26 August 2003
REGINA v Gerald KERR
Judgment
1 BEAZLEY JA: I agree with Miles AJ.
2 ADAMS J: I agree with Miles AJ.
3 MILES AJ: This is an application to seek an extension of time within which to file an application for leave to appeal against sentence and, if that leave is granted, to obtain further leave to appeal against the severity of the sentence.
4 The applicant was convicted after trial on a charge of robbery in circumstances of aggravation, namely using corporal violence and maliciously inflicting actual bodily harm. The offence is created by s 95 of the Crimes Act 1900 and carries a maximum of twenty years imprisonment.
5 The offence took place on 10 September 1998 at Bellingen. The trial commenced on Tuesday 7 August 2001. The jury brought in their verdict on Friday 10 August 2001 and the applicant was convicted and sentenced on the same day. The sentencing judge, Judge Freeman, sentenced the applicant to thirteen years and six months imprisonment to date from 29 March 2001 and to expire on 28 September 2014 with a non-parole period of ten years and six months, making the applicant eligible for release on parole on 28 September 2011.
6 The judge described the offence as "vicious, cowardly and violent" perpetrated upon the victim in his own home. And so it was. According to the findings of his Honour, which are not challenged, the applicant "inveigled" two men some ten years his junior to accompany him in a car to steal cannabis plants. He took them to a house occupied by the victim. The younger man, Oliver, accompanied the applicant onto the veranda. Both were disguised in balaclavas. The applicant was carrying a handgun. The applicant removed the bulb from the veranda light and called out to the occupant that someone was breaking into his taxi. This brought the victim to the door to be struck by the applicant wielding the handgun and also by Oliver with a cricket bat. The two offenders forced their way into the house, the applicant continuing to strike the victim. The victim dislodged the applicant's disguise and Oliver, on the instructions of the applicant, put a sheet over the victim's head to act as blindfold. The sum of $2,500 (together with other items not charged in the indictment) was stolen from the house. The offenders escaped in the car, the third offender Tickner driving briefly and the applicant taking over control.
7 The applicant has a long history of previous offences which were set out by his Honour in his sentencing remarks. These included a number of serious offences for which he had received and served custodial sentences. Notably the applicant had been released on parole on 11 July 1996 after serving more than eight years of sentences totalling nine years imposed by the Sydney District Court on 20 June 1988. Presumably those sentences have expired. Latterly, the applicant had served a six months sentence imposed by the Bellingen Local Court in 1997 for assault occasioning actual bodily harm and was presumably released in about January 1998. His Honour noted that he was initially arrested for the aggravated robbery on 19 November 1998 and had been alternately in custody and on bail since then. He was tried twice previously when the juries could not agree. His Honour accepted the prosecution calculation that he had served 109 days in custody prior to 29 March 2001 and had been in custody pending trial continuously since then. Hence his Honour allowed six months for the broken period in custody before March 2001. His Honour made it clear that but for that factor both the head sentence and the non-parole period would have been six months longer. It may be accepted, as has been put on his behalf in this application, that the effective head sentence was fourteen years with a non-parole period of eleven years.
8 The applicant was not represented at trial or on sentence. He gave and called no evidence on sentence and put no submissions on his own behalf. The sentencing judge had little to go on, apart from the seriousness of the offence and the applicant's criminal history. The latter indicated a number of slightly differing names and dates of birth. His Honour described him as "a man who says that he is thirty-two and that appears to be correct."
9 The grounds on which the applicant would seek to challenge the sentence are that it is disproportionate to that imposed on Oliver and that in any event it is manifestly excessive.
10 Of the two co-offenders, it was only Oliver who was charged with the robbery and that was a charge of robbery simpliciter, no circumstances of aggravation being alleged. Under s 94 of the Crimes Act that offence carries a maximum of fourteen years imprisonment only. Oliver pleaded guilty on 19 December 1999 and was dealt with by an order to perform 500 hours of community service.
11 Tickner, who had remained in the vehicle and initially drove it and the other two men from the scene, was charged under s 316 of the Crimes Act with the offence of concealing a serious indictable offence. Once arrested, however, it seems that he was willing to assist the authorities and on that basis on 30 August 2000 he was given an eighteen months suspended sentence. The maximum sentence available was two years imprisonment.
12 Judge Freeman was told of the sentences imposed on the co-offenders and accepted the submission of prosecuting counsel that "no issue of parity" arose.
13 However the principle of parity in sentencing, or rather the policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined.
14 Clearly neither of the other two was treated as a co-offender but at the same time each was implicated in the events which gave rise to the aggravated robbery.
15 There are two aspects to the principle. Like has to be and may only be compared with like and any imbalance must be enough to justify on objective analysis a sense of grievance on the part of the offender who complains of the heavier sentence: Postiglione v The Queen (1997) 189 CLR 295. As to the first aspect, the principle is difficult to apply in the present case since neither of the two co-offenders was charged with the offence of aggravated robbery. It may have been that the facts did not support that charge, at least against Tickner, although it is noteworthy that Tickner received the suspended prison sentence, having remained in the vehicle and driving the other two from the scene. That was a sterner penalty than that received by Oliver who was ordered to perform community service, having accompanied the applicant into the house disguised in a balaclava and wielding the cricket bat. The charging of robbery simpliciter against Oliver appears explicable on the basis of his co-operation with the authorities rather than his actual participation in the events.
16 Mr Craigie SC who appeared for the applicant in this Court made it clear that he was not seeking to establish so called disparity in any technical sense but was relying upon a wider principle that a court should not impose a sentence that is grossly disproportionate to a sentence or sentences imposed upon other persons with whom the offender may be compared, in this case, that is to say, in the gross disproportion between the heavy sentence imposed upon the appellant and the disposition of Oliver.
17 Mr Craigie submitted that on the facts accepted by Judge Freeman it had to be acknowledged that Oliver participated jointly with the appellant in the robbery and used violence in doing so. In those circumstances the obligation to perform community service imposed on Oliver and the long prison sentence imposed on the appellant were entirely out of proportion to each other and not to be explained by the differences in the degrees of culpability, the differences in the charges laid and the ages of the two offenders or their previous criminal history or anything else relevant to sentence. The consequence was, so it was submitted, that the appellant was left with a sense of grievance that would be shared by a sense of unfairness in the eyes of a disinterested observer.
18 An initial difficulty with the submission is that it is not clear whether it seeks to establish error on the part of the sentencing judge or whether it relies simply upon the assessment by this Court that there has been such disproportion as to justify intervention.
19 It is established that disparity so called can arise when a co-offender is sentenced after the aggrieved offender has been sentenced: Postiglione v The Queen. In such cases there can be no error on the part of the judge sentencing the offender later aggrieved: Lowe v The Queen (1984) 154 CLR 606 at 610-611. It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice.
20 In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. The observer must of course be reasonably acquainted with the circumstances. Sometimes such a situation may be unavoidable. A co-offender may be given immunity in exchange for testifying against the accused. That does not in itself require leniency to be extended to the offender being sentenced let alone a sentence that is so lenient that it is out of the range of what is appropriate.
21 In the present case Oliver was sentenced by Judge Twigg on 16 December 1999 and with the consent of counsel for the applicant and the respondent this Court has had recourse to his Honour's remarks on sentence. Judge Freeman did not have that opportunity. From the remarks of Judge Twigg it appears that Oliver co-operated significantly with the authorities from the time the offence became known and "made clear the involvement of Kerr and Tickner." His Honour accepted that Oliver had been at the time of the offence and remained greatly in fear of the applicant and would not be able to look after himself in any of the gaols in the State. His Honour considered that the present applicant, who was not before him, was "one of our worst type of criminals". His Honour also expressly noted that Oliver was of aboriginal background and that he would take that into account in accordance with what as said in R v Fernando (1992) 72 ACrimR 58 at 62-63.
22 In this respect it may be observed that when the appellant was before Judge Freeman the following exchanges are recorded:
"His Honour: Mr Kerr, do you wish to offer any evidence on sentence?