R v Matthew Jon DAVIES

The offence

1. The parties placed an agreed statement of facts before the sentencing judge. It stated that at about 3.00am the victim was asleep in his converted garage room at a home in St Clair. He was woken. He left the garage and went to the front of his home. He was confronted by two offenders. One offender was wearing a balaclava and holding a pistol. The other held a balaclava up to his face. The offender with the pistol pointed it at him while the other offender said "[w]here's the green?". The victim replied "[w]hat green? What are you talking about? I've got no money". The offender holding the pistol replied "You've got five seconds". He lowered the pistol and pointed it at the victim's legs. He counted down from five on more than one occasion. The victim yelled at the offenders demanding to know why there were there. The offender with the pistol stated "I'll shoot … you've got five seconds".
2. By this point the offenders may have begun to realise that they had travelled to the wrong address. One of the offenders asked the victim his name. The victim told them his name and stated he had lived there his whole life. The other offender replied "OK. I'll ask my source … if you're lying". The victim was told to go back inside. He refused. The offenders then left. The victim heard a motor vehicle start and drive off. He did not see if the car was driven by a third person.
3. At or around 3.36am a motor vehicle said to be driven by Mr Davies suffered a tyre blow out on the M7 motorway near Minchinbury. The three occupants, Mr Davies, Mr Farache and Mark Jamsek, alighted from the vehicle and walked towards an emergency phone. A passing police officer stopped to talk to them. He noticed a balaclava lying on the roadside. He called other police. The three of them were arrested. A search of the nearby area yielded two balaclavas and a small silver pistol. Of the three persons arrested only Mr Davies participated in an electronically recorded interview with a suspected person ("ERISP"). In that interview, he stated that he drove Mr Farache and Mr Jamsek to St Clair but denied any knowledge of a robbery.
4. The statement of facts recounts that just prior to their trial in October 2013 Mr Davies participated in another ERISP in which he stated that he had no prior knowledge of the robbery attempt but that when Mr Farache and Mr Jamsek returned to the car Mr Jamsek pointed a gun at him and yelled "Go, go". On 22 October 2013 he provided a statement implicating both of them. Both he and Mr Farache entered a plea of guilty to the subject charge. He agreed to give evidence against Mr Jamsek consistent with his statement.
5. Mr Jamsek's trial commenced on 28 October 2013. It concluded on 31 October 2013 with a directed verdict of not guilty. The sentencing judge in this matter was troubled by observations of the trial judge in Mr Jamsek's case to the effect that the evidence suggested that Mr Davies was not simply the driver of the vehicle but one of the two offenders that confronted the victim. Nevertheless the sentencing judge accepted that Mr Davies was to be sentenced on the basis that he was the driver.

The sentencing judgment

1. I have already described the circumstances of the offence and the basis upon which the sentencing judge addressed Mr Davies' involvement. Otherwise the following seven matters should be noted about the sentencing judgement.
2. First, ascertaining the factual basis upon which each of Mr Davies and Mr Farache was to be sentenced was not a straightforward task for the sentencing judge. His Honour noted that they participated in a joint criminal enterprise and stated it followed that while "one person may have played an apparent lesser role [that] does not relieve that person of liability for the other's actions". As noted, in the end result the sentencing judge proceeded on the agreed basis that Mr Davies was the driver. In relation to Mr Farache, his Honour was not satisfied beyond reasonable doubt that Mr Farache held the pistol (R v Olbrich [1999] HCA 54; 199 CLR 270). His Honour noted that Mr Farache had told a Community Corrections officer that he was the driver but did not know that a robbery was meant to occur or that a gun was to be used. Ultimately his Honour found: "What I am satisfied about is that each of the three persons involved knew what was going to happen in a general sense, although they may not have been aware of the detail of how events would actually come to pass. In some circumstances apportioning culpability between co-offenders may be appropriate and relevant but in this case I do not see that Mr Davies or Mr Farache are any less culpable than each other. The only substantial difference between Mr Farache and Mr Davies is Mr Farache's criminal record and Mr Davies' lack of criminal record." (emphasis added)
3. His Honour's approach of treating Mr Farache and Mr Davies as equally culpable in the absence of satisfactory material justifying their being differentiated is not challenged on appeal. It was an approach that is consistent with authority in this Court (see Beale v R [2015] NSWCCA 120 at [59]).
4. Second, as adverted to in the above passage Mr Farache had a criminal record and Mr Davies did not. At the time of sentencing Mr Farache was 25 years of age. The sentencing judge noted that he had committed five "unlawful damage offences" in Western Australia in 2007. He was convicted of assault and possess prohibited drug in 2011 and fined for each offence. On 20 December 2013 and while he was on bail for the offences the subject of this application, Mr Farache was arrested and charged with demanding money with menaces with intent to steal. He was refused bail. On 2 April 2014 he was convicted of that offence and sentenced to twelve months imprisonment with a nine month non-parole period. The sentence commenced from the date of his arrest and the non-parole period expired on 19 September 2014. Further on 1 May 2014 Mr Farache was convicted of being in possession of a mobile phone in custody and sentenced to six months imprisonment from 1 May 2014.
5. Third the sentencing judge addressed each of their subjective cases. In the case of Mr Davies, he attended boarding school until he completed year 10. He had a number of jobs after he left school including as a labourer, cashier, and tow truck driver. The sentencing judge accepted that he came from a supportive family but added that "makes it difficult to understand why he agreed to become involved in such a serious matter". His Honour also noted that Mr Davies had been subject to onerous bail conditions involving a curfew and reporting.
6. In the case of Mr Farache the sentencing judge also found that he had a supportive family, and had performed well at school "both academically and with sport". He had obtained a truck licence and commenced a carpentry apprenticeship. A pre-sentence report noted that Mr Farache had been a member of a motorcycle gang. However both that report and a psychological report gave a positive indication of his future prospects.
7. Fourth, the sentencing judge addressed each of Mr Davies' and Mr Farache's prospects of re-offending. His Honour found that Mr Davies had "good prospects of rehabilitation" and was not "likely to offend in the future". In relation to Mr Farache, his Honour noted that he was serving his first period in custody. His Honour found "there are reasonable prospects of rehabilitation provided he gets professional assistance" and there was "no reason why he could not live a normal productive life as he had been doing before".
8. Fifth, the sentencing judge noted that each of Mr Davies and Mr Farache proffered their pleas of guilty at a relatively late stage. His Honour quantified the discount that each would receive on account of the utilitarian value of the pleas as 10%. There is no challenge to that assessment.
9. Sixth, in assessing the appropriate sentence his Honour referred to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 for offences under s 97(1) and aggravated offence under s 97(2) of the Crimes Act 1900. His Honour concluded that "… it is difficult to see that a sentence involving two years or less could be justified in either of the offenders' circumstances before me".
10. Seventh, the sentencing judge expressly stated that he had "regard to the issue of parity". His Honour noted that both of the offenders were young and that "Mr Farache has a short criminal record whereas Mr Davies has none". His Honour stated: "Applying a discount of 10%, in my view the appropriate sentence for these matters is a head sentence of three and a half years. That encompasses the need for general and specific deterrence. In determining the minimum term to be served Mr Davies gets consideration for his lack of criminal record. In both cases I find special circumstances and take into account time served as well as Mr Davies' lengthy bail conditions."
11. As already noted, both Mr Davies and Mr Farache were sentenced to a term of imprisonment of three years and six months. Mr Davies received a non-parole period of two years commencing 20 May 2014. Mr Farache received a non-parole period of two years and six months commencing 10 April 2014. Thus, just under six months of Mr Farache's sentence on the charge the subject of this application ran concurrently with his sentence for demanding money with menaces and possessing a mobile phone in custody.

Grounds 1 and 2: Parity

1. Ground 1 of the application for leave to appeal contends that the sentencing judge failed to give proper or adequate regard to the "distinguishing differences" between Mr Davies and Mr Farache in fixing their head sentences. Ground 2 contends that there is an unjustifiable disparity between Mr Davies' head sentence and Mr Farache's head sentence. In their written submissions, both Mr Lowe and the Crown addressed these grounds together. I will do likewise.
2. Counsel for Mr Davies, Mr Lowe contended that a comparison of his client's sentence to that imposed on Mr Farache gave rise to a justifiable sense of grievance in that "both offenders have been treated alike when, in truth, they should have been treated differently". Mr Lowe pointed to the sentence imposed on Mr Farache and submitted that, when allowance is made for the other sentences that he was serving, the minimum period in custody that he and Mr Davies will serve solely referrable to the charge the subject of this application was the same, namely two years. By similar reasoning he contended that, at least in one sense, Mr Farache's effective head sentence was less than Mr Davies' because six months of it runs concurrently with his other sentences. Mr Lowe submitted that there was no proper justification for treating them in this manner having regard to what he contended were the "significant distinguishing aspects" between them, namely Mr Farache's "previous significant conviction", his conviction while in custody and the different assessments of their prospects of rehabilitation.
3. The necessity for consistency in the imposition of punishment finds reflection in the parity principle (Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 at [28] per French CJ, Crennan and Keifel JJ; "Green"). The parity principle "requires that like offenders should be treated in a like manner" (Green at [28]). It also "allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances" (Green at [28]). However, Mr Davies' complaint is not of gross disparity but instead of an unjustifiable parity. Such a complaint is also a basis for intervention as "[e]qual justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law" (Green at [28]).
4. In Green at [31] to [32] the plurality described the basis of appellant intervention in cases of an alleged disparity in sentences as follows: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity ... The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise … A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error … It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself." (emphasis added)
5. Two maters of restraint in applying this principle are relevant to this application. First as the passage indicates the relevant disparity must be "marked". In England v R, Phanith v R [2009] NSWCCA 274 at [62] Howie J emphasised that the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606 "speak of 'gross', 'marked', 'glaring' or 'manifest' disparity". Modified to a case involving a complaint of unjustified parity in the same or similar sentences imposed on co-offenders that means that there must be a marked or manifest difference between their circumstances sufficient to give rise to an "appearance of injustice".
6. The second was succinctly stated by Davies J in Lam v R [2014] NSWCCA 50 at [42]: "It has been said in many cases that this Court will be cautious before determining that one co-offender has a justifiable sense of grievance because of different sentencing outcomes where the same judge has sentenced each and has had regard to the differing criminality and the different subjective circumstances of each …"
7. In my view a proper application of these principles leads to the inevitable conclusion that no error in the judgment appealed from has been demonstrated. The sentencing judge determined that there was no difference in the culpability of each of Mr Davies and Mr Farache. They were of similar age and background (see Green at [31]). They entered their pleas at around the same time and were entitled to the same discount. The only differences between them were the relatively modest prior criminal record of Mr Farache compared with Mr Davies, the slightly different assessments of their prospects of rehabilitation and possibly the onerous bail conditions that Mr Davies was subject to while Mr Farache was bail refused on another charge. Mr Lowe's submissions overstated the significance of Mr Farache's conviction for the subsequent offences of demand money with menaces and possession of a mobile telephone in custody. Although subsequent convictions may indicate that the relevant offence was not an "uncharacteristic aberration" (Taylor v R [2015] NSWCCA 12 at [23] per Basten JA), that is not necessarily the case. The sentencing judge considered and accommodated those convictions in making his slightly different assessments of their prospects of rehabilitation. The sentencing judge was not obliged to afford Mr Farache's subsequent convictions any greater significance than his Honour did and they did not alter any comparative assessment of Mr Davies' and Mr Farache's circumstances.
8. In the end result, the differences between Mr Davies' and Mr Farache's circumstances were relatively minor. Even if the sentence imposed on Mr Farache is to be analysed and compared with Mr Davies in the manner contended for by Mr Lowe, the minor differences in their circumstances did not compel his Honour to impose different head sentences. Further his Honour was entitled but not obliged to impose different non-parole periods in the manner that his Honour did even if that meant that the period they both spent in custody solely referable to the offence the subject of this application was the same. There was not a marked or manifest difference between their circumstances sufficient to give rise to an appearance of injustice warranting appellate intervention.
9. I would reject grounds 1 and 2.

Conclusion

1. Accordingly, the orders I propose are: 1. Leave to appeal be granted; and 2. The appeal be dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2015