The appeal
22 Before us, no complaint was made about the sentences in respect of the escape and motor vehicle charges. The thrust of the appeal is that the sentences passed upon the respondent in respect of the robbery charges are manifestly inadequate. In particular, the Crown prosecutor in this Court argued that:
(a) in assessing the respondent's culpability, his Honour does not appear to have had regard to evidence suggesting that it was he who first got into a car outside the prison and tried to start it, knowing that his companions were inflicting violence upon someone;
(b) in any event, his Honour's finding about the limited role of the respondent did not justify sentences so much shorter than those passed upon Raymond Dungay and Clarence Donovan;
(c) his Honour failed to have due regard to the sentences imposed by this Court upon Brett Dickson, whose culpability was not markedly different from that of the respondent;
(d) his Honour did not advert to the guideline judgment in R v Henry (1999) 46 NSWLR 346, which was applicable even though the charges were robbery in company, rather than armed robbery: R v Murchie (1999) 108 A Crim R 482;
(e) his Honour gave undue weight to the respondent's subjective case, so that the sentences fail adequately to reflect the objective gravity of the crimes; and
(f) the sentences on the two charges should not have been wholly concurrent.
23 It is convenient to deal immediately with the first and last of those arguments. It is true that his Honour did not refer to evidence that the respondent was the first to attempt to start a car, at a time when he was aware of the violent behaviour of at least some of his co-offenders. However, that does not appear to me to be a significant matter for present purposes. That evidence points towards the respondent's criminal responsibility for the violent behaviour of his companions, a finding inherent in the jury's verdict on each charge. It was upon that basis that his Honour sentenced him. However, it remained open to his Honour to have regard to the fact that the respondent himself inflicted no violence in determining the appropriate measure of his punishment.
24 It was also open to his Honour to direct that the sentences on the two robbery charges be served concurrently, given the respondent's limited involvement and the fact that the offences were committed in the course of the same criminal episode. The Crown prosecutor took us to the now familiar principles in Pearce v The Queen (1998) 194 CLR 610. However, his Honour expressly referred to that case in his remarks and nothing in the High Court's decision fetters the discretion of a sentencing judge to determine whether sentences should be served concurrently or cumulatively, in whole or in part. Nor does it appear to us that his Honour's hands were tied in that respect by the fact that this Court directed the partial accumulation of the sentences imposed upon Brett Dickson. Of course, this leaves open the question whether the sentences are manifestly inadequate individually, or in combination as a reflection of the total criminality of the episode.
25 As to the comparison between the respondent's sentences and those passed upon Raymond Dungay and Clarence Donovan, it is true that the distinction is marked but, in the light of his Honour's careful examination of the roles of each of the three offenders, a significant distinction was warranted. As to this Court's decision in respect of Brett Dickson, his Honour acknowledged it, saying that what the Court had said in that case "cannot and will not be ignored by me." He went on to observe, however, that there were "points of factual distinction" between Dickson and the three offenders he was to sentence. No doubt, it was to these distinctions that his Honour was referring when he later said that he did not regard himself "as being bound in detail by that decision …". Clearly, the respondent was entitled to be dealt with more leniently than Dickson. Dickson was directly involved in the infliction of violence upon Cameron McMillan, having struck him, and it would seem that he was not able to make out as favourable a subjective case as the respondent.
26 It would have been appropriate for his Honour to have regard to the Henry guideline, although it should be borne in mind that that guideline does not expressly deal with a person who is not the principal offender and whose criminal liability is founded upon the doctrine of joint criminal enterprise or common purpose. All that said, the ultimate question to be determined is whether the sentences on the robbery charges are manifestly inadequate. About that we have wavered. The sentences are markedly lenient. However, after careful reflection, we are not persuaded that they were so far outside the range as to call for this Court's intervention on a Crown appeal.
27 This was an unusual case, given the respondent's limited role, as his Honour found it, and the emotional background arising from his recent bereavement. That background was of particular significance and, generally, it does not appear to us that his Honour afforded the respondent's subjective case more weight than it deserved. Given the well recognised constraints upon this Court's intervention in an appeal such as this, any adjustment which might be made to the sentences would be of limited significance, such as to be unwarranted in the circumstances of the case.
28 In so far as we have wavered about the question of inadequacy, we should add that, in any event, we would have dismissed this appeal in the exercise of this Court's residual discretion. The Notice of Appeal was filed by the Director of Public Prosecutions within a reasonable time after sentence was passed. However, there was considerable delay in the District Court proceedings coming to finality. The offences were committed in October 2000. The respondent's trial took place in September 2002. There were then a number of adjournments of the sentence proceedings, so that sentence was not passed until 6 June 2003. The cause of this delay is not apparent from the material before us, and we should say that there is nothing to suggest that it should be sheeted home to the Crown.
29 The result, however, is that the respondent faces this Crown appeal in respect of sentences which commenced in November 2000 and November 2001. He would be eligible for release on parole in the very near future. We would be reluctant, by allowing the appeal, to delay the opportunity to foster by a period of supervised liberty the rehabilitation of an offender who is still a very young man.
30 We would dismiss the appeal.
31 SMART AJ: The facts and circumstances and the contentions of the parties are set out in the judgment of Hidden and Greg James JJ.
32 Mr H J Donovan was engaged in a criminal enterprise of much gravity. During the robbery in company grievous bodily harm was inflicted upon Mr Cameron McMillan (count 2). After being dragged from a vehicle he was severely and repeatedly beaten. He suffered a fractured right cheekbone, lacerated internal and external right ear and bruising to the head and body. He was rendered unconscious. After being treated in the Emergency Department he was transferred to the intensive care unit of Grafton Base Hospital. He spent some days in hospital and needed subsequent operative care. The report of Dr G R Varley, consultant general surgeon highlights the seriousness of the injuries suffered.
33 During the robbery in company with wounding Mrs Elizabeth McMillan was beaten and flung to the ground (count 3). She was struck about the head by one of the offenders by an object. She was punched and kicked about the head and body and stomped to the head by one of the escapees. The stomping was the work of the offender, Dungay. Mrs McMillan was hospitalised from 14 to 20 October 2000 (both inclusive). She suffered a lacerated scalp and bruising to the face and body. Dr Varley wrote that she had "a serious head injury evidenced by the considerable bleeding she had around both orbits." She had a considerable problem with dizziness.
34 The effects on each victim of the offence committed against that victim were marked and far reaching. The particular role played by Mr H J Donovan did not appear with clarity from the materials. He gave this account in his record of interview of what happened after he left the gaol and came on to the street outside it.
... when I come out onto the street I seen, seen the boys there sort of like wrestlin around and that. So I stood back and, to see what was goin' on, but I couldn't, couldn't really see what was goin' on. It was, pretty, pretty dark at the time. So um, I - um, I wanted to get, get out of it, so I ran to a car and um, I jumped, jumped, jumped in, in the driver's seat. I couldn't get, couldn't get the car going. Then I jumped out and come back around. I could see the boys fightin'. I didn't know who, who it was there that was fightin' at the time .Uhm You know, I just, I seen them laying on, on the ground there and I, and I looked at them I heard them, heard them snoring sort of like, snoring and that and sort of like gargling, like something like that, you know, snoring, snoring and that. The boys are just, the boys are just still wrestlin' and that and throwin' punches and kicks and all that sort of stuff and I started, strated ( sic) freakin' out and I said, Boys, youse are fuckin' gunna kill him, youse killed him, youse killed him. I just freaked right out on them and that and they um, they um, they had one of the cars got started up and um, I was there, just, just froz and that you know, 'cause I thought, I thought they was gunna die. I thought they were dead, and um, I started goin' off at the boys and that and um, they grabbed me and they threw me, they threw me in the back of the car and um, that's when we, we was headin' headin; somewhere. I didn't know where we were going.
35 Notwithstanding that Mr H J Donovan was a minor player in the enterprise and his subjective features, the sentences imposed by the judge in respect of counts 2 and 3 were below the minimum sentences which could be sensibly imposed. There are two outstanding features of the offences, namely, the high level of violence and the extent of the injuries. Mr H J Donovan was a participant in each of them, albeit in a minor role. These offences were committed in the course of the four offenders making good their escape from gaol.
36 Making the sentences on counts 2 and 3 wholly concurrent does not adequately reflect the total criminality involved in the offences and the result is one which is manifestly inadequate.
37 In my opinion there was manifest error in making the overly lenient sentences on counts 2 and 3 wholly concurrent. The sentences should have been partly cumulative.
38 The judge correctly found special circumstances. The next question which arises is whether this Court should, in the exercise of its residual discretion, decline to interfere principally because of the delay in the proceedings in the lower Courts. The offences were committed on 14 October 2000. I do not know when the committal proceedings took place. The trial took place between 9-13 September 2002. The papers do not explain why the trial took nearly two years to begin. In respect of the delay between September 2002 and June 2003 part at least of that delay was due to the unavailability of counsel for the offenders. The judge tried to overcome this and was anxious to proceed to sentence at an early date.
39 In the absence of full information as to the reasons for the delay I am reluctant to rely on this as a powerful factor. It should not be assumed that the offenders wanted early finalisation of the matters. The judge, after a hearing on sentence on 29 May and 2 June 2003, imposed the various sentences on 6 June 2003. The Crown's Notice of Appeal was served on 12 July 2003. That was timely. With the escape and the two robberies Mr H J Donovan should have expected lengthy sentences.
40 In any event these offences are so serious that delay of the order which occurred in the present case should not lead to the Court exercising its residual discretion to dismiss these appeals.
41 In considering the question of totality I have borne in mind that the accused was in gaol for other offences from 25 October 1999 until his escape on 14 October 2000 and that he was due for release on 25 October 2000. The sentence on count 3 should be partly accumulative on that imposed on count 2. The extent of that partial accumulation should be 18 months. Because of that partial accumulation there will need to be an adjustment to the non-parole period on count 3. The overall effect of what I propose will be head sentences totalling 5 years 6 months and non-parole periods of 4 years. These are still lenient sentences. They are only so lenient because of re-sentencing and the restraint which this Court exercises on re-sentencing. Lesser sentences than those proposed could not be imposed.
42 I propose the following orders:
1. Crown appeal against the sentences imposed on counts 1, 2, 4, and 5 dismissed
2. Crown appeal against the sentence imposed on count 3 (robbery in company with wounding) allowed in part, sentence quashed.
3. In lieu of the sentence imposed on count 3 Horace James Donovan is sentenced to imprisonment for 3 years commencing from 13 May 2003 with a non-parole period of 18 months starting that day and ending on 12 November 2004 on which day Mr Donovan will be eligible for release on parole.
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