REGINA v BAVIN

Court of Criminal Appeal (NSW)|2001-04-26|Before: Spigelman CJ, Wood CJ, Greg James J, James J

CITATION : REGINA v BAVIN [2001] NSWCCA 167 FILE NUMBER(S) : CCA 60698/00; 60115/01 HEARING DATE(S) : 26 April 2001 JUDGMENT DATE : 26 April 2001

PARTIES : Regina Marc Bavin JUDGMENT OF : Spigelman CJ at 1, 78; Wood CJ at CL at 76; Greg James J at 77

COUNSEL : M C Marien (Crown) Paul Byrne SC / W G Roser (Appellant/Respondent in Crown Appeal) S E O'Connor (Crown) SOLICITORS : Maurice May & Co (Appellant/Respondent in Crown Appeal) CATCHWORDS : CRIMINAL LAW - armed robbery - kidnapping - whether convictions unreasonable or could not be supported having regard to the evidence or whether a miscarriage of justice occurred. CRIMINAL LAW - Crown appeal - armed robbery - whether sentence manifestly inadequate - parity of sentencing with co-offender - whether conduct of Crown in sentencing proceedings of co-offender relevant - whether court should exercise discretion not to intervene despite manifest inadequacy of sentence. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Alpass (1994) 72 A Crim R 561 Fleming v The Queen (1998) 197 CLR 250 Gipp v The Queen (1998) 194 CLR 106 CASES CITED: Jones v The Queen (1997) 191 CLR 487 M v The Queen (1994) 181 CLR 487 R v Diamond (NSWCCA, 18 February 1993, unreported) R v Henry (1999) 46 NSWLR 346 R v Steele (NSWCCA, 17 April 1997, unreported) DECISION : 1. Appeal against conviction dismissed; 2. Orders of Bellear DCJ varied, Appellant to be released at the expiry of the non-parole period of 2 years; 3. Crown Appeal against sentence dismissed.

60698/00 60115/01 SPIGELMAN CJ WOOD CJ at CL GREG JAMES J

1 SPIGELMAN CJ: The Appellant was tried on an indictment alleging two separate but related offences: (i) between 22 March 1999 and 25 March 1999 at Darlinghurst, he did rob John Andrews of certain property whilst being armed with an offensive weapon, contrary to s97 of the Crimes Act 1900;

(ii) at the same time and place he did take away and detain John Andrews with intent to hold him for the purpose of financial gain, contrary to s90A of the Crimes Act 1900. 2 The Appellant pleaded not guilty to each count. He was tried and convicted on each count. Bellear DCJ sentenced the Appellant to a term of imprisonment of three years with a non-parole period of two years for the armed robbery count. His Honour sentenced the Appellant to a fixed term of twelve months for the kidnapping count. The sentences were handed down on 16 February 2001. The matter was listed for hearing in this Court on 7 March 2001. However, shortly before that hearing, the Crown filed a notice of appeal against the alleged inadequacy of the sentence. The hearing of the appeal against conviction was adjourned and the two matters have now been heard together. 3 The essence of the Crown case at the trial was that the Appellant, together with a man by the name of Owen Pomana ("the co-accused"), arranged for Pomana to hold up John Andrews with a gun and steal his Mercedes Benz motor vehicle, together with certain personal items. The case for the Appellant was that the three people mentioned, himself, Pomana and Andrews, had together arranged for Pomana to obtain Andrews' vehicle from him and dispose of it so that Andrews could benefit from an insurance claim. 4 In the Appellant's case, Andrews was fraudulently intending to represent himself as a victim of a robbery and the Appellant was intended to be a witness to it. Andrews ("the Complainant") denied that he was a party to any such scheme. 5 The proceedings were conducted as a contest between these two competing versions of events. The Crown case was left to the jury by the trial judge as one of joint criminal enterprise to steal a motor vehicle and other property from the Complainant at gun point, and, in the process, to kidnap him. The competing scenario of an insurance scam was left to the jury. There is no criticism of the summing up in any respect.

The Crown Case 6 The Crown case against the Appellant was, in relevant summary, as follows. The Appellant and the co-accused were well known to each other and the Appellant and the Complainant were old school friends who had stayed in touch. There was evidence of conversations between the Appellant and the co-accused before the event in which it was allegedly agreed that they would steal the Complainant's motor vehicle, a Mercedes Benz, at gunpoint. 7 Although there was no reason for the Appellant or the co-accused to have been aware of this, the vehicle was in fact the property of the Complainant's mother under a lease agreement. The vehicle was apparently used by the Complainant as his own. However, no part of any insurance pay-out was payable to the Complainant. Nor, in the event, was any such amount paid to him. 8 The Crown case was that the Appellant arranged to meet the Complainant at the Dov Cafe, Darlinghurst, at about 10 pm on 23 March 1999. The Complainant gave evidence that he parked the car at the corner of Forbes and Burton Streets, Darlinghurst. He saw the Appellant walking towards him at some distance. The Complainant was approached by the co-accused, who admired the car and asked if he could listen to the stereo system. The Complainant opened the passenger side door and allowed the co-accused to listen to the stereo system for twenty or thirty seconds. He was sitting beside the co-accused. By then, the Appellant had arrived at the car. 9 The Complainant and the Appellant parted company with the co-accused. As he walked towards the cafe with the Appellant, the Complainant asked the Appellant if he knew who that was, to which the Appellant replied he did not. 10 As the Complainant and the Appellant were walking along, the co-accused approached again. He said it was a hold-up and that he wanted the car. The Complainant said that he noticed the barrel of a gun visible under the co-accused's jacket and pointing in his direction. The Appellant offered the co-accused his car keys, but the co-accused said he wanted the Complainant to come with him. The three men then walked back to the car. The co-accused asked the Complainant to drive. 11 He got into the driver's seat. The co-accused warned the Appellant not to contact the Complainant's family or the police until 12.30 and that he (the co-accused) would know if he did, and there was a car outside the Complainant's family residence. This statement included a threat to "put a bullet in their head" if the family was contacted. 12 The Complainant said in his evidence that the Appellant then sat down on the pavement and he (the Complainant) drove off with the co-accused. 13 At the start of the trip, the co-accused took the Complainant's wallet, phone and watch, and two pairs of sunglasses. The Complainant said he felt scared. During the trip the co-accused was holding the gun in his left hand, with some of it protruding from his jacket. Eventually the co-accused told the Complainant to pull into a closed service station. That was at Burwood. He told the Complainant to get any stuff out of the car he wanted to keep. The Complainant removed the remote control for the house gate, CDs and a baseball cap. 14 Having taken the American Express card, a Westpac ATM card and cash from the Complainant's wallet, the co-accused returned other materials from the wallet to the Complainant. The co-accused had trouble starting the car. The Complainant helped him to get the car going. He said he was still in fear at that time. 15 When the co-accused had driven off, the Complainant flagged down a taxi. He spoke to his brother, Peter, on the taxi driver's mobile phone. At about a quarter past twelve on 24 March 1999, the Complainant reported the matter at Rose Bay Police Station. He said he tried to contact the Appellant while he was there but the phone was not answered. 16 At about 1.30 am on 24 March 1999 the Appellant also attended at Rose Bay Police Station, ostensibly looking for the Complainant. He gave an account of what had occurred. Asked where he had been since the incident, the Appellant said he had stayed at Kings Cross as he had been told to do, and had then sat in his car for a while because he had been told that people were watching him. He said he had come to Rose Bay Police Station to report the matter because it was on his way home, and he did not know why he had not thought to ring the police 000 number, or go to the nearest police station. 17 The Appellant's employer gave evidence that on 30 or 31 March 1999 the Appellant and the co-accused came to his office and asked him to put an American Express card through the EFTPOS machine to see if there was any money in it, which he did. The card was "declined". In the course of further conversation the co-accused said, in the Appellant's presence, that the card was stolen. 18 On 8 April 1999 the police searched the premises where the Appellant lived and found a pair of sunglasses in the Appellant's bedroom, which the Complainant subsequently identified as his. 19 Two of the Appellant's co-workers, Messrs Symmans and Sulameh gave evidence incriminating the Appellant, including conversations between the Appellant and the co-accused in which the Appellant said that he had "a very wealthy friend", adding the suggestion "let's rob him". They also gave evidence of conversations about obtaining a gun. 20 On 12 April 1999 the Mercedes car was found at Auburn in a burnt out condition. Evidence was given at the trial by the trustee of the John Andrews Family Trust. He said the Mercedes car was purchased by Ms Mary Andrews for a price of just over $99,000 in 1995. The car was insured for $95,000. A claim on the insurers was made and paid at an agreed pre-damage value of $64,000. A $500 excess was deducted. A sum of $48,578.24 was paid to liquidate the car loan and lease. The balance of $14,921.76 was paid to a family business account, and later credited to the loan account of Ms Andrews. The accessories on the vehicle and the stereo system were not insured. The Complainant was provided by the family with an Audi motor vehicle in place of the Mercedes.

The Appellant's Case 21 The Appellant gave evidence. He said that a meeting between himself, the co-accused and the Complainant took place at the Dov Cafe three or four weeks prior to 23 March 1999. He said that arrangements were made on that occasion for a mock theft of the car. According to the Appellant, the Complainant was to represent himself as a victim of the robbery, the co-accused was to be the perpetrator and the Appellant was to be an innocent witness. 22 The Appellant and the co-accused were to profit by sale of the vehicle for its accessories and for spare parts, the Complainant was to benefit by receiving the proceeds of a false insurance claim, or from a share in the sale. The Appellant said he did not know how much that would be, perhaps a couple of thousand dollars, for each of the participants. 23 The Complainant had been cross-examined with the suggestion that the theft of the car was intended to be the basis of a false insurance claim. The Complainant denied any arrangement or any such meeting. He denied that he had met the co-accused prior to the theft. 24 The Appellant called a witness, Mr C Chant, who said that he saw the Appellant and a fairly large man together at the Dov Cafe, and that he then saw another man, nicely dressed, alight from a Mercedes or BMW and sit down with the Appellant and the other man. This was relied on as corroboration of an earlier meeting to which the Appellant deposed. 25 A further meeting was said to have occurred in the street outside the Appellant's residence. The witnesses relied on by the Appellant to corroborate that meeting were Mr W Wilcock and Mr R M Symmans. They suggested that the co-accused was present, although the Complainant spoke only to the Appellant. The Complainant denied any such meeting. 26 The Appellant gave an account of the incident itself which was along the same lines as that given by the Complainant, except that he denied there was a gun involved.

Grounds of Appeal 27 There is a single ground of appeal, namely, that the verdicts of the jury were unreasonable or cannot be supported, having regard to the 8vidence or that there has been a miscarriage of justice. The Appellant invoked the terms of s6 of the Criminal Appeal Act 1912. The relevant tests are now well established in accordance with the High Court decisions in M v The Queen (1994) 191 CLR 487, as explained in Jones v The Queen (1997) 191 CLR 487 and followed in Gipp v The Queen (1998) 194 CLR 106 and the further consideration in Fleming v The Queen (1998) 197 CLR 250. 28 The Appellant's challenge to the jury's verdict on the basis that the jury could not reasonably have been satisfied by the Appellant's guilt beyond reasonable doubt, was based on two broad propositions: (i) numerous aspects of the evidence tend to indicate, according to the Appellant's submission, that John Andrews was a willing participant in the events;

(ii) the presence of a gun or offensive weapon was an essential aspect of the charge and the Appellant submitted that the evidence as to the presence of a gun was fraught with imprecision and inconsistency.

Appellant's Arguments on Appeal 29 To convict, the jury had to be satisfied beyond reasonable doubt that the version of events given by the Complainant was correct. Two reasons are advanced as to why the jury could not reasonably have been so satisfied. First, it was submitted that the jury was bound to reject the Complainant's account of events as not including pre-arrangement, because of evidence suggesting the Complainant's poor knowledge of and involvement in the relevant events. 30 Secondly, it was argued that the jury could not reasonably have been satisfied, on the evidence, that a gun was involved as the Complainant asserted, and which the Appellant denied.

The First Argument 31 As to the first of these reasons, the Appellant in written submissions made some eighteen points by reference to the evidence.

The Complainant said that the meeting with the co-accused occurred on the night of 23 March 1999 in an area which he regarded as dangerous. It is hardly unusual for a young man to go to an area that he regards as dangerous.

The Complainant allowed the co-accused, said to be a complete stranger, to get into the front passenger seat of the motor vehicle for the apparent purpose of listening to the stereo player. This is said to be incredible. The whole of the evidence of the encounter has to be considered. The Complainant gave evidence that the co-accused introduced himself as a friend of the Complainant's brother and of a friend of a friend of the Complainant's brother, and that the latter had told him that the Complainant had recently bought a new car stereo. That piece of detail would have confirmed a link of a personal kind.

The Complainant left the vehicle in an area he regarded as dangerous, whereas he was known to keep a close eye on it. This is not strong evidence of complicity. It is consistent with uncharacteristic carelessness, a common enough occurrence.

The ostensible hold-up was under the glare of the lights of Oxford Street. The Crown suggested that any incongruity about the choice of the place for the hold-up might be explained by a plan to hold-up the Complainant when the co-accused got into the car ostensibly to listen to the stereo system. It suggested that the plan might have gone wrong when the Complainant got out of the car abruptly, after a very short time. However that may be, a hold-up under good lighting is, unfortunately, not an unusual event. The threat of violence by showing a concealed weapon was, in any event, covert.

When the Complainant returned to the vehicle, as allegedly instructed by the co-accused, the Appellant was with them. In his evidence the Complainant agreed that he could have locked the doors at that stage to prevent the co-accused from getting into the car. The implication is apparently that, if the Complainant's story were true, it was two against one, the Complainant and the Appellant against the accused, so why would the Complainant have not resisted? The point overlooks the evidence that, according to the Complainant, the co-accused had a gun.

The Appellant and the Complainant were well known to each other. Accordingly, it was submitted that it was unlikely that the Appellant would embark upon such a serious offence in circumstances where his identity was well known to the victim. This argument overlooks the point that, on the Crown case, the Appellant cast himself in the role of an innocent bystander. This, according to the Crown case, he sought to reinforce by himself reporting the episode to the police and expressing concern about the fate of the Complainant.

The co-accused permitted the Appellant to remove personal property from the vehicle before it was taken away. The implication is that that is not credible unless the Complainant was complicit in what was happening. The point is only good if the co-accused had to be all bad if he was bad at all. That does not accord with one's experience of human nature. The items removed were of some personal value to the Complainant and of no, or very little, value to the accused.

According to the Complainant he assisted the co-accused to start the vehicle. This is also suggested to be evidence of complicity. Again, the point overlooks the element in the Crown case that the co-accused was believed by the Complainant to have a gun and that the Complainant was afraid.

The Complainant told the taxi driver he had no money because he had just been robbed. That, it is argued, was consistent with the Appellant's version of events, namely, that the robbery was staged. The point is neutral. The evidence is consistent with both scenarios.

Rather than asking the taxi driver to take him to a police station, the Complainant asked to be driven home. Further, when he spoke to his brother on the taxi driver's mobile phone, he did not ask him to report the incident to the police. Again, the implication is that such complacency is consistent with complicity. The suggestion of complacency on the part of the Complainant is, however, by no means common ground. The Complainant says that he was, at this stage, badly shaken and others, including the taxi driver who saw him at and shortly after this time, attested to that. Further, contrary to the Appellant's submission, the evidence of the Complainant and his brother is that the Complainant spoke to his brother on the taxi driver's mobile phone and that, in the course of that conversation, it was arranged that the brother would call the police. The failure to report is not strong evidence, if any evidence at all, of complicity. It is consistent with the continuation of the Complainant's fears and also of the effects of the evidence, particularly with respect to the Appellant, that his house was being watched according to the evidence given at the trial, and which it was open for the jury to accept.

There was allegedly a lengthy discussion by the Complainant with members of his family before he and his brother went to the Rose Bay police station, arriving there shortly after midnight. The Complainant's evidence was that he spent a good fifteen minutes telling his family about what he described as being "the whole ordeal" before going to the police station with his brother. Later he said twenty to thirty minutes. Such estimates of time are notoriously unreliable. The jury did not have to accept that evidence as being reliable. But, assuming they did, spending that time with his family before going to the police is not inherently incredible if the Complainant's account of what would have been a terrifying experience is correct.

The Appellant arrived at the Rose Bay police station while the Complainant was still there. The Complainant said in his evidence that he did not know that the Appellant was there at that time, notwithstanding that he saw the Appellant's father, who was known to the Complainant. The point seems to be that the Complainant was wilfully concealing knowledge that the Appellant would come to the police station to report the robbery. I do not find this to be of any significance. It is a minor discrepancy which does not point in any particular direction.

The versions of events given to the police by the Complainant and the Appellant were said to be "strikingly similar", particularly in the manner in which they described the co-accused. The imputation is that there had been detailed prior agreement as to what they would say to the police. Similarity would be expected on either version of events. The manner in which the similarity was said to be "striking" was not elaborated on. There is no reason why observing the same event would not have impressed itself on the minds of both the Complainant and the Appellant.

The Complainant denied a prior meeting with the Appellant and the co-accused some weeks prior to the incident at the cafe. The Appellant relied on independent evidence suggesting that there may have been a meeting. The point is only as good as the evidence of such a prior meeting involving the Complainant was compelling. It was not compelling. Mr Chant did not identify the Complainant as the person who he said joined the Appellant and another person, with a description similar to the co-accused, at the cafe. Indeed, his description of the person was, in some respects, different from the appearance of the Complainant.

The Appellant also relied on evidence of what he submitted was a further meeting said to have been in the street. Mr M Wilcock spoke of an occasion when the Appellant and the co-accused were seen by him to go down to the street from the Appellant's flat to a man in a black Mercedes motor car. Before going down, the Appellant had answered his mobile phone and had said that "John" was out the front with the Mercedes Benz, and that he and the co-accused should go down and check it out. Mr Symmans gave evidence of seeing such a meeting at the car. Neither witness identified the Complainant as the other person involved. They gave evidence that the driver of the car spoke only to the Appellant. Neither gave evidence that the co-accused participated in any conversation or that he was observable to the occupant of the vehicle. This was not strong evidence of the Complainant having been involved in a meeting with the Appellant and the co-accused. The Complainant denied it. The jury was not bound to find he was involved in any such meetings. It was a live jury question.

The Complainant told the police in a written statement that, prior to the incident, he heard from the Appellant only about once every two months. By contrast, mobile telephone records showed that the Complainant had telephoned the Appellant nine times between 11 March and 23 March 1999 and the Appellant had telephoned the Complainant eleven times between 20 and 23 March. This was objective evidence of a closer association than the Complainant admitted to the police. It went to the Complainant's credit generally. In this regard, it was of significance for the jury when making an assessment of the Complainant's credit. It was not, however, determinative. It was also consistent with the planning for a mock robbery, conformably with the Appellant's case. Again, however, it was not determinative. On its own it would not, in my opinion, sustain a reasonable doubt about the Crown case. The matter was before the jury. Its proper assessment was a matter for them.

The Complainant gave a number of different versions relating to the presence of the gun. The Appellant denied that there was any gun involved. This submission will be dealt with in connection with the second argument advanced for the Appellant.

The fact that the Appellant himself reported the incident to the police and his account of events to the police was, according to the Appellant's submissions, strong evidence in support of the truth of his version of events. The reporting of the incident to the police and the Appellant's account of events to the police are neutral considerations. The Appellant's behaviour is as much consistent with an attempt to deflect suspicion from himself following a genuine robbery as it is with the Appellant acting out the role of an innocent bystander to lend veracity to a staged robbery.

The Second Argument 32 The Appellant submits that the evidence concerning the gun was fraught with imprecision and inconsistency. The Appellant is able to point to inconsistencies in the Complainant's evidence concerning the extent to which he allegedly had a clear view of the gun, whether the gun was actually pointing at him, how much of the gun he was able to see at various stages, when the gun was fully exposed, whether the gun was held at times under the co-accused's jacket or under his shirt, and so on. The Appellant agreed that he had given different versions about this and different descriptions of the gun. 33 The short answer to this argument is that, if the Complainant was telling the truth, this was a terrifying experience and imprecisions of detail and inconsistencies of the kind demonstrated were to be expected. They do not necessarily indicate unreliability in relation to the essence of the Complainant's evidence, namely, that the Complainant was threatened with a gun. It is also to be borne in mind that there was evidence of an intention to use a gun in the alleged planning conversations prior to the incident. 34 The alleged imprecisions and inconsistencies were before the jury. Whether they were such as to justify any doubt about the presence of a gun was a matter for the jury to weigh and assess. This is not a case in which, by reason of the inconsistencies, the jury ought to have entertained a reasonable doubt about any essential element of the offence.

Conclusions 35 To convict, the jury had to be satisfied beyond reasonable doubt that this was a true robbery. The competing versions of events, that it was a mock robbery, had only to be a reasonable possibility to require acquittal. The reliability of the Complainant's account of events was therefore critical. 36 The Complainant's credibility has been impugned on appeal on many grounds. Overwhelmingly the points are, in my opinion, of no moment at all. Those with any cogency, such as whether there had been prior meetings, are of only marginal value. 37 The only point of substance is the number of telephone conversations between the Appellant and the Complainant in the ten days or so before the incident. That is objective evidence which calls the Complainant's credibility into question in a serious way, and it bolsters the competing scenario of an insurance scam. As against this, however, there is the inherent implausibility of the Appellant having become involved in a scam which could not be of any significant benefit to him. It was open to a jury, however, to accept the Complainant's account of the robbery as being truthful, notwithstanding that he had not been truthful about the extent of the prior association. 38 The points against the Complainant's credibility ventilated on appeal were put in final address to the jury at the trial and were carefully left to the jury by the trial judge in his summing up for the jury's consideration. The jury accepted the Complainant's version of events, notwithstanding those considerations, as they were entitled to do. 39 This appeal is, in my opinion, without merit and the appeal should be dismissed.

Crown Appeal 40 I turn to the Crown appeal. The Crown appeals against the alleged inadequacy of the sentence. The maximum penalty for an armed robbery offence is twenty years and for the kidnapping offence it is fourteen years. 41 The trial of the Appellant was originally a joint trial with the co-accused, Pomana. During the course of that trial Pomana was discharged without verdict and his trial was stood over to a date to be fixed. The trial in relation to the Appellant continued. He was found guilty on 7 July 2000. On 8 November 2000 Pomana entered a plea of guilty to a single count of armed robbery and was sentenced, on 15 February 2001, to a community service order of three hundred hours. In sentencing Pomana his Honour took into account that he had already spent thirteen months and ten days in custody, with respect to the matter. 42 On 12 March 2001 the Director of Public Prosecutions signed a notice of appeal under s5D of the Criminal Appeal Act 1912 on the basis that the sentence of Pomana was inadequate. The Court was informed that the Crown has been unable to locate Pomana and, accordingly, the Crown appeal in his case has not been heard. In such circumstances, normally, no question of parity would arise. 43 However, Mr Paul Byrne SC, who appeared for the Appellant, submitted that concessions made by the Crown in the course of the hearing on sentence of Pomana were such as to indicate, in effect, that the Crown had no reasonable prospects of a successful Crown appeal in the case of Pomana and, accordingly, the issue of parity between Pomana and the Appellant does fall for consideration. 44 In his remarks on sentence in the case now before the Court the sentencing judge expressly found that there were no "special circumstances" within s44(2) of the Crimes (Sentencing Procedure) Act. Nevertheless, his Honour did not apply the appropriate non-parole period. His Honour imposed a non-parole period of two years, whereas, on the basis of the formula for which the Act provides, it should have been two years and three months. 45 The Court was informed that when the matter was re-listed before his Honour at Campbelltown District Court he indicated that the non-parole period ought to be adjusted but, in the absence of the respondent, left the making of any adjustment to this Court. 46 In its submissions the Crown relied on a number of aspects of the offence, to which I have already referred above. The Crown accepted his Honour's finding that it was Bavin who initiated the scheme and that Pomana played "second fiddle". Save in two respects, no particular criticism was directed to the remarks on sentence in the Crown's submissions. The two respects were: (i) his Honour found that it was Bavin who was to tell Andrews about the scheme before it happened but failed to do so. It was submitted that there was no evidence to suggest such a finding.

(ii) his Honour found that when the planning went astray Bavin and Pomana were equally culpable in proceeding with the robbery and kidnapping. It was submitted there was no evidence before his Honour that any "planning" had gone astray. 47 It is not clear how either of the matters to which reference was made affected his Honour's sentence in a manner which could explain what the Crown alleges is an inadequacy in the final result. 48 The basic proposition of the Crown was that the sentence imposed was manifestly inadequate in all of the circumstances and, accordingly, reflects error in the exercise of discretion. The Crown referred to the guideline judgment for the offence of armed robbery promulgated by the Court in R v Henry (1999) 46 NSWLR 346. 49 The Crown pointed to the significant degree of planning, the large amount stolen and the use of a gun as a threat as indicating a high level of objective seriousness of the crime. Furthermore the Crown points to the kidnapping as a significant aggravating factor for the appropriate sentence with respect to the armed robbery. 50 The Crown does not challenge the appropriateness of his Honour's decision to make the two sentences concurrent. Nor is there any challenge to the sentence for the kidnapping offence. However, it is submitted that the act of kidnapping was a significant aggravating feature of the armed robbery. In the circumstances it was appropriate, the Crown submitted, that his Honour reflect the total criminality in the principal sentence. 51 Subject to the issue of parity, in my opinion, this was a case in which the Crown made out its case that the sentence was manifestly inadequate. There were no compelling subjective considerations which justified any substantial degree of leniency. The objective circumstances of the offence were serious; property of substantial value was acquired by an express threat of violence with the victim in fear of his life, over a substantial period of time, in circumstances in which he was alone with the Appellant's co-offender heading to an unknown destination. The evidence was clear as to the significant effect this state of fear had on the victim. 52 The issue of parity arises because of what occurred in the sentencing hearing of the co-offender, Pomana, a sentence hearing which Judge Bellear heard on 1 February 2001, the day before the sentence hearing of the Appellant. 53 The submissions made by counsel for Pomana were based on a scenario in which Pomana did not know that Andrews was unaware of the alleged "insurance scam" until he arrived at the Dov Cafe and met Andrews and the Appellant together. It was only during the course of that meeting, being the date of the offence, that Pomana, so it was submitted, became aware that Andrews was not a willing participant. It was at that point, it was submitted, that Pomana decided to proceed by means of the threat of violence. It was in that context that counsel for Pomana made the submission as follows: "... no further full time custody would benefit this particular accused or the community than a long period of community service, perhaps even the maximum ... I'm saying that the gaol time already is sufficient. It's near the bottom of the range but I suggest it's in range and I submit your Honour wouldn't be falling into appellable error by allowing that to stand as the full amount of full time custody ... ". 54 The Crown made submissions with respect to this issue in the following terms: "... It's also the Crown case that the victim was not aware, was not party to, any of this arrangement, as it were, and I think that's been said this morning ... in submissions that the prisoner became aware that it would appear that the victim was unaware of this arrangement. And, as far as my friend's submission concerning a non-custodial penalty your Honour, I don't wish to speak against those. This is a case where the prisoner has spent a substantial time on remand. (Counsel for Pomana): I'm indebted to the Crown for that submission your Honour. HIS HONOUR: Yes, and I think in fairness I think the Crown has made appropriate submissions in that regard. Just tell me this, Ms Crown, you also say this prisoner was the least involved in the scheme of the two? (Crown): Yes, your Honour, those are my instructions from those who represented the Crown in both matters, this matter and the matter of the co-offender who is to be sentenced." 55 The Crown submissions in the present proceedings as to the prospect of a successful Crown appeal in the case of Pomana must be considered in the light of the concession made by the Crown, in the italicised portion of the submissions to the effect that it did not wish to "speak against" the submission that it was appropriate for a non-custodial penalty to be imposed at that stage. 56 The issue arises in unusual and perhaps unique circumstances. In the normal case, this Court would wish to hear the two appeals together. It is not in a position to do so. Nor is the Crown in any position to indicate that this Court would be able to hear the two appeals together within a reasonable time. It has not been able to serve its notice of appeal on Pomana. The Court is not aware of the full circumstances of that inability. However, there is nothing before the Court to indicate that it would be in any way appropriate to stand this matter over for a short period to determine whether or not the appeal could be heard together with that of Pomana, nor was any such submission made by the Crown in that regard. 57 Accordingly, this case falls for consideration in circumstances in which, as I have indicated, in my opinion the sentence in this case was manifestly inadequate and in which it appears to me, at least as presently instructed, that a similar conclusion could well be drawn in the case of Pomana. 58 I do not wish to be understood to be expressing any opinion as to the outcome of the case of Pomana, should that ever be heard. That is particularly so because there was a significant difference between the two cases, namely, there was a further offence of armed robbery taken into account on a Form 1, a consideration that does not arise in this case. There are obviously other differences, including differences as to the apparent factual assumptions made for purposes of sentence in Pomana, with the factual findings made by his Honour in the case of the Appellant, findings that his Honour could make after hearing the evidence in a full trial. 59 The Crown relied on the proposition that considerations of parity may not give rise to a sense of grievance that can be regarded as legitimate in circumstances where the inadequacy of sentence imposed upon the co-offender was so grave that, whatever may be said about the grievance, it could not be regarded as a legitimate one. The Crown referred to observations to that effect in R v Diamond (NSWCCA, 18 February 1993, unreported) and also in R v Steele (NSWCCA, 17 April 1997, unreported). Other similar comments have been made in other cases. 60 The issue of precisely how reliance may be placed, for purposes of a parity argument, on another sentence which was itself manifestly inadequate is a matter which arises in different contexts in different ways. The cases on which the Crown relied were severity appeals. In the context of Crown appeals quite different considerations arise. As is well known the Court's approach to Crown appeals is distinctly different to the approach taken in severity appeals. 61 In this case, of particular significance is the unusual circumstance that the Crown seeks to challenge as manifestly inadequate in the Pomana appeal, a sentence for which the representative of the Crown before his Honour in the case of Pomana indicated the Crown did not wish to make submissions against, namely, a non-custodial sentence being imposed after the period of incarceration that had actually occurred in that case. 62 The Crown is not always debarred from changing its mind and adopting a different position on appeal than it took below, in respect to matters of sentence. In that regard reference was made to the passage in R v Allpass (1994) 72 A Crim R 561 where the Crown took a different attitude on appeal to that which it took below in the same case. In this case the Crown is taking a different position to that which it took at first instance on the sentencing of a co-offender in a different case, it not having taken a similar attitude of what may appear to be leniency, in the case of Bavin presently before the Court. 63 Nevertheless the question of parity does arise in this sense: a sense of grievance that may be regarded as justifiable would remain if the Crown, in this case, was successful in this appeal, and the Court increased to any substantial degree the sentence imposed upon the Appellant, bringing it closer to what, in my opinion, would be regarded as an adequate sentence in all of the circumstances of the case. 64 The Crown's submissions in the case of Pomana, upon which the Appellant in this case relies, were contingent on and made in the context of an acceptance of the proposition that Pomana was significantly less culpable than the present Appellant. Notwithstanding its reliance on a Crown concession upon the issue which is directly pertinent to the issue of parity in the present case, the Appellant sought to question his Honour's findings about the comparative culpability of the two co-offenders being findings made in the remarks on sentence of the Appellant. Indeed, the submission went so far as to question whether or not the Appellant had a justifiable sense of grievance that he had been dealt with more harshly. 65 I should outline what the findings of Bellear DCJ were. His Honour made the following observations in his remarks on sentence: "I'm satisfied that it was the prisoner who initiated the whole scheme and that Pomana played 'second fiddle'."

And, "I find that the prisoner was the leader and initiator of a scheme organising and making arrangements, including luring Andrews to the hands of the co-offender. I accept, however, that once part of the arrangements broke down, that is, that Andrews was not told of the plot and was therefore not part of the scam, that when it went ahead both the prisoner and co-offender were then on an equal footing as leaders"

and "I am satisfied that this prisoner planned the whole scheme and initiated and organised the event to occur on the day it did. I am further satisfied that the prisoner lured his best friend and victim to the location and for him to be kidnapped and robbed. I further accept that much of the planning went astray when the victim was not informed that he was to participate in a scheme to rob him of his motor vehicle. I am satisfied that when the robbery and kidnapping took place, both the prisoner and co-offender were equally culpable." 66 It is by no means clear that everything in these passages are consistent with the jury's verdict. Nevertheless his Honour's findings as to the comparative culpability are, in my opinion, entirely supportable on the evidence. 67 Counsel for the Appellant sought to rely on some apparent concessions made by counsel for Pomana in the proceedings on sentence in the case of Pomana, as if they constituted some kind of admission of a higher level of culpability which was relevant for purposes of sentencing of his client. I do not see that the remarks made were entitled to significant, if any, weight in this regard. 68 His Honour's finding that the Appellant in this case was the instigator of the scheme, in that he both planned it and took crucial steps by exploiting his personal relationship to bring the victim into a position of vulnerability, was such as to justify a conclusion that the Appellant should receive a higher sentence. 69 In my opinion, in the exercise of this Court's residual discretion not to intervene, the Court should dismiss the Crown appeal on the basis of the issue of parity on which the Appellant relies. Normally the manifest inadequacy of the sentence imposed on Pomana would not necessarily lead to the Court dismissing the Crown appeal in this case, by reason of the extent to which it was inadequate and the extent to which the sentence in this case was inadequate. However, special circumstances have arisen in this case. 70 Those circumstances are that the Pomana appeal has not been heard and there is nothing before this Court that would indicate it can be heard in any kind of reasonable time. 71 Secondly, in the particular circumstances of this case the Crown itself was directly involved in leading his Honour into error in the case of Pomana by making the submission I have quoted above. That submission was made in a context where there had been discussions between the Crown and the representative of the accused resulting in a plea of guilty to one charge. The circumstances of those discussions, what was agreed upon and what other surrounding circumstances may have impinged upon the negotiations are not before the Court. 72 In all of these circumstances I believe that the Court should exercise its residual discretion not to intervene in the case of Bavin. 73 Notwithstanding what appears to have been an error in the mathematical calculation of the non-parole period, in my opinion the Court in its discretion should not intervene in this regard. The Respondent to the Crown appeal will serve a period of two years, which contrasts with the period of thirteen months and ten days actually served by his co-offender, to which must be added the three hundred hours of community service. This reflects the comparative culpability of the two offenders, so that neither can have any grievance on the basis of disparity in that regard. However, there may be other considerations that arise should the Crown appeal in the case of Pomana be heard. In my opinion the Crown appeal should be dismissed. 74 Justice Greg James has drawn my attention to the fact the trial judge did not direct the release at the end of the two years. 75 Accordingly, the orders I propose are that the conviction appeal should be dismissed, that the orders of the trial judge on sentence should be varied by the addition of an order directing the release of the Appellant at the expiry of the non-parole period but otherwise that the Crown appeal should be dismissed. 76 WOOD CJ at CL: I agree with the orders proposed by the Chief Justice and with the reasons given for them. 77 GREG JAMES J: As I do also. 78 SPIGELMAN CJ: The orders are as I have directed. **********

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