Murphy v Regina

1 STUDDERT J: I agree with Whealy J 2 WHEALY J: This is an applicantion for leave to appeal against severity of sentence. On Friday 18 June 2004 the applicant entered a plea of guilty to a single count of conspiring to commit an armed robbery with an offensive weapon. On 9 September 2004 her Honour Judge Murrell sentenced the applicant to a head sentence of four years three months with a non-parole period of three years. 3 The co-conspirators were Peter Wilson and Wayne Davis. The latter was the de facto husband of the applicant and the father of their child. 4 The problem which has arisen has done so in a not unfamiliar context . The applicant herself was sentenced, as I have said, on 9 September 2004. The co-conspirators were not sentenced until 4 March 2005 and were sentenced by another judge, Hosking DCJ. 5 It is convenient to set out at this stage what happened to the co-offenders. Wilson who was plainly the principal co-conspirator was sentenced to four and a half years with a non-parole period of three years. Next in rank was Davis who was sentenced to five years five months with a non-parole period of four years. 6 The conspiracy entered into by the three offenders related to a plan to commit an armed robbery upon Chubb Security staff during cash in transit activity in the South Western Sydney region. As I have said Wilson was the principal organiser. He had access to the information regarding the Chubb movements, he had access to the ATM's, he had firearms in his possession and he initiated most of the telephone calls which were intercepted during the period of the conspiracy. Davis too had an important role. As the sentencing judges found, it was that he was to be Wilson's right-hand man in effect, responsible for organising the "nuts and bolts" of the armed robbery. He had been in attendance at the proposed scenes of the armed robbery and had undertaken surveillance in company with the applicant. 7 Her Honour the sentencing judge had detailed the involvement of each of the conspirators in her remarks on sentence. As to the applicant, her Honour said: - "The offender's role was limited and was certainly less than that of Davis. However, she did have a significant role. She was obviously aware of most of the arrangements and Wilson was quite happy to deal with her when Davis was not available. She was present with Davis when he was undertaking surveillance at the Condell Park and Bass Hill locations. She drove him on a number of occasions on errands associated with the conspiracy. The Crown accepts that there is no evidence that she was going to personally directly participate in a robbery … However she had an ongoing role and provided some assistance to Davis in terms of assisting him or at least accompanying him on surveillance and liaising with Wilson when Davis was not available." 8 At page 9 of the remarks on sentence her Honour summarised the views she took about the applicant's role in the conspiracy. Her Honour said: - "In sentencing the offender, I am aware that her role was very significantly less than that of Mr David and vastly less than that of Mr Wilson. That is important." 9 The sentencing judge said that, but for the plea of guilty, she would have imposed a term of imprisonment for five and a half years. However, having regard to the plea of guilty, the applicant was sentenced to imprisonment for four years and three months. The Crown conceded that the appropriate range for the discount of sentence was 20 to 25%. The applicant had indicated, as the Crown conceded, that she would plead guilty at an early stage. This was in fact at the Local Court stage and the plea was later formally entered upon arraignment. 10 It is convenient to examine, by way of contrast, the situation of the co-offenders. In their case his Honour specifically came to the same conclusion about the role and culpability of each of the three offenders. In fact Hosking DCJ quoted her Honour's remarks on sentence in which the different levels of culpability had been scrutinised and assessed. His Honour said that the remarks of the original sentencing judge "seem a fair description to me of the respective positions and roles of the three offenders in the scheme of this conspiracy". 11 Each of the co-offenders pleaded guilty. Wilson, however, did not enter his plea until the first day of trial. Davis entered his plea on the following day. Each were allowed a 17% discount for his plea. Wilson had no criminal antecedents but, it is arguable that his level of criminality and the breach of trust involved in the offence should have led to the starting point for Wilson's sentencing being much higher than that imposed upon the applicant. However, the starting point for Wilson's sentence was five and a half years, exactly that ascribed to the applicant. In general terms, the subjective case for the applicant, although not an ideal one, was far better than that of Davis. Nevertheless, the starting point for Davis' sentence was six and half years, only a year more than the starting point for the applicant and for Wilson. 12 One final matter needs to be mentioned: In sentencing the applicant, her Honour Judge Murrell found that there were special circumstances requiring a longer than usual period of supervision. These were quite significant and are set out in detail in her decision. However, her Honour made only a relatively slight variation to the length of the parole period producing a non-parole period of three years. So far as I can ascertain, it seems that the ratio between the non-parole period and the head sentence was 71% rather than the statutory ratio of 75%. While the ascertainment of special circumstances and its impact on the statutory ratio would not normally play a part in an argument based on disparity between co-offenders, I have set out this additional material so as to make comprehensive the submissions made on behalf of the applicant. 13 There are two grounds of appeal. These are: -

The learned sentencing judge erred in the manner which she took into account the applicant's prior criminal history. 14 May I say immediately that I am not satisfied that her Honour fell into error in relation to the second ground. It is true that her Honour said that she had regard to the aggravating and mitigating factors set out in s 21A of the Crimes (Sentencing Procedure) Act. Her Honour continued: - "In terms of the aggravating features, the most relevant features seem to me to be the fact of the offender's previous convictions and the fact that the offence was part of a planned or organised criminal activity." 15 It could not be said that the last matter, in its proper context, demonstrated error of law nor do I understand that any such submission has been made on behalf of the applicant. However, the applicant does submit that s 21A(2)(d) should be read according to the common law principle that a prior record does not have the effect of aggravating an offence although it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community (Regina v Wickham [2004] NSWCCA 193 per Howie J (with whom the other members of the Court agreed); See also Regina v Shankley [2003] NSWCCA 253 at (31); Regina v Johnson [2004] NSWCCA 76). 16 I am satisfied however, that there is nothing in her Honour's decision which indicates that a harsher penalty was imposed because of the applicant's criminal record. Nor do I consider, when the decision is read fairly, that her Honour in fact took into account the criminal antecedents of the applicant as a factor aggravating the objective gravity of the offence. 17 There were a complexity of issues that plainly arose for determination in this sentencing procedure. Although her Honour mentioned the matter, I am not persuaded that the applicant's previous criminal record played any real or significant part in the sentencing process. I accept, as Mr Stratton SC argued, that her Honour mentioned the matter in the course of identifying features specifically referred to in s 21A. Beyond recording the fact, however, the matter was not discussed further, although other matters, both in aggravation and mitigation, were discussed. In those circumstances, I am not satisfied that the criminal record referred to by her Honour had any material impact in the present case on the sentence (R v Atonio [2005] NSWCCA 200 at para 17). 18 I return now the principal ground of appeal. The applicant submits that the various matters to which I have earlier made reference demonstrate that the applicant had every reason to believe that she would be treated more favourably than her co-offenders in the sentencing process. Yet in truth, so the submission runs, she was not; and this leads inevitably to a legitimate sense of grievance in an objective sense. 19 The Crown essentially submits that there is no real basis for complaint in relation to the sentence imposed by her Honour in her Honour's sentencing discretion. 20 In relation to perhaps the most significant feature of this application, that is the applicant's role in the conspiracy: as Judge Murrell remarked, this was "significantly different" to the role of Davis and "vastly different" to the role of Wilson in the conspiracy. A second matter, although not one in my view of the same level of importance, is the fact that the plea advanced on behalf of the applicant was both contemplated and occurred at a much earlier point of time than the plea entered on behalf of the co-offenders. Their pleas came very late in the piece indeed. 21 The second submission made by the Crown is that it is not necessary for an appellate court to intervene even where disparity has been demonstrated, if to do so would produce a sentence disproportionate to the objective and subjective criminality involved (Regina v Steel NSWCCA 17 April 1997). There is a further relevant principle relied on by the Crown namely, that where a manifestly inadequate sentence is imposed on a co-offender, a sense of grievance held by another is not legitimate (Parr v Diamond NSWCCA 18 February 1993 and R v Hooper NSWCCA 19 November 1998). 22 One response to both aspects of this second submission is that this is not an application in which the Crown has suggested that Judge Hosking erred in relation to the sentences he imposed on Wilson and Davis. Rather, the Crown has argued that both sentences, although lenient, fell within a proper sentencing ambit. 23 The third submission put forward by the Crown is that there can be no complaint by the applicant with the discount she received in relation to her plea of guilty. It was, the Crown submitted, at the upper end of the range. The real complaint, it was put, was that the co-offenders were given a discount of 17% which may have been too high having regard to the fact that the pleas were entered on the first and second days of their trial. 24 Again, while there is a basic level of merit in this submission, the Crown has not suggested that Judge Hosking fell into any error of law in relation to the extent of the discount he gave to both Wilson and Davis, although it was admittedly very generous. 25 The real thrust of the applicant's submissions, as I apprehend them, are that when one looks at the overall result of the sentence imposed on the applicant and compares it to the sentences imposed on each of the co-offenders, there emerges a genuine and legitimate disparity between her situation and that of the co-offenders. This is so especially in relation to the head sentences imposed on the co-offenders, and the "starting point" comparison for the head sentences imposed on all three. 26 Having reflected carefully upon the submissions, I have come to the conclusion that the submissions of the applicant in this regard are correct. The plain fact of the matter is that the applicant and Wilson had their sentences determined by reference to a "starting point" in each case of five and a half years. The starting point for Davis, having regard essentially to his situation as a parolee at the time of the offence, was six and a half years. In view of the fact that the applicant's role was very significantly less than that of Mr Davis and vastly less than that of Mr Wilson, I am of the opinion that the applicant has demonstrated objectively a genuine and legitimate sense of grievance so as to warrant the intervention of the Court. 27 In the event that the Court were minded to allow the appeal, the applicant has filed material relevant to the imposition of a fresh sentence. This material includes case notes which demonstrate that she has abided by a successfully diminishing methadone programme while in custody. Secondly, there is an affidavit from the applicant herself which demonstrates in some detail the progress she has made. This relates to the Mother and Children's Programme operated from the Emu Plains Prison Complex and the applicant's attendance successfully to date at drug and alcohol counselling. The applicant clearly has a long way to go towards full rehabilitation but her affidavit suggests that at this stage she is progressing reasonably well. 28 I have taken this additional material into account in relation to the re-sentencing process. 29 In my view , it is necessary in order to achieve parity in the present matter to select a "starting point" for the applicant's head sentence which pays appropriate regard to the role she played in the conspiracy and for which she has been convicted. An appropriate starting point in my view is, in her case, a term of imprisonment of four and a half years. Bearing in mind the Crown's concession as to the appropriate range for the discount of sentence related to early plea, the applicant should be sentenced to a term of imprisonment of three and a half years. Her Honour the sentencing judge found special circumstances and in view of the matters relied upon by her Honour and the confirmatory material which has been placed before this Court, it is my view that an appropriate non-parole period in the present matter is a period of two years and three months. 30 I propose that the application for leave be granted, the appeal allowed and the sentence imposed by her Honour be quashed. In place of that sentence I propose that the applicant be sentenced to a term of imprisonment of three and a half years. The sentence is to commence on 21 November 2003. I propose a non-parole period of two years and three months. The balance of the sentence should be for a further fifteen months. The applicant will be eligible for parole on 20 February 2006. 31 HOWIE J: I agree with Whealy J.

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Judgment (14 paragraphs)

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