REGINA v. KENDALL [2002] NSWCCA 79

TUESDAY 19 MARCH 2002 REGINA v. JOJO KENDALL Judgment 1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the District Court of New South Wales for various offences of armed robbery. There were 10 counts of armed robbery on indictment, and on a Form 1 document there were contained 10 further counts for offences of armed robbery and for three offences of attempted armed robbery. The applicant had pleaded guilty to each count on the indictment and sought that those on the Form 1 document be taken into account on sentence. 2 The sentences that were imposed on counts one to nine in the indictment comprised sentences of five years imprisonment, in each case to be served by way of fixed terms, each to commence on 29 October 1999 and to expire on 28 October 2004. On count 10 a sentence of imprisonment for five years was imposed, to commence on 29 October 2004. That sentence thus was cumulated on the sentences imposed on counts one to nine and on this sentence the trial judge took into account the matters on the Form 1. His Honour imposed a non-parole period of 12 months to commence on 29 October 2004 and to expire on 28 October 2005. There was thus, effectively, an overall sentence of 10 years, with a six year non-parole period. 3 The offences were committed in association with a co-accused, one Nigel Thomas Antecki. The charges of which Antecki was convicted following his plea, were referred to by the learned sentencing judge in his remarks on sentence when he said:- "The co-offender, Nigel Antecki, pleaded guilty to eight armed robberies and 12 attempted armed robberies in the Local Court. I sentenced him on 17 August taking into account 14 offences being 13 armed robberies and one attempted armed robbery." 4 When the learned trial judge came to sentence the present applicant he expressed the view that he saw no basis for distinguishing between the criminality of the two offenders. There were some matters of distinction. The present applicant did not carry the knife, which was used in the offences, on 21 of the 24 occasions. He did, however, participate in a large number of offences with his co-offender with the knowledge that the co-offender had the knife and he assisted with the commission of those offences by terrorizing the victims. Unlike his co-offender, he had prior good character. The co-offender had prior convictions that included robbery in company, supplying drugs and arson. The co-offender, however, had had a more traumatic childhood than the present applicant and was a little over a year younger. 5 In the upshot, the learned sentencing judge had imposed an overall sentence of 11 years with a non-parole period of seven years on the co-offender. He therefore allowed a discount for these differences to the present applicant of one year on the head sentence and on the non-parole period. 6 The learned sentencing judge also proceeded on the basis that there was no real basis for distinguishing between the criminality involved in each offence committed by the applicant. He adequately and properly applied the principle enunciated in Regina v. Pearce (1998) 194 CLR 610 that the sentence for each offence must reflect the criminality of that matter, and had regard to the principle of totality in the way in which the sentences were structured. 7 His Honour found special circumstances including the applicant's age; that this was the applicant's first custodial sentence; and the fact that the sentences were to be accumulated. 8 However, his Honour found there were in common with those found in the Antecki matter circumstances which were highly remarkable. Despite this enormous spate of violent criminality in which the two offenders had participated, they had not man-handled the victims; they had not committed any physical injury upon the victims; and each having been drug addicts at the time of the commission of the offences, had sought to turn from drugs and from criminality. The judge in the case of this applicant made the following finding:- "After the offender went into custody he went 'cold turkey' and has resisted the temptation to become involved in drugs in prison. This must have been a very traumatic experience for him especially as it was his first time in custody. It is clear that the offender has made plans for his future that do not involve drugs. He is undertaking courses in gaol and plans to do more. In addition he has undergone drug and rehabilitation counselling". 9 Antecki too had sought to avoid drugs in prison and started to address his addiction. 10 It is not necessary to review further the circumstances of the commission of the offences and the appropriateness of the sentences passed, since a well founded submission is made that this appeal should be upheld in the light of an earlier judgment of this court. The co-accused Antecki had sought leave to appeal which was on 10 August 2001 granted. The appeal was upheld and the sentence reduced upon the basis that the trial judge's sentence was manifestly excessive. It is submitted that in justice this appeal should be similarly treated. This would necessitate the following orders: firstly, that the applicant should have his appeal reinstated notwithstanding a notice of abandonment filed. Secondly, that the applicant should have an extension of time on his application for leave to appeal. Thirdly, that he should have leave to appeal against sentence, and fourthly, the sentences below be quashed and more lenient sentenced imposed in lieu. 11 Having regard to the material in the affidavits provided by the applicant which was read to the court without objection - the first being the affidavit of 20 September 2001, the second being that of 14 March 2002 - the Crown has accepted that in the event that the court were minded to intervene on a parity basis, having regard to the course this court took in relation to the co-accused, it would be proper to permit the appeal to proceed notwithstanding the abandonment and to grant the extension of time and leave to appeal. On that concession, I am of the view that it would be proper to grant the relief sought as I accept the submission the appeal should on that ground, succeed. 12 It having become apparent that the trial judge had properly sentenced the applicant and Antecki on the basis of a relativity between the two, having regard to their common culpability and to the matters of distinction to which I have referred, I consider the appeal should succeed and the relativity should be preserved. The applicant would undoubtedly have a reasonably based and justifiable sense of grievance, in my view, if in those circumstances this court having upheld the co-offender's appeal on the basis that the sentence was manifestly excessive, stayed its hand in respect of his application for leave to appeal. I do not understand the Crown to be submitting to the contrary because the Crown properly has recognised the effect of the previous judgment of this court. 13 Therefore, I conclude that the appeal should be upheld and that the sentence passed in the District Court should be quashed and that the applicant should be re-sentenced to sentences totalling eight years, nine months with a four years, nine months non-parole period. It is conceded by the Crown that this sentence would preserve the relativity necessary. 14 At this point, the court will seek the assistance of counsel as to the appropriate way the sentences should be structured so as to achieve that overall sentence, which both counsel from the bar table have submitted is appropriate so as to continue to reflect the relative positions of the applicant and his co-offender.

UPON RESUMPTION 15 I had reached the point in my judgment where the matter was stood down in the list to permit counsel to afford assistance to the court as to the appropriate way in which the sentences should be structured so as to represent adequately the appropriate degree of relativity between the applicant and his co-offender and as would appropriately reflect the various circumstances of each in the light of the judgment of the Court of Criminal Appeal in Antecki, to which I have referred. 16 It has now been submitted by both counsel to us that, having regard to the finding of special circumstances, which finding we would reiterate here for the same reasons given by the trial judge, the appropriate course to take is that the sentences imposed in the District Court be quashed and the applicant, in lieu, be sentenced on each of counts one to nine, to sentences of four years imprisonment each by way of fixed term, those sentences being concurrent and to date from 29 October 1999 to expire on 28 October 2003. On count 10, being the count on which the matters in the Form 1 are to be taken into account, the applicant should be sentenced to a term of imprisonment cumulatively on the sentences imposed on counts one to nine, of four years and nine months to commence on 29 October 2003 with a non-parole period of nine months to commence from that date, 29 October 2003, whereby the applicant would become eligible for release on parole on 28 July 2004. Having regard to s.53 and s.45 of the Crimes (Sentencing Procedure) Act, no non-parole period will be fixed for the fixed term sentences on counts one to nine because of the penalty imposed on count 10 and having regard to the fact that the sentence on count 20 is cumulative upon the fixed term sentences imposed on counts one to nine. 17 The orders I propose, therefore, are as following: set aside the Notice of Abandonment; grant extension of time to appeal; grant leave to appeal; uphold the appeal; set aside the sentences below and in lieu thereof sentence the applicant to the sentences I have set out. 18 BUDDIN, J: I agree. 19 GREG JAMES, J: Those will be the orders of the court.

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