R v McIvor [2002] NSWCCA 490 | Case summary

1 HEYDON JA: On 24 July 2002 the court dismissed this appeal against the inadequacy of sentences passed by Moore ADCJ. These are the reasons why I supported that order. 2 The respondent was charged with two counts of robbery in company, contrary to s 97(1) of the Crimes Act 1900. The maximum penalty is 20 years' imprisonment. 3 On 12 April 2002 the sentencing judge sentenced the respondent on the first count to 2 years' imprisonment with a non-parole period of 7 months and 7 days. The sentencing judge sentenced the respondent on the second count to a fixed term of 6 months to be served concurrently with the first sentence. Each sentence was to date from 6 September 2001, the date when the respondent was arrested and imprisoned. Similar but not identical sentences were given to the respondent's co-offender Janian Hernando: see R v Hernando [2002] NSWCC 489. 4 The circumstances of the offences were explained thus by the sentencing judge: "it is common ground that the pleas of guilty were entered at the first available opportunity. In each case the deduction for the plea of guilty will be the maximum recognised by Thomson's case (2000) NSWCCA 309 of twenty-five per cent. Each crime was committed in the company of Janian Roy Hernando. I sentenced Hernando on 10 December 2001. The offences, as to the criminality of each offender, are comparable. In the first of these two matters McIvor's criminality was higher than Hernando's, and in the second matter McIvor's criminality was lower. That is, in the first matter McIvor used a knife and Hernando played a lesser role. In the second matter Hernando used a knife and McIvor played the lesser role. The charges however are robbery in company, as I said, and not armed robbery. The maximum penalties are the same, and as I said in Hernando's case I pay full deference to the guideline judgment of Henry (1999) 46 NSWLR 346, 106 A Crim R 149 even though Henry dealt with armed robberies. In doing that I am comforted by the authority which the Crown has tendered today of Murchie (1999) NSW CCA 424 where her Honour Justice Simpson expressed the same views as I have expressed in a number of earlier cases and which I respectfully adopt. Her Honour's views are at paragraph 20. In each case the victim was a young man of similar age to the two offenders. On the first occasion they lured the victim to a car park of the Westfield Centre at Liverpool and there McIvor produced a large knife and demanded money from the victim. Hernando joined in by taking hold the shoulder of the victim. When the victim agreed to hand over his wallet, the victim spun out of Hernando's grasp and ran away. He dropped his sunglasses and baseball cap which he observed the two offenders to pick up. That offence occurred on 15 August 2001. The second offence occurred on 21 August 2001, and on that occasion it was Hernando who approached the victim, asked the victim if he could use the victim's skateboard, which he did, and when Hernando gave the skateboard back Hernando produced a knife and held it to the victim's throat, a gravely aggravating feature because of the proximity of the knife, even though Hernando said that he had no intention of using it. The victim was terrified, I accept. Hernando demanded the victim's mobile phone and money, and when the victim handed over his money he handed over a wallet which contained only sixty cents. Hernando then threatened the victim saying, 'Don't go to the police because I know where you live.' McIvor's part in that was to stand behind the victim's girlfriend, which was clearly a material factor in the fear induced in the male victim, as he was frightened for his girlfriend as well as for himself by the conduct of the two offenders. The two of them were observed in the second matter on surveillance tape by the security officers at the Westfield Centre and to cut a long story short, eventually they were apprehended because of that. McIvor did not engage in any cooperation with the police, nor did Hernando. However each of them rapidly indicated the intention to plead guilty and each of them has maintained that plea ever since." 5 The sentencing judge dealt with the subjective features of the respondent as follows: "Not only is there the remarkable similarity in a reciprocal fashion in the objective features, but there is a remarkable similarity in the subjective features of the two cases. They are by no means identical, but they are broadly equivalent. In each case the Court is faced with a serious crime. The maximum penalty only has to be viewed to see that. It is a crime which is prevalent and a crime which normally merits much longer sentences than I an imposing in the present matter. This is the first time that McIvor has faced a prison sentence. He has twice appeared before the Local Court in September and December 2000 for offences of a different nature where he received respectively a bond and a fine. He is twenty years of age, date of birth 2 March 1982. His case is one which poses a not infrequent tension between the grave objective features and a very compelling subjective case - a case where a young person on the verge of leading a normal and productive life has diverged dramatically into crime, but now gives promise of becoming a useful member of society. There is an aggravating feature in McIvor's case in that this crime was committed while he was still under the bond given in the Local Court. Although that bond had only a matter of days to run at the time of these crimes, it is nonetheless an aggravating feature. At the time of commission of the offence McIvor was abusing drugs. Heroin was the drug which he had abused. But his case is somewhat unusual in that he was not in the grip of serious addiction, and furthermore his addiction came about not because of experimentation with the drug and a descent into more serious abuse, as one normally encounters, but it came about when he was a law abiding young man, three years out of school, who had worked as an apprentice painter all of that time, and who was involved in a serious motor accident. For his pain in the accident he was treated with morphine and on his release from hospital his injuries were such that he found that he could no longer comfortably mix with his former associates who were all extremely physically active, as he had been before, and he was now incapacitated from his former sports. He fell into bad company, was introduced to drugs, and he used drugs both for alleviation of the pain which he was still suffering, and for which he had found that morphine had been a relief before and for which heroin was now a relief, and also, as he said quite frankly, simply to get his mind off things, because he was depressed because of the destruction of his ability to work and engage in extremely physical sporting activity. The material before me is somewhat at variance, one part from another, as to his drug use at the time, but I am satisfied that he was using drugs at the time. At the time there was not precisely a commission of a crime to obtain money to fuel a drug addiction, but there seems to have been more of an element of boredom involved in his commission of the crimes. That comes from my assessment of the features of it, and not from any direct admission of his. In fact in cross-examination he said that he could not use heroin abuse as an excuse for commission of the crime. As the authorities stand I do not see that a more precise determination of his motive is necessary when one is to assess the criminality, and in turn the sentence. He has an extremely supportive family. I have heard from both his father and his mother, and his young sister has come to Court also today in support of him. Both his father and his mother were so supportive of him that they observed that he appeared to be drug-affected at the time that he commenced drug abuse, they taxed him about it, and they were taking active steps to achieve rehabilitation for him. His father insisted on his having urinalysis, and in fact in the ten months before the commission of the crime when his urine had been analysed on random occasions it had returned results which were completely clear on all occasions except one early occasion when there was a trace of cannabinoids. His father and mother both remain anxious to assist him and although they are of modest means his father does have a successful business and is anxious to provide as much financial support as is necessary to give McIvor rehabilitation which has been recommended in the report of Ms Anita Duffy. That report comes in its usual comprehensive and careful fashion and is one which I accept. There has been some criticism, both by the Crown properly in address, and implied in the pre-sentence report as well as fairly specifically stated in that report, that McIvor has not been successful so far in his attempts at drug rehabilitation. It is true that he has been unsuccessful. The Courts invariably find that the road to rehabilitation from drug addiction is one which is a rocky one, with falls from grace on the way to eventual success where eventual success is achieved. The present case is no different from the vast majority of those cases. At one stage McIvor went into Odyssey House at his father's behest, but could only stay there for two weeks because he could not tolerate the course which was one where he had to mix with numerous persons who were heavily addicted and he left the course. Odyssey House is renowned as being a difficult course, for the very reason amongst others, that McIvor has advanced. The Courts are also familiar with the fact that there are extremely different regimes applying at different rehabilitation institutions, some of which do not suit persons who are genuinely motivated, and that those persons do achieve rehabilitation at courses which are equally stringent, but of a different nature. One thing which is clear is that McIvor is one who does what he is told. He went to urinalysis when he was asked by his father. He has done a number of courses specified by the Probation and Parole Service in relation to his bond and also when he has been in prison on remand. When he was injured in his motor accident he went to a work program which was suggested by his insurance company. And I was particularly impressed by his evidence today that he is a young man who now realises the error of his ways and wants to do the right thing, and who is anxious to cooperate with the assistance which is being offered to him. His life was clearly disrupted by the motor accident, and whilst he has made no attempt to shelter behind that, that can be seen as the root cause of a chain of events, if I could mix the metaphor, which lead to his ultimate entry into crime, and he now has insight and is anxious to return himself to the workforce. His father has made a number of inquiries on his behalf for jobs which he can handle, and his father has lodged an application for one in the hope that when McIvor is released from gaol there may be an opening for him with that job. He has had an opening for a temporary job presently available and will be available to him on his release which was arranged prior to my announcing the sentence of course. His rehabilitation, as has been put by Mr Segal in an extremely helpful address, is not one which is going to be simply one to deal with drug rehabilitation. There are four factors which need to be dealt with - his physical rehabilitation, his vocational rehabilitation, a question of his understanding why he committed the crime coupled with a desire to stay out of crime in future, and a socialisation rehabilitation, that is one which will see him separated from the poor crowd with which he was mixing after the accident, a group of people with whom I stress he was not mixing before the accident. I accept his evidence that he has genuine remorse for the offences. He has had plenty of time to think about that in gaol on remand. And he quite frankly admitted that he felt no remorse at the time he committed the crimes, and it is only on reflection that the remorse has grown, and that came in such a frank way as to give confidence that his remorse is genuine. When I dealt with Hernando I indicated that the equivalent two sentences which I gave in his case, which encompassed one which was imprisonment for six months, were expressed that way not because six months was the appropriate sentence for the lesser offence had it stood on its own, but was the appropriate sentence when one is sentencing a person for the two matters together. I may have not correctly followed Pearce's case in the High Court (1998) 194 CLR 610 when I did that, but I feel that I should repeat the same regime today. I am also grateful that in Hernando's case, the Crown tendered two cases which were of great assistance in assessing the penalty - R v Malone (2000) NSW CCA 156, and R v Griggs (2000) NSW CCA 333, particularly the judgment of her Honour Justice Simpson (see paragraphs 37 and 45 of Griggs ), and the authorities which her Honour gathered in Griggs case. This is a case which calls for the same approach favoured by the Court of Criminal Appeal in those cases." 6 The Crown advanced submissions in criticism of the sentencing judge's reasons and conclusions which were, not surprisingly, substantially the same as those which it advanced in relation to the appeal against Hernando's sentences. 7 Beyond saying that the sentences were manifestly inadequate, it is not necessary to go to the detail of those submissions, or the answers to them advanced on behalf of the respondent, for one reason. 8 While the subjective features of the two offenders are not identical, and while McIvor's position is marginally worse because when he committed the offences he breached a Local Court bond, there is no doubt that if the sentencing judge came to the right conclusion in relation to Hernando, he came to the right conclusion in relation to McIvor. Similarly, if he erred in one case he erred in the other. The Crown appeal against the Hernando sentences failed because whatever the merits of the Crown arguments in the light of conventional sentencing principles, the Court saw it as unjust to increase the sentence in view of the lateness of the Crown's appeal. The Crown was not guilty of the same lateness in relation to McIvor, though it perhaps should have moved faster: the Director of Public Prosecutions' Notice was dated 2 May 2002, about three weeks after the sentencing hearing, and was presumably served soon after that. Hernando was able to resist the Crown appeal by reason of the long delay between his sentencing hearing and his release from imprisonment and the service of the Director of Public Prosecutions' Notice. 9 The matter can be perhaps tested concretely this way. Leaving aside the position of Hernando, and assuming appellable sentencing error on the part of the sentencing judge, if McIvor were to be re-sentenced, one approach might be as follows. On the first count, he should arguably receive a fixed term of twelve months expiring on 5 September 2002. On the second count, he should arguably receive a head sentence of twelve months to run from 6 September 2002 to 5 September 2003, with a six month non-parole period expiring on 5 March 2003. This would mean that he would have served and will serve about fifteen months in gaol, which more satisfactorily reflects his criminality than the sentencing judge's sentences, even though the sentencing judge probably ought to have imposed heavier sentences still. McIvor might say: "Is it right that I should serve fifteen months in gaol when my co-offender only serves six months, bearing in mind that in relation to one of the crimes he played the major role and I the minor while in relation to the other one I played the major role and he the minor, and given also that we have similar backgrounds?" Is it a fair answer to say to McIvor: "Though you and Hernando played similar roles in the crimes and have similar backgrounds, it is just that he serve six months in gaol and you serve fifteen months because he can take advantage of a mistake by the Crown?"

10 It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position - a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality. 11 Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender's background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge's approaches in the two cases, Hernando's sentence is not to be changed by reason of the adventitious circumstance of the Crown's gross delay. 12 LEVINE J: I concurred in the making of the order dismissing the Crown appeal on 24 July 2002. I agree with Heydon JA's reasons. 13 CARRUTHERS AJ: I agree with the reasons expressed by Heydon JA for the dismissal of the appeal on 24 July 2002.

R v McIvor

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (8)