R v Sternbeck

IN THE COURT OF CRIMINAL APPEAL N60462/99

1 BRUCE JAMES J: I will ask Dowd J to give the first judgment. 2 DOWD J: The applicant, who is aged forty-four, pleaded guilty to a count of break, enter and steal, contrary to s112 of the Crimes Act 1900 ("the Act"). This offence carried a maximum penalty of fourteen years penal servitude. The applicant was also charged with, and pleaded guilty to a count of larceny contrary to s117 of the Act, which had a maximum penalty of seven years penal servitude. 3 The sentencing judge took into account five offences, consisting of two offences of possessing a prohibited drug, one offence of possessing housebreaking implements, one offence of malicious damage, and one offence of assaulting a police officer in the execution of his duty. 4 The applicant was sentenced on the first count, taking into account the Form One matters, to a term of twenty months penal servitude, to commence on 19 February 1999 and to expire on 18 October 2000. On the second count, the applicant was sentenced to a minimum term of one year and six months to commence on 19 October 2000, and to expire on 18 April 2002, and an additional term of two years, commencing from 19 April 2002. 5 In respect of the second count, a co-accused had been dealt with before a Local Court Magistrate on that count and another series of relatively minor offences some time beforehand. The co-accused had received a sentence of six months in respect of the offence in the second count. 6 The applicant's case is that firstly, the total sentence, which comprised thirty-eight months minimum term and two years additional term, was manifestly excessive. Secondly, the sentence imposed for the larceny offence was manifestly excessive. Thirdly, that the sentences infringed the parity principles. 7 In sentencing the applicant, the trial judge took into account, as I have indicated, all of the Form One matters, even though not all of them related to the first offence. In relation to the matter of break, enter and steal, the facts were that on 4 August 1998, premises at Bellambi were broken into via a back window. A video cassette recorder camera, kitchen knife and a list of other relatively minor items, were unlawfully taken, coming to a total value of $580. 8 Several days later, the applicant was visited by the police and some of the goods were found. He was arrested and charged in relation to those items, and in relation to possession of a small bag of cannabis and two foils of heroin, and of having housebreaking implements. 9 His Honour expressed his concern about the seriousness of such offences, as indeed did the Crown in its submissions, relying in respect on that offence and in respect of the later offence, on an oft-cited but manifestly correctly applied authority of R v Hayes (1983) 11 A Crim R 187, at 189-190 per Street CJ, about the seriousness of the disruption to peaceable living by the invasion of the sanctity of the home. 10 In relation to the second count, to which a plea of guilty was entered to larceny, the applicant came to an arrangement with his co-offender, which required a high degree of organisation and preparation, to hire a six tonne pantechnicon truck from the local hire premises at Burleigh Heads. They travelled to Lismore and went to machinery premises on the Bruxner Highway, and cut a hole in the wire using bolt cutters to cut the lock. 11 They forced the door and broke into a Fiat tractor valued at $54,000, with a screwdriver. They started the tractor and secreted it in a bushland area. They did not use the pantechnicon to carry out the larceny. They instead arranged with a private contractor to load the tractor and carry it to Kempsey. 12 A report of the loss had been given to the Lismore police station, and a chase occurred for some fifty kilometres, almost to Coraki, where the applicant drove into a fence and decamped, endeavouring to avoid arrest. The applicant was later interviewed. His Honour found that the offence of larceny was in the higher part of the range. It was found that it was highly planned and it was professional criminal activity. 13 In relation to the structure of the two sentences, in fixing the sentence, His Honour obviously took into account the principles of totality, and in applying the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610, has imposed a fixed term of twenty months for the first offence, which did not involve the other co-offender, and for the second offence imposed a term of eighteen months with an additional term of two years. 14 The second sentence was intended to reflect the need for special circumstances caused by the application of the principle of totality. His Honour addressed the issue of parity, but expressed some real concern and, quite understandably so, that the other offender had been sentenced to a fixed term of six months, and in respect of the malicious damage to a term of concurrent one month. His Honour was also concerned that there had not been an appeal by the other offender. 15 In looking at the principles of parity, His Honour formed the view that the sentence that had been imposed by the Learned Magistrate was so manifestly inadequate that His Honour did not feel under any constraint so far as passing a sentence on the applicant by reason of any question of parity. 16 His Honour then took into account that there had been a plea of guilty, and gave the applicant credit for that. He did, however, note that the applicant was on bail when the offence was committed. 17 The case put by the applicant is that His Honour erred by rejecting any notion of parity between the sentence imposed, and that of the co-offender, and that if co-offenders are sentenced so differently, that there is a justifiable sense of grievance at the sentence received and that there is discretion for an appellate court to intervene: The Queen v Lowe (1984) 154 CLR 606, per Mason J at 613-616; and R v Diamond (Unreported, NSWCCA 18/2/1993, Hunt CJ at CL, Smart and James JJ). 18 His Honour also cited the case of R v Steele (Unreported, NSWCCA 17/4/1997, Sheller JA, Grove and Simpson JJ), where one offender was given one hundred hours community service, and the co-offender was sentenced to imprisonment for four years, with a minimum term of three years on a charge of malicious wounding. 19 It must be remembered that the Court of Criminal Appeal, in dealing with this question of parity- that the decision in Steele, on the basis that the non-custodial sentence for malicious wounding was outside the permissible range- relied on the decision in Lowe that I have referred to. 20 In my view, it could not be said here that the sentence imposed for the other offender was outside the permissible sentencing range. It was clearly low and indeed, inadequate, but was not such as to be outside the range. It is put, quite correctly, by counsel for the applicant, that it is in effect the second sentence which is the subject of the appeal, that is the larceny charge, and that the other sentence can be looked at discretely. 21 I do not entirely accede to the submission that with the application of the principles of totality, where one or two sentences are dealt with, one cannot entirely divorce that sentence from the other. However, in terms of applying the principles in Pearce, the Court must accept that at least as a full term, that the twenty months was considered by His Honour to be an appropriate term. 22 In answer to this submission, the Crown says with some cogency, that there was a significant difference in the record of the two offenders. It is clear that the applicant had a much heavier sentence on similar matters and, secondly, that he was in fact, on bail at the time. 23 To deal with the second ground of appeal, in my view, it could not be said that the sentence for the larceny offence imposed on the applicant was manifestly excessive. It was high, but not excessive as such. In relation to totality, there is reference to the High Court decision of Postiglione v The Queen (1995-1996) 189 CLR 295. The difficulty with that decision is there was no ratio decidendi of the High Court, and thus the Court of Criminal Appeal found itself returning for sentencing free from any guidance, and had to re-sentence without assistance. 24 However, in terms of all of the matters for which sentences were imposed on the applicant, it does not, in my view, appear that the totality principle had been prejudiced. 25 This leaves the application of the principle of parity. It is pointed out that we are dealing here with two separate regimes; one under the Local Court, where the Court has a limit of two years sentence on one offence, or three years on a cumulative basis, and the District Court or higher courts which have the full range of penalty. 26 The other charge which brought this matter before the District Court was, in fact, not proceeded with, being a matter for which there was no jurisdiction in the Local Court. The Crown has however, fairly suggested that these matters cumulatively would have been beyond the range of the Local Court and, in fact, was likely to send the applicant up to be dealt with by the higher court. 27 There is no doubt that the higher court, even dealing with the matter in absolute terms, must, as decided in R v Crombie [1999] NSWCCA 297, take into account the fact that at a Local Court, there is a restricted jurisdiction. It is however, only a matter to be taken into account. 28 The Crown puts that there is no parity here, and that the matters should be dealt with significantly differently. 29 The principles of parity which are that, all things being equal, co-offenders should be sentenced similarly for the same offence, does not entirely reflect the whole of the principle. 30 In my view, in sentencing the applicant, His Honour was obliged to take into account that the Learned Magistrate, notwithstanding the different jurisdiction, had given a sentence which was significantly lower than that imposed on the larceny charge. Eighteen months minimum term and two years additional term, taking into account that the two years reflected special circumstances, was such as to engender a strong sense of injustice. 31 It is remembered, of course, that in that sentencing, taking into account the principles of totality, the penalties would have been telescoped. The criminality involved and the sentence of eighteen months minimum is, in fact, indicative of a higher sentence but for the application of totality, which has to be taken into account the first offence. 32 In my view, leave should be granted and the appeal should be allowed. In re-sentencing I do not, however, consider that there should be a precise mirroring of that which the magistrate did for the co-offender, and taking into account the special circumstances of it being an application of the principle of totality, and taking into account the whole of the criminality involved, the conviction is confirmed on the count of larceny, leaving the first count confirmed and to remain. 33 I would, in lieu of the minimum term of one year six months commencing on 19 October 1999, substitute a term of imprisonment of two years four months with a non-parole period of ten months, which would commence on 19 October 2000 and conclude on 18 August 2001, which is the earliest date on which the applicant will be eligible for release on parole. 34 BRUCE JAMES J: I agree with the judgment of Dowd J. The orders of the Court will be as proposed by His Honour. oOo

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