R v Hebditch

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.