R v Fernando [2003] NSWCCA 234 | Case summary

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?

Harrison: There's no issue of parity at all your Honour." 23 The Crown Prosecutor proceeded to address his Honour on aggravating features, lack of contrition, need for severe sentence for specific and general deterrence, and lack of special circumstances. 24 When Judge Freeman came to his sentencing remarks, he outlined the facts accurately in relation to the vicious nature of the attack, other aggravating elements and lack of contrition. He then posed for himself the question: "What else can be said in his favour?" The truth was however that nothing had been said in the offender's favour at all, and his Honour did not proceed to seek to answer the question but went on to summarise, again accurately, the appellant's criminal history and conclude that very little could be said "in the face of such violence a history of such violence, such intransigence." 25 After remarking that there were no special circumstances to justify a departure from the statutory provisions regarding the proportion of the sentence to be served as the non parole period his Honour proceeded to record a conviction and imposed the sentence already referred to. 26 In my view, it was necessary to give proper consideration to the way in which Oliver had been charged and dealt with and it was not enough to say that no issue of parity arose. Had the appellant been represented it is almost certain that the sentencing judge would have been asked to give consideration to that factor. Had consideration been given, it is likely that the sentence imposed would not have been so far towards the top of the range. Furthermore it must be concluded that whilst Oliver had to be sentenced for the less serious offence under s 94, he received a very lenient sentence on any view, and so lenient that it should have alerted the judge sentencing the applicant to the need to avoid a sentence of gross disproportion. That also is a factor which should have been taken into account on the sentencing of the appellant and was not. In my view these matters are sufficient for this Court's jurisdiction to be enlivened and for the Court to proceed to sentence on the material now available. 27 Leave was granted in the application for an affidavit to be filed from the applicant's solicitor annexing a report from Dr William Lucas, consultant psychiatrist, and certain material obtained from what was called "the custodial file". Dr Lucas saw the applicant on 20 March 2003 and obtained a comprehensive history on which he expressed his professional opinion. The Court should accept both the history and the opinion. 28 The applicant is an Aboriginal born in Deniliquin on or about 10 October 1969. It may be that even his date of birth is uncertain. He grew up in that area in the care of a maternal uncle with almost no contact with either of his parents. His father died when he was about three. He moved around various areas of New South Wales. Unsurprisingly his education was disrupted and he developed the all too familiar behaviour problems of a boy who went from institution to institution in which violence was endemic. He became a heavy user of alcohol and cannabis. It seems that until recently he did not identify himself as an Aboriginal and was not recognised as such. Dr Lucas thought that the applicant is already institutionalised at the age of thirty-three. Dr Lucas does not think however that the applicant has a major psychiatric disorder but is likely to have a personality disorder with at least anti-social features. Dr Lucas remarks with apparent approval that "it is often said that the natural history of such a disorder is that it ameliorates during the fourth decade of life" although he predicts that the applicant's ability to benefit from counselling and supervision will have to be judged on his past supervision. 29 As far as past supervision is concerned it is apparent that it has been almost totally unsuccessful, apart from teaching the applicant to read and write whilst in custody. On the other hand it should not be overlooked that that supervision does not seem to have addressed the applicant's aboriginal origins. In itself that is not of course a matter which attracts leniency, but given proper attention it is something which, in the light of Dr Lucas's prognosis, may provide some guidance for rehabilitation as the applicant progresses into mid and late his thirties. Dr Lucas noted that over the last two years he has developed more sense of himself and he described this as being more aware of his thought and his aboriginality. This is confirmed to some extent by the recent custodial records. The Court should recognise that there are available resources and facilities to meet the particular needs of Aboriginal offenders that were not available in this man's youth and his long years in custodial institutions. They should be made available during his continuing incarceration and continue upon his eventual release. 30 The sentence imposed on the applicant was appropriate to the seriousness of the crime and to the information available to the sentencing judge. However, the "factual matrix" on which sentencing proceeded below has changed with regard to the material relating to the offender himself. Further, in my view, the leniency extended to the co-offenders in the way in which they were dealt with should also be taken into consideration. The applicant has a sense of grievance and feels that he is being unduly punished for pleading not guilty. That, in the light of his background, could well be regarded as justified to the disinterested observer. The prospects of rehabilitation should no longer be regarded as entirely hopeless. General and personal deterrence as well as denunciation may still be catered for in a lengthy head sentence and non-parole period, but not as long as those previously imposed. The community should not give up on this man. 31 The application for extension of time in which to apply for leave to appeal was lodged on 20 November 2001. The delay is clearly explained by the lack of representation and advice available to the applicant, although it is not known when he first became aware of the disposition of the co-offenders. I would grant leave to extend the time. Further, for the reasons already given above, I would quash the sentence and propose an effective head sentence of ten years with a non-parole period of seven and a half years. Taking into account the time in custody since his arrest I would formally impose a head sentence of nine years and eight months to date from 29 March 2001 and to expire on 28 November 2010. I would fix a non-parole period of seven years and three months making the applicant eligible for parole on 24 June 2008.

R v Fernando

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