R v Wilson [2000] VSCA 202

Court of Appeal (Vic)|2000-10-10|Before: WINNEKE, P., BUCHANAN and CHERNOV, JJ.A.

Criminal law - Sentence - Aggravated burglary and armed robbery - Sentence subsequently imposed on co-offender by another judge excessively lenient, but that imposed on appellant appropriate - Principle to be applied in re-sentencing appellant.

I will invite Chernov, J.A. to give the first judgment in this appeal.

The appellant, who is now aged 30, pleaded guilty in the County Court on 10 September 1999 to one count of aggravated burglary, one count of armed robbery and one count of possession of cannabis. He admitted 16 prior convictions from six court appearances between 21 January 1991 and 8 December 1997. They included two convictions for intentionally or recklessly causing injury, two convictions for armed robbery and five convictions for theft. After hearing a plea for leniency on his behalf, the learned sentencing judge sentenced the appellant on 10 September 1999 to four-and-a-half years' imprisonment on each of the counts of aggravated burglary and armed robbery. On the count of possession of cannabis he was convicted without penalty. That made a total effective sentence of four-and-a-half years' imprisonment, in respect of which his Honour fixed a non-parole period of three-and-a-half years and made a declaration regarding pre-sentence detention.

Some months later, Hollands pleaded guilty, before a different judge in the County Court, to one count of aggravated burglary, one count of armed robbery and one count of assault, arising from the same incident, in which he was a co-offender with the appellant. The reason Hollands was not presented for sentencing at the same time as the appellant was that he had absconded while on bail and could not be relevantly dealt with until the appellant had been sentenced. When he came before her Honour for sentencing in February 2000, the Crown applied to her Honour to have the matter adjourned to the first sentencing judge. The application was refused because his Honour was sitting in the Civil List and would continue there until July 2000. Consequently, he was not in a position to take the case. According to the judge who sentenced Hollands, and the appellant's counsel before us, Hollands admitted 79 prior convictions from 15 court appearances between 25 June 1984 and 14 December 1998. They included 14 convictions for burglary and convictions for robbery, but not armed robbery, and other offences of dishonesty. After hearing a plea for leniency on his behalf, the learned judge sentenced Hollands to two-and-a-half years' imprisonment on the count of aggravated burglary, three years' imprisonment on the count of armed robbery and four months' imprisonment on the count of assault. Her Honour directed that six months of the sentence imposed for the aggravated burglary be served cumulatively upon the sentence imposed for the armed robbery, making a total effective sentence of three-and-a-half years' imprisonment. A non-parole period of two years was fixed and a declaration made regarding pre-sentence detention.

The appellant appeals pursuant to leave granted on 22 June 2000. Two grounds of appeal were argued before us which were included pursuant to leave granted by the Registrar on 20 June 2000 and 3 October 2000. The first is that there is manifest and unjustifiable disparity between the sentences imposed on the appellant and Hollands; and the second is that the learned judge erred by imposing a sentence which included a component referable to an offence not charged, namely an assault by Hollands on one Jodie Smith.

Before turning to counsel's submissions, I shall say something of the circumstances in which the appellant's and Hollands' offences were committed. On 7 February 1999 at about 1.00 p.m. the appellant packed a bag with various items of clothing at his home in Cobram and took it to Hollands' house. There the two offenders equipped themselves with black balaclavas, a second bag and further items of clothing. They left in Hollands' car, driven by the appellant. At about 9.30 p.m., after attending the Commercial Hotel in Mooroopna, the appellant and Hollands drove to an address in Malcolm Crescent, Shepparton, where they had been earlier that day. They changed into the clothing they had brought with them from Cobram. They asked Merredea Shaw, who was at this address, lived in Cobram and who had no way of getting home other than with them, to accompany them because they were going to "do a job" and then return to Cobram without returning to Malcolm Crescent. On the way out to the car, the appellant collected a bag which had been placed beside a rubbish bin in the driveway by a third person acting on instructions given by the appellant. The bag contained a sawn-off shotgun in three pieces. The three of them left Malcolm Street in the car with Hollands driving. During the trip, the appellant put the shotgun together and loaded a shotgun cartridge.

Hollands drove the car to the Boulevard in Shepparton. He parked the car. He and the appellant told Shaw to wait in the car with the keys in the ignition. Shortly thereafter, at about 10.55 p.m., they forced an entry into a house in Kula Court in Shepparton by Hollands wrenching the external wire security door off the door jamb and then kicking in the wooden front door. Then they confronted the occupants of the house, Carey Adam Mitchell and Jodie Smith, who were in the lounge room watching television. The appellant and Hollands each wore a black balaclava over his head with openings for the eyes and the mouth. The appellant wore a pair of white gloves and carried the sawn-off shotgun. He removed the telephone from the wall of the lounge in order to prevent the victims from raising an alarm and pointed the gun at Mitchell and Smith.

Hollands and the appellant repeatedly demanded that Mitchell produce $10,000 in cash, and threatened him with injury if he did not do so. Mitchell said that he did not have the money. Hollands punched Mitchell about the head on several occasions. As a result, Mitchell suffered minor bruising and swelling to his cheek and mouth. Hollands went into the kitchen and brought back a carving knife. He took hold of Smith around the neck and held the knife against her face and neck and told Mitchell that if he did not produce the $10,000, Hollands would take Smith into the bedroom and do whatever he wanted to her. The appellant and Hollands also said that they knew where Smith worked. Mitchell took a $20 note from Smith's purse and gave it to Hollands, who put it into his pants pocket.

Throughout the incident the appellant and Hollands were loud and aggressive. Mitchell's dog was agitated and barked continually at them. They repeatedly demanded that Mitchell silence the dog. He offered to place the dog outside the front door. The appellant agreed. Mitchell opened the front door, released the dog and made his own escape from the house. He alerted neighbours who contacted the police. The appellant and Hollands fled the house.

Two days later (on 9 February 1999) the police attended the appellant's house in Cobram, searched the house and arrested him for aggravated burglary. The police found and seized a black balaclava and a black extendable baton. The appellant was taken to the Cobram police station and interviewed. He denied any involvement in the aggravated burglary in Shepparton and was released pending further investigation. Hollands, who was also arrested on that day, initially denied to the police any involvement in the burglary and gave a false account of his movements on the evening in question. Eventually, however, he admitted to being involved.

Two weeks later (on 23 February 1999) the appellant attended at the Cobram police station, surrendered himself into custody, and asked to be re-interviewed in relation to the aggravated burglary. During the further interview, he admitted his role in the aggravated burglary and assisted the police with their investigations by telling them of several relevant locations. The appellant told the police that he committed the offence because Mitchell sold drugs to the child of one of the appellant's associates, who held fears for the child's safety. The appellant said that his intention was to warn Mitchell away from selling drugs to the child. This was the same reason given by Hollands when he was interviewed by the police on 9 February 1999. Each of these reasons was rejected by the respective sentencing judges.

The appellant said that the offence had been planned by him and Hollands with the assistance of a third person who had supplied the shotgun. The appellant told the police that, to his knowledge, the shotgun had been inoperable, and that he had loaded it with a used shotgun cartridge to give the impression that it was loaded. He admitted to being in possession of and using cannabis at the Malcolm Crescent address throughout the evening of 7 February 1999.

It is convenient to deal at the outset with the appellant's second ground of appeal. Mr Dickinson, who appeared before us for the appellant, submitted that, in sentencing the appellant, his Honour offended the rule in R. v. Newman and Turnbull[1], in that his Honour held that the appellant was responsible for Hollands' assault on Smith and thus took into his sentencing considerations an offence with which the appellant was not charged. Mr Dickinson argued that the Crown elected to charge only Hollands with that offence and, therefore, his Honour was not entitled to take Hollands' assault on Smith into account in sentencing the appellant on the count of armed robbery, the offence having been committed by Hollands as a frolic of his own. The assault on Smith was a separate offence, said Mr Dickinson, as was recognised by the Crown which charged only Hollands with it. Consequently, it was claimed, his Honour erred in taking that incident into account when sentencing the appellant.

In my view, there is nothing in this point. R. v. Newman and Turnbull recognised, inter alia, that a person cannot be sentenced for an offence with which he has not been charged or of which he has not been convicted. As the President explained in that case[2], "at the heart of the principle lies the fundamental rule of fairness that a person should not be punished for an offence of which he has not been convicted". But the learned President also recognised[3] that a sentencing judge is bound to take into account all the circumstances that are relevant to the commission of the offence with which the applicant has been charged and for which he is to be sentenced. In my view, it is clear from his Honour's sentencing remarks that he only had regard to Hollands' relevant conduct as part of the circumstances of the armed robbery. The threat to Smith was relevant to the armed robbery which was committed on Mitchell. His Honour did not, in my view, treat the event as a separate offence that was committed by the appellant and did not regard it as a separate component of his sentencing considerations. As I have said, in my opinion, his Honour merely took into consideration as part of the surrounding circumstances applicable to the charge of armed robbery, the fact that Smith was assaulted. In doing this, his Honour made no relevant error.

It was Mr Dickinson's case under cover of the first ground of appeal that the discrepancy between the sentences was manifest, engendering in the appellant a justified sense of grievance and in the mind of an objective observer the concern that justice has not been done to his client. Mr Dickinson argued that there was no rational basis for imposing different sentences on the two offenders. He claimed that there was no relevant distinction between them in terms of their criminal culpability for the offences, their personal circumstances or their criminal histories. So far as there may have been a difference between them in their respective antecedents, said Mr Dickinson, the differences cancelled each other out for relevant purposes. Thus, he argued, although the appellant had two prior convictions for armed robbery, when one takes into account the circumstances of the robberies and then has regard to the far more extensive criminal history of Hollands, albeit one that does not include convictions for armed robbery, no relevant distinction can be drawn between them on that score. The same applies to other aggravating and mitigating factors applicable to each of the two offenders. Thus, Mr Dickinson submitted, this Court should interfere to reduce the appellant's sentence to that imposed on Hollands, even if it is assumed that his Honour had not made a relevant error in his sentencing considerations. But as the President said in R. v. Stirling[4], "before an appellate court can interfere on the ground of disparity, the disparity should be manifest and such as to engender a justifiable sense of grievance in the offender and an appearance of injustice to the objective bystander." Similarly, in R. v. Taudevin[5], Callaway, J.A. pointed out[6]:

"The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same thing, i.e. that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it is shared by an objective observer."

Mr Coghlan, who appeared for the respondent, in the end did not argue that there was any relevant difference between the two offenders for sentencing purposes which would justify the disparity in the two sets of sentences.

It seems clear enough that where there is a marked discrepancy in the sentences imposed on two co-offenders (by different judges) such as to give rise to a justified sense of grievance in the applicant and to a concern in the mind of an objective bystander that justice has not been done, such a discrepancy is, in itself, a ground on which the appellate court may intervene, even if the sentence in question is unaffected by relevant error. (Lowe v. R.[7]; Postiglione v. R.[8]; R. v. MacGowan[9]; Goddard v. R.[10]; R. v. Kucharski[11]; R. v. Stirling). The requirement for such intervention is founded in fairness, more particularly on the acceptance that there should be equality in treatment as between relevant co-offenders. As the President said in Stirling[12], "consistency in punishment is a fundamental element in any rational and fair system of criminal justice, and that inconsistency is calculated to erode public confidence in the integrity of the administration of justice."

In my view, having regard to the substantial identity in the relevant circumstances relating to the co-offenders in this case, the disparity between the sentences is manifest, yet no explanation for the difference has been given by her Honour, notwithstanding that she said she had regard to the principle of parity. Moreover, no obvious explanation for the difference springs to mind. It was said by Mr Dickinson that her Honour must have imposed the more lenient sentence on Hollands because he had no prior convictions for armed robbery whereas the appellant had been so convicted. But even if that were so, for the reasons that have already been given, this factor cannot justify the differences in the sentences. In my opinion, given all the circumstances, the appellant's sense of grievance arising out of the disparity in the sentences is justified and thus, this Court has jurisdiction to intervene to rectify the injustice.

It does not follow, however, that this Court is bound to exercise the discretion so as to reduce the term of the appellant's sentence, which is not attended by error, down to that imposed on Hollands. It has been recognised, for instance, by Gibbs, C.J. in Lowe[13] that the decision whether the existence of the discrepancy calls for intervention by the appellate court is a matter which is very much within its discretion. See also King, C.J. in MacGowan[14]. How this discretion should be exercised where the lenient sentence is regarded as being clearly inadequate, yet the higher sentence is within range and not attended with doubt, poses a particular difficulty. In such circumstances, the court must weigh the competing considerations of the need to eliminate the justified sense of grievance by the appellant on the one hand and the public interest in having the appropriate sentence maintained on the other. Thus, in MacGowan[15], King, C.J. recognised that where the lower sentence is clearly inadequate, yet the sentence under attack is appropriate and within range, to reduce it to the lower sentence in order to establish parity may amount to compounding a sentencing error which would be unacceptable to the public conscience. In those circumstances, the sense of grievance experienced by the offender may have to be tolerated by the public interest. A conclusion substantially to that effect was reached by the majority in Goddard, whereas in MacGowan, King, C.J. noted that there were no such countervailing considerations which would inhibit the court from rectifying the injustice brought about by the disparity. His Honour reduced the petitioner's total effective sentence from six years' imprisonment to the five years that had been imposed on his co-offender by a different judge.

In my view, notwithstanding that the sentence imposed on Hollands may not be so inadequate as to warrant it being increased on a Crown appeal[16], given that the first sentence is appropriate and within range and that no relevant differences exist as between the two co-offenders, the Hollands sentence is excessively lenient. Hollands was the elder of the two offenders by some four years and his absconding from bail reflected adversely on his prospects of rehabilitation. Moreover, he pleaded guilty to the charge of assaulting Smith. In my opinion, merely to reduce the appellant's sentence to that of Hollands would be to convert an appropriate sentence into one which is inappropriately low. Such a course would give rise to a justifiable concern in the mind of the public that there is a failure to maintain appropriate sentences.

But it may nevertheless be possible to achieve the objective of eliminating the injustice caused by the discrepancy in the sentences by reducing the sentence under attack without necessarily equating it in all respects with the lenient sentence. Whether and, if so, how this objective can be achieved will depend upon the circumstances of the particular case, and the courts have not always been uniform in their statements as to the resolution of this difficulty. In Goddard, for example, Kennedy, J. recognised[17] that the court may not lower an otherwise appropriate sentence to the level of a "patently" inadequate sentence, but it might make some reduction in the sentence particularly where it is not at the lowest level of the appropriate range and where it could fairly be lowered to a level which might be regarded as (merely) "inadequate". His Honour noted that a like approach was adopted by Anderson, J. in Capper v. R.[18] In Goddard the appellant was sentenced to a total effective sentence of seven years' imprisonment for a number of offences. His co-offender was sentenced a week later to three-and-a-half years' imprisonment for the same offences (and two others with which the applicant was not involved). The criminal culpability of the offenders in relation to the offences and their personal circumstances were substantially similar except that the applicant was the younger of the two. The only ground of appeal was that the sentence was manifestly disproportionate when compared with that given to the co-offender. Kennedy, J. considered[19] that, notwithstanding that the second sentence was "excessively lenient", some reduction in the higher sentence would be appropriate particularly as he took the view that the higher sentence in that case was not at the lowest end of the appropriate range. The other members of the Court, however, did not favour interfering with the sentence in question. Pidgeon, J. was of the view[20] that the sentence in question was, in any event, at the lower end of the relevant range and thus, considered that any lesser sentence would be wholly inadequate. Murray, J. considered[21] that no reduction of substance was warranted and that any minor reduction would amount to "impermissible tinkering"[22]. It seems that Murray, J.'s conclusion that the proposed reduction in the sentence would amount to an impermissible tinkering was based on what Kennedy, J. said in Capper, namely, that any reduction in the sentence that he would be prepared to make (in that case) would amount to "an impermissible tinkering with it". But that was said in the context of his Honour considering whether the sentence imposed on Capper was manifestly excessive. In Goddard, however, the question was not whether the sentence was manifestly excessive; it was whether there was manifest disparity between the sentences in question such as to warrant relevant interference by the Court. In those circumstances, a minor reduction in the more severe sentence, if otherwise appropriate, would not amount to an impermissible "tinkering" or "fiddling" with it.

Another approach adopted by the courts in dealing with the injustice engendered by the discrepancy in the sentences where the second sentence is regarded as being excessively low, is not to seek to match the applicant's sentence to the lenient one, but to re-sentence the applicant and, in the course of constructing the new sentence, have regard to the sentence that was imposed on the co-offender, thereby taking it into account in the broad sense in the course of exercising the sentencing discretion - see R. v. Reardon[23] and R. v. Kucharski[24]. In the latter case, Hayne, J.A. followed the course suggested in Pecora v. R.[25], namely, in the context of re-sentencing the applicant, regard should be had to the sentence that was imposed on the co-offenders, but giving it only such weight as was appropriate in all the circumstances.

In my opinion, the approach adopted by Hayne, J.A. (with whom Brooking, J.A. and Ashley, A.J.A. agreed) should be followed in this case. Given the excessively lenient sentence imposed on Hollands, it would be inappropriate to equate the appellant's sentence with it in all respects. Nevertheless the sentence imposed on the appellant is not at the very bottom of the range of sentences that was available to the first sentencing judge. Thus, in re-sentencing him, in order to deal with the injustice that has arisen from the discrepancy, appropriate weight should be given to the sentence that was imposed on Hollands. In the circumstances, I would allow the appeal, quash the first two sentences imposed on the appellant and re-sentence him to terms of three years' imprisonment on the count of aggravated burglary and four years' imprisonment on the count of armed robbery, thus making a total effective sentence of four years' imprisonment. I would propose that a non--parole period of two years and nine months be fixed. It would be necessary to make an appropriate pre-sentence declaration, which I calculate as 418 days.

The formal order of the Court will be that the appeal is allowed. The sentences imposed below are quashed and in lieu thereof the following sentences are imposed.

On the count of aggravated burglary, the appellant will be sentenced to a term of three years' imprisonment. On count 2 (armed robbery) he will be sentenced to a term of four years' imprisonment. The total effective sentence will therefore be four years' imprisonment. The Court orders that he serve a term of two years and nine months' imprisonment before becoming eligible for parole.

Pursuant to s.18(1) of the Sentencing Act, we declare that a period of 418 days has already been served pursuant to the sentence and we direct that that declaration and its terms be entered in the records of the Court.

[7] [1984] HCA 46; (1984) 154 C.L.R. 606 at 609-10 per Gibbs, C.J., 611-613 per Mason, J. and 623 per Dawson, J.

[8] (1996) 198 C.L.R. 295 at 301 per Dawson, Gaudron, JJ., at 313 per McHugh, J.

[9] (1986) 42 S.A.S.R. 580 at 582-583 per King, C.J. with whom Mohr and von Doussa, JJ. agreed

[10] [1999] WASCA 281; (1999) 21 W.A.R. 541 at 550-554 per Kennedy, J.

[11] Court of Appeal, 23 June 1997, unreported at 9-10 per Hayne, J.A. with whom Brooking, J.A. and Ashley, A.J.A. agreed

[16] Mr. Coghlan eschewed submitting that the sentence was manifestly inadequate

[22] Given that the court would have been re-sentencing the applicant on a basis other than that the sentencing error was manifest excess, however, any reduction in the sentence may not be appropriately described as "tinkering" or "fiddling" with it.

[23] (1996) 89 A.Crim.R. 180 at 182 per Gleeson, C.J.

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