Ortiz v R

Court of Criminal Appeal (NSW)|2014-10-27|Before: Hoeben CJ, Hulme J, Davies J, Ms J

Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2R A HULME J: Armando Salinas Ortiz (the applicant) was sentenced by his Honour Judge Norrish QC in the District Court at Sydney on 22 August 2013 for two offences of being an accessory before the fact to robbery in company that were committed on 30 May and 12 June 2012. 3The offences are contrary to ss 97(1) and 346 of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. 4For the offence committed on 30 May 2012 the sentence was a fixed term of imprisonment for 3 years and 9 months with effect from 21 June 2012. For the second offence the sentence was imprisonment for 5 years and 3 months with a non-parole period of 2 years and 6 months with effect from 21 December 2013. 5The total effective sentence was 6 years and 9 months with a minimum custodial component of 4 years. 6The sole ground of appeal is that the applicant has a justified sense of grievance arising from a lack of due proportionality between the sentences imposed on the applicant and the sentence imposed upon a co-offender. The co-offender in question is a man called Horacio Javier Laguna Cantor who was sentenced by the same judge four months later.

Facts 7The offence on 30 May 2012 involved the robbery in company by persons unknown of a man called Jian Wei Li of $200,000 worth of jewellery. The offence on 12 June 2012 involved the robbery in company by persons unknown of two persons, Chi Ho So and Po Seng Choi, of $740,000 worth of jewellery, $20,000 in cash, the victims' passports, a laptop computer, a printer and a watch worth $6,000. 8The judge noted that the applicant was aged 25 at the time of the offences and was a citizen of Columbia. He came to Australia on 10 February 2012 with a Mexican passport in a false name (R/S 3). However, there was no evidence that he came to this country with a view to committing crime (R/S 22). 9According to a statement of agreed facts, two cars bought from private sellers at Cabramatta and Maroubra on 28 and 30 May 2012 were used in the offence committed on 30 May 2012 (the two cars). At about 1.30pm that day the victim entered the carpark of a large shopping centre in Parramatta. He had a business involving wholesaling jewellery to shops in the shopping centre. One of the two cars entered the carpark about half an hour later. It was driven by an unknown person (the unknown driver) but the front passenger was the co-offender, Horacio Javier Laguna Cantor (the co-offender). Mr Li entered the shopping centre with a suitcase containing about $200,000 of jewellery. The unknown driver and the co-offender Cantor entered immediately after. 10CCTV footage captured the applicant, the co-offender and the unknown driver carrying out surveillance of Mr Li in the ensuing two hours as he moved about the shopping centre. When he left he was followed by the applicant and the co-offender. He drove out of the carpark and was followed by the two cars. 11At about 5.00pm Mr Li entered a shopping centre at Rhodes. The applicant, the co-offender and the unknown driver were seen carrying out further surveillance of him. Mr Li returned to the carpark via a lift. The applicant accompanied him in the lift but remained in it when Mr Li exited. 12Mr Li drove out of the carpark at about 6.13pm. He was followed by the two cars. The applicant was not seen again in relation to this incident. 13Mr Li drove to his home. When he parked in the driveway an unknown person smashed the driver's side window, reached in and removed the key from the ignition. That person then punched Mr Li repeatedly to the face. Another person smashed the rear window of the car and stole Mr Li's jewellery. The offenders ran off. 14Mr Li sustained some bleeding to the corner of an eye, a cut to one hand and pain in the back and shoulder region. 15One of the two cars was found a week later abandoned a block away from Mr Li's home. 16The offence on 12 June 2012 was committed in much the same way. The two victims attended a large shopping centre in Burwood for the purpose of selling wholesale jewellery. When they drove into the carpark they were followed by two cars (different to the ones used on 30 May - a Camry and a Commodore). 17CCTV footage captured the applicant following the victims into the shopping centre. He was wearing an earpiece. He returned a short time later to the Commodore which was driven out of the carpark. The victims were in the shopping centre for about 45 minutes. When they drove out of the carpark they were followed by the Camry. 18The victims drove to a jewellery store in Haberfield. When they stopped their car, the Camry suddenly parked diagonally in front of them. Three people got out of the Camry and approached. Two of them went to the driver and front seat passenger and pointed handguns at them. The third man smashed the rear window of the victim's car and took two backpacks and a briefcase. The backpacks contained $740,000 worth of jewellery. A computer and a printer that were in the car were also taken. The offender who confronted the passenger took his Rolex wristwatch worth $6000. $20,000 in cash and the victim's passports were also taken. 19The Camry was later found abandoned in a nearby street. 20The agreed facts include that the applicant had assisted unknown persons by making them aware of the victims' movements and whereabouts, thereby facilitating the robberies. The prosecution conceded that the applicant was not present when the robberies took place. The applicant conceded that he knew the victims were jewellery sellers and that they were to be robbed by persons acting in company. It was an agreed fact that the applicant knew the victims would have in their possession assorted jewellery and cash but he was unaware as to the exact amount or value. 21The agreed facts also included that the applicant maintained that he was unaware that any of the robbers was going to be armed with any weapon. The prosecution conceded that there was no evidence to the contrary. 22The learned sentencing judge concluded that, given the degree of planning that went into each offence and the time taken to execute them, the applicant must have known that there would be substantial property taken. This was even more the case in relation to the second offence after the applicant had participated in the first. 23The applicant was arrested on 21 June 2012 and remained in custody thereafter. 24The judge made a number of findings about the seriousness of the offences, particularly with regard to the degree of planning involved. There is no need to explore the detail, given that there is no assertion of error in the judge's assessment of the objective seriousness of the offences, and there is no contention that the sentences, individually or in their cumulative effect, are manifestly excessive.

Personal circumstances of the applicant 25There is nothing to be achieved by reviewing the evidence concerning the applicant's background and personal circumstances. The submissions in support of the ground of appeal do not suggest there is any real distinction between the applicant and Mr Cantor in such respects aside from the fact that Mr Cantor had a criminal record and the applicant had no previous convictions. 26It is worth noting, however, that the judge found that the applicant was a person of otherwise good character. The evidence was not sufficiently reliable for his Honour to conclude that he was unlikely to re-offend or had good prospects of rehabilitation. He accepted that the applicant had expressed regret but was not prepared to accept that he was genuinely remorseful. 27The judge allowed a discount of 25 per cent upon the sentences that would otherwise have been imposed to reflect the utilitarian value of the applicant's early pleas of guilty. 28Special circumstances (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) were found, they being the fact that the second sentence was partially accumulated upon the first; that the applicant would require "an extended period of supervision to adjust to community living" following release on parole; and the hardship the applicant would experience being in custody in a country away from his family and with language difficulties (R/S 23).

Sentencing of the co-offender 29Horacio Javier Laguna Cantor was sentenced by the same judge four months later, on 20 December 2013. He, too, had arrived in Australia on 10 February 2012 with a Mexican passport in a false name. 30Mr Cantor was charged with the offence of 30 May 2012. The agreed facts in his case closely followed those in the applicant's case and he played a role that is, for present purposes, indistinguishable from that played by the applicant. 31Mr Cantor signed a Form 1 document and asked that a further, similar offence committed on 20 April 2012 be taken into account. It involved him, and two unknown co-offenders, carrying out surveillance on two victim wholesale jewellery sellers in the Cabramatta shopping district. Sometime later the victims were followed to their motel accommodation in Haberfield where they were confronted by several unknown offenders. One of the victims was threatened. Suitcases containing jewellery worth $640,000 were taken. 32In respect of both offences, the prosecution made the same concessions as in the applicant's case: that Mr Cantor was not present at the scene of the robberies and that he was aware that the victims would be in possession of jewellery but was not aware of the exact amount or value. 33Mr Cantor was arrested at Sydney International Airport on 15 September 2012 as he attempted to leave the country on a Colombian passport in a false name. A goods in custody charge was on the Form 1 document; this related to him being found on arrest to be in possession of a mobile phone that had been stolen in April 2012. 34Mr Cantor had a criminal history in the United States of America for larceny, aggravated robbery and resist officer charges. He received a sentence of imprisonment for 5 years with a non-parole period of 2 years. 35The judge reduced Mr Cantor's sentence from 6 years to 4 years 6 months on account of the utilitarian value of his early plea of guilty. He said that the sentence was assessed with regard to that which he had imposed upon the applicant for the offence of 30 May 2012 but also with regard to the additional matter on the Form 1 and different (worse) criminal history (AB 50). 36The judge referred to the guideline judgment in relation to how a court is to take into account further offences on a Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 NSW (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146. 37His Honour was obviously mindful of the need to have regard to the manner in which the applicant was sentenced. Immediately after his reference to the Form 1 guideline judgment he said: "Ordinarily the Court would not be required to measure the extent to which the sentence for the principal offence has been increased. But in this matter, of course, the Court has to have very close regard, as the parties no doubt would themselves, to the fact I sentenced the co-accused Armando Salinas Ortiz on 22 August 2013 for the same offence for which I am sentencing this prisoner, that is accessory before the fact to robbery in company committed on 30 May 2012. The starting point of any sentence to be imposed on him was deemed to be five years imprisonment. There are distinctions between this prisoner and Mr Ortiz. Some are cosmetic in some respects, particularly matters of a subjective character in relation to employment and the like. But one matter of substance is of course the fact that this prisoner has a prior criminal history whereas Mr Ortiz appeared before the court without any known convictions at the time of sentence." 38The judge referred to observations he made in the sentencing of the applicant about matters pertinent to the objective seriousness of the offence and said that they were all relevant in the case of Mr Cantor (AB 54-55). His Honour identified a point of distinction between the two cases being that at the time of committing the offence of 30 May, Mr Cantor had already committed the offence of 20 April whereas the applicant had not (AB 55). After referring to the facts concerning the 20 April offence he said that they required "an increase upon the appropriate sentence" in comparison to that which was imposed upon Mr Ortiz for the same crime (AB 56). 39The judge referred to the parity principle and cited relevant authorities: Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997]; 189 CLR 295; and Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540. He continued: "The complication here in sentencing is that this offender is not being sentenced for two offences, as was the [applicant]. The role of offences on a Form 1, as the Chief Justice said in the guideline judgment, forms a much less salient role in the sentencing process as [sic - than] if the matters on the Form 1 stood to be the subject of separate sentences." 40As to the other offence on the Form 1, the offence of goods in custody, the judge described it as "a comparatively minor matter" (AB 57). (Counsel for the applicant did not suggest that there was any error in this assessment. Accordingly, I will disregard it for the purpose of considering the ground of appeal.) 41The judge accepted evidence that, although he had come to this country with a false name, Mr Cantor had been issued with a student visa and had paid to undertake a language course (AB 57). Similar claims were advanced on behalf of the applicant in his sentence proceedings but were not accepted as they were unsubstantiated. 42Reference was made to Mr Cantor's criminal history, the judge saying that it was not an aggravating factor but meant that he was entitled to "less leniency" than the applicant (AB 58). It did, however, along with the need to take into account the Form 1 offence, warrant greater weight being given to the need for personal deterrence (AB 63). 43The judge was prepared to accept that the co-offender had provided a genuine expression of contrition but said this was "not a very strong mitigating factor when one weighs up the lack of cooperation with the authorities" (AB 63). 44The judge referred to the observations about the various purposes of sentencing which he had discussed in sentencing the applicant and said they applied as well to the case of the co-offender. He said the same applied in relation to his consideration of the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. 45Special circumstances were found on the basis that the co-offender would need an extended period of supervision on parole. 46The judge concluded his sentencing remarks by returning to his comparison with the cases of the applicant: "Ultimately, when all is said and done, although it has taken some time to get to this point as I am obliged to do of course, the sentencing of Mr Ortiz, which now remains unchallenged, is clearly a highly relevant matter, clear issues of parity so far as the objective culpability of the prisoner is concerned. Whilst the prisoner may have some favourable matters that Mr Ortiz has, such as recognition of his remorse and contrition, these matters are minor matters in the context of the matters that weigh against him in dealing with this offence which are firstly the prior criminal history and secondly the consideration of the matter on the Form 1. ... It should be fairly said in relation to this prisoner, if it needs to be said with regard to mitigating factors, in addition to the contrition aspect, the plea of guilty is a mitigating factor. But for that the prisoner receives the discrete discount which I have identified but there is very little else to be said by way of mitigating factors. I could not conclude even with the assistance of the reference from the lady from the Seventh Day Adventists that the prisoner has good prospects of rehabilitation. Unlike Mr Ortiz this prisoner does not have no record of prior convictions, he is not a person of good character, to be fair, having regard to his prior convictions in the United States. Ultimately the starting point of any sentence for this prisoner must be greater than the starting point of any penalty identified for Mr Ortiz. Unlike Mr Ortiz however this prisoner does not have to concern himself with a separate sentence being passed in relation to separate offending. I have no comment to make about the matter, it seems to me a rather strange situation where the two offenders should come forward at separate times, being treated somewhat differently. But that is the reality of the situation and certainly there is nothing sinister about it."

Submissions 47The submissions for the applicant involved two broad propositions. First, that the difference between the overall sentence imposed upon him (6 years 9 months) and the sentence imposed upon Mr Cantor (4 years 6 months) was too great. Secondly, the differentiation between the sentences imposed for the offence that they had in common (the 30 May 2012 offence) should have been greater. For that offence, there was a sentence of 3 years 9 months, reduced from 5 years on account of the plea of guilty in the applicant's case, whereas in Mr Cantor's case there was a sentence of 4 years 6 months, reduced from 6 years on account of his plea. In other words, the applicant had a legitimate sense of grievance in that his sentence was not less than Mr Cantor's by a greater degree. 48It was submitted that the objective criminality of the applicant and Mr Cantor did not differ significantly. The principal difference between the respective cases was that the applicant had two offences for which he stood for sentence whilst Mr Cantor had the one offence with the other taken into account on a Form 1 document. 49The fact that the co-offender had been imprisoned previously for similar offences was submitted to be a significant point of distinction. For this reason, specific deterrence, retribution and protection of society warranted greater weight in his case: Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477. As a result, the difference between the pair's criminal histories warranted a greater difference between their respective sentences. 50In relation to the applicant's offence of 30 May 2012, there was not the need, as there was in Mr Cantor's case, for greater weight to be given to retribution and personal deterrence on account of there being a further offence on a Form 1 to be taken into account: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 NSW (No 1 of 2002) (the guideline judgment). Counsel referred to Spigelman CJ there having said (at [18]) that "it is wrong to suggest that the additional penalty should be small"; and "sometimes it will be substantial". 51Accordingly, as it was submitted, due proportionality required a greater difference between the sentence imposed upon the applicant for the common offence and that imposed upon Mr Cantor. 52Counsel accepted that the totality principle had no application in the sentencing of Mr Cantor. That acceptance was in accordance with authority: see, for example, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [7]; R v AEM [2002] NSWCCA 58 at [82]; and the guideline judgment itself at [34]. 53Senior counsel for the Crown pointed out that the applicant stood for sentence for two very serious offences. Pearce v The Queen [1998] HCA 57; 194 CLR 610 and the totality principle applied. The fact that the co-offender's two matters were dealt with by way of one being on a Form 1 was said to necessarily impact upon the sentencing discretion in a manner which diminished the relevance of parity and due proportion. 54The Crown accepted that the co-offender's sentence for the principal offence stood to be increased because of the need to take into account the Form 1 offence, but submitted that such increase could never approach the magnitude that would be appropriate if a separate sentence had to be imposed. In this regard, the Crown pointed to the sentencing judge's awareness of the imbalance in the sentence exercise which he expressed in the final paragraph of the extract I have set out above (at [46]). 55The Crown also pointed out that the applicant alone stood for sentence for the offence of 12 June 2012; an offence which the judge regarded as more serious than that of 30 May 2012 because it was aggravated by the use of a gun and the value of the property taken was significant.

Consideration 56The starting point for the determination of the ground of appeal is to recognise that sentencing is not a mathematical exercise of predetermining a sentence and then adding to or subtracting from it in order to take into account aggravating and mitigating features so as to arrive at the sentence to be imposed. Rather it is a matter of instinctively synthesising all relevant facts and circumstances: see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [74]-[76]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39]. Accordingly, the sentencing task facing Norrish QC DCJ when dealing with Mr Cantor's case was not one of starting with the sentence imposed in the applicant's case and then adding to or subtracting from it so as to take into account the relevant differences. 57Where this Court is deciding an appeal against the severity of a sentence on the ground of unjustified disparity it is necessary to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32] (French CJ, Crennan and Kiefel JJ). In this case, that requires consideration of the manner in which his Honour approached the task of sentencing the co-offender Cantor in the two respects that were the focus of the applicant's submissions: how the offence on the Form 1 and the prior criminal history were factored into the assessment of sentence. 58The correct approach in taking into account further offences on a Form 1 document was described by the former Chief Justice in the guideline judgment as follows: "[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. 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 which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. [43] I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence." 59In R v Lemene [2001] NSWCCA 5; 118 A Crim R 131, Simpson J said (at [7]): "[A]n offender who adopts the procedure [of having additional offences taken into account] is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted." 60Spigelman CJ referred to this in the guideline judgment, observing (at [34]) that it was "recognition that using the Form 1 procedure will generally result in a lower effective sentence than would have been imposed in the case of a conviction followed by a separate sentence". The sentencing judge adverted to this when sentencing Mr Cantor. 61The learned judge's sentencing remarks in Mr Cantor's case make it abundantly clear that he was aware of, and applied, the relevant principles in relation to the Form 1 offence. He indicated that it was a basis for imposing a higher sentence in Mr Cantor's case than was imposed upon the applicant. With no error in his Honour's approach as to the application of correct principles, the only question is one of degree. 62As to Mr Cantor's criminal history, the submissions for the applicant overstate the influence it had, or should have had, on the sentence. The judge did not find that the record should be regarded in the sense described in Veen v The Queen (No 2); namely that it showed that Mr Cantor had "manifested in his commission of the instant offence[s] a continuing attitude of disobedience of the law" such that "retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted" (per Mason CJ, Brennan, Dawson and Toohey JJ at 477). The judge took a more benign view, finding the prior record meant that Mr Cantor was entitled to "less leniency". That was a view that was well open to his Honour. 63The applicant may well feel aggrieved that he received an overall sentence that is significantly longer than that which was imposed upon Mr Cantor. However, for him to succeed he must establish that he has a justifiable sense of grievance when an assessment is made by objective criteria: Green v The Queen; Quinn v The Queen at [31]. The difference in the lengths of the sentences is explained by the fact that the judge was required to apply the principle of totality in the applicant's case and not Mr Cantor's case. 64I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. 65DAVIES J: I agree with R A Hulme J.

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