Nathan McIVOR v R

CATCHWORDS: Criminal Law - Sentence - multiple armed robberies - whether sentence manifestly excessive

Cavanagh v R [2009] NSWCCA 174 CASES CITED : TS v R [2007] NSWCCA 194 Qing An [2007] NSWCCA 53 R v Antecki [2001] NSWCCA 312

COUNSEL: P Leask - Crown P Boulten SC - Applicant

SOLICITORS: S Kavanagh - Crown J Krajcik - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/15914

TOBIAS JA HIDDEN J HOWIE J

FRIDAY 12 FEBRUARY 2010 Nathan McIVOR v REGINA Judgment

1 TOBIAS JA: Like Hidden J, I agree with Howie J that the overall sentence imposed upon the applicant was excessive and I also agree with the orders which his Honour proposes. 2 I also agree with his Honour's view as to the inadequacy of the range of sentences currently being imposed on those who commit a large number of armed robberies. However, it must be noted that in the present case the applicant was being sentenced only with respect to two offences of armed robbery and one offence of assault with intent to rob. Accordingly, I would not regard him as being one of those persons to whom Howie J's remarks were directed. 3 Nevertheless, although he was being sentenced with respect to multiple robbery offences, their number could not be described as large: cf Qing An. This fact provides further support for his Honour's conclusion that in the circumstances the overall sentence imposed on the applicant by the sentencing judge was excessive. 4 HIDDEN J: I agree with Howie J that the overall sentence passed upon the applicant is excessive, and I agree with the orders which his Honour proposes. I prefer to express no view about the adequacy of the current range of sentence for multiple armed robberies. 5 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by Judge Nield (the Judge). The sentences were passed upon the applicant after a jury convicted him of three robbery offences. The three counts on the indictment were as follows: an armed robbery committed on 29 July 2006 (count 1); an armed robbery committed on 6 August 2006 (count 2); an assault with intent to rob while in company on 12 August 2006 (count 3). The maximum penalty prescribed for each of the offences was 20 years imprisonment. 6 The Judge sentenced the applicant as follows: (count 1) imprisonment for 7 years made up of a non-parole period of 4 years 6 months from 14 August 2007 and to expire on 13 February 2012 with a balance of term of 2 years 6 months; (count 2) imprisonment for 7 years made up of a non-parole period of 4 years 6 months from 14 August 2011 and to expire on 13 February 2016 with a balance of term of 2 years 6 months; (count 3) imprisonment for 7 years made up of a non-parole period of 1 year 6 months from 14 August 2015 and to expire on 13 February 2017 with a balance of term of 5 years 6 months. 7 In the result the applicant was sentenced to an overall period of imprisonment of 15 years from 14 August 2007 with an overall non-parole period of 9 years 6 months. The earliest date upon which the applicant can be considered for release on parole is 13 February 2017. 8 There are three grounds of appeal:

1. "The sentencing exercise miscarried because the applicant has been left with a justifiable sense of grievance in that he received a comparatively harsher sentence than did a co-offender, Barry Paul Cavanagh."

2. "His Honour erred by failing to give proper effect to the principle of totality."

3. "The sentences were manifestly excessive." 9 The relevant facts can be summarised briefly. Each of the three offences was committed with a co-offender, Barry Cavanagh. Judge Morgan sentenced him for a number of robbery offences on 6 June 2008. He received an overall term of imprisonment of 14 years with an overall non-parole period of 10 years. An appeal to this Court against the sentence imposed was dismissed: see Cavanagh v R [2009] NSWCCA 174. 10 Count 1 on the indictment against the applicant related to an armed robbery committed when he and Cavanagh, each armed with a knife, entered a liquor store in Beverly Hills. The proprietor was threatened and robbed of money, his wallet and a mobile telephone. Count 2 related to an offence committed about a week later when both men, again armed with knives, entered a liquor store in Villawood and robbed the occupants of money and a mobile telephone. Count 3 related to an offence committed six days later when the two men, armed with knives, entered a liquor store at Peakhurst. They threatened the occupant intending to rob him but were unsuccessful. 11 The applicant was born on 2 March 1982. He has a criminal record dating from September 2000. In 2002 he was sentenced in the District Court on two counts of robbery in company to a total sentence of imprisonment for 2 years with a non-parole period of 7 months 7 days. In 2003 he was sentenced for one count of armed robbery to imprisonment for 5 years 6 months with a non-parole period of 2 years 6 months. The applicant was released to parole on 16 December 2005. He was thus on parole for armed robbery when he committed these offences. 12 A pre-sentence report and a psychological report were tendered in the sentencing proceedings. His Honour stated, "I do not see anything in his background or upbringing relevant to his commission of the subject offences". The Judge noted that the applicant was struck by a motor vehicle in 1999 and in the course of treatment received morphine for pain management. Thereafter the applicant became a user of heroin and this, his Honour said, "caused his descent into a life of crime". 13 When released to parole, the applicant obtained employment with a firm in which a person, who had known the applicant over many years, held a managerial position. The applicant was described as a "good worker". He is single and had a girlfriend for a few months before his arrest on 14 August 2006. Following his arrest his parole was revoked and he had the balance of his sentence to serve until 31 December 2008. 14 The Judge found there were a number of aggravating factors relevant to the determination of the sentences for the present offences including the fact that the applicant was on conditional liberty, the vulnerability of the victims and that the offences were part of planned criminal activity. He accepted that the applicant had the support of his family and employment available to him on release but stated, "his past drug use and criminal life do not instil confidence in me that he is motivated towards living a drug and crime free life". The Judge thought that both specific and general deterrence were important. He also noted that he had to bear in mind parity with Cavanagh and, accordingly, noted similarities and differences between the two offenders. 15 The Judge considered the issue of totality and observed that the three offences were committed on separate occasions. He determined that there should be some accumulation between the sentences. He stated:

As to special circumstances, I consider the facts that I intend to order that the first sentence commenced on a date after the date of the offender's arrest and that the sentences be served partly concurrently and partly consecutively are special circumstances to justify a total non parole period of nine years six months and a total parole period of five years 6 months. 16 I intend to deal with the last ground of appeal first. This is because, if the sentences imposed are manifestly excessive, the Court must intervene and will address questions of totality and parity in imposing new sentences. I should indicate that there is no patent error in the sentencing of the applicant that operated to his detriment. The non-parole period is a lenient one as against the total sentence imposed and was not justified by the reasons given by his Honour. The applicant was to serve 15 years cumulative upon a year for his breach of parole: that is the equivalent of an over-all period in custody of 16 years from the date of his arrest. An application of the statutory relationship between the overall total sentence and the overall non-parole period would have resulted in a non-parole period of 12 years. Yet the applicant received an overall non-parole period of 10 years 6 months even though there were no special circumstances mentioned by his Honour that would justify such a reduction in the non-parole period from the statutory relationship. 17 In support of the third ground of appeal the applicant has called in aid sentencing statistics and they reveal, as is often the case, that the sentences actually imposed do not appear to reflect the statutory maximum penalty of 20 years. The sentencing statistics are frequently being used to displace the maximum penalty so that the sentencing court and this Court are being asked to have regard to the highest sentence that has been imposed in order to determine the appropriate sentence to be imposed in the instant case. The statistics indicate to me that the range of sentences being imposed for multiple armed robbery offences is too low. But the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that this Court might think is appropriate. 18 A number of decisions of this Court were referred to in order to indicate that lesser sentences or comparable sentences have been imposed upon other offenders for more armed robberies. Where the appeal is by an applicant and the appeal is dismissed, the only conclusion that can be drawn is that this Court did not believe that the sentence was manifestly excessive. Some of the sentences on their face seem to me to be manifestly inadequate in light of the large number of offences for which sentence was being imposed or that were being taken into account. A number of the cases to which reference was made offer little guide to whether the sentencing discretion miscarried in this case because of the very different subjective factors being taken into account. 19 Of more significance are those cases where this Court has intervened. In TS v R [2007] NSWCCA 194 this Court found a number of errors of principle in the sentencing judges remarks and re-sentenced the applicant for five armed robbery offences where a knife had been used and taking into account matters on a Form 1. The applicant however was only 16 at the time of offending. The Court imposed sentences giving rise to an overall non-parole period of 3 years 6 months and balance of term of 1 year 6 months. Giles JA who delivered the principal judgment said:

The sentences are markedly more lenient than would have been imposed on an adult offender. 20 In Qing An [2007] NSWCCA 53 the appellant was convicted after trial of 8 counts of armed robbery committed on massage parlours by the use of a knife in some offences and a replica pistol in others. He received an overall sentence of 12 years with a non-parole period of 10 years. This Court found that the sentences were manifestly excessive. The Judge had sentenced by increasing the sentences for particular offences even though the seriousness of the conduct in each case was the same and this was held to be an error of principle. So, for example, a sentence of 6 years was imposed for the first count but a sentence of 9 years was imposed for counts 9 and 10. It was held that sentences of 8 and 9 years were outside the available range and the overall sentence was excessive. There was also a consideration of parity with a co-offender. The appellant was sentenced to an overall term of 10 years and 6 months with a non-parole period of 7 years 6 months. Unlike the present applicant the appellant in that case was not on conditional liberty at the time of the offending. 21 There are other decisions of this Court where sentences have been reduced for multiple counts of armed robbery by two-person benches. With respect to the opinions of the judges comprising those benches, the sentences imposed appear to me to be manifestly inadequate as representing the seriousness of multiple armed robberies. For example, I cannot accept that an overall sentence of 9½ years with a non-parole period of 5½ years can adequately reflect the criminality of 7 armed robberies, 2 attempted armed robberies and 13 similar offences taken into account on a Form 1: R v Antecki [2001] NSWCCA 312. 22 However taking account of the sentences that have been considered by this Court and in particular the decision in Qing An, it does seem to me that the overall sentence imposed upon the applicant is outside the range that appears to have been established notwithstanding my view that the range is generally too low for sentences for a large number of armed robberies. 23 In relation to the ground based upon parity, in my opinion this Court should refuse to entertain such a ground of appeal in circumstances similar to this case. Cavanagh was sentenced for only one offence that he committed with the applicant. The other two offences were taken on a Form 1. True it is that Cavanagh received a fixed term of 4 years 6 months for that offence, being count 3 on the applicant's indictment. But a fixed term represents the equivalent of a non-parole period and, in Cavanagh's case, it was after a discount for a plea of guilty. Yet the applicant received a sentence with a non-parole period of 1 year six months for that offence after trial. Of course a strict parity argument cannot be sustained on that basis. 24 The real complaint is that Cavanagh received an effective sentence of 14 years imprisonment with a non-parole period of 10 years for four offences of armed robbery and the joint offence committed with the applicant and having five offences of armed robbery, two of them committed with the applicant, on a Form 1. The applicant argues that he should have received a lesser sentence having regard to the greater criminality for which Cavanagh was sentenced. That is not, in my opinion, a legitimate sense of grievance arising from a lack of parity between co-offenders. It is no more relevant to compare the sentence imposed upon Cavanagh than it is to compare the sentence imposed upon some other offender who received a lesser sentence than the applicant did yet committed more offences. The argument in such a case is not concerned with parity but is one based upon a consideration of the available range. If the sentences being compared are within the available range and the difference is a result simply of the exercise of discretion within the range, there is no legitimate sense of grievance for this Court to address. 25 However, the sentence imposed upon Cavanagh does confirm the view that I had already formed that the overall sentence imposed upon the appellant is excessive. 26 In my opinion none of the individual sentences is excessive. A sentence of 7 years seems to me to appropriately reflect the criminality of the offence taking into account that the applicant was on parole at the time. The offences were aggravated as his Honour found and there was little by way of mitigation. The only basis for a finding of special circumstances is the fact that there will be an accumulation of sentences. In my opinion the overall non-parole period should be three quarters of the period the applicant is to spend in custody. The overall sentence should be 10 years with an overall non-parole period of 7 years 3 months. The non-parole period is three quarters of the 11 years sentence taking into account the 12 months accumulation with the balance of parole. The applicant will be eligible to be considered for release to parole on 13 November 2014. 27 I propose the following orders. The application for leave is granted and the appeal allowed in part. The sentence for count 1 is confirmed. In respect of count 2 the term of 7 years, made up of a non-parole period of 4 years 6 months and a balance of term of 2 years 6 months, is confirmed but is to date from 14 August 2009 with the non-parole period to expire on 13 February 2014. In respect of count 3 the sentence is quashed and in lieu a term of 7 years is imposed to commence on 14 August 2010 and made up of a non-parole period of 4 years 3 months to expire on 13 November 2014 and a balance of term of 2 years 9 months from 14 November 2014. **********

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