R v Anthony [2020] QCA 79

The applicant committed the offence on 13 May 2018. He was arrested within about a month. The sentence hearing took place in March of this year. In the intervening year and a half the applicant entered into a stable relationship with a young woman with whom he now lives. He began to work for a furniture removal business, the owner of which said, in a statement that was tendered:

“Bradley Anthony is a full-time employee for our company. Bradley shows great work ethics and is a very reliable employee. Bradley is highly spoken about by all our customers and represents our company in a high manner.

We are aware of Bradley’s current court proceedings and regardless of the outcome, Bradley will always hold a position in our company as he is a valuable employee.”

The applicant’s sister, Ms Goddard, said that he had been working full-time over the period between arrest and sentence, and had taken the time to upgrade his truck driving qualifications by upgrading his license so that he could be considered for work which involved greater responsibility.

Mr Michael Stibbard, who has known the applicant socially for eight years said:

“I will continue to support Bradley through this time as I have done so in the last two years. I have witnessed his constant stressing and anxiety over the court hearing. I have heard and can see the remorse Bradley has shown about the incident and will help in any way I can with any rehabilitation.”

On 13 March 2019, that is, during the period I am discussing, the applicant pleaded guilty to breaking a pane of glass the door of a pub. He was intoxicated at the time and he was fined in order to pay compensation for the damage. No conviction was recorded. He committed the offence on the Saturday night before the Monday, on which the matter was to be listed for trial. Eight people were prepared to give evidence as character witnesses, and their statements were tendered. The evidence of all of them was to the effect that of the passages which I have already quoted.

The act of arson, in this case, was setting fire to a car. A friend of the applicant’s had managed to purchase a utility for $7,500, which he caused to be registered and insured in the name of his father. This friend fixed upon a plan to destroy the car and recover the insurance money. He asked the applicant to take the car and to destroy it. The applicant agreed to do this. There was no evidence that the applicant was to be paid for his trouble, although one suspects that he was.

The applicant had an acquaintance, Mr Kelvin Roma, who was described as his Aunty’s boyfriend. The applicant enlisted Roma’s help. Roma picked up the applicant in his car and drove him to where the utility was located. The applicant had been given the car keys, and he drove the utility to a bush location to which Roma followed him. At that place, the applicant dowsed the utility with petrol and set it alight. Roma then drove the applicant home.

Unfortunately, for the pair of arsonists, the whole commission of the crime had been video recorded on cameras that had been set up to catch people illegally dumping rubbish at that place. Roma was quickly picked up by police who had traced the number on his car. At first he denied being involved in the offence, and told police that he had lent his car to the applicant on that night. A few days later he went back to the police station and the whole story came out. Both men were charged with arson.

Roma pleaded guilty to this charge, and Judge Dick SC sentenced him on 5 April 2019. At the date of the offence, Roma was in his early 30s. He had a remarkable traffic history. Between 2001 and 2018 he had been convicted of over 70 traffic offences. These offences began with unlicensed driving, for which he was given a good behaviour bond and disqualified from holding a driver’s license. This had no effect upon him, and there followed a string of disqualified driving offences that persisted, from September 2001 – a month after he had been disqualified for the first time – until 2018. The offences included two dangerous driving offences and one drink driving offence.

Roma also had a criminal history which included several offences of stealing; one offence of breaking and entering; two offences of dangerous operation of a motor vehicle; one offence of assaulting police; one fraud offence; two offences of indecent treatment of a child under 12 years of age; and two rape offences. He was convicted of the first of the two sexual offences in November 2002. He was convicted of the second offence of indecent treatment, and the two rape offences, of a child in October 2007. No conviction had been recorded on the first occasion, and probation was ordered for two years. He was sentenced to imprisonment for 13 months on the second occasion.

Over the course of these two decades, Roma was also sentenced to terms of imprisonment for other offences. This began with a sentence of five months, in December 2003, and ended with a term of imprisonment that he served because of the invocation of a suspended sentence of 12 months that had previously been imposed upon him. This last event was typical of many earlier occasions upon which Roma had been given the benefit of community based orders, and which he had then ignored, requiring him to be brought back and dealt with again. In short, at the date of these offences with which the Court is concerned, Roma was a mature man with a serious history of offending which also showed that he was incorrigible and was unresponsive to attempts at rehabilitation by means of community based orders.

Judge Dick SC sentenced Roma on the basis that he had not been the principal offender, and gave him a substantial discount on the sentence that she would otherwise have imposed, because he had co-operated with authorities by telling them the true facts of the matter and implicating the applicant as the principal offender. By the date of the sentencing, Roma had already served 223 days in custody. Her Honour sentenced him to imprisonment for two years, declaring the period of 223 days as time served under the sentence. It was ordered that he be released on parole on 14 May 2019, that is to say, a little over a month after the sentence was passed.

At the applicant’s sentencing hearing, the prosecutor did not press for a sentence involving actual imprisonment, although she did not foreclose that possibility, and acknowledged that a community based order was within the range of the proper exercise of a sentencing discretion. In sentencing the applicant, Judge Loury QC took into account his youth and his previous lack of criminal history, as well as his plea of guilty, albeit that it was made on the day that the trial was to start. Her Honour also took into account that the burning of the car presented no risk of damage to other property, or risk of injury to anyone.

Her Honour said:

“I have to also consider issues of parity; because your co-offender received a sentence of imprisonment which had been heavily discounted because of his cooperation. His confession suggested that he was remorseful: whereas I’ve indicated, I do not consider that there is evidence that you are. His cooperation was of considerable value and resulted in a significant reduction in his sentence.”

Her Honour said that but for the applicant’s young age she would have imposed a sentence of imprisonment of three years. Taking into account the mitigating factors, including rehabilitation prospects, her Honour considered that nevertheless the applicant had to serve an actual period of imprisonment. Her Honour imposed a sentence of two years, which was to be suspended after the applicant had served eight months’ imprisonment for an operative period of two years.

Although the pleaded proposed ground of appeal, which the applicant wishes to rely upon, is that the sentence was manifestly excessive, the applicant asserts that there were four errors in the sentencing process. It is only necessary to refer to two of these errors. Namely, that the learned sentencing judge erred in applying the parity principle in this case, and secondly that her Honour erred in finding that there was no remorse. In fact, as the quote that I have set out shows, her Honour found that there was no evidence of remorse, but in this case, that amounts to the same thing.

The passage from the sentencing remarks that has already been quoted shows that her Honour took into account the need to achieve parity between the sentence to be imposed upon the applicant, and the sentence that Judge Dick SC had imposed upon Roma. Indeed, the sentence hearing was adjourned for two days to obtain a copy of the transcript of Roma’s sentence hearing and Judge Dick SC’s remarks.

Parity was a matter that had to be considered. However, the parity that her Honour was seeking to achieve appears to have been a parity that involved not imposing a sentence upon the applicant that Roma might legitimately think was too low, compared to his own. This appears from the passage I have quoted from her Honour’s remarks, but it is reinforced by something that was said during argument. While hearing submissions from Mr Taylor, who appeared for the applicant below, her Honour said:

“I have a real concern about issues of parity. Mr Roma would have a justifiable sense of grievance if I did not send your client to jail.”

That is to say, it seems that the question that her Honour posed to herself was whether the sentence that was otherwise just, in the applicant’s case, should be increased in order to achieve parity with Roma’s sentence. In my respectful view, such an approach was wrong.

As Justice McMurdo noted in R v Dang [2018] QCA 331, the parity principle is not to be used in that way. His Honour quoted Kaye AJA in Majeed v The Queen [2013] VSCA 40, pointing out:

“The principle of parity is only relevant where a sentence… might be such as to engender a justifiable sense of grievance in the offender being sentenced.”

This is because the sentence is disproportionately higher than a sentence that has already been imposed upon a co-offender. See also R v El Hassan [2003] NSWCCA 139, and Majeed v The Queen [2013] VSCA 40 at paragraph 49.

Parity was also irrelevant for another reason: there was no parity in the circumstances of the two cases. The applicant was a young offender with no criminal history, and he was a person of previously excellent character. Apart from the offence of wilful damage, which was committed in circumstances that render it irrelevant for present purposes, the applicant’s conduct since offending has been consistent with the judgment made of his real character by the witnesses who have spoken on his behalf.

Roma was a different kettle of fish. He was a mature man with a long history of offending that, because of its nature, demonstrates that a non-custodial sentence could not possibly be considered in his case. His history included dishonesty offences, and that is relevant because of the circumstances that the Crown alleged in this case. Nothing was to be gained, in my view, from considering the sentence that Judge Dick SC had imposed upon Roma.

The applicant’s submissions that her Honour’s treatment of parity was erroneous should, therefore, be accepted.

The second issue, which concerns evidence about the applicant’s remorse, can be dealt with shortly. The applicant, himself, expressed no remorse to the Court. In fact, he had said nothing at all about his offending, from the time he was arrested until his sentence. It is one thing to say that the applicant, himself, has not expressed any sense of remorse. It is another thing to infer from an offender’s silence that he lacked remorse.

His silence does not prove, for the benefit of the prosecution, that he was not remorseful. It merely leaves the position neutral. Namely, that there is no evidence about that issue. What is more, in this case, there was evidence that the applicant was remorseful. It was contained in the statements of witnesses that had been tendered, and from which I have quoted. That evidence was not challenged, and should have been accepted, as Mr Finch points out correctly. The weight to be given to that evidence is another matter.

Accordingly, the prosecution below did not submit that lack of remorse was a relevant factor. Mr Taylor, of counsel, who appeared for the applicant, expressly relied upon the applicant’s remorse as a mitigating factor, although it appears that he limited himself to the guilty plea as the evidence of that fact. In my view, a sentence based upon a lack of evidence of remorse, was based upon an error of fact.

It follows that the sentence imposed upon the applicant was affected by these two errors, and it is not necessary to consider the other two matters that Mr Hoare has raised. Leave to appeal is granted. The appeal is allowed. The sentence is set aside.

It is necessary, then, for this Court to re-sentence the applicant. Nobody has suggested that the matter should be remitted below for re-sentencing. The offence of arson is a serious offence. That is a factor that has to be taken into account. Otherwise the applicant is a youthful first offender with a previously excellent character. He has shown actual rehabilitation since he offended. This rehabilitation has been due to his own efforts. His previous impeccable character, and the perception of those who know him well, including detached observers as well as members of his family, show that he is unlikely to re-offend.

The applicant has been in prison since he was sentenced. These are substantial reasons why the applicant should not serve any further term of imprisonment. Despite the objective seriousness of the offence, in my view, the interests of the community would not be served by putting imprisonment in his way as an obstacle. He is a youthful first offender who is evidently undergoing the process of maturation.

In my view a proper sentence is one that would affect his immediate release on parole, and such parole ought to operate for two years.

MORRISON JA: I agree.

McMURDO JA: I agree.

SOFRONOFF P: Now, in terms of the order, gentlemen, you’ve heard what is proposed.

MR FINCH: Yes.

SOFRONOFF P: What I would invite you to do, Mr Hoare, is to draft an order and settle it with Mr Finch. It will have to contain the usual conditions attaching to such cases. I take it, you’ll undertake, or your solicitor will, to explain to Mr Anthony his obligations in terms of the statute.

MR HOARE: That’s so.

SOFRONOFF P: Yes. Is there anything else I need to do?

MR HOARE: No, thank you.

SOFRONOFF P: So if you draft the order, when it’s ready, I’ll sign it.

MR HOARE: Thank you, your Honour.

SOFRONOFF P: Thank you for your assistance on this.