R v REID

Court of Criminal Appeal (NSW)|2000-05-05|Before: Hulme J, Carruthers AJ

CITATION : R v REID [2000] NSWCCA 166 revised - 11/05/2000 FILE NUMBER(S) : CCA 60656/99 HEARING DATE(S) : 5 May 2000 JUDGMENT DATE : 5 May 2000

PARTIES : Regina David Charles REID JUDGMENT OF : Hulme J at 1; Carruthers AJ at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0274; 99/11/2513 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

DECISION : Application for leave to appeal is refused

IN THE COURT OF CRIMINAL APPEAL No: 60656/99

Friday 5 May 2000 REGINA -v-David Charles REID

JUDGMENT 1 HULME J : On 26 October 1999 this applicant for leave to appeal was sentenced in respect of one charge of being accessory after the fact to stealing from a person and another charge of larceny of a motor vehicle. The applicant had pleaded guilty to both charges, to one at committal proceedings. 2 The maximum penalty prescribed for being an accessory after the fact to stealing from a person is five years imprisonment. That prescribed for the offence of stealing a motor vehicle is ten years imprisonment. 3 To the extent of being an accessory the sentence imposed was a full term of three and a half years imprisonment including a term of 18 months commencing on 1 March 1999. His Honour found special circumstances in what he saw as the need of the applicant for a longer than normal period of supervision on parole whilst making some attempt of ridding himself of his drug addiction. His Honour suggested to the applicant that he go back on the methadone or undertake drug and alcohol counselling in prison. In respect of the offence of larceny of a motor vehicle, Judge Shadbolt sentenced the applicant to imprisonment for a minimum term of 18 months also commencing on 1 March 1999 and an additional term of six months commencing on 31 August 2000. 4 The circumstances of the offences were as follows. On 1 March 1999 the subject motor vehicle was parked in a locked condition at the Beecroft Railway Station carpark. The applicant and a co-offender broke into the car, the applicant using a screw driver to do so, and then both drove off in it. Near the West Pennant Hills Shopping Centre the co-offender lent out of the passenger side of the motor vehicle and grabbed a handbag a lady was carrying. The two then drove off with the applicant driving. The vehicle was followed by the victim's husband and then by police. After a short pursuit the offenders decamped. Later in the day the applicant was found hiding in the backyard of a nearby house. 5 The grounds of appeal are:- (1) His Honour erred in not applying the principle of parity. (2) His Honour sentenced the appellant (sic) on the basis that he was an accessory after the fact to robbery, and (3) The sentence was manifestly excessive. 6 It is convenient to deal with these grounds slightly out of order. Ground 2 7 During the course of his Honour's reasons and in the context of remarks concerning the prisoner's general situation in life and as someone in respect of whom the Aboriginal Protection Act had been implemented, referring to the applicant his Honour said:- "He cannot come out of prison and a month later be accessory after the fact to what is really a robbery and I am sure that Mr Reid understands that too. Something has to be done about his drug addiction..."

8 However, in the following paragraph his Honour said:- "What I have decided to do in the case of this prisoner is to sentence him, having regard to the fact the maximum sentence is five years for an accessory after the fact to stealing from the person under Section 94 to sentence him to three and a half years imprisonment in all."

9 Judge Shadbolt is a very experienced criminal judge and in light of this last mentioned passage, there can be no doubt that he sentenced the applicant for the offence with which he was charged.

Ground 1 10 The applicant's co-offender had been sentenced to imprisonment for a minimum term of nine months for the offence of stealing from the person and a concurrent term of six months for the offence of car stealing. 11 It was pointed out that the sentenced imposed on the applicant for being accessory after the fact to that co-offender, namely three and a half years imprisonment, including a minimum term of 18 months, is in excess of double the sentence imposed on the principal offender and this, even though the offence of being an accessory rendered the applicant liable to only five years imprisonment (Crimes Act Section 350) whereas Section 94 of that Act provided for a maximum penalty in the case of the principal offender of fourteen years. 12 Thus it was submitted that the applicant had a justifiable sense of grievance at the disparity between the sentences and this Court should remove that sense of grievance by reducing the applicant's sentence. The leading authority on the subject is, of course, Regina V Lowe (1984) 154 CLR 606 to which the Court was referred. 13 However, it is important also to bear in mind that as this Court said in Regina V Steele (unreported, CCA, 17 April 1997):- "The frequently cited passage from the judgment of Mason J (in Regina v Lowe) is not authority for the proposition that in any case where such disparity is shown, a Court of Criminal Appeal must reduce a co-offender's sentence to one which is inadequate. It is authority for the proposition that in that, in an appropriate case, taking into account all of the circumstances, including the existence of a justifiable sentence of grievance in a more heavily sentence co-offender, the appellate court has a discretion to do so." 14 In Lowe itself, Brennan J said (at p 617) that:- "It is wrong to think it is "more important that sentences should be proportionate to one another and that they should be proportionate to guilt."

15 Reference may also be made to remarks of Sully J and myself in Regina v Reardon (1996) 89 A Crim R 180 at 183 and 191. 16 A judge sentencing one of a number of co-offenders is not obliged to follow the principle of parity with an earlier sentence in circumstances where he concludes that the earlier sentence was manifestly inadequate or the differences between the two offenders justify differences in the result. Although it is not completely clear, it seems to me having regard to some remarks made during the course of the sentencing proceedings that Judge Shadbolt took the view that the sentence imposed on the applicant's co-offenders was inadequate both as a measure of, or reflecting the applicant's criminality, and it may be inferred as one appropriate for the co-offender also. 17 In these circumstances, whether any sense of grievance the applicant may have as justified can be better answered after the third ground of appeal has been considered.

Ground 3 18 Relevant to this ground is, of course, the applicant's objective circumstances and antecedents. A report of 6 March 1999 from a Miss Mackie, an alcohol and other drugs counsellor of the Lithgow Correctional Centre, indicates that the applicant was removed from his Aboriginal family at the age of 2 and placed in foster care with white persons at aged 3. The report goes on to say although "he has greatest regard and love for his Foster parents, Mr McPhee identifies strongly with the Stolen Generation and presents with many unresolved issues regarding his cultural and personal identity." He left his foster home at the age of 15 and began a series of detentions in juvenile centres before entering the adult correctional system. 19 It is unnecessary for me to detail all the objective aspects concerning the applicant which are contained in that report or other information before the Court beyond saying that the applicant began using cannabis at 15, heroin and amphetamines at about 18 and cocaine at about aged 26. He has a continuing problem with heroin although there would seem to have been a substantial number of occasions when he has participated in either rehabilitation or counselling or methadone. Although advised that this was premature, the applicant apparently reduced his methadone dosage to nil shortly before his release from a prior period of custody on 16 February of this year. He has made some efforts of training with a view to improve his efforts of employability. He is now 32. 20 In support of this ground of appeal the Court's attention was also drawn to Judicial Commission statistics in respect to the offence described as "Section 94 accessory after the fact to robbery et cetera". These show that 36 cases, eleven offenders were sentenced to full time imprisonment; nine of these are imposed on them full terms of 18 months or less, and two of sentence to imprisonment for 30 months. It was submitted that these statistics demonstrated that the sentence of three and a half years imposed on the applicant was excessive. Of course these statistics provide no information as to the circumstances of the offences or offenders covered by them beyond the balanced description of the offence. 21 Nevertheless it is appropriate to record that there is nothing to indicate that in terms of its objective circumstances, the applicant's offence was particularly bad. He was already in the driver's seat of a motor car when the principal offence was committed. He drove away from the scene for a reasonably short distance before pursuit by the police commenced, and even that continued for only a limited period when the car was stopped and the applicant and the co-offender decamped. On the other hand, the applicant's antecedent criminal history cannot but be described as appalling as was said in Regina v Veen (No 2) 1987-88 164 CLR 465 at 477. The High Court went on to say that:- "History cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." 22 The High Court also said:- "It is relevant to show whether the instant offence is an uncharacterised aberration or whether the offender has manifested in the commission of his offence a continuing attitude of disobedience of the law. In the latter case, retribution, determination and protection of society all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpabilities of the offender in the instant case or shows his dangerous propensity or shows a need to impose --- punishment to deter the offender and other offenders from committing further offences of a like kind." 23 In light of those remarks, some further detail of the applicant's record is in order. The sentencing judge recorded that he had counted 52 individual convictions or findings of guilt. I have counted eleven instances of stealing or illegal use of a motor vehicle and 26 instances of other offences which included, as an element of them, stealing. 24 On at least ten occasions the applicant has been placed on probation or recognizance. The first occasion when he was sentenced to a custodial sentence after reaching 18 was on 20 October 1986 when, for an offence of escaping from custody, a sentence of six months hard labour was imposed. On 10 June 1988 he was sentenced to imprisonment for two years including a non-parole period of 12 months, and on 11 September 1998 he was sentenced to an offence of robbery being armed with an offensive weapon to a minimum term of 18 months imprisonment expiring on 16 February 1999 and an additional term of 18 months commencing on the following day. On 14 other occasions, sentences having a minimal custodial period of less than twelve months have been imposed. 25 Despite this record I am inclined to the view that the full term of the sentence imposed in respect of the offence of being an accessory exceeded the bounds of his Honour's discretion. Even conceding the conclusion the applicant's record makes it inevitable as to his attitude, propensity and need for punishment, it seems to me that the objective circumstances of the offence to which I have referred do not merit the sentence which was imposed for this offence. 26 On the other hand, I am of the view that the sentence imposed in respect of the other offence of car stealing was wholly inadequate. As I have indicated, this was the twelfth occasion when the applicant had been involved in such an offence. That fact meant that the sentence imposed for the offence, in my view, should have been well into the top half of the range of sentences for such an offence. Indeed, there is a deal to be said for the view that the minimum term imposed on this charge should have been not less than five years. It would be quite wrong for this court to reduce one sentence imposed on the applicant without also increasing the sentence at least to the limit of that originally imposed. 27 In these circumstances, the conclusion at which I have arrived is that leave to appeal should be refused. Although what I have said is enough to dispose of the appeal, there are three other matters to which I wish to refer. Firstly, on 18 March 1999 the Parole Board revoked the applicant's parole in respect of the offence of robbery whilst armed and directed that he serve the balance of one year, five months and 16 days from 1 March 1999 to 16 August 2000. The effect of the 18 months minimum term imposed by Judge Shadbolt, so long as that revocation of parole stands, was thus to increase the applicant's imprisonment by only 15 days from 17 to 31 August. Clearly it was appropriate for some revocation of that parole. It is appropriate for some of the period of the additional term imposed in respect of that offence of robbery whilst armed to be served by reason of the applicant's commission of the instant offences. Thus this fact would indicate that he will not serve as punishment for these offences all of the time implicit in the sentences of Judge Shadbolt. 28 The second thing I would say is this. The summary of the applicant's record, the number of his offences, and despite this, the likeness of many of the sentences imposed, demonstrates to my mind that many of the judicial officers by whom the applicant has been sentenced in the past have not had adequate regard to many of the factors relevant to sentences to which the High Court in Regina v Veen at page 476 referred. Protection of society and retribution seem to have rated almost no consideration in many of those sentences. Thirdly, the applicant's entirely amoral attitude to the property of others and his failure, if not refusal to learn from the sentences imposed on him - and no doubt the remarks of persons imposing those sentences means that he is at risk of the view being taken that the protection of the community requires that he be sentenced under the Habitual Proceedings Criminals Act to preventative detention as envisaged by that act for a period of between five and fourteen years. Unless he reforms and overcomes his drug addiction, someone may soon take the view that there is no point in the applicant being at liberty to continue his deprivations from the community. There will come a time - if it has not already occurred - when the unfortunate aspect of the applicant's past can no longer be regarded as any excuse or as having any mitigating effect for his behaviour. 29 CARRUTHERS AJ: I agree. 30 HULME J: The order of the Court is the application for leave to appeal is refused. ………..

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