R v GRAFF [2001] NSWCCA 3 | Case summary

1 GILES JA: We are in a position to deal with the matter now. I will ask Hulme J to deliver the first reasons. 2 HULME J: On 15 May 1996 this applicant for leave to appeal in company with Davina Leaituaalesi and a young person who has been referred to as RT, attacked the driver of a taxi they had hired. They beat him into unconsciousness and continued attacking him. They stole the contents of his takings bag and his wallet, pushed him onto the road and drove off in his taxi. They were charged with, and pleaded guilty to, robbery in company. Justice Barr, who sentenced the three concluded that they were equally implicated in the attack. 3 On 25 May 1996, the same three persons, together with a fourth person hailed another taxi at about 4.00am, driven by Mr Chmeis. The fourth person was dropped off. At some later stage when the taxi was stopped, the three attacked Mr Chmeis, also punching him, and when he was helpless on the ground, kicked him in the head and body, stripped him of his clothing and whipped him with his belt. They then drove off in Mr Chmeis' taxi. Mr Chmeis died as a result of the kicking to his head. It is to be inferred that the motive for the attack was robbery. The three persons mentioned were charged with, and pleaded guilty to, murder. Justice Barr said that they were equally responsible for Mr Chmeis' death. 4 At the applicant' request, two further offences were taken into account in connection with the sentence imposed in respect of the murder charge. The first occurred on 23 January 1994 and was an assault occasioning actual bodily harm. The applicant was one of a group of five persons who attacked their victim on Bankstown railway station. The victim was punched and kicked a number of times and lost consciousness. He suffered fractures to his nose and face. 5 The second offence which occurred on 8 September 1995, was the malicious infliction of grievous bodily harm. The applicant came across two men having an argument. Believing that one had been or was about to be assaulted, the applicant punched the other in the face. The victim fell heavily, striking his head on the footpath. His injuries were at the least permanent and severely handicapping brain damage. Justice Barr recorded that the 2 offences referred to in this paragraph were so serious that they must materially affect the sentence. 6 The only other objective circumstances to which it is necessary to refer are that the applicant was on bail at the time of the commission of the second offence taken into account and of the two offences with which he was charged and, secondly, the conclusion reached by Barr J that the applicant was the leader of the 3 offenders. 7 The maximum periods of imprisonment fixed by Parliament for the offences of which the applicant was guilty are, respectively, robbery in company, 20 years; murder, life imprisonment; assault occasioning actual bodily harm, 5 years and maliciously inflict grievous bodily harm, 7 years. 8 The sentences imposed on the applicant were, for murder, and taking into account the 1994 and 1995 offences, a minimum term of 18 years and an additional term of 5 years and for robbery, a fixed concurrent term of 8 years. Those imposed on Davina Leaituaalesi were for murder, a minimum term of 10 years and an additional term of 6 years and, for robbery, a fixed concurrent term of 6 years. Those imposed on RT for these offences were a minimum term of 11 years and an additional term of 6 years and a concurrent fixed term of 6 years. 9 The grounds of appeal were: (1) The applicant has a justifiable sense of grievance by reason of lack of parity with the sentences of co-offenders.

(2) Special circumstances should have been found. 10 At one stage it seemed that the applicant was not challenging as itself excessive, the total sentence imposed. I am not sure that that approach was ultimately adhered to but, again, I am satisfied that there was nothing in the totality of the 23 years or in the minimum term component thereof which of itself provides the applicant with an entitlement to succeed in this application. 11 Judicial Commission statistics show that the median full and minimum terms of sentences for murder imposed on offenders under 21 who plead guilty are 18 and 12 years respectively. While the absence of detail of the offence imposes limits on the guidance those statistics provide in any particular case, in its gravity and having regard to his age and history, the applicant's offence falls significantly above the middle of the range for such offences. It was not a "relationship" case and the attack on the victim was premeditated, violent and pursued. The applicant had furthermore demonstrated a habit of criminal violence and the sentence imposed on him for the offence of murder had itself to recognise or reflect that fact see Veen v R (No.2) (1987-88) 164 CLR 465 at 477. It was thus appropriate that his sentence be not less, and in my view in some respects higher, than the figures indicated as the median in the Criminal Commission statistics. 12 In addition, the Judge was required to take into account the 2 matters which had occurred in 1994 and 1995. Those required some addition to the sentence and, although it is conceivable that the 1994 offence considered in isolation might not have resulted in a sentence of imprisonment, it was inevitable that the 1995 offence, if considered in isolation, would have done so. It was second, it was committed on bail and the consequences to the victim were devastating. Justice Barr was correct in his view that these matters had to materially affect the sentence. 13 These matters go a long way towards explaining the difference between the sentence imposed on the Applicant and that of 17 years imposed on RT. 14 The applicant in the sentencing process suffered the additional disadvantage that, first, he was on bail at the time of the murder; secondly, it was by no means his first offence or first period of criminality involving violence. Those factors alone would have led to a sentence appreciably in excess of the 17 years imposed on RT. 15 RT was 17 at the time of the offences. He was said to have the beginnings of remorse but I emphasise only that. His disposition towards violence would seem to have at least been contributed to in substantial measure by his culture and formative experiences as an adolescent. He experienced learning difficulties when young and displayed mild signs of depression. 16 RT was regarded as close to average intelligence. Since his arrest his behaviour at Kariong Juvenile Justice Centre has been of an extremely high standard and he had demonstrated commitment to further education. He was regarded as exhibiting some remorse and Barr J concluded that would progress. His Honour said RT had never played a responsible adult part as a worker or member of a family and the need for training, getting and keeping a job and controlling his attitude towards alcohol meant that an additional term longer than one-third of the minimum term should be imposed on him. 17 Together, the matters to which I have referred answer the submission that there is a lack of parity between the sentence imposed on RT and that imposed on the applicant. 18 The total sentence imposed on Davina Leaituaalesi was, of course, only 16 years but her circumstances again differed from those of the applicant. While only a year younger, she seems to have had a traumatic childhood and by the age of 15 her alcohol intake was out of control. She suffered from, inter alia, borderline mental retardation and depression. Justice Barr J concluded she was, "an excessively dependent and easily led young woman" and this lessened her criminality. 19 Whilst his Honour did not accept her expressions or regret and in the light of psychological and psychiatric reports doubted whether she had much insight into the horrific acts in which she had participated, he took into account in her favour her intellectual deficit, her dependent personality disorder and addiction to alcohol. Though it may be accepted that the applicant had some subjective features which acted in favour of a lesser rather than a greater sentence, the matters to which I have referred provide adequate justification for treating the Applicant differently from Ms Leaituaalesi to the extent he did. 20 Some of the matters in which I have referred to led his Honour to conclude that Davina Leaituaalesi's time on parole also would need to be longer than one third of the minimum term. His Honour did not so conclude in the case of the applicant and rejected the proposition that in his case there were special circumstances. 21 In my view, the challenge to his Honour's conclusions in that regard has not been made out. Although the applicant's circumstances and background might have led another judge to find special circumstances in the applicant's case and to extend the additional term at the expense of the minimum, I am not persuaded that his Honour was in error in concluding as he did on this topic. 22 There are, of course, factors common to both the applicant and one or other of his co-offenders but there are also differences and those are sufficient, in my view, to justify his Honour in coming in the case of the applicant to a conclusion different from that reached in the case of his co-offenders. 23 One major difference was, of course, the long minimum and thus the additional term. Others included Davina Leaituaalesi's intellectual deficit and RT's inexperience of adult life prior to his offence. 24 What I have said above indicates that in my view the first ground of appeal also should not succeed. There is sufficient difference between the applicant and his co-offenders to explain, and thus to deny any justifiable sense of grievance at, the total sentence imposed on the applicant on the one hand and his co-offenders on the other. 25 Attention was also placed by counsel appearing for the applicant on the difference between the minimum terms imposed on the respective offenders, 18 years in the case of the applicant versus 10 and 11 years in the case of the of his co-offenders. At first blush these differences are substantial. But, when one recognises the factors which led to the increase of the additional terms at the expense of the minimum terms in the case of the applicant and co-offenders, again the apparent disparity is explained. The applicant can have no justifiable sense of grievance if, for example, the Judge correctly reached the conclusion that there were no special circumstances in the case of the applicant but finding that there were, reduced the minimum term of a co-offenders and increased that co-offender's additional term. 26 The fact that one co-offender benefits in such a way does not provide grounds for another to have his or her minimum term also reduced. Thus the conclusion at which I have arrived is that neither ground of appeal is made out. 27 But there is one further matter that I would add. A lack of parity does not automatically lead to a reduction of sentence to the party suffering from the disparity. It provides a foundation for the court "in an appropriate case taking into account all of the circumstances, including a justifiable sense of grievance in the more heavily sentenced co-offender" in the Court's discretion making such a reduction see R v Steele, (unreported CCA, 17 April 1997); R v Reardon (1996) 89 A Crim R 180. 28 When one takes account of the applicant's criminality which, as I have indicated left one victim dead and another brain damaged and handicapped for life, it would be doing the community a great injustice to reduce the applicant's sentence. As Brennan J said in R v Lowe (1984) 154 CLR 606 at 617: "It is wrong to think that it is more important that sentences should be proportionate to one another than that they should be proportionate to guilt". 29 Because of the duration of the sentences I would give leave to appeal but dismiss the appeal. 30 GILES JA: Without the doubt indicated by Justice Hulme, on my understanding the applicant did not challenge the sentence to a term of 23 years imprisonment as in itself appealably excessive. In any event, for the reasons his Honour has given I do not think it was. The applicant's arguments were directed to reducing the minimum period of imprisonment within that term. First he pointed to the different relationships between the minimum terms imposed on the applicant on the one hand and on Davina Leaituaalesi and RT on the other hand and the total terms imposed on the respective offenders, the minimum terms being proportionately less in the cases of the latter two offenders. According to the argument, different relationships means that disparity gives rise to a justifiable sense of grievance, which should be remedied by reducing the appellant's minimum term. Secondly he said special circumstances should have been found in the appellant's case so that the minimum term in his case should for that more fundamental reason be reduced. 31 It seems to me the arguments coalesce. The different proportionality between minimum terms and total terms was because, in accordance with the statutory scheme, the sentencing judge found special circumstances in the case of the other two offenders, whereby in those cases the minimum terms should be less than the specified proportion, but did not find special circumstances in the case of the applicant. Obedience to the statutory scheme, if the judge was correct in declining to find special circumstances in the case of the applicant, could not give rise to a justifiable sense of grievance or to disparity for the purposes of sentencing. The minimum term specified in the case of the applicant was in fact a little more than three-quarters of the total term, more by nine months, but that of itself was not said to have been sufficient for appealable disparity. So it comes down to whether the judge should have found special circumstances in the case of the applicant. 32 Like Hulme J, I consider that the judge's conclusion that there were no special circumstances in the case of the applicant is not open to challenge. The judge's conclusion there were special circumstances in the cases of other offenders does not assist the applicant because of differences between their cases and his case, in age, experience and mental functions and the need for assistance in re-entering the community and in the time at and during which that need could and would be satisfied within the respective overall terms. Nor do I see error in the judge's view that the applicant's need for support in returning to the community can adequately be satisfied during the five year period at the conclusion of his overall term. 33 In my view leave to appeal should be granted but the appeal should be dismissed. 34 HOWIE J: For the reasons given by the presiding Judge and Hulme J, I agree that the application should be allowed but the appeal should be dismissed. 35 GILES JA: Those will be the orders of the Court.

R v GRAFF

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