REGINA v CEISSMAN

1 ADAMS J: This applicant pleaded guilty in the District Court of New South Wales to charges that were committed in 1995, although he came up for sentence in October 1999. Part of the reason for the delay was that after these offences were committed the applicant was arrested in September 1995 in Queensland for one count of robbery and one count of stealing a motor vehicle and sentenced in November 1996 in Queensland to imprisonment totalling seven years, the non parole period of two years, in respect of robbery and a fixed term of imprisonment of two years in respect of stealing the motor vehicle, the sentences to be served concurrently. 2 On completion of the non parole period and of the fixed term he was transferred on 25 September 1997 to the New South Wales Department of Corrective Services and from that date commenced to serve the balance of a period of parole, being the balance of a sentence imposed on him in New South Wales in 1994. That period expired on 18 December 1997. He was sentenced for the present offences on 8 October 1999. 3 The offences in respect to which he pleaded guilty and which are briefly summarised in the learned sentencing judge's reasons for sentence comprised four counts of armed robbery and three counts of stealing a motor vehicle. Two of the armed robberies occurred on 9 March 1995, one other of those offences together with one of the stealing offences occurred on 24 March 1995 and the remaining two armed robberies and stealing motor vehicle was committed on 6 April 1995. 4 In respect of the first two counts of armed robbery and stealing of the motor vehicle the evidence was that the applicant stole a motor vehicle from the shopping centre where it had been parked and drove it to the Commonwealth Bank at Brighton. He went into a clothing store near the bank, asked the store attendant for a shopping bag, then he and his two co-offenders placed balaclavas over their heads, entered the bank and produced a shortened firearm and demanded money. A gunshot was fired into the roof of the bank after staff activated security shutters. The offender and his two co-offenders left the area in a stolen motor vehicle. 5 Counts 3 and 4 comprised essentially the same modus operandi though it occurred about two weeks later. The applicant with two co-offenders again stole a vehicle, travelled to another Commonwealth Bank. It is alleged that on this occasion the offender entered the bank and produced a shortened firearm before demanding money. Unable to obtain cash, he left the bank with his co-offenders and departed the scene in a stolen vehicle. 6 Later that afternoon the police saw the applicant and his co-offenders in the vehicle and pursued it. They arrested one of the applicant's co-offenders but he escaped by driving off in a stolen vehicle. 7 These offences, having been committed with a shortened firearm, which was fired on one occasion, are extremely serious and they fall into a class of serious cases of this offence. 8 On 6 April 1995, the applicant stole another vehicle and, on the evening of that day, he and two others drove it to a club at Hurlstone Park. The three men entered the club armed with a pistol and a screwdriver and forced two staff members to hand over a quantity of cash and also a female staff member to hand over her personal cash and property. They left the club in a stolen vehicle. This also was a very serious offence. 9 His Honour noted that some time after committing the last of these offences the applicant moved with his family to Queensland. However, shortly after he was involved as I have already pointed out, in yet another robbery and stealing of a motor vehicle. 10 Essentially three points have been raised in this appeal. The first point is that his Honour did not appropriately apply to the applicant the law first set out in this Court in The Queen v Todd (1982) NSWLR 517 and approved by the High Court of Australia in Mill v The Queen (1998) 166 CLR 59. Those cases dealt with the appropriate mode of sentencing an offender who had served a sentence in another jurisdiction which, in circumstances where had there been no jurisdictional limitation, that sentence together with the later sentences would have been imposed at the same time. 11 The High Court of Australia said this - "The principle expounded in Todd is not confined in its operation to the fixing of a non parole period. It applies also to the fixing of a head sentence which when considered in association with the head sentence imposed by the first sentence in Court must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be back dated to a time when the offender was in custody serving the earlier sentence in the other state it is not correct for the second sentencing Court to determine the head sentence by reference to the normal tariff applicable to the offence for which he was then being sentenced leaving the fixing of a non parole period alone to reflect the principles laid down in Todd . The long deferment of the trial or punishment of an offender with the consequent uncertainty as to what will happen to him raised considerations of fairness to an offender which must be taken into consideration when the second Court is determining an appropriate head sentence. The intervention of a state boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing Court which can avail itself of the flexibility in sentencing providing by concurrent sentences". 12 The judgment of the Court then deals with what had occurred below, namely that the sentencing judge qualified the non parole period alone with regard to the fact that the applicant in that case had been in custody for eight years in the other jurisdiction. 13 Their Honours go on to say - "In our opinion the proper approach which his Honour should have taken was to ask what would have been likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at the one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six years of it concurrent on the second count and eight years cumulative on the third count making an aggregate head sentence of eighteen years, yet that it seems to us is the practical effect of the sentence imposed by his Honour. On the other hand the notional exercise which we have just described tends towards a conclusion that a sentencing Court dealing with all three offences at the same time would have dealt with the third offence in a similar offence to that adopted when dealing with a second, namely by imposing a sentence of eight years with five or six years of it concurrent with the earlier sentence". 14 In sentencing the applicant his Honour, who was referred to Mill in the course of submissions by the applicant's counsel, noted that the applicant had he been given the opportunity to plead guilty to the New South Wales offences at the time that he was sentenced in Queensland would have done so but could not because that Court lacked jurisdiction to deal with him at that time. 15 In fixing the periods of imprisonment which his Honour imposed, and to which I will shortly refer, his Honour said that - "I have done so bearing in mind that your criminality involved in the robbery and car stealing charges were such that it probably deserved a much harsher sentence but the fact that if you had been dealt with in 1995 the sentence probably would have dated from that date. In fixing those sentences I have taken into account those two years that you served in Queensland in respect of the Queensland offences. Maybe I am wrong in doing that, maybe I am right, but that is what I have done". 16 It seems to me that what his Honour essentially did, was having regard to what had been said in Mill, simply deal with the applicant upon the basis that he should impose a sentence which was concurrent with that which had been passed in Queensland thus taking up the specific matter to which I have referred from the judgment of the High Court. It is true that his Honour did not in terms go through the exercise which in Mill the High Court considered that the sentencing judge in that case should have undertaken but I do not take their Honours to have decided that that is the only way by which account can be taken of the matters to which they adverted. I have no doubt that in this case his Honour was seeking to adjust the sentence passed on the applicant in light of the matters to which Todd and Mill advert. In my respectful view, his Honour succeeded. Accordingly, this ground fails. 17 The next substantial matter raised on the applicant's behalf concerns the sentence passed on his co-accused Quinlan. For this purpose it is necessary that I refer to the actual sentences imposed. Upon the armed robberies the applicant was sentenced to a minimum term of five years and three months together with an additional term of three years and three months and on the stealing charges a fixed term of two years and six months. The minimum terms commenced on 18 December 1997 as did the fixed terms. 18 The sentences imposed on the co-accused, Quinlan, were structured so that the sentence on the first count of armed robbery enveloped all of the periods imposed in respect of the other matters. That was a sentence of fourteen years penal servitude comprising a minimum term of nine years and an additional term of five years. 19 Quinlan appealed to the Court of Criminal Appeal which reduced the sentence because it considered that insufficient attention had been given to his assistance to the authorities in the sentence passed below. The Court reduced the sentence to a term of nine years of which six years was the minimum term. 20 It is submitted here that by virtue of the principles applying to parity of sentences between persons jointly committing the same or similar offences the applicant has a justified sense of grievance when his sentences are compared with those of Quinlan as they were ultimately imposed. Counsel for the applicant points to the fact that Quinlan's record was far worse than that of the applicant including previous offences of armed robbery. He was also some four or five years older than the applicant at the time of the offences. 21 Having regard, however, to the considerations which led the Court of Criminal Appeal to adjust Quinlan's sentence I consider that there is a considerable difference, in the ultimate, to the appropriate sentencing considerations applying to each of the applicant and Quinlan. The matter cannot be dealt with as an arithmetical exercise. Although I accept, and it may not be altogether surprising, that the applicant has a sense of grievance in respect of this matter, I do not think that it is a justified one. 22 Accordingly I do not think this ground should lead this Court to interfere with the sentence. 23 The third matter, I must say, has caused me some difficulty. The childhood of this applicant was one of extreme deprivation in which he became vulnerable to drug taking and other antisocial behaviour at a very early age and he was only twenty two at the time when these offences were committed. Despite those difficulties however, it seems that he began to mature whilst in prison and has stopped using heroin. He is found by the psychologist who assessed him for the purpose of sentence as to be a man of sound average intelligence. It is important to note, however, that this report reflects the character and attributes of the applicant many years after the offences in question here were committed. 24 I am satisfied that his Honour took into account all of the subjective material which was placed before him including the very significant handicaps under which the applicant suffered whilst growing up and which, one can have no doubt, were significant factors in his committing these crimes. 25 It is important that I should underline the consideration that this Court does not sit as a sentencing Court but as an appellate Court. Although it must be that my own view about an appropriate sentence would necessarily reflect on whether I considered that the learned sentencing judge imposed a sentence which was manifestly excessive yet, at the same time, the responsibility of sentencing the applicant was his and not mine. I am unable to discern any error of law or fact nor do I see from the sentence that it was so manifestly outside the appropriate range that it indicates such an error. 26 In my view therefore the leave to appeal should be granted but the appeal should be dismissed. 27 BELL J: I agree. 28 ADAMS J: The orders will therefore be as I have stated them. **********

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