Regina v Doan [2000] NSWCCA 317 | Case summary

1 SPIGELMAN CJ : I agree with Grove J. 2 GROVE J : This is an application for leave to appeal against sentence imposed by Freeman DCJ on 8 April 1999 in Sydney District Court. Matters of principle have been raised and leave to appeal should be granted. 3 The appellant was committed to the District Court for sentence pursuant to s51A of the Justices Act after pleading guilty before Lithgow Local Court to four charges namely, escaping from lawful custody; common assault (two counts) and stealing a motor vehicle. The maximum penalty for such offences was prescribed in the following enactments: Correctional Centres Act 1952, s32 - ten years penal servitude; Crimes Act 1900, s61 - two years imprisonment and Crimes Act 1900 s154AA - ten years penal servitude. Recent legislation has replaced penal servitude by imprisonment as a description of full time custody but this is not germane to any present issue. 4 The learned judge sentenced the appellant to a minimum term of eighteen months penal servitude with an additional term of six months for escape; eighteen months fixed term on each charge of assault and twelve months fixed term for stealing the motor vehicle. All sentences were directed to commence on 14 June 2000 and were to be served concurrently. The commencement date coincided with the expiry of the minimum term component of a sentence being served by the appellant for armed robbery which had been imposed in the ACT Supreme Court. 5 The facts were that on 16 September 1998 the appellant and Nick Papadatos were inmates of the Oberon Young Offenders Centre. The appellant was scheduled to become eligible for release to parole on 14 June 2000 in respect of the sentence for armed robbery then being served. Papadatos was serving a sentence after breaching a recognizance earlier granted to him and was scheduled for release on 25 January 1999. The recording on a sheet of police facts that his scheduled release date was 23 March 1999 would appear to be an error. The pair escaped by forcing wire and bars in a toilet area at the Centre. They walked to a homestead occupied by a retired couple (aged sixty three and fifty eight) at a place known as Porter's Retreat. The escapees arrived between 10 and 11 pm and the occupants became aware of the presence of intruders when a security light switched on and they heard a door being rattled. In answer to challenge the escapees claimed that a vehicle had broken down and the occupants emerged from the house. They were threatened with a knife and a second implement which was probably a screwdriver. The victims persuaded the intruders that they had no money but they were forced to hand over the key to their car, a Mitsubishi Magna sedan. Although it was suggested that the victims would be tied up, the offenders were persuaded not to do this. The appellant used a knife to cut the telephone line. 6 The escapees left in the Magna sedan. The victims used a second vehicle to travel to a neighbouring house from which they raised the alarm. The appellant and Papadatos were stopped in the stolen vehicle at Mt Victoria where police conducted what was described as a dangerous vehicle stop. 7 At Katoomba police station Papadatos admitted escaping and stealing the car and, although he participated in the events at the homestead, he claimed that he did not have a knife and did not produce any screwdriver while he was there. The appellant declined to be interviewed. 8 Papadatos was dealt with in the Lithgow Local Court on identical charges to those preferred against the appellant. He was sentenced to six months fixed term for escape; six months fixed term on each count of assault and a minimum term of nine months with additional term of three months for stealing a motor vehicle. With the exception of the sentence for escape, all sentences were ordered to commence on 25 November 1998. The sentence for escape was ordered to commence on 25 January 1999, that is to say from the date upon which Papadatos was scheduled for release in respect of the sentence being served at the time of escape. 9 The appellant was committed to the District Court for sentence on the same day as Papadatos was dealt with and from the same court. The Local Court did not deal with the appellant as it would have been perceived that any sentence, even sentences identical to those imposed upon Papadatos, would be outside of jurisdiction having regard to extant statutory provisions now found in s58 of the Crimes (Sentencing Procedure) Act 1999 viz: "58 (1) A Local Court may not impose a sentence of imprisonment (the new sentence ) to be served consecutively (or partly concurrently and partly consecutively) with another sentence of imprisonment (the old sentence ): (a) …………. (b) if the date on which the new sentence would end is more than 3 years after the date on which the old sentence began." 10 Whilst this appeal was pending a series of statutes concerning sentencing and sentence administration came into effect and as a consequence a number of statutory provisions have been placed into the new coordinated legislative scheme and others have been renumbered. Where an identical provision has simply been moved into a new statute or renumbered I will use its current reference. 11 Freeman DCJ examined the participation of the appellant and Papadatos in the offences, compared their prior records and came to the conclusion that there was, to use his Honour's expression "little to choose between them". This finding was not challenged by the Crown and it was plainly correct. In the result the appellant will, in terms of the longest and encompassing sentence for escape, serve eighteen months additional to his current sentence after which he will become eligible for parole during six months additional term. In contrast, Papadatos received the longest sentence for the same group of crimes in respect of the offence of stealing the motor vehicle but the nine months minimum term commenced on the day of imposition, 25 November 1998, so that he would serve the first two months concurrently with custody that he was obliged to serve in any event. The whole of the sentence of six months for escape, although ordered to commence later on 25 January 1999, would be wholly served within the nine months minimum term and in addition, given an overall length of sentence apparently less than three years, Papadatos would be entitled to an order from the Court for his release upon the expiry of the minimum term as distinct from merely acquiring eligibility for parole: Sentencing Act 1989 ss8 and 24. 12 Freeman DCJ was aware of the impositions on Papadatos and in his remarks on sentence exposed his careful analysis which led him to an assessment that those sentences were manifestly inadequate. He added that they (the Local Court sentences) "do not bind me even under the principle of parity". 13 The appellant contended that, in the light of the finding that there was no relevant basis for distinguishing between Papadatos and himself, he harboured a justifiable sense of grievance by reason of the harshness with which he had been treated when the sentences were compared. 14 The principles to be applied when a question of parity between co-offenders arises were discussed in Lowe v The Queen 1984 154 CLR 606. Mason J commented that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community: @ 611. 15 Counsel for the appellant conceded that the impositions by Freeman DCJ could not, when considered apart from the discrepancy between them and those received by Papadatos, be categorized as manifestly excessive. 16 It therefore arises for determination whether Freeman DCJ was correct in assessing the sentences imposed upon Papadatos as manifestly inadequate. I consider that he was. The objective circumstances of the four offences have been sketched above and an effective extension of custody already required to be served for previous offence, amounting to seven months, comprehensively failed to reflect the seriousness of the offences and is below the lower threshold of any range representing the sound exercise of the magistrate's discretion. 17 This poses a following question of whether the principle of parity operates so that the sentences, acknowledged to be within appropriate range, received by the appellant should be reduced to or towards the inadequate sentences received by the co-offender. 18 In Lowe Brennan J rejected the notion that where one right and one wrong sentence were perceived, a court should address the situation by producing two wrong sentences: @ 617 and see R v Stroud 1977 65 Cr App R 150. However Mason J said that the correct principle was "that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate" : @ 613-4. Dawson J (with whose reasons Wilson J agreed) said: "But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done ……………. This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional' ………. The decisions in this country to not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice………." @623-4. 19 Synthesis of these views confirms that a decision to make any reduction is discretionary. Recognizing this Hunt CJ at CL (James J agreeing, Smart J dissenting) said: "The issue is whether the particular sense of grievance (or injustice) is a legitimate one. There is in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one": R v Diamond unreported CCA 18 February 1993. 20 Freeman DCJ referred to Diamond and it can be inferred that he regarded the gravity marking the inadequacy of the sentences received by Papadatos as such that appropriate sentence for the appellant could not engender a grievance which was legitimate. 21 The judgments in Lowe dealt with the discretion to intervene possessed by an appellate court but a similar discretion must be possessed by a sentencing judge when faced with manifestly inadequate sentence imposed upon a co-offender whose culpability and circumstances were equivalent. 22 The appellant's contentions were not limited to the simple measure of discrepancy between the sentences received and it was contended that his Honour erred in failing to take into account the circumstance that Papadatos was dealt with in a court where the maximum custody possible to be imposed was two years imprisonment whereas in the District Court the appellant faced the maxima above set out, the highest being set at ten years penal servitude. 23 The prescriptions for selection and limitation of jurisdiction are made by ss20 and 27 of the Criminal Procedure Act 1986 viz: "20 (1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecuting authority or the person charged with the offence elects in accordance with this Division to have the offence dealt with on indictment. 27 (1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 1 to Schedule 1 dealt with summarily under this Division in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law. (2) The maximum term of imprisonment that a Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term." 24 It was submitted that, upon true construction, these words were not merely jurisdictional but performed the same function as the specification of a maximum penalty in a statute, relevantly in this case the statutes abovementioned. The submission was sought to be supported by a variety of considerations including reference to the legislative history of delegation for trial of ranges of offences to the lower echelons of court hierarchy and language in particular statutes where there was express prescription of a different maximum penalty to be applied if an offence was tried and conviction followed summary trial or trial on indictment. Examples were the Firearms Act, s7 and the Drug Misuse and Trafficking Act, s31. 25 It was pointed out that there was no procedure for a magistrate to send a matter to a higher court, it being expressly provided that in the case of a plea of guilty an election to have a matter dealt with on indictment may not be made after the presentation of the facts relied upon by the prosecutor to prove the offence: Criminal Procedure Act, s23. It is convenient to observe at this point however, that the Second Reading Speech of the Attorney General on 24 May 1995 when the discretion previously possessed by a magistrate was removed, reveals that the purpose of change was to protect the integrity of the criminal justice system by preventing any potential situation wherein a trier of facts would need to be privy to information, in particular the antecedent record of the defendant, before reaching a verdict. In articulating the dilemma of a magistrate, whether he or she should proportion a matter presently before the Local Court against the jurisdictional maximum of two years imprisonment as that appropriate to a "worst case" and/or "worst offender", the argument touched upon but did not answer the central issue of contention. 26 Attention was drawn to the apparent existing practice of utilization of Local Court jurisdiction and particular reference was made to the revelation of a median sentence of four months for offences of escape in the statistics collected by the Judicial Commission. 27 None of these considerations is determinative of the true construction of the statute nor are they so in combination. Determination turns upon what I have called the central issue, which is whether the statutory provision of a maximum available penalty of two years in s27(2) of the Criminal Procedure Act has the effect of making a higher prescribed statutory maximum for a particular offence irrelevant to a sentence determination by a magistrate exercising the jurisdiction of the Local Court. 28 The question has not previously been directly raised in this Court but it has been dealt with in similar context elsewhere. Of course, each of those instances was determined within the sphere of operation of local legislative provisions but it is unnecessary to recite in detail all of these as a clear approach to the matter of principle can be discerned. 29 In Queensland in R v Doyle 1987 30 A Crim R 1 Shepherdson J said, and although the other members of the Court, Connolly and Vasta JJ, reached a different conclusion as to result, they did not dissent from this statement: "Because he was dealt with summarily the maximum penalty to which he was exposed on each charge was imprisonment with hard labour for two years. It may be that the stipendiary magistrate thought, when sentencing this respondent, that that two years' term of imprisonment had to be reserved for the worst type of breaking and entering with intent. If that were his view then with respect he was wrong. The maximum penalty for housebreaking that is breaking and entering a dwelling house with intent is imprisonment with hard labour for fourteen years. It is my view that when housebreaking and similar offences are dealt with by magistrates under s443(eb) then there may well frequently be occasions when they will impose sentences of two years' imprisonment or slightly less. A magistrate, in deciding whether to deal with a housebreaking or similar offence under s443(eb) should look at the spectrum of sentences up to the maximum term for the particular offence and if he elects to deal with the case summarily he may impose a penalty within that range taking care not to exceed the maximum term prescribed by s443 namely imprisonment with hard labour for two years." 30 In South Australia in Canino v Venning 1993 66 A Crim R 92 Perry J observed: "It is true that in the case of a ceiling on the maximum sentence which may be imposed in a court exercising summary jurisdiction, the court should first look to the maximum sentence imposed by the relevant statute, and work to that. If a penalty is arrived at by that process beyond the jurisdictional maximum, the jurisdictional maximum will confine the penalty to be imposed……." 31 The same view was expressed in a Full Court in Higgins v Fricker 1992 63 A Crim R 475 where Mullighan J said, dealing with an offence for which there was a prescribed statutory maximum of five years imprisonment but a jurisdictional limit of two years imprisonment available when it was dealt with by a special magistrate in a court of summary jurisdiction: "The limitation on the sentence which may be imposed by a magistrate does not create the maximum penalty for the offence. The maximum remains at five years." 32 In the Northern Territory, a series of cases contained observations to like effect: Sultan v Svikart 1989 96 FLR 457; Maynard v O'Brien 1991 105 FLR 58. In Kumantjara v Harris 1992 109 FLR 400, Kearney J noted that it was incorrect for a magistrate to regard the maximum penalty within his jurisdiction (two years imprisonment) as reserved for the "worst case" of the type of offence before the Court and endorsed the statement by Shepherdson J in the Queensland Court of Criminal Appeal above cited. 33 In Victoria in Hansford v His Honour Judge Neesham 1995 2 VR 253 Brooking J (Hampel and Smith JJ agreeing) said: "Section 113 (of the Victorian Sentencing Act) accepts as of course it must, that all offences covered by s53(1) have a maximum penalty fixed by the law and operates by way of limiting the power of the inferior court, by depriving it of the power which the conferring of the jurisdiction to hear and determine would otherwise give it - the power to inflict anything up to the maximum penalty - in the sense that that power is cut down to a power to pass no more than a two year sentence of imprisonment. If two years were to be treated as reserved for the worst category of case of robbery, as the appellant contends, extraordinary results would ensue. The indictable offences which may be tried summarily under s53 of the Magistrates' Court Act include, for example, offences punishable by three years' imprisonment, so that on the appellant's argument these offences would have to be treated as punishable by the same maximum sentence as robbery, 12½ years. So, on the appellant's argument, a 'middle of the range' robbery might be expected to attract, other things being equal, the same sentence as a 'middle of the range' threat to inflict serious injury, the offence constituting item 3 of Sch.4 to the Magistrates' Court Act, for which the maximum penalty is three years (Crimes Act s21). I think it is absurd to suggest that the statutory maximum for an offence is irrelevant to the determination by a magistrate of the appropriate sentence. The result of accepting the appellant's argument would be that all indictable offences triable summarily would have to be treated as offences of the same degree of gravity. This is, if I may say so, sentencing nonsense." 34 It should be acknowledged that there have been comments that the jurisdictional ceiling in a magistrate's court should be regarded as appropriate to a "worst case" which is proper to be tried summarily. There are obvious practical difficulties in assessing the lastmentioned quality in advance of forum selection. However comments to this effect by Starke J and Murphy J in Freeman v Harris 1980 VR 267 were identified as obiter dicta by Brooking J in Hansford and disapproved in that case. The comment by Kearney J in Freeman v Pulford 1988 92 FLR 122 referring to different maximum sentences should be considered in the light of his Honour's subsequent express adoption of the principle as expressed by Shepherdson J in Doyle. 35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case". 36 That conclusion is compatible with the observation of Allen J (Smart and Dunford JJ agreeing) in R v Young unreported CCA 27 October 1993: "It is not the function of Local Courts to give less than appropriate sentences because the matters are being dealt with in the Local Court rather than in the District Court or the Supreme Court." 37 The question arises whether when dealing with a matter in a higher court cognizance should be taken of a circumstance that the offence was within lower court jurisdiction and could have been dealt with there. In a number of cases the circumstance that a matter could have been dealt with in a Local Court has been referred to as a matter of sentence mitigation. 38 In Western Australia in R v Miller 1989 44 A Crim R 185 Wallace J (Malcolm CJ and Brinsden J agreeing) stated that the fact that an offence, dealt with in a higher court, could have been dealt with in a court of summary jurisdiction with consequent ceiling on available maximum penalty may be taken into consideration in relation to argument of overall excessiveness. 39 This was cited with approval in this Court by Hunt CJ at CL (Smart and Studdert JJ agreeing) in R v Sandford 1994 72 A Crim R 160 when he said: "The judge also rejected the submission that, because the charge could have been dealt with in the Local Court, he should impose a sentence no higher than would have been imposed in that Court (where the maximum sentence was imprisonment for two years and/or a fine of $2,000). That submission was put too broadly and it was correctly rejected. It will usually be appropriate to take into account the fact that the offence could have been dealt with summarily: Miller (1989) 44 A Crim R 185; Bardo (unreported, Court of Criminal Appeal, NSW, 14 July 1992) at p 1. But it is not a universal rule." 40 There have been observations to like effect in R v Dalton-Morgan unreported CCA 14 December 1989; R v Smith unreported CCA 11 September 1991 and R v Crombie (1999) NSWCCA 297. 41 In Crombie (a two judge bench) Wood CJ at CL (Simpson J agreeing) after reference to cases in which the Court had acknowledged the relevance of the consideration that a matter could be dealt with in a Local Court to the exercise of discretion by a sentencing judge, said: "None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal." 42 It was submitted by the Crown that these cases do not expose any reasoning underlying a principle that the availability of summary jurisdiction and lower ceiling of penalty should be a matter of mitigation. The cases reveal that the circumstance can, rather than should, be a matter of mitigation. All offenders in the relevant situation would have lost the chance of being dealt with within the restrictions applicable in the summary court and for that reason that chance should not be ignored. The significance of the loss of that chance would undoubtedly vary from case to case and in some cases it would contribute to mitigation, in others, not. I see no reason to depart from the approach taken in those cases but they are authority for the proposition that it is a matter to be taken into account and not a universal factor for reduction of sentence. 43 Freeman DCJ neither accepted nor rejected the loss of such a chance as germane to the sentences to be imposed upon the appellant. His Honour did however, when rejecting assessment in parity with the sentences imposed on Papadatos, say that he should approach (and therefore set) the sentences at "the bottom of the range of adequacy". That approach was taken for example in R v Capper 1993 69 A Crim R 64 when Anderson J said: "When a co-offender has been treated with excessive leniency, justice may sufficiently be done if the prisoner receives as lenient as sentence as can be justified within the accepted range for this kind of offence in the light of matters personal to the prisoner, including his record …." 44 The appellant did not challenge the learned judge's expressed aim but contended that the sentence imposed did not achieve it. He relied upon the available statistics relating to escape from custody (upon which he received the longest and encompassing sentence) but he acknowledged that there had to be taken into account the further offences committed whilst at large. In a table relating to impositions other than in the Local Court, for the offence of escaping from lawful custody (examined in isolation) 76 percent of a sample of 393 cases of "all offenders" received minimum terms of less than eighteen months and only 7 percent received longer minimum terms than the appellant. Even allowing for the additional offences for which sentences were ordered to be served concurrently, I consider that the appellant's challenge that the aim of setting a sentence at the bottom of the range was not achieved has been made good. 45 The final, and separate argument, advanced on behalf of the appellant related to the absence of departure from the proportion of division into minimum and additional terms specified in s5(2) of the Sentencing Act 1989 by reason of the special circumstances of the appellant. The only reference to special circumstances in his Honour's remarks on sentence was an observation that the sentence previously imposed in the ACT Supreme Court had such an adjustment. He said: "No doubt the special circumstances his Honour would have had in mind would have included the youth of the prisoner, the fact that he had not previously been before the courts, certainly the fact that he was going into custody for the first time, and also in all probability, judging by the material in this Court, an indication that the prisoner had promise in terms of his capacity to be rehabilitated." 46 No further reference was made. The absence of statement that special circumstances have been considered can be an indication that the matter has been overlooked: R v Moses Bo Too unreported CCA 16 July 1992. 47 However in the present case, save the youth of the appellant, there is little to found a finding deriving from special circumstances that there is a need for an extended term of supervision on parole. The matters which his Honour had perceived would have operated at the time of assessment of sentence in the ACT Supreme Court had changed. The appellant was no longer as youthful, it was not his first commitment to prison and the conduct giving rise to his appearance before the Court undermined the promise of rehabilitation earlier foreseen. 48 In summary, I consider the appellant has made good his argument on two grounds. First the omission to consider whether the loss of the chance that the matters might have been dealt with in the jurisdictionally limited Local Court. I do not overlook that the actual loss to the appellant was inevitably the result of his own previous criminality combined with the operation of s58 of the Crimes (Sentencing Procedure) Act 1999 and it is likely therefore that the lost chance would be estimated to have had little, if any, value but no decision on the issue was made. The second, and more important, ground was the failure to achieve the aim of setting a sentence towards the bottom of the available range as was his Honour's explicit intention. 49 The intervention of this Court being attracted, it falls for it to resentence the appellant and to exercise its own discretions. Although it is well established that this Court does not allow an appeal against sentence simply because it would have itself have imposed a lesser sentence on an appellant, once ground for intervention has been established it is appropriate to implement its own view on resentence. 50 A comparison of the minimum term elements of the sentences received by the offenders shows that for the same crimes and without relevant distinction in culpability, Papadatos is to serve seven additional months and the appellant, eighteen months. I would for myself assess the difference between the sentences, particularly having regard to the minimum term elements, as manifestly excessive. Cf Lowe per Dawson J @ 624. 51 I am of a further view, however, that the sentences received by Papadatos were so grossly inadequate that, in accordance with the principles adumbrated above and in particular the remarks of Anderson J in Capper, the sentences should not be reduced to that level. I have earlier made reference to some statistics supplied by and relied upon by counsel. Those statistics isolated the offence of escape from custody and cannot be directly applied because the principle of totality requires weight to be given to the three further serious offences, the two assaults and stealing the motor vehicle. 52 I would not find that there are special circumstances requiring departure from the formula specified in s44(2) of the Crimes (Sentencing Procedure) Act 1999. The resentence by this Court should be set in terms of this Act: R v Carrion (2000) NSWCCA 191. 53 I would make the following orders:

Regina v Doan

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