R v Crossley [1999] QCA 223

4 Count 1 was committed with a co-accused Salkeld who provided an undertaking under s13A Penalties and Sentences Act 1992 and was sentenced under that section to a notional sentence of five years imprisonment. Salkeld was 20 years old and was on probation for robbery at the time of committing this offence. In imposing the notional sentence under s13A Penalties and Sentences Act 1992 the learned sentencing judge did not note whether he would have made a declaration pursuant to s161B(3) Penalties and Sentences Act 1992 but nothing turns on this as it is not suggested that there is lack of parity in respect of Salkeld's sentence. 5 The applicant submits however that the sentence imposed on him was manifestly excessive in that it lacked parity with the sentence imposed on his co-accused Banks in counts 3 and 4. Banks was 20 or 21 years old and had no relevant prior convictions. Banks gave evidence on the applicant's sentence claiming that he was coerced into involvement in counts 3 and 4 and was not a willing participant. The applicant gave evidence denying this. His Honour found neither prisoner completely credible, concluding that he was not satisfied beyond reasonable doubt that Banks participated out of fear for his life. His Honour was satisfied that the idea for commission of these offences came from the applicant and a third person; that Banks was probably influenced by the applicant's superior status as a criminal and may have been a hesitant, perhaps even a reluctant, participant. Banks, like Salkeld, provided an undertaking under s13A Penalties and Sentences Act 1992 and a notional term of imprisonment of four years was imposed upon him under that section. Banks would have been eligible for parole after having served two years of that notional sentence. It is conceded by the applicant that any comparison as to parity must be made in respect of that notional sentence and not the reduced sentence imposed after taking into account Bank's undertaking. The appellant is therefore required to serve a period in custody four times longer than Banks before becoming eligible for parole.

6 The applicant was not co-operative with the authorities and tried to establish false alibis whilst in custody. He pleaded guilty at an early stage to count 1. A full committal in respect of counts 2, 3 and 4 was conducted with cross-examination of many witnesses. He pleaded guilty to these counts on the day of trial but in time to avoid the need for a jury panel on that day. The applicant should be given some credit for his plea of guilty although it is not as mitigating as the early plea and co-operation of Banks which are mitigating factors in addition to Banks' undertaking. The applicant also pleaded guilty to a second indictment involving multiple property offences including housebreaking and a firearms charge. There is no application for leave to appeal in respect of the concurrent sentences imposed on that indictment and no details of those offences have been given to the Court. They remain additional aggravating matters for consideration in the applicant's case, not present in Banks' case.

7 The applicant was 24 years old at the time of commission of the offences and 25 at the time of sentencing, some years older than Banks. Unlike Banks he had a significant criminal history commencing with convictions for offences of dishonesty in 1990 for which he was placed on probation and including assault; firearms offences; armed robbery and other offences of dishonesty for which he was sentenced to a term of imprisonment; dangerous driving whilst adversely affected by an intoxicating substance and unlawful use of a motor vehicle for which he was sentenced to a total of two years imprisonment; numerous street offences including carrying a cutting weapon and traffic offences. He was released from custody in March 1997 and count 1 was committed in July 1997, only four months later. Counts 2-4 were committed in January and February 1998.

8 The applicant does not claim that the sentence of 10 years imprisonment is outside the appropriate range in this case but claims he has a justifiable sense of grievance[1] when his sentence, whereby he is eligible for release on parole after eight years, is compared to the notional sentence imposed on Banks who would be eligible for release on parole after two years. The applicant submits that when considering the parity principle the comparison is between the sentences in their entirety which includes the time when the applicant becomes eligible for release on parole. That submission is supported by Postiglione v The Queen[2] but the Court there did not have to consider the effect of legislation comparable to ss161A-D Penalties and Sentences Act 1992 on the parity principle. The issue as to whether the parity principle is overridden by statutory provisions like those contained in ss161A-D Penalties and Sentences Act 1992 remains, at least until now, undecided.

9 The applicant's argument does not gain support from the recent decisions of this Court in R v Booth[3] and R v Daphney[4] but in my view it is unnecessary to determine that issue here.

10 Whether the comparison is between head sentences or time served before eligibility for parole, the sentence imposed on the applicant when compared to the sentence imposed on Banks does not lead to a justifiable sense of grievance; the disparity between the sentences was justified. The antecedent differences between the applicant and Banks and the offences committed by them make any comparison between them akin to comparing apples and oranges. Banks was younger and had no relevant prior convictions whereas the applicant had the past opportunity of probation, extensive prior convictions including armed robbery and had only been released from prison a few months before his involvement in count 1. His Honour found that Banks may have been a hesitant and perhaps even a reluctant participant whilst the applicant initiated the offences and played a much more aggressive role than Banks. Whilst Banks' provision of the s13A undertaking must be ignored when comparing the notional sentence imposed, unlike the applicant, Banks was co-operative and pleaded guilty at an earlier stage. The applicant also pleaded guilty to other very serious counts of armed robbery with personal violence in company and attempted armed robbery causing wounding where he was once more an aggressive participant, actually wounding the complainant in count 2. Unlike Banks he also pleaded guilty to additional property offences on another indictment.

11 In structuring the appropriate sentence it is usually of no consequence whether a cumulative or concurrent sentence is imposed if the total effective sentence is within the proper range.[5] As all sentences imposed on the applicant were concurrent, it is proper to consider his criminality in offences other than counts 3 and 4 when comparing his sentence with Banks' sentence.

12 These factors combine to demonstrate a clear need for a very substantial distinction between the sentence imposed on Banks and that on the applicant. In all these circumstances the fact that the applicant is required to spend four times longer in custody than Banks cannot be said to be an unjustified disparity: the personal factors relevant to the applicant and Banks, the larger number of offences committed by the applicant and the more serious role played by the applicant make principles of parity inapplicable and intervention by this Court unnecessary.

13 For these reasons I agree that the application for leave to appeal against sentence should be refused.

1 The applicant was convicted, on pleas of guilty, of three robberies and one attempted robbery and was sentenced to 10 years imprisonment on each count. The application is based on the submission that the sentence imposed, while justifiable in isolation, offends the parity principle. There were also three sentences, each of 1 year, and a sentence of 6 months, all for lesser offences.

2 The first offence with which we are concerned was committed in July 1997 when the applicant (who had not long before completed a prison sentence) and one Salkeld robbed a service station. Both were disguised and carrying knives. The service station employee was alone; $450 and some cigarettes were stolen and the employee was kicked in the ribs several times. The offence to which the appellant pleaded guilty was armed robbery in company with personal violence. The second offence was committed six months later at a take-away pizza store which the applicant robbed by himself. He was armed with an air rifle and disguised. An employee of the store attempted to take the rifle off the applicant, who shot him in the chest, causing no permanent injury. The offences on this occasion were attempted armed robbery and wounding. The third offence was committed on the same night as the second, when the applicant with two other people, Hughes and Banks, went to the house of a man called Edwards. It is said that Hughes mistakenly thought that Edwards had been involved in sexual offences against girls. All three entered Edwards' house, breaking in through the back door. Again, the applicant had his air rifle. Hughes and Banks each had a sword and all were disguised. Edwards was threatened in his bedroom, where he had been asleep with his wife, and demands were made for money and drugs. The applicant had his air rifle pointed at Edwards; he punched Edwards in the head, cutting his eye. Hughes started wielding his sword and chopped into the bedhead near Mrs Edwards and also into the wall on her side of the bed. The assailants were directed to Mrs Edwards' purse and the applicant went downstairs to obtain it; when he came back he made demands for balances in bank accounts and PIN numbers. The attackers left and it was discovered that the telephone line had been cut and property stolen. The applicant pleaded guilty to armed robbery with personal violence in company. The fourth and last robbery was of a service station. On this occasion the applicant had a .22 rifle and he was in company with Banks. He waved the weapon at the service station operator and went behind the counter demanding money; $89 in cash and $120 worth of cigarettes were taken.

3 The lesser offences I have referred to were housebreaking, stealing, wilful detention and possession of a weapon; these were unremarkable examples of the offences and it is unlikely that their commission made any great difference to the total criminality, which produced the 10-year sentences.

4 The applicant was born in May 1973 and he committed these offences when he was 24 years of age. He had it appears a most unfortunate upbringing and his criminal history commenced when he was 16 years of age. The offences are miscellaneous in character; they include unlawful use of motor vehicles on a number of occasions, stealing, and an armed robbery. The applicant's first prison sentence was in 1991 when he was sentenced in New South Wales to a 1 year minimum term with an additional term of 4 months. Next he was sentenced to 6 months in 1992, with an additional term of 12 months, for armed robbery and other offences. He went to prison again in 1995 for 2 years for unlawful use of a motor vehicle and dangerous driving.

5 Reliance is placed for the applicant upon Banks' sentence, which was a sentence of 3 years with a recommendation for parole after 12 months. The notional sentence was 4 years; Banks gave a statement under s 13A of the Penalties and Sentences Act 1992. He had no relevant previous convictions and was 20 or 21 years old. Banks took part in the last two robberies described above. Counsel submitted that the proper comparison is between 10 years for the applicant and 4 years, with a non-parole period of 2 years, for Banks.

6 The point of substance raised is whether there is a need to interfere with the sentence because of the effect of s 161A of the Penalties and Sentences Act 1992. The consequence of that provision, read with s 166(1)(c) of the Corrective Services Act 1988, was that the applicant has to serve 8 years before being eligible for release on parole. If the judge had imposed a lesser sentence than 10 years then the provisions in the Corrective Services Act might still have had operation, depending upon exercise of the judge's discretion to make a declaration that the applicant had been convicted of a serious violent offence, under s 161B(3) of the Penalties and Sentences Act.

7 Because of the provisions just discussed, the applicant must serve a sentence eight times as long as that imposed on Banks before being eligible for parole. To some extent the difference is due to Banks having given a s 13A statement, but the notional sentence on Banks was 4 years, so that there is a large discrepancy between Banks' notional sentence and that imposed on the applicant, one which would of course be greatly reduced if the statutory requirement that the applicant serve 80% on the head sentence before being eligible for parole did not exist.

8 The error which is ascribed to the primary judge is that his Honour did not adjust the sentence imposed on the applicant in such a way as to avoid the creation of the gap, said to be too large, between the punishment imposed on the applicant and that imposed on Banks. Specifically, it is said that if there had been a sentence of 9 years producing a non-parole period of 4½ years, the relationship between the applicant's sentence and that imposed on Banks might have been much more defensible. There was discussion before us as to whether, if the sentence were reduced in this way, a declaration would be made under s. 161B(3). The Crown argues that the judge was not entitled to take the course contended for by the applicant, which it is said is inconsistent with this Court's decision in Booth (CA No 338 of 1998, 30 March 1999). Booth was sentenced to 12 years imprisonment for various offences and because of the provisions of s 156A(1)(b)(ii) of the Penalties and Sentences Act 1992, dealing with offences committed while on parole, the 12 year sentences had to be made cumulative upon a substantial balance remaining to be served under earlier sentences. Booth relied in his application on the totality principle, because the result of the sentences imposed on him was that he had a full-time release date more than 17 years ahead. Further, because of the provisions which are in question here requiring service of 80% of the term before eligibility for parole, the parole date was considerably deferred. McPherson JA referred to a method of setting parole, where a cumulative sentence is imposed, which was discussed in Coss (1995) 78 A Crim R 551. I interpolate, although it is not relevant to the present case, that a method of fixing a parole date, said to be that advocated in Coss, was not treated favourably in Walton (CA No 338 of 1997, 18 November 1997), a case on which comment was made in Hartigan (CA No 109 of 1998, 17 September 1998). To return to the principal point of Booth, McPherson JA referred to the statutory requirement in s 156A(2) that the sentences in question be served cumulatively and said:

"It would have been a wrong exercise of the sentencing discretion to attempt to circumvent that quite specific legislative direction by reducing the sentence currently being imposed so as to reinstate the practise which s. 157A(2) has plainly displaced. In the present context, the only relevant function of the totality principle in sentencing for offences committed some time apart formerly was to offset the impact of ordering them to be served cumulatively".

His Honour found support for this conclusion in Robinson (CA No 72 of 1998, 26 May 1998).

9 Applying this principle, by analogy, in the present case, what it suggests is that the parity principle must be applied without regard to the 80% requirement: to reduce the point at issue to simple terms, if the judge thinks that two co-offenders would be fairly treated if one received twice the sentence fixed for the other and that the worse offender should be sentenced to 10 years, then the judge simply does that, imposes sentences of 10 years and 5 years, the result being that the worse offender, in a case caught by s 161A, is not eligible for parole until he has served 8 years. Under this view, the lesser offender, if the court does not make a declaration against him under s 161B, has to serve a period of imprisonment not half as long but less than a third as long as the greater offender - assuming parole is granted at the earliest date.

10 Mr Devereaux argued for the applicant that there are indications in two decisions of the High Court, discussed below, that the parity principle must be respected, even if to do so involves reducing a head sentence below that which would have been imposed were it not for the 80% requirement to which I have referred. That is, Mr Devereaux invited us to adopt the rule that if a consequence of applying the 80% requirement is to impose on the greater offender a non-parole period which is excessive, by comparison with that imposed on the lesser offender, the head sentence for the greater offender must be reduced.

11 There is nothing in the statute which deals specifically with this point. A consideration against adopting the rule suggested by Mr Devereaux is that it is difficult to reconcile with Booth, discussed above, and with Daphney (CA No 328 of 1998, 16 March 1999). In the reasons of White J, with whom Thomas and McPherson JJA agreed, reference was in the latter case made to the operation of the 80% requirement on the applicant, who had been sentenced to 15 years imprisonment. Her Honour remarked:

"This factor does not permit any reduction of what is otherwise a proper sentence, Siganto v. The Queen . . . ".

Another objection to adoption of the argument advanced for the applicant is that it would produce anomalous results in that, where an offender caught by the 80% requirement is able to be compared with a co-offender who is entitled to apply for parole after having served half the sentence, the former will become entitled to a reduction in the head sentence - a fortuitous advantage which a lone offender cannot obtain.

12 In Postiglione [1997] HCA 26; (1997) 189 CLR 295, a majority of the Court adopted the view that the parity principle requires comparison of the periods of actual custody, as well as head sentences: see pp 302, 303 and 338. But no question of a clash between any provision having an effect like the 80% requirement, on the one hand, and the parity principle on the other, arose there. In Siganto (1998) 73 ALJR 162, there was, however, a similar provision in question; a Northern Territory statute imposed a 70% requirement in respect of certain sexual offences. In the principal judgment it was held that an error had been made below, in sentencing on the basis that the victim's distress in having to give evidence in the criminal proceedings was a matter of aggravation, warranting a heavier sentence. Nothing was said in that judgment which helps resolution of the present problem. But Gaudron J, in her reasons, dealt with an argument based on parity of a different sort, comparing the sentence imposed in Siganto with those imposed on other offenders (not co-offenders) not caught by the 70% requirement; I shall call this "the broader parity principle".

13 Her Honour had to consider legislative changes of three different kinds: there was a provision abolishing remissions, one requiring that the non-parole period be not less than 50% of the head sentence, and the 70% requirement. It is the last of those three which is most relevant, in the present case. Gaudron J was, as I read her Honour's reasons, of opinion that the first two, but not the last - not the 70% requirement - could result in a reduction of the head sentence by application of the broader parity principle. The judge said that "the principle of parity in sentencing has been displaced to the extent of the different treatment directed by [the 70% requirement]". It is not quite clear to me why one of the three changes, but not the other two, was held to override the broader parity principle. But the conclusion reached by Gaudron J adds strength to the contention that one should, on the basis of the decisions in Booth and Daphney, decline to adjust the applicant's head sentence to ensure parity between his non-parole period and that of Banks. It is my view that this Court should follow the trend of authority and reject the applicant's contention.

14 In my opinion, the law requires that where one of two co-offenders but not the other is caught by the 80% requirement, that circumstance is to be ignored in considering parity between the two. Perhaps some judges might in practice be inclined to be less severe in fixing the head sentence on the more serious offender, in those circumstances, but there is no justification in strict principle for doing so. The result is that in the present case one compares a 10 year head sentence with a 4 year head sentence. In contrast to the applicant, Banks had no relevant prior convictions; he was a few years younger than the applicant and was involved in only two of the offences. As to the relative criminality of Banks and the applicant, the learned sentencing judge, who heard evidence, found that it was the applicant and another person, not Banks, who suggested the commission of the offences; but the judge was not satisfied that Banks' involvement arose from any direct threats on the applicant's part. The judge sentenced on the basis, which is unchallenged, that the applicant played "the dominant role".

15 I was at one stage concerned that, apart from the problem of the statutory non-parole period, the 10 year sentence on the applicant might be excessive in comparison with the notional 4 years imposed on Banks, but in the end I am not satisfied that there is any manifest disparity between the two head sentences. Further, considered in isolation, the 10 year sentence is not manifestly excessive.

1 I agree with the reasons of Pincus JA for refusing this application for leave to appeal against sentence.

2 In R v Booth, this Court held that it would not be legitimate for a judge, in sentencing an offender for offences committed while on parole, to set out to circumvent the explicit provisions of s156A(1)(b)(ii) of Penalties and Sentences Act 1992 (which requires that the sentence for those further offences be made cumulative) by imposing a head sentence that was deliberately fixed at a level below the "tariff" or standard penalty for offences of that character.

3 The point at issue in that instance was whether the "totality" principle of sentencing survived the legislative amendment which inserted s156A(1)(b)(ii) in the Act. In a sense, that matter might be viewed as involving a direct conflict between the statutory provision and a general or common law principle of sentencing, whereas in this instance the conflict may be seen as somewhat less direct. Here the competition is between, on one hand, the general sentencing principle in favour of sentencing parity in the case of joint offenders, and, on the other, the statutory provision in s161A(a)(ii) relating to serious violent offences.

4 On closer examination, however, it is difficult to escape the conclusion that the conflict is no less direct here than it was in R v Booth. Having sentenced this applicant to a term of imprisonment that attracted the application of s161A(ii) of the Act, the statutory consequence followed under s166(1)(c) of the Corrective Services Act 1988 that the applicant was bound to serve 80 percent of that sentence of imprisonment of 10 years before becoming eligible for parole. Once the conclusion was reached that a 10 year sentence of imprisonment was appropriate in all the circumstances for the appellant's offences, the Act took over and dictated what the result should be. It was not for the sentencing judge to anticipate or evade that statutory consequence by imposing a sentence less than appropriate in an effort to maintain parity between the two co-offenders of whom the applicant happened to be one.

5 No doubt, as a matter of statutory interpretation, the question whether the general sentencing principle should prevail depends to some extent on an evaluation of the weight to be assigned to the general parity principle applied by the courts. More specifically, the question is whether the strength of that principle under the general law is such that, in enacting the statutory provisions referred to here, the legislature ought to be assumed not to have intended it to be departed from. As the decision in Postiglione [1997] HCA 26; (1997) 189 CLR 295 shows, the parity principle is a compelling factor in sentencing; but I do not think it can be used to overcome the explicit statutory direction in s166(1)(c) of the Corrective Services Act, especially where, as Pincus JA has pointed out, the appellant was being sentenced for a greater number of offences than his co-offender Banks; he had a more serious record of past offending; and was not as young a man as Banks. The resulting difference in parole eligibility dates between the two offenders was the direct consequence of the operation of the statutory provisions, which it was no part of the sentencing judge's function to nullify by other means.

[1]. See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610, 613-614, 623-624.

[2]. (1997) 189 CLR at 295; Dawson and Gaudron JJ 302-303 and Kirby J at 338.

[5]. See Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, Gaudron and McHugh JJ at 393; Kellerman v Pecko [1998] 1 Qd R 419.