Criminal Law - Sentence - Parity - Restraining co-offender given insufficient weight.
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1 The appellant has appealed against a total effective sentence of two years' imprisonment, with a minimum term of nine months' imprisonment, on the sole ground that the sentence infringes the principle of parity.
2 The appellant is aged 43 years. He has a history of heavy drinking. The appellant and a friend, Frederick Russell, spent a Saturday afternoon and evening drinking together. Russell's relationship with a woman had recently ended and his former partner had formed another relationship. At about 7.30 pm, the appellant and Russell arrived at the door of the flat inhabited by Russell's former de facto and her new partner, Peter McDonald. Russell kicked in the door of the flat. The offenders entered the flat with the intention of assaulting those inside. McDonald jumped to his feet and faced them. Russell asked him where his former partner was. The appellant picked up a knife from the floor and made small cuts in McDonald's cheek. Although McDonald's injury did not require medical attention, he was terrified and jumped from the first floor window of the flat, injuring his ankle. Russell began throwing articles from the flat to the ground below. Russell then approached his former partner, who was lying on a bed. He moved towards her with his hand outstretched towards her throat. The appellant dragged Russell away and they both left the flat.
3 The appellant was arraigned in the County Court and pleaded not guilty to a presentment containing one count of aggravated burglary, one count of intentionally causing injury and one count of recklessly causing injury. After negotiations between defence counsel and the prosecutor, the appellant pleaded guilty to the counts of aggravated burglary and recklessly causing injury, and the Crown led no evidence in respect of the count of intentionally causing injury. After a plea, the appellant was sentenced to be imprisoned for a term of 18 months on the count of aggravated burglary and to a term of six months on the count of recklessly causing injury. The sentencing judge ordered that the sentences be served cumulatively, creating a total effective sentence of two years' imprisonment. The sentencing judge fixed a minimum term of nine months' imprisonment.
4 Some three months earlier, another judge had sentenced Russell to a term of nine months' imprisonment on a count of making a threat to kill, 21 months' imprisonment on a count of aggravated burglary and three months' imprisonment on a count of assault. With a measure of cumulation, the total effective sentence was two years' imprisonment. The sentencing judge fixed a minimum term of six months' imprisonment.
5 The appellant's family migrated from Greece to Australia when the appellant was aged three years. Seven years later, the appellant's parents separated. The appellant lived with his mother. He left school at the end of year 9 and worked as a builder's labourer and machine operator. The appellant has struggled with his addiction to alcohol for most of his life. He has also used heroin. In December 2003 the appellant's mother died and his 19-year relationship with a woman, by whom he had a ten-year-old son, ended shortly before the commission of these offences. The appellant was living in boarding houses, drinking and, in the words of the sentencing judge, "living the life of a destitute". The appellant has an injury from work which, coupled with his alcoholism, means that there is no real prospect of his returning to work. The appellant had one prior conviction for breaching the terms of an intervention order in 2004, for which he was fined $750.
6 The appellant's co-offender was also an alcoholic. He had a large number of prior convictions, generally for offences of dishonesty, street offences and driving offences in which alcohol played a significant role. The judge who sentenced Russell described him as a "battler". He was one of eight children. His parents died when he was in his teens and Russell was brought up by an older brother. When he was sentenced he was 47 years of age and was employed as a carpenter and joiner.
7 The judge who sentenced the appellant said that he had regard to the sentence imposed upon Russell. The only comparison which he made between the co-offenders was to say:
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"It is correct that the co-accused had threatened the female victim the previous day and had sustained his anger towards her. You, on the other hand, joined in a criminal escapade in which you had no direct personal interest. You inflicted relatively minor injuries on the male victim."
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8 Although, in recounting the circumstances of the offences, the sentencing judge said that the appellant restrained Russell, he did not refer to it in his later statement of the factors which he considered important in determining an appropriate sentence. In my view, it was a significant factor in favour of the appellant that he prevented Russell attacking his former partner. As Callaway JA observed in R v Cooper[1]:
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"Joint criminal escapades frequently get out of hand. It is very much in the public interest to reward a participant who not only ceases to take part at that stage but also intervenes, to the best of his or her ability, to protect the victim from further harm. If all the perpetrators received the same or similar sentence, there may not only be a justifiable sense of grievance, but there will also be no incentive to engage in such conduct. Indeed, there may be a positive disincentive because a participant who draws back or goes to the help of a victim often risks reprisals from the continuing offenders, ranging from accusations of cowardice, to ostracism, to physical injury."
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His Honour was in dissent, for he would have upheld a parity argument which the other members of the Court (Winneke P and Tadgell JA) held was not established. Nevertheless, the majority did regard the point as a mitigating factor, for they said:
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"The applicant might not have been prepared for the degree of violence which Lovett presented to the victim, and had thus sought to restrain it, but that no doubt was the reason why his Honour was prepared to conclude that her criminality was slightly lower than that of Lovett." [2]
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In the circumstances of that case, the majority of the Court did not regard the co-offender's restraint as so significant that it was required to be reflected in a different sentence.
9 In my view, in the circumstances of the present case, the appellant's action in physically preventing Russell from attacking his proposed victim was a factor which
did distinguish his participation in the offence from that of his co-offender. I do not think it was properly valued by the sentencing judge, and that has produced a sentence which, when compared with the sentence imposed upon the co-offender, would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice had not been done.[3] Accordingly, I would allow the appeal and re-sentence the appellant to be imprisoned for a term of 18 months on the count of aggravated burglary and for a term of six months on the count of recklessly causing injury. I would order that three months of the sentence imposed in respect of the count of recklessly causing injury be served cumulatively on the sentence imposed in respect of the count of aggravated burglary, creating a total effective sentence of 21 months' imprisonment. I would impose a minimum term of six months' imprisonment.
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10 The learned trial judge stated in his reasons that he questioned the correctness of the submission that the appellant should not receive a sentence greater than his co-offender and should receive a lesser sentence. Where on a plea, counsel for the offender submits that there is no sufficient disparity between the offender and his co-offender to justify the imposition of a higher total effective sentence or minimum sentence than that imposed upon the co-offender, one would ordinarily expect that the reasons for sentence would reveal a path of reasoning as to why such a submission was rejected, unless the circumstances made it plain why that was so.
11 Notwithstanding the forceful submission made by Mr Trapnell for the respondent as to why the learned sentencing judge may have done so, the absence of such reasons, together with those factors referred to by the learned presiding judge, has led me to the conclusion that the ground of appeal is made out. For the reasons
given by the presiding judge, I agree that the sentences which he proposes should be imposed.
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12 For the reasons given by the other members of the Court, I would also allow the appeal and I agree with the orders proposed by the learned presiding judge.
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The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months on the count of aggravated burglary and for a term of six months on the count of recklessly causing injury.
It is ordered that three months of the sentence imposed in respect of the count of recklessly causing injury be served cumulatively upon the sentence imposed in respect of the count of aggravated burglary.
The total effective sentence is 21 months' imprisonment. It is ordered that the appellant serve a term of six months' imprisonment before he is to be eligible for parole.
It is declared that the period of 192 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration was made and its contents be entered in the records of the Court.