Philpott v R [2004] TASSC 56

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Discrimination between co-offenders - Generally - Offenders with different criminal records.

Judgment Number: [2004] TASSC 56

1 I agree with the reasons for judgment of Slicer J.

2 The appellant seeks review of an effective sentence of imprisonment of ten years following his plea of guilty to the crimes of burglary, stealing, aggravated burglary and aggravated armed robbery. He was jointly indicted with Terry Wayne Woods, who was convicted, with one exception, of the same crimes. On 4 May 2000, the offenders, who were both serving sentences of imprisonment, absconded from prison and the crimes for which they were convicted were all committed over the next two weeks. It was not in issue but that these crimes of burglary, theft and robbery were committed as part of their endeavour to remain at liberty. On four of those occasions they broke into dwelling houses and stole property which included firearms. On 11 May 2000, they forced entry into the Colebrook Tavern and there committed the armed robbery. The learned sentencing judge found, at the sentencing hearing:

"Just after the hotel had closed for the night, you knocked on the door of the residence and when Mr Higgins [the licensee] answered it, the two ... burst in with ... faces covered and armed with stolen guns. You tied up Mr Higgins and forced Mrs Higgins at gun point to go to the tavern and unlock the safe. You stole a total of about $15,000 and some jewellery. It was a terrifying experience for Mr and Mrs Higgins, both of whom thought that they were going to die. Three serious aggravating circumstances are: the fact that your crime involved a home invasion; that you were armed; and that you were escaped prisoners. The psychological harm that you caused your victims resulted in them having to sell up their business and leave the State and there persist, to this day, psychological deficits caused by your criminal conduct."

The learned sentencing judge sentenced each man to a term of imprisonment of eight years for the crimes of aggravated burglary and armed robbery and imposed a two year cumulative sentence with respect to the crimes of aggravated burglary, burglary and stealing. This appellant was sentenced to a concurrent three month sentence with respect to three counts, relatively minor in the overall context, of burglary and stealing.

3 At the time of the imposition of sentence, this appellant was serving a life sentence following his conviction for the crime of murder recorded on 23 November 1994. That concurrent sentence commenced as and from 26 September 2003.

"The learned judge erred in law in that he imposes a sentence that was manifestly excessive in all the circumstances."

During the course of the hearing of the appeal, the appellant stated that a cogent basis for the ground was its impact, in the event that he succeeded, in having his life sentence varied to one of a fixed term. In such a circumstance, he contended that it would be cumulative to that fixed term and that the non-parole period of eight years attached to this sentence would unduly lengthen the total term of imprisonment. That contention ought be rejected. It is impossible to say, at this stage, what the outcome of a re-sentencing hearing will be. It is impossible to anticipate the length of any non-parole period which might be imposed in the event that he is so re-sentenced. In any event, he has the advantage of having his present sentence deemed to have commenced as of the date of its imposition. His claim that the co-offender, Woods, is advantaged by the sentencing regime ought likewise be rejected. The effect of the similar sentence imposed on Woods was that it was cumulative to the sentence for which he was then serving. A similar contention by this appellant that he ought to have been dealt with differently from Woods ought likewise be rejected. It is true that Woods had more convictions for the crime of robbery, but such is off-set by the conviction of this appellant for the crime of murder. At the sentencing hearing, counsel for Woods did not contend other than that the two men should be treated alike. Nor did counsel for this appellant submit to the Court reasons why the principles of parity ought not be applied. His counsel had pointed out that the appellant had made an application under the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 but that such an application had not been determined. He pointed out that the co-offender to the crime of murder had been re-sentenced to life imprisonment but with a non-parole period fixed at fifteen years and would become eligible for parole in 2009. He made no other submissions in relation to parity.

5 At the hearing of the appeal, the appellant developed the claim that the sentence was manifestly excessive by stating:

(1) the sentencing judge had not given sufficient weight to the prior convictions of the accused given their disparity with those of Woods. In effect, he was being sentenced as a repeat offender for the crime of robbery. Such is not the case. He was being sentenced for a series of crimes which included one involving the use of a firearm, threats to the life of others, actual violence and immobilisation. His conviction for murder operated as a highly cogent prior conviction.

(2) that the learned sentencing judge failed to adequately take into account the imposition of a two year sentence of imprisonment for the crime of escape from custody. That sentence, which followed a successful appeal, related to the actual escape, the length of time spent at large and the general harm and cost to the community of an extensive period spent at large.

(3) that the learned sentencing judge placed undue weight on the need for general deterrence rather than personalising the effect of the sentence in a manner which might have afforded opportunity for rehabilitation. In addition, he took issue with the description given by the learned sentencing judge of his being a "hardened criminal". The description, applied to both offenders, was not without merit. Woods had an extensive record of crimes of violence, dishonesty, drug related and other forms of anti-social conduct commencing in 1972. This appellant, born in August 1970, had convictions for crimes of dishonesty, damage to property and murder commencing in 1986. His escape and series of crimes committed whilst at liberty and his claim that he needed to commit such crimes to further his continued liberty, warranted the description afforded by the sentencing judge.

6 The appellant had been convicted of five counts of aggravated burglary, two counts of burglary, six counts of stealing and one of aggravated armed robbery. He pleaded guilty only to two counts involving burglary and stealing. He was not entitled to the benefit of an early plea. The crimes were committed during an extended period of liberty following his escape. Most of the property stolen was for the purpose of ensuring survival whilst at large. On the night of the robbery, the two offenders armed themselves with stolen firearms and were disguised with the use of balaclavas. They waited until the licensee of a relatively isolated tavern and his wife had closed the premises for the night and used a subterfuge in gaining entry to these premises. The licensee was struck to the head with the butt of a firearm in order to facilitate entry. He was bound hand and foot, told to lie on the floor and struck again. Mrs Higgins was forced, at gunpoint, to hand over money, and property to a value of in excess of $15,000 was stolen and a vehicle owned by the complainants was used to effect the getaway. During the course of the robbery, real threats, believed by both complainants, were made concerning their life and safety. Those threats were repeated during the course of the robbery which lasted some 25 minutes.

7 The sentence of imprisonment of two years was well within the range for a series of burglaries and stealings from different premises during a spree. That sentence did not duplicate the one of eight years' imprisonment for the aggravated burglary and robbery. The latter sentence, although at the top end of the range, was within the parameters of permitted sentence (Osborne v R 58/1970; O'Brien v R [2000] TASSC 117; Devine v R (1993) 2 Tas R 458; R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201; Attorney-General v Maynard and Devine [2001] TASSC 26; Devine v R [2003] TASSC 51, Slicer J at 17; Devine v R [2003] TASSC 52).

8 No error in point of principle arises from the appeal. (Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, Malvaso v R [1989] HCA 58; (1989) 168 CLR 227, Bond v R (2000) 74 ALJR 597). The sentence as imposed does not demonstrate error by reason of the general test of being manifestly excessive.

10 I agree with Slicer J's reasons for judgment and the order he proposes.