Regina v Hughes

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60510/98 DC 97/41/0305 FITZGERALD JA NEWMAN J GREG JAMES J

1 FITZGERALD JA: Glenn Ronald Hughes has applied for leave to appeal against a sentence imposed upon him in the District Court at Wollongong on 3 September 1998. Hughes pleaded guilty to one count of robbery in company contrary to s 97(1) of the Crimes Act 1900, one count of stealing a motor vehicle contrary to s 154AA of the Crimes Act and one count of maliciously damaging the stolen motor vehicle by fire contrary to s 195(b) of the Crimes Act. The maximum penalty for the offence of robbery in company is 20 years imprisonment, and the maximum penalty for each of the other offences is 10 years imprisonment. 2 For the offence of robbery in company, Hughes was sentenced to a minimum term of 4 years imprisonment to date from 19 April 1998 and to expire on 18 April 2002 with an additional term of 2 years imprisonment to expire on 18 April 2004. For each of the other offences, he was sentenced to a fixed term of 15 months imprisonment to date from 3 September 1998 to be served concurrently with each other and with the sentence imposed in relation to the offence of robbery in company. The sentencing judge found that special circumstances existed "in the need for him to have close supervision on his release from imprisonment over an extended period". 3 Hughes' application for leave to appeal relates to his sentence for the offence of robbery in company. He does not dispute that the sentence which he received "was in itself within the scope of the court's discretion in relation to the seriousness of the offence and the attendant considerations of [his] previous criminal record and likelihood of rehabilitation". His argument that his sentence is manifestly excessive is based solely upon an asserted disparity between his sentence and the sentence imposed upon one of his co-offenders, Stuart Muldoon. 4 Both the applicant and Muldoon were sentenced by the same judge, although Muldoon was not sentenced until 20 May 1999, when he was convicted after a trial. Muldoon was sentenced to a minimum term of 2 ½ years imprisonment to date from 29 January 1999 and expire on 28 July 2001 with an additional term of 18 months imprisonment to expire on 28 January 2003. The prosecution did not submit that that was not an appropriate sentence for Muldoon. 5 Both the applicant and the prosecution accept that the sentencing judge accurately summarised the circumstances of the offences at pages 1-4 of his sentencing remarks, where his Honour said: "On Tuesday 3 June 1997, Stuart Muldoon drove his 1983 Mitsubishi van to the Corrimal and Coniston areas where he collected Crocker and Hughes. He then drove it to the Unanderra Hotel where they consumed alcohol. About 7.30 to 8.00pm, Muldoon drove his vehicle to the western side of the Fairy Meadow Beach car park, an area known as Puckey's, with Crocker and Hughes. Puckey's is a well-known homosexual meeting place after dark. Crocker had discussed the fact that he needed money and they went to that area for that purpose (with robbery in mind). On parking the van, Crocker and Hughes got out and Muldoon went to urinate but returned to the vehicle. Crocker removed the vehicle's steering lock and placed it in the rear of his pants and walked in a south easterly direction towards the walkway. Hughes was about 15 m to the rear of Crocker who approached the victim, Barry Thompson who was aged 50 and who had just returned from the walking area that provides access to the Fairy Meadow Beach. Crocker asked the victim for a light before removing the metal steering lock and striking the victim about the head between 10 to 16 times before the victim fell to the ground semi-conscious. Crocker struck the victim one more time before Hughes intervened and pushed Crocker away. Crocker and Hughes argued and Crocker threatened Hughes with the steering lock. Crocker or Hughes took the victim's keys - I am satisfied on that score that it was Crocker - and then they both took a wallet out of the victim's car and they returned to the van sharing the money from the victim's wallet. In relation to that last matter I am satisfied that Crocker took control of the money. All three left in the van then returned to the Unanderra Hotel. They consumed more alcohol and put the victim's money in a poker machine. Again I am satisfied that that was done by Crocker. There they agreed to return and steal the victim's car and burn it to destroy any fingerprint evidence. After leaving the hotel, Muldoon dropped Crocker off near to Dymock Street and the victim's premises, with the intention of stealing property from his home. Crocker walked in the rear door of the victim's home but left after speaking to the victim's son, who assumed that he was simply looking for somebody in the house. No property was stolen. Crocker returned to the van and the three proceeded to Fairy Meadow Beach car park. About 10.20pm Crocker got into the victim's vehicle while Muldoon drove the van with Hughes as a passenger. Both vehicles went to the Fairy Meadow railway station where they went through the victim's car for items to steal, although it appears that there were none there. Muldoon then drove the victim's car with Hughes and Crocker in the van to Mount Kembla. Crocker set the vehicle on fire. Muldoon drove Crocker to Railway Street, Corrimal where he got out. Crocker later tried unsuccessfully to withdraw cash from the autoteller with the victim's cards. I am satisfied that this prisoner had no part in that effort. The victim was located and taken to hospital where he underwent emergency surgery for severe haematoma to the brain, fractured skull and severe multiple aspirations. He was classified in a critical condition on a life support for four days, when it was terminated on medial advice. The victim's condition has since improved although he has permanent brain damage. When Hulme J dealt with Crocker on 7 August of this year he referred to a more recent medical report than those tendered in this case and he quoted from a report of 16 June 1998 from his treating neurosurgeon that, "Mr Thompson has made an amazing recovery. His speech was almost normal and his memory for recent events reasonable. He still had problems with fine movements of his right upper limb. There was mild weakness of his right lower limb. He could not straighten fully his right knee and had no motor function around his right ankle. Mr Thompson was not able to be left on his own and was still residing at a half-way house, going home on weekends." The neurosurgeon's view was the "it would be impossible for Mr Thompson to resume his former occupation and while he might be able to gain some employment it would be limited to fairly simple tasks that do not require any complex mental processes." Impact studies from the victim's family suggest perhaps that the report is a trifle optimistic".

6 The applicant also accepts the accuracy of the following paragraph 16 in the prosecution's submissions to this Court. "It is clear from reading His Honour's remarks on sentence that he took into account all of the favourable aspects of the applicant's subjective features including his cooperation with the police in that he made full and frank admission when first interviewed. He also took note of the fact that without the applicant's cooperation there might have been some difficulty in obtaining convictions, particularly if he had claimed that Crocker had used duress. His Honour noted that although the plea of guilty did not come immediately, the prisoner had always denied assaulting Mr Thompson and had claimed to have intervened to stop his being killed, which was something that the Crown finally accepted. His Honour noted that the applicant's expressions of remorse were also supported by Muldoon in his statement. His remorse was further illustrated in the statement of the applicant's partner and in the manner in which he conducted the record of interview as well as the manner of his giving evidence on sentence. The fact that the applicant offered to give evidence against his co-offender Muldoon was considered by His Honour as further evidence of remorse and cooperation with the authorities."

7 Both the applicant and Muldoon were convicted of the same offence, namely robbery in company. Both cooperated with police, although the applicant's cooperation was earlier and spontaneous whereas Muldoon only began cooperating after police had been informed that he was the owner of the distinctive van used in the commission of the offence. The sentencing judge found that "without the [applicant's] cooperation there might have been some difficulty in obtaining convictions, particularly if he had claimed that Crocker had used duress." Further, the applicant pleaded guilty, whereas Muldoon was convicted at a trial. 8 Both the applicant and Muldoon are approximately the same age and each enjoys the support of a caring and concerned family. Each is either married or in a established de-facto relationship with small children. Each has a non-violent disposition but alcohol and drug dependency problems which have caused him to offend. Each has prospects of rehabilitation if his drug and alcohol problems can be satisfactorily resolved. Each displayed a significant and credible level of remorse. (The applicant submitted that his degree of remorse was "more evident" than that of Muldoon.) The sentencing judge referred to the possibility that each of the applicant and Muldoon might need special protection in jail, although that has not been found necessary. 9 The prosecution submitted that a more severe sentence was appropriate for the applicant because (i) he was on a recognisance at the time of the commission of the offences and (ii) he was "becoming more active" in criminal offences whereas Muldoon's criminal history was "waning". Muldoon had been convicted of offences of dishonesty for which he was fined in the Wollongong Local Court in 1993, assault occasioning actual bodily harm for which he was fined and placed on a recognisance in the Downing Centre Local Court in 1994, malicious damage for which he was placed on a recognisance in the Wollongong Local Court also in 1994, and driving whilst his license was cancelled for which he was fined and placed on a recognisance in Port Kembla Local Court in 1997. The applicant had been convicted of assault and placed on a recognisance in the Downing Centre Local Court in 1994, a further assault for which he was fined in the Wollongong Local Court in 1996, and break entering and stealing, receiving and stealing, for which he was fined, given a community service order and placed on recognisance in the Wollongong Local Court in 1997. Apart from the circumstance that the applicant was on a recognisance when the material offence of robbery in company was committed, there is no significant difference between the prior criminal activities of the applicant and Muldoon. Further, as noted, the applicant pleaded guilty to the offence of robbery in company, entitling him to favourable consideration, and Muldoon did not. 10 The only possible justification for the difference in the sentences imposed on the applicant and Muldoon for their offence of robbery in company lies in the different roles which they played and the differences in their culpability. The sentencing judge's remarks suggest that he did not place much weight on this, although correctly severely critical of both. His Honour considered that the applicant was more culpable "to some degree". 11 The prosecution submitted that the applicant's actual criminality considerably exceeded that of Muldoon in that the applicant went with Crocker and participated in the actual robbery. Further, after observing Crocker's attack on the victim and the injuries which the victim had suffered, the applicant assisted in the removal of the victim's property and later suggested the theft and burning of the victim's car to prevent detection. Muldoon was unaware of the injuries to the victim until he was told of them by the applicant, but also then continued to participate. The judge who sentenced the applicant made the following statements at different points in his sentencing remarks: "The overwhelming problem the [applicant] faces is that having seen an innocent man brutally bashed, he not only left him seriously injured and possibly dead, but joined in stealing his wallet and then, fearful of discovery, returned to steal and destroy his car by fire and to destroy fingerprints." ….. The [applicant] persisted in the robbery realising the awful effect of Crocker's conduct in inflicting grievous bodily harm on the victim." 12 The applicant submitted that he and Muldoon were equally involved in the planning and decisions which led to the offences and that both attempted to conceal their involvement even after the extent of the victim's injuries were known to them. Both left the victim "seriously injured and possibly dead." It was pointed out that when sentencing Muldoon, the judge said that he "continued to assist in these matters and this places him in a very unfavourable light indeed". 13 Muldoon was physically absent when Crocker attacked the victim. The applicant was present, but was unaware that the physical assault was to occur and, when Crocker persisted, acted to restrain Crocker physically from continuing his vicious assault on the victim, which likely would have led to his death. The sentencing judge noted that the applicant was "genuinely shocked" at Crocker's blows to the victim and accepted that the applicant's fear of Crocker was "understandable". It is an important part of the applicant's argument that the heavier sentence he had been given relative to Muldoon fails to recognize his active intervention to prevent further harm to the victim despite a very real risk to, and real fear for, his own safety. 14 It is unnecessary to add to the discussion of the parity principle contained in the judgment of this Court on Monday this week in R v Christie [2000] NSWCCA 354. A difference in the sentences imposed on co-offenders does not necessarily entitle the offender who received the heavier sentence to a reduction. It is necessary to compare the part which each played in the commission of the offences and their respective ages, backgrounds, previous criminal histories and general characters to see whether the difference in the sentence gives rise to a sense of grievance which is justifiable. That test is satisfied if, but only if, the differences in the sentences would offend the sense of justice in a reasonable member of the community. Even if the result will be an inappropriately lenient sentence, if after due allowance has been made for all material differences the applicant's sentence is so much more severe than the sentence imposed on Muldoon that the resulting disparity gives rise to a justifiable sense of grievance, the applicant's sentence must be appropriately reduced. 15 The cases have warned that there is a particular risk of injustice in this area when a person who has pleaded guilty, is sentenced before a person who is later convicted after a trial. That is the position in this case. Although the same judge sentenced both the applicant and Muldoon, it is understandable that, by the time his Honour came to sentence Muldoon, he had overlooked the fact that he had sentenced the applicant some six months earlier and, in any event, could not properly have to increased Muldoon's sentence to achieve parity with the sentence which he had imposed on the applicant, if he considered that that would impose too harsh a sentence on Muldoon. 16 I am satisfied that the sentencing process has miscarried on this occasion. On a proper comparison of the respective culpabilities of the applicant and Muldoon, that being the only possible differentiating factor of any significance, while the applicant was more culpable the sentence which he has received does give rise to a legitimate sense of grievance when compared with the sentence which was imposed on Muldoon. 17 Accordingly, in my opinion, the application for leave to appeal should be granted and the appeal allowed insofar as it relates to the sentence imposed upon the applicant for the offence of robbery in company. The sentence imposed should be set aside and a minimum term of three years imprisonment, to date from 19 April 1998 with an additional term of eighteen months imprisonment to expire - the dates of expiry can be arithmetically calculated and will be inserted into the final judgment. 18 NEWMAN J: I agree. 19 GREG JAMES J: I also agree. 20 FITZGERALD JA: The orders of the Court are as I have indicated. 21 DAWE: Your Honour, might I just raise one point and that is the new terminology so far as sentences are concerned. It's a head sentence of four years and six months-- 22 NEWMAN J: And non-parole period of three years. That's the nomenclature we are now visited with. 23 FITZGERALD JA: There has been a change in the legislation which necessitates that I phrase the sentence which has just been imposed differently, Mr Hughes, although it will have the same practical effect. Do you understand? The sentence which is imposed, in lieu of the sentence which has been set aside, is a head sentence of four and a half years, to date from 19 April 1998, with a non-parole period of three years. Do you understand? 24 APPLICANT: I do. 25 FITZGERALD JA: Nothing you want to add? 26 APPLICANT: No.

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