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[1999] FCA 1087
Federal Court of Australia
1999-08-10
Gallop J, Barwick CJ, Gaudron JJ, Dowsett JJ, Spender J
Original judgment source is linked above.
REASONS FOR JUDGMENT SPENDER J: 1 This is a Crown appeal against sentence. The appellant was found guilty by a jury of two offences of armed robbery at the Pizza Hut, Kingston, on 15 and 20 June 1998 respectively. 2 The learned sentencing judge, Gallop J, summarised the facts relating to those two serious offences. At the appellant's flat a plan was hatched between the accused and two co-offenders, Hamilton and Galpin, on each occasion to commit an armed robbery at the Pizza Hut Kingston. The sentencing judge said: "I have no doubt that Hamilton, being the female partner of the accused, was probably the ringleader in the formation of the plan on each occasion and, notwithstanding some expressed reluctance by this accused, he agreed to go along with the plan on each occasion." 3 The appellant drove the car to the area of the Pizza Hut in Kingston. He drove the car away after each armed robbery had been committed and he shared in the proceeds of the armed robberies, which were quite modest, being $660 on the first occasion and $440 on the other. The co-offender, Galpin, pleaded guilty before Gallop J on 2 November 1998 and was sentenced to two years imprisonment on each count, cumulative, with a non-parole period of 18 months being fixed. The accused, Hamilton, also pleaded guilty before Gallop J on 5 February 1999, and was sentenced to three years for each armed robbery, cumulative, and a non-parole period of three years was fixed. 4 The learned sentencing judge on 7 April 1999 sentenced the appellant to two years' imprisonment on each of the two charges of armed robbery, and ordered that he be released when he had served about twelve months, namely, on 9 February 2000. That aspect of the sentence took into account the time that the appellant had been in custody, namely, fifty-six days since 10 February 1999, and eleven days that he had served prior to the committal proceedings in 1998. 5 Importantly, the sentencing judge further ordered that the appellant be released upon his entering into a recognizance self in the sum of $2000, conditioned that the appellant be of good behaviour for three years, that he submit himself to the supervision of the Director of Adult Corrective Services or some person appointed by him, and obey directions given to him about his associates, and undertake drug and alcohol counselling. 6 By virtue of s 443 of the Crimes Act 1900 in relation to its application in the Territory, the two head sentences are to be served concurrently. 7 The Crown appeals pursuant to s 24 of the Federal Court of Australia Act 1976, asserting manifest inadequacy of the sentences imposed by Gallop J on the appellant and their disparity with sentences imposed on the respondent's co-offenders. 8 Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 said at 310: "…an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." 9 The majority of the High Court in Everett v The Queen (1994) 181 CLR 295 (Brennan, Deane, Dawson and Gaudron JJ) said at 299: "...a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed." Their Honours cite Whittaker v The King (1928) 41 CLR 230 at 248, and a large number of other authorities in support of that proposition. They continued: "That being so, a 'court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified' (Malvoso v The Queen (1989) 169 CLR 227 at 234 and 235)." Their Honours then referred to the observation of Barwick CJ in Griffiths, to which I have just referred, and then said: "The reference to 'matter of principle' in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting 'error in point of principle'." 10 McHugh J in Everett at 306 said: "The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that the court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice." His Honour continued: "If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence." 11 Similar observations, in my opinion, apply to the allowing of a Crown appeal by an appellate court. In this case on the sentencing of the appellant, counsel for the Crown made very short submissions. He said: "Your Honour, in sentencing the co-offenders your Honour set out, in my submission, the relevant matters to take into account in sentencing for armed robberies. The only other matter I would raise is that pleas of guilty were entered by the co-offenders, whereas that leniency cannot be extended to the accused in this matter." 12 When Gallop J had sentenced Hamilton, whom he regarded as the ringleader of the two offences, his Honour noted: "The purposes of punishment are articulated in the legislation as follows: To punish the offender to an extent and [in] a way that is just and appropriate in all the circumstances; to deter the offender or other persons from committing the same or a similar offence. To rehabilitate the offender. To make it clear that the community acting through the court denounces the type of conduct in which the offender engaged. To protect the community from the offender. And the purpose of punishment is a combination of [two or more] of those purposes." 13 This is a summary of the provisions contained in s 429 of the Crimes Act 1900 in its application in the Territory. 14 It is accepted on behalf of the Crown that there was, in the sentencing process involving the appellant, no error of principle, nor any misapplication of fact. The sole basis is that the sentences imposed must, on analysis, conceal an error of principle, it being said that they were manifestly inadequate and disparate to the sentences imposed on the co-offenders. 15 Mr Corr, counsel for the appellant, drew attention in the sentencing process to the appellant's relatively good prior record, the relationship he has with his children, and the fact that the offences in question were substantially an aberration arising largely through an association which he had formed with the co-offender, Ms Hamilton. Mr Corr submitted on behalf of the appellant that there could be a benefit to both the community and to Mr Hebditch's rehabilitation by imposing a sentence with a lesser minimum term to take account of the objective features of criminality, and then impose something in the nature of supervision to assist in Mr Hebditch's rehabilitation. Gallop J said, in passing sentence: "I agree with the submission put by Mr Corr on behalf of this accused that I have to keep the principle of parity in mind. I agree also with his assessment of the criminality of this accused. It is not as great as that of the two co-offenders who actually entered the Pizza Hut on each occasion armed with a replica pistol and a knife and menaced the people in the employ of the Pizza Hut on each occasion.
This accused did not do that and it seems to me to demonstrate a substantially less degree of criminality. " In my opinion no objection can be taken to that assessment. 16 His Honour took into account the fact that the statistics for armed robbery in the Territory showed a disturbing upward trend. He noted that there had been sixty-seven armed robberies in the Territory in 1996, eighty-three in 1997, ninety-eight in 1998, and up to 31 March 1999 a further twenty-three armed robberies. He said: "There is no doubt that armed robbery is a very serious problem in the Australian Capital Territory and, as I said on the occasion of sentencing Galpin, the court must do what it can to deter people from that and it is no answer for an accused person once caught to say, 'Be merciful to me because I've got a heroin addiction and I needed to do an armed robbery in order to support that addiction'. As I said, if the court is seen to be unduly merciful, unreasonably merciful, then the heroin strata of society is just going to laugh at the sentences which are handed out and expect to be able to commit armed robberies with knives and guns and not get any substantial gaol sentence if they are caught." Well, that is not the message that this court should allow to go out into the community. The court should sentence and sentence severely in cases of armed robbery. But having said all that, this accused deserves some leniency, not only because of the lesser degree of criminality, but he seems to have been a responsible parent. I have no doubt that he was heavily influenced by the co-offender, Hamilton. He only has a minor record for criminal matters, unlike Hamilton, and I think there are a number of reasons why he should be treated much more leniently, but he has to go to gaol, hopefully a relatively short gaol sentence and then a long period under supervision to bring about his total rehabilitation." 17 It seems to me that his Honour was fully alive to the question of parity. In that regard one should note the observations of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606, in particular, at 609: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." In the same case, Mason J, as he then was, said at 610-611: "Just as consistency and punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 18 In this particular case, I am far from satisfied that there has been any unjustifiable discrepancy between the three persons sentenced by the learned sentencing judge. It is clear that his Honour considered that there were real prospects for the rehabilitation of Mr Hebditch, and the fact that there was to be three years of controlled supervision indicates the importance that his Honour placed on the prospect of rehabilitation. In this regard I note an observation by Sir Anthony Mason, speaking on "Current Issues in Criminal Law" at a conference of the Criminal Lawyers Association of the Northern Territory in Bali recently: "I am not alone in thinking that effort put into rehabilitation, rather than retribution and deterrence, is more likely to be cost effective and lead to a better world." 19 It seems to me that that is what his Honour did here. This case is far from one in which an appellate court ought interfere on appeal by the Crown against the sentences imposed at first instance. I would dismiss the appeal.
HIGGINS J: 20 I would agree and for the reasons outlined by his Honour the presiding judge. I would wish to add only this. It was submitted by the learned Director in the course of his written submissions that by reason of the fact that a non-parole period was not fixed in respect of the respondent but release directed on a date certain, there is a less severe penalty than those imposed on the co-offenders. While it might be true if the head sentences had been the same as the co-offenders, it should not be thought that in the circumstances of this sentence the sentence imposed by his Honour the trial judge was less severe if he had imposed release on parole after one year was served on a head sentence of two years, than release on supervision after one year, that period on supervision then being three years. 21 It is true, as the learned Director submitted, that where a non-parole period is set the offender must earn parole which is not automatically granted and in that respect his submission is correct. In the other two respects they are not. While correctly pointing out that release on parole can be subject to a very wide range of conditions, according to s 21 of the Parole Act 1976, so also can release on recognizance under s 556B of the Crimes Act 1900. Parole can be revoked administratively by the Parole Board of the Australian Capital Territory, but only, of course, if the offender, who has been released on parole, breaches the terms of parole. 22 And whilst street time, that is, time whilst on the streets on parole, is not counted towards the service of the remaining sentence, it is not uncommon for a person whose parole has been revoked to again be granted parole after a suitable period. That is no more or less severe than the consequences of breach of recognizance which are prescribed by s 556C of the Crimes Act 1900 which, in essence, enables the offender to be brought back before the sentencing court, then to be dealt with as if the sentence was to be re-imposed in the light of the circumstance, of course, that a recognizance had been breached. But with that addendum, I again express my agreement with the reasons given by the learned presiding judge and my concurrence in the result. DOWSETT J: 23 I also agree in the proposed order and in the reasons that have been given by my brother Spender. I wish only to add one or two general observations. It seems to me that his Honour formed the view that this accused was to be treated as a person who was worth a second chance, although there was also a need to recognise the seriousness of his misconduct by requiring that he serve a relatively short, but by no means token period of imprisonment. That view was fairly open on the material, and it is the result which his Honour has achieved by the sentence in question. 24 It may be that the deterrent aspect of sentencing would have been better served in this case had a longer head sentence been imposed, but I would not intervene merely to achieve that result. The orders made met the need as reasonably perceived by his Honour. In those circumstances it is not an appropriate case for us to intervene. SPENDER J: 25 The appeal is dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Higgins and Dowsett.
Associate: Dated: 10 August 1999 Counsel for the Appellant: Richard Refshauge
Solicitor for the Appellant: Director of Public Prosecutions
R
Hebditch
(1977) 137 CLR 293
(1994) 181 CLR 295
(1984) 154 CLR 606
(1928) 41 CLR 230
(1989) 169 CLR 227