Rees v R

Court of Criminal Appeal (NSW)|2012-03-30|Before: Macfarlan JA, Hulme J, Garling J, Kirby J, Gaudron JJ, As Garling J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Garling J. 2R S HULME J: I agree with the orders proposed by Garling J and, subject to the following remarks, with his Honour's reasons. 3Although it is appropriate to recognise that the effective reduction in Mr Boyd's sentence by making the groups of sentences imposed on him concurrent is due to the combined effect of the two groups, and cannot be solely attributed to the group in respect of which the Applicant and Mr Boyd were co-offenders, I have some reservations about apportioning that concurrency as his Honour has done, and this whether the apportionment is effected on a 50/50 or some other basis. 4In Postiglione v The Queen [1997] HCA 26; 189 CLR 295, the decision which established that one co-offender is entitled to argue that, on grounds of parity, he should derive benefit from considerations of totality to which another co-offender, but not the first-mentioned, is entitled (notwithstanding that other differences in circumstances are expected to be reflected in their respective sentences), Kirby J, one of the judges in the majority, said that the parity principle between co-offenders continues to apply notwithstanding the application of the totality principle to one co-offender. His Honour then based his decision on the extra imprisonment effected by the sentences being imposed for the offence common to the co-offenders - at p 343. However, Dawson and Gaudron JJ, the other members of the majority, were not so restrictive. They said, at pp 302-4, that in determining the sentences to be imposed on co-offenders, consideration should be given to all components and one should take into account the head sentences and non-parole period being imposed, the total effect of the sentences (including the earlier ones) imposed and not merely the extra imprisonment effected by those sentences. 5Dawson and Gaudron JJ reaffirmed that for the parity principle to justify intervention, there must be a "marked" disparity giving rise to a justifiable sense of grievance - at p 301 - and Kirby J's acceptance, at p 338, of Lowe v The Queen [1984] HCA 46; 154 CLR 606 involved a similar view. 6As Garling J has pointed out, the Applicant was sentenced to imprisonment for four years and eight months, including a non-parole period of three years and six months while his co-offender, Mr Boyd was subjected to two sentences or groups of sentences. The first group involved imprisonment for two years and three months including non-parole periods totalling 15 months and the second group, in which Mr Boyd and the Applicant were co-offenders, involved sentences of the same length as those imposed on the Applicant. The commencing date for the second group was specified as one that was approximately five months after the commencing date of the first group, thus making the two groups of sentences overlap by 10 months. Presumably the reason for this concurrency was totality - a reason that had no relevance to the sentencing of the Applicant. 7Considering for the moment only the non-parole periods, while the effect of making the sentences for the common offences concurrent was to increased Mr Boyd's imprisonment by two years and eight months compared with the three years and six months imposed on the Applicant, the overall result of the sentences on Mr Boyd is that he would serve three years and 11 months. If one looks at the total sentences, Mr Boyd's is five years and one month and the Applicant's four years and eight months. 8Looking at the overall picture, I am not persuaded that there is a marked disparity. 9GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by his Honour Judge King SC on 17 December 2010. 10The applicant, Mr Jayden Rees, pleaded guilty before King DCJ to two offences. The first was an offence contrary to s 112(2) of the Crimes Act 1900. The second was an offence contrary to s 195(1A)(a) of the Crimes Act. 11Both of the offences relate to an incident which occurred on 7 November 2009 when the applicant, together with Mr Reilly and Mr Boyd, broke into Club M at The Entrance on the Central Coast of New South Wales, and whilst armed, and on the premises, threatened the manager and staff, and destroyed property. 12The maximum penalty for the first offence of aggravated break, enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act was 20 years imprisonment. A standard non-parole period of five years applied. 13The maximum penalty for the offence of intentionally or recklessly destroying property in company was 6 years. No standard non-parole period applies. 14The sentencing judge imposed a total sentence on the first count of 4 years and 8 months, with a non-parole period of 3 years and 6 months, commencing on 10 November 2009, which was the date upon which the applicant was arrested and bail was refused. 15On the second count, the judge imposed a fixed term sentence of 14 months which was entirely concurrent with the sentence on Count 1. This sentence has now expired. 16A total effective sentence imposed on the applicant was, therefore, 4 years 8 months with a non-parole period of 3 years and 6 months.

Facts 17A Statement of Agreed Facts was tendered to the sentencing judge. A brief summary of these facts is set out below: 18Club M is a nightclub on The Entrance Road at The Entrance. On the night of 6 November 2009, whilst the club was still trading, the applicant and one of his two co-offenders approached the entrance of the club and attempted to gain entry. Security guards prevented them from so doing. Nothing of this incident forms part of the conduct which gave rise to the offences. 19Shortly after 4am on Saturday 7 November 2009, Club M had finished trading when staff noticed a motor vehicle carrying the applicant and his co-offenders, who were armed, parking across the road from the club. Club staff shut the front doors of the premises which consisted of two steel-framed doors with steel panelling. They locked the padlocks located at the top and bottom of the doors. They also secured a metal door across a fire exit at the rear of the premises. 20The applicant and his two co-offenders, Mr Reilly and Mr Boyd, approached the front doors of the club. The applicant was armed with a hammer. The three co-offenders tried, initially at the front door, to break into the club unsuccessfully. They went to the rear of the premises and tried unsuccessfully to obtain entrance via the fire exit. 21They returned to the front doors where all three began to hit and kick the doors. Eventually the three co-offenders grabbed the lower section of the door and pulled on it until the securing padlocks and lugs broke. They climbed the stairs, entering the main bar service area. The applicant was in front of his co-offenders. He swung a hammer in the direction of one of the security guards, and then swung the hammer a number of times onto the granite bench area of the bar, breaking a large corner piece of the granite at one end of the bar and causing it to crack through the width of the bar counter in another place. 22The applicant threatened the manager, who was attempting to calm the situation. The applicant obtained the use of a pole which Mr Boyd had been carrying, and struck the club manager with it. Later, the applicant armed himself with a clear glass bottle of the liqueur Galliano, and threatened the club manager with the bottle. 23Whilst this last interaction was occurring, police arrived and arrested the applicant and ultimately, both his co-offenders. 24The Crown conceded at the proceedings on sentence, that each of the offenders was well affected by alcohol at the time of the offending conduct. 25When he was first arrested on 7 November 2009, the applicant was charged with affray. He was released on bail. On 9 November 2009, police determined to upgrade the charges once they had received and reviewed the security film footage from the club. At their request, the applicant attended the police station by appointment and was charged with the new offences. It was at that point that he was arrested. He has been in custody since that time.

Applicant's submissions on sentence 26The applicant, as I have said earlier, agreed with the facts set out above. He gave evidence on sentence and tendered further material including a psychological report of Anita McGregor of Duffy Robilliard Psychologists.

Remarks on Sentence 27The sentencing judge in his careful and detailed remarks on sentence described the principal offence, against s 112(2) of the Crimes Act in the following terms, which the applicant accepts as a proper description: "As participants in a joint criminal enterprise, each is liable for the acts of the other within the scope of the enterprise. The offending behaviour included violence and damage to property to gain entry to commercial premises specifically closed to prevent their entry. They terrorised staff and patrons after entering, although only the manager was physically assaulted. They caused damage to further property after entering, as part of the intimidation of the occupants. The offensive weapons used included a hammer, a Galliano bottle and a piece of timber or pole. In short, they carried out a violent invasion of commercial premises closed specifically to deny them entry, by force and damaging property in the invasion. They used offensive weapons to damage property, to effect entry, and to intimidate occupants of the premises. There was a physical assault of the manager and further damage to property after gaining entry. The offending behaviour was outrageous, and evidences a significant degree of violent criminality against property and citizens entitled to go about their lives and business free of such conduct. Offending conduct such as this significantly undermines the confidence and security of the public, whether it be in the street or in private premises, albeit a commercial operation." 28These remarks were appropriate and are entirely justified by the agreed facts. I agree with them. 29The trial judge found, consistently with the agreement of the Crown and counsel for the applicant, that the circumstances of the offence against s 112(2) of the Crimes Act fell within the mid-range of objective seriousness for offences of the kind. 30In respect of the offence of intentionally or recklessly destroying property in company, the sentencing judge noted that a standard non-parole period did not apply, nevertheless found that it was a serious offence, and although separate from the first count, was intrinsically bound up with the aggravated break and enter offence. 31As the applicant, and his co-offenders, had each pleaded guilty at the earliest opportunity, the sentencing judge allowed a discount of 25 per cent on the sentence. The Crown did not oppose this.

Grounds of Appeal 32Only one ground of appeal is relied upon by the applicant. It is this: "The applicant has a justifiable sense of grievance at the effective sentence to be served by co-offender Darren Boyd."

Applicant's Submissions 33The applicant in his submissions to this Court conceded that: (1)the sentencing judge correctly characterised the facts in the way described above as amounting to a violent invasion of commercial premises closed specifically to deny the applicant and his co-offenders entry; (2)the sentencing judge correctly found that the other relevant circumstances of aggravation were that the applicant was in company with his co-offenders, he used physical violence on the manager when he struck him with a pole and that the applicant knew that there were other people in the place where the offence was committed; (3)the sentencing judge correctly found that an aggravating feature was that the offences were committed by the applicant whilst subject to conditional liberty on three s 12 bonds; (4)the applicant's previous criminal record was significant including the fact that he had served several periods of imprisonment for violence and had a number of convictions for break and enter offences. The applicant also concedes that he has an unsatisfactory history of behaviour whilst on supervision. 34In addition, the applicant concedes that the sentencing judge was correct to make a finding that there was no relevant difference in terms of the criminality of each of the three co-offenders and in terms of the objective seriousness of the principal offence with which they were charged. 35In short, the applicant concedes that the sentence imposed was an appropriate one when considered in isolation, but argues that a lesser term of imprisonment is now warranted because of the effective sentence imposed on his cooffender, Mr Boyd. 36The applicant notes that a lesser sentence was imposed on the cooffender Mr Reilly because of his different, and significantly lesser, previous criminal history, but does not submit that this sentence ought be taken into account. 37The gravamen of the applicant's submissions is that the effective term of imprisonment imposed upon the co-offender Mr Boyd was markedly less than that imposed upon the applicant and consequently that this Court should, by application of the parity principle, intervene.

Sentence Imposed on the Co-Offender 38It is necessary to examine the circumstances with respect to the sentencing of Mr Boyd. 39Mr Boyd was not detained in custody at the same time as the applicant. He was on bail. Whilst on bail, Mr Boyd committed the further offences of affray and intimidation of a police officer on 24 July 2010. He was sentenced for those offences in the Wyong Local Court on 15 December 2010. In respect of the offence of intimidate a police officer, he received a sentence of 3 months full-time imprisonment, and in respect of the offence of affray, a total sentence of 2 years imprisonment with a 12 month non-parole period. The learned Magistrate ordered the two sentences to be entirely cumulative. 40The sentence for the Local Court offences commenced on 22 October 2010. Had there been no other offences, Mr Boyd would have been released from custody on 21 January 2012. 41Mr Boyd lodged an appeal from the sentence for the Local Court offences alleging that they were too severe. On 18 March 2011, the learned sentencing judge heard these appeals by Mr Boyd against the severity of the Magistrate's sentence and dismissed those appeals. It was necessary for his Honour to adjust, by a couple of days, those sentences. This adjustment is irrelevant to the issues on this appeal. The learned sentencing judge then sentenced Mr Boyd in respect of the offences with which the applicant was also charged. 42As I have earlier noted, with respect to those offences, his Honour assessed the criminality of both the applicant and Mr Boyd as being the same and he determined that precisely the same sentence should be imposed on Mr Boyd as was imposed upon the applicant. 43King DCJ then pronounced sentence upon Mr Boyd of a total sentence of 4 years and 8 months with a non-parole period of 3 years and 6 months. His Honour determined that the commencement date for that sentence would be the day upon which it was imposed, namely 18 March 2011. 44In determining that date as the date upon which the sentence would commence, his Honour took into account the sentence resulting from the Local Court offences, the appeals from which had been disposed of that day. Having regard to the principle of totality, he determined that there would be a degree of concurrency of both sentences. 45King DCJ was, when sentencing Mr Boyd, considering the totality of Mr Boyd's criminality for all of the offences, including those for which the applicant was sentenced, and so he was obliged to have regard to the totality principle of sentencing. As McHugh J said in Postiglione at 307: "The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved ... ... The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." (references omitted) See also: Mill v The Queen [1988] HCA 70; 166 CLR 59. 46It will be observed that the extent of the accumulation is from 22 October 2010, being the date upon which the sentence for the Local Court offences commenced, to 18 March 2011, being the date upon which the sentence for the joint offence with the applicant commenced, effectively a period of 5 months. Consequently, the non-parole components of the sentences were concurrent for a period of 10 months. 47It is the consequence of this period of concurrence that leads the applicant to submit that in effect Mr Boyd will serve only approximately 2 years and 8 months for the same offence for which the applicant will serve 3 years and 6 months, that is, a difference of 10 months. 48The applicant submits that having regard to the findings which are not challenged, of the identity of the criminality of the co-offenders, their roles in the joint criminal enterprise and their subjective circumstances, he has a justified sense of grievance because the actual period to be served in custody in consequence of the offences committed by the co-offender does not bear a due proportion to the actual period to be served in custody in consequence of the offences committed by the applicant. 49The applicant submitted that this Court should intervene, quash the applicant's sentence and reduce the applicant's sentence so that it bears a proper proportion to the sentence imposed on Mr Boyd.

The Parity Principle 50So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this Court is presented in this case, provide the following principles: (1)The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe at 610-611 per Mason J; Postiglione at 301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v R; Quinn v R [2011] HCA 49 at 28 and 30 per French CJ, Crennan and Kiefel JJ; (2)Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ; (3)Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is "marked", or "clearly unjustifiable", or "manifest ... such as to engender a justifiable sense of grievance" or else it "[appears] that justice has not been done": Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; R v Taudevin [1996] 2 VR 402 at 403 per Hampel AJA, at 404 per Callaway JA; DGM v R [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J; (4)The elimination of an "unjustified" discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: Lowe at 613 per Mason J; R v Kelly [2005] NSWCCA 280; 155 A Crim R 499 at [11] per Johnson J (Simpson J agreeing); Postligione at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ. (5)In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i)must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J; (ii)must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ; (iii)ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ.

Discernment 51The commencing step in the analysis of the applicant's submissions is to note, as the applicant accepts, that having found the criminality between the co-offenders to be identical, the learned sentencing judge imposed identical sentences. No complaint is made in this respect. 52However, the cases, by the time the sentencing judge came to consider each of them, were not identical. That is because Mr Boyd was serving a sentence of imprisonment which had been imposed in the Local Court (and corrected, albeit to a minor extent on appeal, by the learned sentencing judge). 53As a consequence, in the case of Mr Boyd, the learned sentencing judge was obliged to take into account the totality principle of sentencing in considering all of the offences. There was no equivalent requirement when sentencing the applicant. 54The simple effect of the applicant's submissions is that because the sentencing judge did not make the sentence which he imposed for the same offences as that imposed upon the applicant entirely cumulative upon the previous offences, the applicant by reason of the parity principle, is entitled to a reduction on his sentence. 55It will be observed that the sentence imposed upon the applicant carried a 75 per cent ratio between the total term of the sentence and the nonparole period. This accords with the statutory requirement: s 44(2) Crimes (Sentencing Procedure) Act 1999. King DCJ made no finding of special circumstances, either for the applicant or Mr Boyd. 56An examination of the effective sentences ultimately imposed by King DCJ on Mr Boyd, was that he would serve a total term of 5 years and 1 month with a non-parole period of 3 years and 11 months. The ratio of the non-parole period for the total term is 77 per cent. 57If one was to apply, arithmetically, that ratio to the total term imposed on the applicant, then he would have been sentenced to a non-parole period which was slightly longer than that which he received. 58But, the applicant does not rely upon this arithmetic approach. He submits that when looking at the 10 month period of concurrence for the non-parole component of the sentence, Mr Boyd will serve a considerably shorter period in prison than will the applicant. That period, he submits, is at least 5 months on the basis that one divides the concurrence period equally between the sentence for the Local Court offences, and the offences committed by Mr Boyd jointly with the applicant, or perhaps more, and closer to 10 months if the concurrence period is apportioned in some other way. 59However, as the authorities demonstrate, the mere existence of a discrepancy is insufficient to warrant intervention by an appellate Court. 60An evaluation needs to be made as to whether the discrepancy which in my view is properly calculated at 5 months, is a marked discrepancy such as would lead to a justifiable sense of grievance. 61It would be apparent to an objective observer that although the sentences imposed were identical with respect to the same offence, the circumstances in which Mr Boyd came to be sentenced were quite different and the judge was engaged in an exercise at that stage, of determining, in light of the particular circumstances, and the additional offence, an overall term of imprisonment which was appropriate having regard to the totality of Mr Boyd's criminal conduct. 62It was well within the trial judge's discretion to consider whether or not, and to what extent, the sentences should be aggregated or made concurrent. He chose a period of concurrence of about 10 months for the non-parole period. This was a figure well within a proper discretionary range and in my opinion no error has been demonstrated with this sentence: see House v The King [1936] HCA 40; 55 CLR 499. 63Thus it would be immediately apparent that there was a real reason why there was a difference. And it would be immediately apparent to an objective observer that the actual sentence imposed from the date of sentence upon Mr Boyd was identical to that imposed on the applicant for the same offence. 64Notwithstanding this obvious explanation for the discrepancy, the question remains whether such a difference would give rise, objectively viewed, to a justifiable sense of grievance. 65In my judgment, the discrepancy could not be so described. It is to be remembered that sentencing is not a question of mathematical precision and the application of the parity principle does not involve an exercise of precision. 66In my opinion, there was a good and adequate reason for the existence of a discrepancy between the effective sentences. The extent of that discrepancy was not marked or otherwise sufficiently significant to engender objectively speaking, a justified sense of grievance and there is no basis upon which this Court should intervene. 67The sentence which King DCJ did in fact impose on the applicant was, in my opinion, at the low end of the appropriate sentencing range. A reduction in the non-parole component of that sentence by a period of five months or so, would if I were otherwise persuaded that it should be made, result in a sentence for the crime which would be so low as to be entirely inadequate. This is an additional reason why I would not favour any reduction of the sentence. 68Nor have I been persuaded for any other reason that any lesser sentence ought be imposed upon the applicant for his offences which were very serious. 69In all the circumstances, I would reject this ground of appeal.

Orders 70I propose the following orders: (1)Leave to appeal granted; (2)Appeal 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: 30 March 2012

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