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Category: Principal Judgment

Catchwords: APPEAL – GENERAL PRINCIPLES – appeal against sentence – parity principle – earlier conviction appeal impact on the assessment of the objective seriousness of the offending having regard to the changed basis upon which the sentence is to be assessed – whether sentence for the offence of aggravated robbery was manifestly excessive – appeal upheld. APPEAL – GENERAL PRINCIPLES – appeal against sentence – parity principle has not operation when co-offender has been granted immunity from prosecution – lack of remorse – prospects for rehabilitation – consideration of scheduled offences – appeal dismissed.

Legislation Cited: Criminal Code 2002 (ACT) ss 48, 310 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 66, 74

Cases Cited: Attorney General’s Application under s.37 of the Crimes (Sentencing Procedures) Act 1999 No 1. of 2002 (2002) 56 NSWLR 146 Barbaro v R (2014) 305 ALR 323 Bugmy v The Queen (2013) 249 CLR 571 R v Diamond (Unreported, Supreme Court of the ACT, Nield AJ, 29 October 2010) Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Fox v Percy (2003) 214 CLR 118 Green v R; Quinn v R (2011) 244 CLR 462 Hili v The Queen (2010) 242 CLR 520 Lacey v Attorney General (Qld) (2011) 242 CLR 573 Lowe v The Queen (1984) 154 CLR 606 Mill v The Queen (1988) 166 CLR 59 Pham v The Queen (2009) 193 A Crim R 190 Postiglione v The Queen (1997) 189 CLR 295 R v Barton (2001) 121 A Crim R 185 R v Campbell [2010] ACTCA 20 R v Cox (1996) 66 SASR 152 R v Ellis (1993) 68 A Crim R 449 R v Kerr [2003] NSWCCA 234 R v Malvaso (1989) 50 SASR 503 R v Tracey-Campbell [2010] ACTCA 20 R v Tresize (Unreported, Supreme Court of the ACT, Nield AJ, 7 September 2012) Parties: Christopher Miles (Appellant) The Queen (Respondent)

Representation: Counsel Mr Gill (Appellant) Ms Jones (Respondent)

Solicitors Legal Aid ACT (Appellant) Director of Public Prosecutions (Respondent)

File Number(s): ACTCA 77 of 2013 and ACTCA 18 of 2013

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Nield AJ Date of Decision: 17 October 2013 Case Title: The Queen v Miles Court File Number(s): SCC 395B of 2011 Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 19 March 2013 Case Title: The Queen v Miles Court File Number(s): SCC 395A of 2011

MURRELL CJ

1. I agree with the orders proposed by Ross J, and with his reasons for proposing those orders. PENFOLD J

2. I agree with the orders proposed by Ross J, and with his reasons for proposing those orders.

ROSS J

Introduction

3. On 17 October 2013 the appellant was sentenced by Nield AJ in respect of two counts of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT). At the time he was sentenced by his Honour the appellant was serving a sentence imposed by Burns J on 19 March 2013, in respect of the offence of conspiracy to commit aggravated robbery. Neild AJ took the sentence imposed by Burns J into account, ordered a degree of cumulation and imposed a new non parole period, as required by ss 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT).

4. The appellant has appealed the sentences imposed by Burns J and the subsequent sentence imposed by Nield AJ.

5. It is convenient to deal first with the appeal from the sentence imposed by Burns J.

Appeal from Burns J sentence

6. After being found guilty of conspiring to commit the offence of aggravated robbery Burns J sentenced the appellant to 6 years and 9 months imprisonment with a non parole period of 4 years and 6 months. The appellant’s co-offender (Ramos) was sentenced by Burns J, in The Queen v II No 48 of 2011, to 1 year and 9 months imprisonment, 10 months to be served by periodic detention and the balance appears to have been suspended. Ramos received a 50% discount for his guilty plea and the assistance he had provided to the authorities but for the 50% discount Ramos would have been sentenced to three and a half years’ imprisonment.

7. The appellant appealed both the conviction for conspiracy to commit aggravated robbery and the sentence imposed for that offence. On 3 June 2014 the court dismissed the 1 conviction appeal. This decision deals with the sentence appeal.

8. There are three grounds of appeal:

(i) The learned sentencing Judge failed to properly apply the principles of parity.

(ii) The disparity between the sentence for the co-accused and the appellant is such as to lead to a justifiable sense of grievance on the part of the appellant.

(iii) The sentence imposed was manifestly excessive.

9. It is convenient to deal with the third ground first. 2

10. As was stated in Dinsdale v The Queen; manifest excess [of sentence], is a conclusion’ 3 and, as the plurality pointed out in Wong v R, appellate intervention on the ground that a sentence is manifestly excessive ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases’. What reveals manifest excess, or inadequacy, of sentence is a consideration of 4 all of the matters that are relevant to fixing the sentence.

11. The Court’s power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that his Honour’s discretion miscarried in the result: that is that his Honour imposed a sentence that was above the range of sentences that could be 5 justly imposed for the offence consistently with sentencing standards.

12. The appellant sought to rely on other sentences imposed in the ACT in relation to aggravated robbery to make good the proposition that the sentence imposed here was manifestly excessive.

13. The ‘comparable’ sentences relied on by the appellant and the Crown in these proceedings are of limited assistance. While they provide an insight into current sentencing practice for the offence of aggravated robbery, neither party made any attempt to distil the unifying principles which those sentences reveal and reflect. It is apparent that there is a significant range in the sentences imposed for this offence reflecting the diverse objective features of the offending and the subjective circumstances of the offender. It may be observed that the sentence imposed by Burns J exceeds that 6 imposed in almost all the cases to which the parties referred. Only the cases of Tresize 7 and Diamond involved a higher head sentence than that imposed on the appellant and they concerned multiple offences and the use of weapons.

14. Of course the question of whether the sentence in this case was manifestly excessive is not to be determined on the basis of whether it is more severe than some other sentence. As Hunt CJ at CL observed in R v Ellis:

“What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient 8 than some other sentence which merely forms part of that range.

15. I now turn to consider the matters which were relevant to the fixing of the sentence in this case, in accordance with ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT). In relation to the relevant sentencing considerations his Honour had regard to the following matters:

(i) By virtue of s 48 of the Criminal Code 2002 (ACT) the offence of conspiracy to commit aggravated robbery is punishable as if the offence of aggravated robbery had been committed. The offence of aggravated robbery carries a maximum penalty of 25 years’ imprisonment.

(ii) The appellant was the instigator of the conspiracy and he did most of the preparation.

(iii) The appellant had a lengthy criminal history which meant that he ‘was entitled to no leniency in the current proceedings’ and his ‘prior record speaks of the need to impose a sentence that deters [him] from serious criminal offending’

(iv) The pre-sentence report, noting that the appellant was 35 years old at the time he was sentencing and there was nothing in his formative years that would explain his criminal history.

(v) The appellant had a history of using illicit drugs and while he had expressed a desire to reform his Honour was not satisfied that this should be given significant weight: ‘the fact is that by 2010 you had chosen to commence use of another drug and then to use heroin in 2011, despite knowing that in the past drug use had led you to commit serious criminal offences.’

(vi) The appellant had cooperated in the administration of justice by narrowing the issues that were in dispute at his trial and this was a matter to be taken into account in determining the appropriate sentence.

(vii) The appellant was not ‘beyond rehabilitation’ but his Honour saw no reason why rehabilitation should take precedence over punishment and deterrence, noting that: ‘You are a mature man who has been given opportunities in the past to reform and you have not made the most of those opportunities. Instead you have, inevitably, returned to drug use and crime’

(viii) In terms of the objective seriousness of the offending his Honour noted the conspiracy was well advanced before the appellant was intercepted by police and he expected to obtain a significant sum of money (approximately $10,000) by committing the robbery. His Honour also referred to the intention to use weapons in the commission of the robbery.

16. His Honour’s observations in relation to the objective seriousness of the offending need to be reconsidered in light of the Court’s findings in the conviction appeal and it is appropriate to refer briefly to parts of the conviction appeal judgment which have a bearing on the present matter.

17. The Crown’s case at trial was that the appellant entered into an agreement with his co-offender (Ramos) to commit an aggravated robbery at the Woolworth Supermarket at Kambah. The aggravation elements were being ‘in company’ and being armed with offensive weapons (though the jury were only required to be satisfied of one of the circumstance of aggravation to be able to return a guilty verdict). There was no dispute at trial that the appellant and Ramos had entered into an agreement to commit an offence and that an overt act had been carried out pursuant to that agreement. The issue in contention, both at trial and on appeal, was the scope of the agreement - the Crown contending that the appellant and Ramos had entered into an agreement to commit theft and that agreement encompassed the use of force or the threat of force (i.e. robbery), and further encompassed the use of weapons and being ‘in company’.

18. In dismissing the conviction appeal the Court was satisfied that it was open to the jury to find that the appellant and Ramos intentionally entered into an agreement to commit a robbery and that the agreement encompassed the offence being committed ‘in company’. The Court found that there was insufficient evidence that the agreement encompassed one of them having an offensive weapon with him at the time of the robbery. However while this point was decided in favour of the appellant the Court held that no substantial miscarriage of justice had occurred and on that basis dismissed the appeal. There had been no substantial miscarriage of justice because the offence of aggravated robbery only requires one of the two additional elements (either ‘in company’ or having an offensive weapon) and the evidence in support of a finding that the agreement encompassed the offence being committed ‘in company’ was overwhelming and it was inevitable that a jury would conclude that it was part of the agreement that the appellant and Ramos would be ‘in company’.

19. The Court’s finding in the conviction appeal regarding the offensive weapon element is relevant to the sentence appeal because at first instance the appellant was sentenced on the basis that the conspiracy encompassed an agreement that either the appellant or Ramos would have an offensive weapon with him at the time of the robbery. So much is clear from His Honour’s sentencing decision in which he states: I am satisfied beyond a reasonable doubt that it was part of the agreement between yourself and your co-offender that weapons would be used to ensure that staff acceded to your demands on entry to the store.... Whilst the weapons you intended using in the course of the robbery are not the most lethal of weapons that may be used for such a purpose, they have the capacity to inflict injury or 9 death and would instil fear into those threatened.

20. Counsel for the appellant submits that the conviction appeal impacts on the objective seriousness of the offending such as to justify the reopening of the sentencing discretion and the imposition of a sentence more favourable to the appellant. The Crown concedes that in sentencing the appellant Burns J made findings in relation to an agreement to use weapons and that following the conviction appeal decision this fact should not have been taken into account on sentence. However, the Crown submits that in all the circumstances the sentence imposed by Burns J was not manifestly excessive and the sentence should stand.

21. I accept that the conviction appeal impacts on the assessment of the objective seriousness of the offending. I would assess the offence as being at the middle of the range of objective seriousness for offences of this type.

22. In support of its submission that the sentence imposed by Burns J should stand the Crown advances two points:

(i) The sentencing judge was not precluded from taking into account the inference open on the evidence that the appellant intended to be holding the pinch bar in his hand when he ran into the shop after breaking the window.

(ii) At the time the appellant came to be sentenced by Burns J for the conspiracy the appellant had in fact committed three further aggravated robberies for which he was later sentenced by Neild J. Since the hearing of the sentence appeal on 6 May 2014 the appellant has pleaded guilty to further offences, including aggravated robbery and is awaiting sentence. All these matters were not before Burns J when he sentenced the appellant but are relevant to any resentencing exercised carried out by the court.

23. In the circumstances of this case I do not find the first point advanced by the Crown persuasive. In determining the circumstances of the offending in a conspiracy case it is the scope of the agreement between the conspirators which is relevant, not the subjective intention of each conspirator. In the context of this case the agreement was not implemented to any significant extent and accordingly the suggested inference is speculative. As to the second point, I accept that the further offences are relevant considerations, particularly in relation to the weight to be given to specific deterrence and the need to protect the community. However, it is important to bear in mind that at first instance Burns J did not grant the appellant any leniency having regard to his prior record.

24. It follows from the conviction appeal that the basis upon which the appellant was sentenced at first instance - namely that the conspiracy encompassed the use of weapons - was erroneous and while not pleaded as a ground of appeal that circumstance is relevant to our consideration of the appellant’s contention that the sentence imposed was manifestly excessive.

25. Having regard to the changed basis upon which the appellant’s sentence is to be assessed, that is with the exclusion of the offensive weapon element, I am satisfied that the sentence is manifestly excessive. Accordingly, I would uphold the appeal, quash his Honour’s sentence and resentence the appellant.

26. I would resentence the appellant to a period of imprisonment of four years with a non parole period of two years and 8 months. In resentencing the appellant I have had regard to the circumstances of the offending, the presentence report and the other matters set out at paragraph 13 above.

27. In determining this sentence I have also had regard to the sentence imposed on the appellant co-conspirator (Ramos) noting that there are a number of significant differences between the two offenders. The appellant was the instigator of the offence. He conducted the surveillance and planned the offence. Ramos went along with him but did not come up with the plan, nor contribute significantly to it. Further, while Ramos has no 10 criminal record, the appellant has a significant criminal history.

28. I now turn to consider the appeal in respect of the sentences imposed by Nield AJ.

Appeal from Nield AJ sentence

29. This appeal relates to the sentences imposed for 2 counts of aggravated robbery (upon the Vikings Club on 6 July 2009 and the Wanniassa ACTTAB on 23 October 2010) with further matters of aggravated robbery and taking a motor vehicle (Wanniassa newsagency 16 August 2009) being taken into account pursuant to a schedule in the ACTTAB sentence. Those sentences were imprisonment for 6 years and 3 months and 8 years and 1 month respectively, 3 years and 3 months of which were to be concurrent, giving a total sentence of 11 years and 1 month. That total sentence was also concurrent as to 3 years and 9 months with the sentence previously imposed by Burns J, giving a total effective sentence of 14 years and 1 month.

30. The appellant appeals the sentence imposed by Nield AJ on the grounds that the sentencing process was “infected by error”. Four specific errors are identified.

(i) In finding that the appellant was not remorseful for the offences committed his Honour rejected the evidence given by the appellant, but failed to provide reasons for doing so.

(ii) In finding a lack of prospects for rehabilitation his Honour gave no consideration to the evidence of successful rehabilitation from drug use in the past.

(iii) His Honour gave no allowance for the discrepancy of position between the appellant and the indemnified co-offender Ivan Ramos.

(iv) In dealing with the scheduled offences his Honour gave no reasons adequate to determine whether or not the making of the sentence considerably more severe was tainted by error.

31. The sentencing proceedings took place on 10 and 12 of September 2013. By consent, the following was tendered by the Crown:

(a) Agreed statement of facts: AB71-78 (b) Stills from CCTV footage for the three robberies: AB79-98 (c) Victim impact statements from three victims, Ladda Bryant (Vikings robbery), Jack Dale and Marwan Moussa (ACTTAB robbery): AB99-105 (d) Criminal record: AB106-110 (e) Pre sentence report of Anthony Nocka 4 September 2013: AB 118 (f) CADAS assessment of Kate Gardner 5 September 2013: AB 121 (g) Sentencing remarks of Connolly J in R v Christopher Miles 25 March 2004: AB 122-128 (h) Sentencing remarks of Burns J in R v CJ 19 March 2013: AB 129-133.

32. I now turn to deal with each of the grounds of appeal.

Remorse

33. His Honour’s findings as to remorse are set out at paragraph 56 of his sentencing decision:

I find difficulty in accepting that the offender regrets committing the subject offences and that he is remorseful for having committed them. As I have said already, his guilty pleas do not show any regret or remorse on his part. I know that he told the author of the presentence report that he was remorseful for his actions and that he said in his evidence that he was sorry for the effect of what he did on Ms LB and Mr JD. Frankly, I doubt he has given a moment’s thought to the effect of what he did upon the victims of what he did. I think that a person addicted to heroin, like he was, would do whatever was necessary without thought for the consequences to obtain the wherewithal to buy heroin from a supplier of it to meet his or her addiction.

34. This ground of appeal asserts that, in finding the appellant was not remorseful for the offences committed, his Honour rejected the evidence given by the appellant, but failed to provide any reasons for doing so.

35. I am not persuaded that there is any substance to this ground. I note at the outset that in the proceedings at first instance there was scant evidence of remorse and the appellant’s counsel made no submissions in relation to remorse.

36. The evidence as to remorse is limited to an observation in the presentence report and the appellant’s evidence. The presentence report states: ‘Mr Miles stated he was also remorseful for his actions’. In this passage the author of the presentence report is simply recording what the appellant told him. It is apparent from the report as a whole that the author was sceptical of the appellant’s expression of remorse. Later in the report the author states

The inevitability of his return to aggravated offending upon relapse into drug use is disturbing. His chosen means to fund his use betrays a disregard for the community safety. It suggests entrenched beliefs that foster the behaviour evident in the offences. These 11 beliefs undermine his expression of remorse and provide little comfort to the victims.

37. The appellant gave evidence in the sentencing proceedings. Two aspects of that evidence are relied upon in support of this ground of appeal. The first aspect concerns the reasons given by the appellant for entering a guilty plea on the morning that the trial was due to commence. During his examination in chief the appellant gave the following evidence:

Mr Gill: Will you tell his Honour, as you faced trial, what the significance was of the potential for your son to give evidence?---I was told that morning that my son, my youngest son, was getting called to give evidence against me and from that morning that’d be the last thing I’d ever want. You know, I love him with all my heart and I wouldn’t want him to have to come to court and, sort of, give evidence against me or think he has done anything wrong or anything like that when I’m the one that’s put myself here, you know. Mr Gill: And did that shape your decision to tell the court that you were guilty of the 12 offences?---Yes.

38. The appellant was cross examined in relation to this aspect of his evidence:

Ms Jones: Mr Miles, you’ve said that you pleaded guilty because your son was going to give evidence against you?---Yes That’s the only reason you pleaded guilty at trial isn’t it---No, I committed the crime. You pleaded guilty on the morning of the trial---Yes. All right, it was listed and you know that there were going to be a whole lot of witnesses come and describe what happened to them over those three incidents, yes?---Yes. All right. Now, what you said before was that it was only when you found out your son was giving evidence against you that you wanted to plead guilty?---It was one of the factors. Well, can I suggest to you that it was the factor?---One of them. When did you decide that you were going to plead guilty?---Probably about 6 months after I came into custody. Six months after you came into custody? So, but you actually entered the plea of guilty on the day of the trial?---Yes. Right. So if you were going to plead guilty six months beforehand why didn’t you tell someone that you wanted to do that beforehand?---I’m not sure. Because you were sentenced by Burns J in March this year weren’t you?---Yes. All right. And you could have told everybody then that you wanted to plead guilty to those particular charges couldn’t you?---Yes. But instead the matter was listed for trial. You know all the witnesses had to be subpoenaed. They all thought they were going to have to give evidence about the 13 robberies, the three robberies. You understand that?---Yes.

39. At the conclusion of the cross examination his Honour also asked the appellant about his reasons for pleading guilty:

His Honour: You said, Mr Miles, that the fact that your younger son was to give evidence in the trial was one of your reasons for pleading guilty?---Yes. What were the other reasons?--Having all the witnesses come back up in here and relieve what happened. I just wouldn’t let it happen. But you let it happen when you’re before Burns J?---No. Nobody gave evidence except myself I think. It was a conspiracy. Mr Gill: Mr Ramos and the police gave evidence. There was a conspiracy count your Honour, so it didn’t involve--- His Honour: So, there was no victims? Mr Gill: No. His Honour: So, one reason was your son giving evidence, the other reason was to stop the witnesses, as it were, reliving what happened by giving evidence?---Yes, and I 14 committed the crime.

40. On the basis of this evidence his Honour was entitled to find, as he did, that the plea was not indicative of remorse. Indeed the appellant’s counsel in the sentencing proceedings did not submit that the plea was indicative of remorse, confining his submissions to identifying some problems with the prosecution case (to rebut the suggestion that the plea was made in the face of an overwhelming prosecution case) and making the following submission: And it was a plea of guilty entered. It has to be said that it’s been entered late. It was entered on the morning the trial was due to commence. The particular specified reason that Mr Miles gives as the prime reason is to avoid his son being placed in a position where he would need to give evidence against Mr Miles. The Crown, I understand, accepts that there 15 was utilitarian value that went with the guilty plea.

41. The second aspect of the appellant’s evidence which is relied on in support of this ground of appeal concerns the appellant’s response to the victim impact statements made in the proceedings. During his examination in chief the appellant was asked about his reaction to one of the victims reading out his victim impact statement:

Mr Gill: The other day you heard Mr Dale read his victim impact statement?---Yes. What do you have to say about that?---That’s the first time I’ve had a victim impact statement read to me and I didn’t know I had that sort of affect on anyone. Let me ask you in a different way, what do you think you have done to Mr Dale’s life? Wrecked it. I’m just sorry for what happened to him and everyone that was there. You’ve also seen the victim impact statements from Linda Bryan from the Vikings Club and Marwin Musa (?) from the ACTTAB?---Yes. And what sort of impact do you think you’ve had on their lives?---Similar, the same as 16 Dale. 17

42. The appellant was cross examined about this aspect of his evidence. It is apparent that the purpose of the cross-examination was to cast doubt on the veracity of the appellant’s evidence in chief on the basis that he had previously been sentenced for robberies involving weapons in 1996 and 2004.

43. I accept the Crown’s submission that it is inconceivable that a person who has committed multiple aggravated and armed robberies would not have previously had the opportunity to reflect on the impact of his behaviour. This is particularly so given the years of imprisonment he has served and his participation in a number of rehabilitation programs.

44. His Honour was in a position to observe the appellant give evidence at the sentencing proceedings and to make an assessment based on that observation. His Honour was entitled to reject the appellant’s evidence as to his appreciation of the impact of his offending on his victims and his statement that he was sorry for what happened to them.

Rehabilitation

45. His Honour addressed the appellant’s prospect of rehabilitation at paragraph [57] of his sentencing remarks:

I cannot say that the offender has good prospects for rehabilitation or that he is unlikely to reoffend. His criminal past does not instil a confidence in me that he is prepared to change his lifestyle.

46. The appellant submits that his Honour’s approach to the question of rehabilitation inadequately dealt with the appellant’s history and gave no consideration to the seven year period in which he was drug free which preceded his relapse and the commission of the offences for which he was sentenced.

47. I am not persuaded that there is any substance in this ground of appeal.

48. I note at the outset that the seven year period of abstinence referred to in the appellant’s written submission included a significant period in custody. Further, it is apparent from his sentencing reasons that his Honour did have regard to the appellant’s previous periods of abstinence. At paragraph 10 of his sentencing reasons his Honour says: He has attempted to overcome his addiction to heroin, and there have been periods of time when he has abstained from using heroin, but he has repeatedly relapsed into using it. 18

49. The appellant has had a long standing heroin addiction commencing in 1996 . In 1996 aged 18 he committed his first armed robberies for which he received a significant custodial sentence. Two months after release on parole he committed two further armed robberies. Within three years of his release on parole, he committed three further aggravated robberies. His Honour was entitled to take into account the appellant’s past conduct in considering his likely future conduct and the prospects of rehabilitation.

50. His Honour was also obliged to take into account the presentence report, which gave a somewhat guarded assessment of the appellant’s prospects. At page 6 of the report the author states:

Mr Miles has some insight into the cycle of drug use which plays the significant part in his offending behaviour. This is the likely result of his participation in a residential rehabilitation program. He has a history of managing dependence and can articulate the requirements to successfully maintain abstinence. Unfortunately gaps remain in his maintenance planning which allow drug use to exercise control again with severe consequences for the community. The inevitability of his return to aggravated offending upon relapse into drug use is disturbing. His chosen means to fund his use betrays a disregard for the community safety. It suggests entrenched beliefs which foster the behaviour evident in the offences. These beliefs undermine his expression of remorse and provide little comfort to victims. It is encouraging that Mr Miles has a plan for rehabilitation in custody. It includes a program to address the cognitive patterns which promote his offending behaviour. Participation in this could complement and enhance further processes to address his history of hazardous drug use. It remains to be seen if his progress in these interventions can transition to a level of maintenance in the community which supports Mr Miles in resisting a return to the 19 offending behaviour he currently practices. (emphasis added)

51. For the reasons I have given I am not persuaded that his Honour erred in the manner contended by the appellant.

Parity

52. It is common ground that the appellant and Ramos together committed the offences for which the appellant was sentenced. Ramos was granted immunity against prosecution for those offences and was to give evidence on behalf of the Crown at the appellant’s trial for these offences. At paragraph 61 of his sentencing decision his Honour concluded that ‘there is not any question of parity between the offender and Mr Ramos’.

53. The appellant submits that his Honour adopted too narrow a view of the parity principle and that the principle is not so constrained as to exclude it from consideration in setting the appellant’s sentence, taking into account the position of Ramos. The appellant relied 20 on Green v The Queen; Quinn v The Queen (Green) in support of this proposition. It is submitted that the sentencing judge should have ameliorated the appellant’s sentence to take into account the fact that Ramos had escaped any penalty at all given the immunity 21 from prosecution.

54. In Green the plurality described the parity principle as an incident of the norm of equality before the law;

Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of the law. . .It requires, so far as the law permits, that like cases be treated alike. Equal justice requires, where the law permits, that likes cases be treated alike. Equal justice according to the law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope purpose and subject matter of the law. . . The consistency required by the parity principle is focussed on the particular case. It applied to the punishment of ‘co-offenders’, albeit the limits of that term have not been defined with precision. In Lowe v The Queen and in Postiglione v The Queen this court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of the charges against the offenders whose sentences are compared is not a necessary consideration of 22 its application. (citations omitted)

55. Green is authority for the proposition that the parity principle applies to the punishment of ‘co-offenders’, albeit the limits of that term have not been defined with precision, and that formal identity of charges against ‘co-offenders’ is not necessary. In relation to the latter proposition the plurality recognised that ‘there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been 23 charged with different crimes’.

56. I am not persuaded that Green carries the appellant the required distance. Green is silent on the operation of the parity principle in circumstances where the co-offender has been granted immunity from prosecution. Further, such an extension of the parity principle is contrary to authority. 24

57. In R v Malvaso the South Australian Supreme Court considered this question in the context of a successful Crown appeal against sentence. Chief Justice King (with whom Cox and O’Loughlin JJ agreed) said:

In his report to this court the learned trial judge also placed weight upon the consideration “that Malvaso’s assistance (which also extended to passing on information as to another crop) was, in the event, little less effective than that of Mr X and that there ought to be some reasonable equality of treatment.” Mr X was the informer and he was granted immunity against prosecution. I do not think this is a relevant consideration. It is the prosecution’s responsibility to decide whether immunity against prosecution is to be granted and whether or not prosecution is to be instituted. If no prosecution is instituted, the offender does not come before the court and the court has no role to play in connection with that offender. The courts endeavour to observe parity of treatment between co-offenders who are dealt with by the courts, but they can not ensure parity of treatment between those who come before the courts and those who do not. I think that to endeavour to do so would be to distort the sentencing process. The responsibility for the decision to refrain from prosecuting or to grant immunity from prosecution rests elsewhere and should not be a factor in assessing the appropriate punishment for those who do come before the courts. I think that the learned trial judge’s endeavour to ensure “some reasonable equality of treatment” between the man whom he was required to sentence and a man who was not 25 before the court was misplaced. (emphasis added) 26

58. Similarly, in R v Kerr Miles AJ (with whom Beazley JA and Adams J agreed) observed:

A co-offender may be given immunity in exchange for testifying against the accused. That does not in itself require leniency to be extended to the offender being sentenced let alone a sentence that is so lenient that it is out of the range of what it appropriate.

59. This observation was endorsed by Latham J (with whom Giles JA and Matthews AJ 27 agreed) in Pham v The Queen.

60. In addition to the weight of authority it seems to me that there is a clear distinction to be drawn between comparing sentences imposed on co-offenders (whether charged with the same offence or not) and a comparison between the sentence imposed on one offender and the position of the co-offender who was not charged with an offence. In the former case curial punishment is imposed on both offenders; in the latter one is seeking to compare curial punishment with no punishment. A further practical difficulty arises from the fact that the decision of the Executive to grant immunity is opaque, in the sense that unlike sentencing by a court it is not a public process and reasons are not published. In such circumstances there are insuperable practical difficulties in seeking to make a comparison between the relative position of an offender who is convicted and sentenced by a court and an offender granted immunity from prosecution. I am not persuaded that there is any substance to this ground of appeal.

Scheduled offences

61. His Honour took two additional offences into account in sentencing the appellant: an aggravated robbery and dishonestly taking a motor vehicle without consent.

62. At paragraph 60 of his sentencing decision, his Honour made the following observation in respect of the scheduled offences:

I have been asked, as I have said already, to take into account the two additional offences itemised on the list of additional offences, in determining the appropriate sentence for the offence of aggravated robbery committed on 23 October 2010. I will do as I have been asked. My doing so will mean that the sentence for the offence of aggravated robbery committed on 23 October 2010 will be more severe, and considerably so, than it would have been if it had been the only offence. I say “considerably so” because the first of the two additional offences is an aggravated robbery offence, in this case robbery in company, 28 which is as equally serious as the aggravated robbery offence committed on 6 July 2009.

63. The appellant submits that in dealing with the scheduled offences, his Honour gave no reasons adequate to determine whether or not the making of the sentence considerably more severe was tainted by error.

64. Section 57 of the Crimes (Sentencing) Act permits the taking into account of additional offences:

(2) The court may take an additional offence into account in making a sentence-related order for the principal offence if— (a) the offender admits guilt to the additional offence; and (b) the offender confirms that the offender wants the additional offence to be taken into account by the court in relation to the principal offence; and (c) the prosecutor consents to the additional offence being taken into account. (3) If the court takes an additional offence into account in relation to the principal offence, any penalty imposed for the principal offence must not exceed the maximum penalty the court could have imposed for the principal offence if the additional offence had not been taken into account.

65. In R v Barton Spigelman CJ explained how a court is to take such additional offences into account:

The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater 29 weight than they may otherwise be given when sentencing for the primary offence.

66. The above observation is subject to the constraint imposed by s 57(3) of the Sentencing Act (which provides that any penalty imposed cannot exceed the maximum penalty for that offence notwithstanding that additional offences are taken into account) and by other 30 relevant principles of sentencing such as totality.

67. I am not persuaded that his Honour erred in the manner contended by the appellant. The imposition of a more severe sentence on account of the additional offences is not of itself erroneous (subject to the constraint imposed by s.57(3), which does not arise here). As this Court observed in R v Tracey-Campbell:

No doubt it [taking into account additional offences] will generally have the result of 31 increasing the sentence about to be imposed.

68. Further I am not persuaded that it was necessary for his Honour to provide further reasons for the course he adopted. Consistent with observation made by Spigelman CJ in Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedures) Act 32 1999 No 1 of 2002 it will rarely be appropriate for a sentencing judge to attempt to quantify the effect of the sentence of taking additional offences into account. In this context it is relevant to note that the appellant did not contend that the sentence imposed by his Honour was manifestly excessive.

69. I am not persuaded that this ground of appeal is made out.

Conclusion

70. For the reasons given I am not persuaded that any of the grounds of appeal have been made out and accordingly I would dismiss the appeal from the sentences imposed by Nield AJ.

71. Upholding the appeal in respect of the sentence imposed by Burns J and the subsequent resentencing of the appellant in respect of the conspiracy offence will have a consequential effect on the sentence imposed by Nield AJ. Pursuant to ss 66 and 74 of the Crimes (Sentencing) Act, I would adjust the dates of the sentence imposed by Nield AJ and set a new non parole period for the total sentence.

72. The new sentence of imprisonment for 4 years, to replace the sentence imposed by Burns J, is to run from 5/1/2011 until 4/1/2015. I would reduce the concurrency between that sentence and the sentences imposed by Nield AJ from 3 years and 9 months to 3 years, so the sentence imposed by Nield AJ would start on 5/1/2012 and run until 4/2/2023, giving a total effective sentence of 12 years and 1 month. For that sentence I would set a new non parole period of 7 years and 7 months, commencing on 5/1/2011 and ending on 4/8/2018.

I certify that the preceding [72] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal

Associate:

Date: [2014] ACTCA 18 (3 June 2014) 2 (2000) 202 CLR 321 at 325; see applied in Hili v The Queen (2010) 242 CLR 520 3 (2001) 207 CLR 584 at 605 [58] 4 Hili The Queen (2010) 242 CLR 520 at [60] 5 Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; 306 per McHugh J; Lacey v Attorney General (Qld) (2011) 242 CLR 573 at 581 [15]-[16] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen (2013) 249 CLR 571 at [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ 6 (Unreported, Supreme Court of the ACT, Nield AJ, 7 September 2012) 7 (Unreported, Supreme Court of the ACT, Nield AJ, 29 October 2010) 8 (1993) 68 A Crim R 449 at 461; cited with approval by this court in R v Campbell [2010] ACTCA 20 9 Appeal book at 181 and 184 10 R v Cox (1996) 66 SASR 152 11 AB 116 12 AB 42 lines 20-30 13 AB47 lines 1-35 14 AB 51-52 15 AB53 lines 13-19 16 AB46 lines20-35 17 AB47-49 18 AB113 19 AB116 20 (2011) 244 CLR 462 21 AB59.12-16 22 Ibid at 472-474 [28]-[30] 23 Ibid at 474 [30] 24 (1989) 50 SASR 503 at 511 25 Ibid at 510-511 26 [2003] NSWCCA 234 at [20] 27 (2009) 193 A Crim R 190 at [36] 28 AB 15 at [60] 29 (2001) 121 A Crim R 185 at 195 [64] 30 See Mill v The Queen (1988) 166 CLR 59; R v Tracey Campbell [2010] ACTCA 20 (31 August 2010) at [42]- [50] 31 [2010] ACTCA 20 at [50] 32 (2002) 56 NSWLR 146 at [44]