(1) Parity -
12 The applicant submitted that he and the co-offender should have received the same sentence, because they had gone to the liquor store together, had remained together in the liquor store during the robbery and had left the liquor store together.
13 The applicant's co-offender had been separately tried, while the applicant was in Lebanon, on a charge of robbery in company with the applicant and had been found guilty by the jury. Various delays occurred in the sentencing of the co-offender and she was not ultimately sentenced until 20 February 2003. On 20 February 2003 Judge Stewart sentenced the co-offender for the offence of robbery in company to a sentence of imprisonment for three years commencing on the date of sentencing with a non-parole period for one year. Judge Stewart found special circumstances in what he described as the co-offender's difficult domestic relationships, a medical condition of depression for which she was seeing a psychiatrist and the fact that the co-offender had young children who would be affected by her imprisonment. At the time a pre-sentence report about the co-offender had been prepared in October 2002 the co-offender had a child who was only ten months old and she was pregnant with another child, who had been born by the time she was sentenced. The applicant was not the father of either of those children.
14 At the time of sentencing the applicant Judge Hock was aware of the sentence imposed by Judge Stewart on the co-offender. Indeed, a submission that the applicant should not receive any heavier sentence than the sentence Judge Stewart had imposed on the co-offender was made by counsel for the applicant in the proceedings on sentencing before Judge Hock.
15 Her Honour found that the applicant should receive a heavier sentence than the co-offender, "given their different subjective circumstances". Her Honour noted that the co-offender had no previous criminal history at all, that she was the mother of two very young children and that she suffered from a depressive illness and also severe chronic fatigue syndrome. Like the applicant, the co-offender was a heroin addict.
16 Her Honour also held that, while the applicant and the co-offender had both been parties to the robbery and that Judge Stewart, in sentencing the co-offender for the offence of robbery in company, had taken into account that a knife had been used in the robbery, the applicant's objective criminality was greater than that of the co-offender, because he was the offender who had actually wielded the knife and he had, on several occasions during the robbery, threateningly prodded parts of the victim's body with the knife. Her Honour also noted that it was the applicant who had demanded that the victim open the cash register in the liquor store and that it was the applicant who had removed the cash from the cash register.
17 Although the High Court has recently held that it is not a universal principle that a principal in the second degree should receive a lighter sentence than the principal in the first degree, it will often be appropriate that a principal in the first degree should be more severely punished than a principal in the second degree GAS v The Queen [2004] HCA 22.
18 For the reasons which have been given, that the applicant's objective criminality was greater and his subjective circumstances were less favourable, Judge Hock was entitled, and indeed required, to impose a heavier sentence on the applicant than the co-offender had received. It was still necessary for her Honour to impose a sentence on the applicant, such that there would be a due proportion between the sentences passed on the applicant and on the co-offender having regard to their different circumstances and their different degrees of criminality - see Postiglione v The Queen (1997) 189 CLR 295. In my opinion, given the differences between the applicant and the co-offender, it could not be said that the sentence imposed by her Honour on the applicant was disproportional to the sentence which had been imposed on the co-offender. I would reject the first ground of appeal.
19 (2) The second ground of appeal was that the sentencing judge said in her remarks on sentence that the applicant had been incarcerated twice previously, whereas in fact the applicant had been incarcerated only once previously and then only for a short period.
20 This ground of appeal would appear to be based on a passage in the sentencing judge's remarks on sentence in which she said that the applicant had previous convictions for property offences "for which he had twice served short periods of imprisonment." The applicant submitted that he had previously served only one period of imprisonment for a property offence.
21 There are different documents in the appeal papers purporting to set out the criminal history of the applicant and it is not completely clear whether the applicant had been previously sentenced once only or twice to sentences of imprisonment for property offences. However, it would appear to me from an examination of the applicant's criminal history prepared by the Office of the Solicitor for Public Prosecutions that the applicant has made good this ground of appeal. On one previous occasion the applicant had been sentenced to imprisonment for an offence of dishonesty. On another occasion the applicant had been sentenced to imprisonment in the Local Court for an offence of dishonesty but had successfully appealed to the District Court against the sentence of imprisonment.
22 Although it would appear to have been an error on her Honour's part to have said in her remarks on sentence that the applicant had twice previously, rather than once previously, served a short period of imprisonment for a property offence, I do not consider this error played any material part in the reasoning process by which her Honour arrived at the sentence she imposed.
23 (3) The third ground of appeal was that the applicant had no previous criminal conviction for armed robbery.
24 This is true but her Honour did not suggest in her remarks on sentence that the applicant had any such previous conviction.
25 (4) The fourth ground of appeal was the deteriorating state of the applicant's mother's health.
26 In his written submissions the applicant said that his mother was fifty-five years old and that her health was deteriorating, that she had a heart complaint and that she suffered from cervical cancer and that she was too ill to continue looking after the applicant's twelve year old son.
27 In his oral submissions to this Court the applicant withdrew the assertion that his mother has cancer. He, however, reiterated that his mother has a heart complaint.
28 On the hearing of this application the applicant tendered, and the Court provisionally received, a short medical report stating that the applicant's mother suffers from severe depression and a letter from a school counsellor at the school the applicant's son attends, and three cards of hospitals or medical practitioners, one of which would appear to indicate that the applicant's mother has an appointment on 6 October 2004 at the Royal Hospital for Women.
29 There was no evidence before the sentencing judge that the applicant's mother was in ill health or unable to continue looking after the applicant's son. Both the applicant and his mother gave quite extensive oral evidence in the proceedings on sentence but neither was asked any question or gave any evidence about the applicant's mother's state of health. Unsurprisingly, the sentencing judge made no reference to the applicant's mother's state of health in her careful and detailed remarks on sentence.
30 As the evidence relating to the applicant's mother's alleged state of ill health, such as it is, was not before the sentencing judge, the evidence should be admitted by this Court on this application, only if it satisfies one or other of the tests for the admission of fresh or new evidence on an appeal against sentence, referred to in such authorities as R v Fordham (1997) 98 A Crim R 359 at 377-378 per Howie AJ. On the meagre material which has been placed before this Court it would not be possible for this Court to say that any of the tests for the admission of fresh or new evidence have been satisfied.
31 Even if the fresh or new evidence was admitted, it would be evidence of hardship to members of the applicant's family, that is to the applicant's mother or to his son, resulting from the imprisonment of the applicant, and although, according to the recent decision of this Court in R v Girard [2004] NSWCCA 170 such evidence can be referred to as part of "the general mix" of the subjective circumstances of the applicant, the evidence could, in my view, only have a material effect on the sentence which should be imposed on the applicant, if it satisfied the requirement that the hardship to members of the applicant's family would be quite exceptional.
32 In my opinion, even if this Court were to admit as fresh or new evidence the evidence the Court provisionally received, which was not before the sentencing judge, the evidence would not show that the hardship to the applicant's mother or the applicant's child resulting from the imprisonment of the applicant would be so exceptional that this Court could place any material weight on such hardship. Accordingly, I would reject the fourth ground of appeal.
33 Having rejected all of the grounds of appeal, although I would grant leave to appeal against sentence, I would dismiss the appeal against sentence.
34 ADAMS J: I agree and have nothing to add.
35 BELL J: I also agree.
36 JAMES J: The orders of the Court will be as proposed by me.