed her in the vicinity of this offence.
This offence was placed on a Form 1 (Seq 39) and taken into account on sentence for the principal offence of aggravated break, enter and steal at Drummoyne (Seq 6).

Individual offences - Garcia

In addition to the joint offences, Garcia's aggregate sentence included three offences where the applicant and Hernandez were not alleged to be co-offenders and which accordingly did not form part of their aggregate sentences.

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (Wiley Street, Waverley)

On 6 October 2018, Garcia and an unknown offender or offenders were part of a joint criminal enterprise to commit this offence. Sometime between 6pm and 10pm, one of the offenders broke into the residence at … Wiley Street, Waverley. The offender forced open a locked door, ransacking the residence and stealing four expensive rings.
Garcia's fingerprints were recovered on eight jewellery boxes. It could not be established which offender entered the premises.
This was charged as a principal offence (Seq 34).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (Pioneer Drive, Castle Hill)

Garcia and Munoz were together on the night of 7 October 2018 and were part of a joint criminal enterprise to commit this offence. Sometime between 1:15pm and 8:15pm, one of the offenders broke into the residence at … Pioneer Drive, Castle Hill. The offender forced open a locked rear door and smashed an alarm box off the wall. The offender stole expensive jewellery, which included earrings worth $16,000 and a ring worth $11,790.
Photos of the stolen items were located on both of the offenders' mobile phones.
This was charged as a principal offence (Seq 35).

Break, enter and steal contrary to s 112(1)(a) of the Crimes Act (Louisa Road, Birchgrove)

Both Garcia and Munoz travelled together from Pioneer Drive, Castle Hill to Louisa Road, Birchgrove. Sometime after 8:15pm, one of the offenders broke into … Louisa Road, Birchgrove and stole expensive jewellery.
This offence was placed on a Form 1 (Seq 36) and taken into account on sentence for the principal offence of break, enter and steal at Castle Hill (Seq 35).

Ground 1: That the Applicant Eduardo Rual Diaz Mendoza has a justifiable sense of grievance having regard to the aggregate sentence imposed upon him as compared to that of the Offender Diana Elizabeth Veloso Hernandez ("Hernandez") and therefore the Applicants aggregate sentence was unfair, unjust and manifestly excessive

Ground 2: That the Applicant has a justifiable sense of grievance having regard to the disparity of the sentence imposed upon him compared to that of the Offender Guiovanni Garcia ("Garcia").

It is convenient to deal with these grounds of appeal together.
The applicant contended that he had a justifiable sense of grievance having regard to the marked disparity between his sentence and that of Hernandez. The applicant referred to the three year difference between his head sentence and Hernandez's head sentence and the two year difference in the respective non-parole periods.
It was further submitted that the applicant and Hernandez were sentenced in respect of identical offences which included five identical break, enter and steal offences; two identical aggravated break, enter and steals and one of enter land with intent. The applicant pointed out that for each jointly charged offence, the agreed facts alleged a joint criminal enterprise.
The applicant submitted that although there were differences between his subjective circumstances and those of Hernandez, they did not justify the significant gap in punishment between them.
The applicant contended that the judge appeared to be overly influenced by the fact that Hernandez was a lookout who did not decide what was to be stolen as she did not enter the premises.
In oral argument, the applicant's counsel contended that it was an error for the judge to find that Hernandez's moral culpability was less because she had no control over what was taken. It was submitted that she was criminally responsible on the basis of joint criminal enterprise. Furthermore, her role compared to the roles of Garcia and the applicant was not significantly less. The applicant's counsel submitted that a lookout was equally criminally responsible as the person who entered the home and removed the goods.
As to Hernandez's subjective case, the applicant's counsel submitted that there was no causal connection between her bipolar disorder and the commission of the offences.
As to Ground 2, the applicant observed that "except for the KFC episode", [2] Garcia was involved in all other offences which had been jointly charged. However, Garcia was involved in other "episodes" of break, enter and steal at Wiley Street, Waverley, Pioneer Drive, Castle Hill and Louisa Road, Birchgrove.
The applicant argued the subjective feature which appeared to have moved the judge to mollify Garcia's sentence was his relative youth of 22 years compared to the applicant who was 28 years old.
It was submitted that the difference of one year in the head sentence and six months in the non-parole period was not justified and precipitated a justifiable sense of grievance.

Consideration

Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene. [3] The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified. [4] The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen 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." [5] (Footnotes omitted.)
It is evident from the judge's thorough sentencing judgment that his Honour was anxious to apply the parity principle to ensure equal justice between the co-offenders. His Honour said: "Another general principle clearly significant in this matter, and it has been obviously a difficult matter to properly assess, given the complexities of the sentencing and the subtleties of the differences between various offenders is the issue of 'parity' of sentencing. That is, ensuring that there is parity of sentencing between offenders charged with common offences or charged in relation to offences that have a relationship with one another in terms of participation in joint criminal enterprises and the like. The issue of parity of sentencing has been discussed in a range of authorities. It was of particular discussion in the decision of Jimmy v R [2010] NSWCCA 60 in the judgments of Campbell JA, Howie and Rothman JJ. I think Rothman J pithily discussed the matter at [254] when he said: 'The principle of parity in sentencing derives, as the High Court made clear, from an application of the fundamental principle of equal justice,' (citing Postiglione v R (1997) 189 CLR 295 particularly at 301-302 in the judgment of Dawson and Gaudron JJ). He went on to say at [255]: 'Equal justice requires that the like should be treated alike and that the difference in treatment of different persons should be rational. Equal justice is a principle that is fundamental to the exercise of judicial power…" [6]
When sentencing the co-offenders, his Honour remarked: "…It should be understood, in Australia those differences of sentence, given the common crimes you have committed, recognise substantial differences in your individual circumstances." [7]
The difference in the aggregate sentences imposed on the applicant and Hernandez is readily explained by: 1. The applicant's additional principal charges; 2. Prosecutorial decisions to include offences on Forms 1; 3. Different assessments of moral culpability; and 4. Differences in the subjective cases of the applicant and Hernandez.
As will be seen from the table at [11] above, the applicant was sentenced for one offence of making a false statement to an officer in connection with entry of a non-citizen contrary to s 234(1)(b) of the Migration Act, one offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act, three offences of aggravated break, enter and steal (in company) contrary to s 112(2) of the Crimes Act and four offences of break, enter and steal contrary to s 112(1)(a) of the Crimes Act. He asked the judge to take into account a further five offences on four Forms 1. Accordingly, the applicant was sentenced for nine principal offences, three of which were offences of aggravated break, enter and steal (in company).
As will be seen from the table at [14] above, Hernandez was sentenced for one offence of making a false statement to an officer in connection with entry of a non-citizen contrary to s 234(1)(b) of the Migration Act, one offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act, two offences of aggravated break, enter and steal (in company) contrary to s 112(2) of the Crimes Act and three offences of break, enter and steal contrary to s 112(1)(a) of the Crimes Act. Hernandez asked the judge to take into account a further five offences on three Forms 1 which included for sequence 6 another offence of aggravated break, enter and steal. Accordingly, Hernandez was sentenced for seven principal offences, two of which were aggravated break, enter and steal (in company).
An offence of aggravated break, enter and steal (in company) is more serious than an offence of break, enter and steal. The seriousness of the offence is reflected in the maximum penalty of 20 years' imprisonment and standard non-parole period of 5 years whereas the maximum penalty for an offence of break, enter and steal is 14 years' imprisonment with no standard non-parole period.
The applicant's submission that he and Hernandez were sentenced for five identical break, enter and steal offences is not correct. Even though Hernandez was a party to a joint criminal enterprise to break into the homes at Brighton-Le-Sands and the home at The Esplanade, South Hurstville (between 7pm and 9pm), these offences were placed on Forms 1 by the prosecutor for Hernandez whereas the applicant was charged with these as principal offences. [8] On the other hand, Hernandez was charged with the break, enter and steal as a principal offence whereas this was placed on a Form 1 by the prosecutor for the applicant.
In taking into account the offences of the Forms 1, the judge referred to Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [9] and noted that greater weight may be needed for personal deterrence and retribution for the principal offence. However, his Honour observed that the Court was "only concerned with the principal offence, not to determine an appropriate sentence for matters listed on a Form 1".
The judge assessed the moral culpability of Hernandez to be less than that of the applicant and Garcia. His Honour said: "In sentencing you, I have taken into account not only the matters favourable in your subjective case. I have taken into account what is, to my mind, self-evident from the facts that, whilst you committed crimes as part of a joint criminal enterprise, your role in the commission of the offences reflects a lesser moral culpability on your part. Whilst you are all equally responsible for your crimes, that is you Mr Mendoza and Mr Garcia, that were jointly committed, it is to be fairly said in circumstances where the other two were inside the premises whilst you were keeping watch, you specifically, for example, had no control over precisely what property would be taken from the premises." [10]
During the sentencing proceedings, the applicant gave evidence that Hernandez had neither entered any of the houses from which property had been stolen nor had she damaged any of the properties. Further, his Honour stated in his sentencing judgment that "to some extent, [he] was satisfied that Ms Hernandez was caught up in the fact of her relationship with a man [the applicant] who was prepared to come to this country to commit crimes." [11]
The applicant's argument that it was an error for the judge to find that Hernandez's moral culpability was less is to be rejected. Although Hernandez was a participant in the joint criminal enterprise, his Honour identified the role that she played as a lookout and there was evidence that she did not participate in entering into or damaging the properties that were burgled. As Whealy JA (with whom Hidden J and Johnson J agreed) in Ryan Gurney v R; Aaron Willetts v R said at [71]: "…As the written submissions before this Court accepted, where there is a joint criminal enterprise to kill a person, participants in that enterprise will, prima facie, be equally liable for the offence of murder, and subject to the same maximum penalty. Where, however, it is possible to identify the extent of the role played by each participant in such an enterprise, this will ordinarily become a significant determinant of culpability, and may warrant the imposition of different penalties (Carruthers v R [2007] NSWCCA 276 at [37] - [40]). Equally, insofar as it can be demonstrated, the extent to which a particular offender participates in the physical acts of violence may also be a factor that bears on the assessment of his culpability, and may accordingly justify a differentiation in sentence imposed, as between the co-participants in the enterprise." [12] (Emphasis added.)
There were significant differences in the subjective circumstances of the applicant and Hernandez. Without mentioning all of the differences that were taken into account by the judge, it is apposite to note: 1. The applicant had a history of similar offending in Chile. He had minor convictions for burglary in 2009 and 2014 and convictions in 2015 and 2017 for carrying items known to have been used in the commission of the crime of burglary. He had served four terms of imprisonment, the longest of which was three years. On the other hand, Hernandez had no prior convictions; 2. Although all of the offenders were separated from their families it was "a much more significant matter" [13] in the case of Hernandez, who was the mother of five children. The judge found "in the context of her mental disabilities, her separation from her children as a matter causing more hardship to her than is the case in relation to the other offenders." [14] 3. Hernandez had a "chronic mental condition… bipolar disorder" [15] which rendered her unable to work for a few years before she came to Australia. Her mental illness affected her circumstances in custody and made her custody more onerous. His Honour further found that Hernandez suffered from significant health issues including diabetes and a prolapse which required surgery which would have effect upon her circumstances of custody. On the other hand, the judge found that the applicant's claim to have some diagnosis of a mental health disability was not supported by other evidence; 4. The judge observed that general deterrence had a significant role to play, in part to deter people "from the same place of origin from following in the footsteps of the offenders". [16] In the case of Hernandez, his Honour considered that "slightly less weight" [17] should be given to general deterrence because of her mental condition; and 5. The judge could not find that the applicant was unlikely to re-offend but found that he had good prospects of rehabilitation. His Honour found that Hernandez was a person of good character, was unlikely to re-offend and had good prospects of rehabilitation.
All of these matters justify the difference of three years in the head sentence and two years in the non-parole periods between the aggregate sentences imposed on the applicant and Hernandez. The disparity in these sentences does not give rise to a justifiable sense of grievance.
There is no merit in Ground 1.
Although not expressly stated in Ground 2, it is clear that the applicant's claim to a justifiable sense of grievance with the sentence imposed on Garcia focusses upon their aggregate sentences for the State offences. Both the applicant and Garcia were sentenced to 9 months imprisonment for the Commonwealth offence which was made entirely concurrent with the aggregate sentence. The difference in the aggregate sentence imposed on the applicant and Garcia is readily explained by: 1. The applicant's additional principal charge; 2. Prosecutorial decisions to include offences on Forms 1; and 3. Differences in the subjective cases of the applicant and Garcia.
As will be seen from the table at [17] above, Garcia was sentenced for one offence of making a false statement to an officer in connection with entry of a non-citizen contrary to s 234(1)(b) of the Migration Act, one offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act, two offences of aggravated break, enter and steal (in company) contrary to s 112(2) of the Crimes Act and four offences of break, enter and steal contrary to s 112(1)(a) of the Crimes Act. Garcia asked the judge to take into account a further 6 offences on three Forms 1 which included for sequence 48, two break, enter and steals and one enter lands with intent to steal. Accordingly, Garcia was sentenced for eight principal offences, two of which were offences of aggravated break, enter and steal (in company). The prosecutor placed the break, enter and steal offences into the homes at Brighton-Le-Sands, Rosslyn Street, Bellevue Hill and The Esplanade, South Hurstville on Forms 1 for Garcia, whereas the applicant was charged with these offences as principal offences. [18]
The differences in the subjective circumstances of the applicant and Garcia included: 1. The acceptance by the judge that Garcia had "a background of dysfunction" [19] which his Honour took into account on sentence. So far as the other offenders were concerned, his Honour observed there was insufficient evidence that the significance of their deprived backgrounds went beyond financial disadvantage; 2. Garcia was 22 years old whereas the applicant was 28 years old at the time of offending. The judge found that Garcia was "entitled to a distinction from Mr Mendoza because of his comparative youth" and his Honour said that "[Garcia's] comparative youth assists him in the assessment of his prospects of rehabilitation; [20] 3. His Honour found that Garcia had good prospects of rehabilitation and was unlikely to re-offend; and 4. Garcia's prior criminal history was not as extensive as the applicants. Garcia had a conviction for burglary in 2015 and "simple theft" in 2016.
All of these matters justify the difference of one year in the head sentence and six months in the non-parole periods between the aggregate sentences imposed on the applicant and Garcia. The disparity in these sentences does not give rise to a justifiable sense of grievance.
There is no merit in Ground 2. Accordingly, leave to appeal was refused.
WRIGHT J: I agree with Price J.

Endnotes

Victor Manuel Paredes Munoz ("Munoz") and Matias Ignacio Wevar Tiznado ("Tiznado").
AWS p. 11.
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.
R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50].
(2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152.
Sentencing judgment, pp. 22-23.
Sentencing judgment, p. 1.
See [25]-[31] above.
(2002) 56 NSWLR 146; [2002] NSWCCA 581.
Sentencing judgment, p. 70.
Sentencing judgment, p. 43-44.
[2011] NSWCCA 48.
Sentencing judgment, p. 26.
Sentencing judgment, p. 26.
Sentencing judgment, p. 26.
Sentencing judgment, p. 28.
Sentencing judgment, p. 28.
See [26]-[36] above.
Sentencing judgment, p. 62.
Sentencing judgment, p. 62. 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: 07 October 2020

Crimes Act 1900(NSW)s 193B(2)

Migration Act 1958(Cth)s 234(1)(b)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)