Regina v Michael Sassin

1 KIRBY J: The Court is in a position to give judgment and I ask Buddin J to give the first judgment. 2 BUDDIN J: The applicant, who appeared for himself, seeks leave to appeal against sentences imposed upon him by Judge Finnane in the District Court on 26 July 2001. 3 The applicant stood for sentence in relation to an offence of aggravated break, enter and commit a serious indictable offence, which, pursuant to s 112(2) of the Crimes Act 1900 attracts a maximum penalty of twenty years imprisonment. The circumstance of aggravation was that he was in the company of other persons whilst a robbery took place. This offence occurred on 26 March 2000. In respect of that offence the applicant was sentenced to imprisonment for three years and six months to commence on 28 January 2001 and to expire on 27 July 2004. A non-parole period of two years, to expire on 27 January 2003, was fixed. The applicant was sentenced to six months imprisonment to commence at the conclusion of the non-parole period for the earlier offence, and to expire on 26 July 2003, for a separate offence of break, enter and steal which had occurred on 28 January 2001. 4 The total effective sentence imposed upon the applicant was thus a total sentence of three years and six months with a non-parole period of two years and six months. 5 The applicant has filed written submissions in support of his application which he has amplified in the course of oral argument. It would appear that his two major complaints are (a) an argument in relation to parity given the way in which two of his co-offenders were dealt with; and (b) that his Honour erred in not ordering that the second sentence should run concurrently with the first. 6 Of the two offences, the first in time being a "home invasion", was clearly the more serious. The applicant initially contested that charge before pleading guilty at an advanced stage of the trial. The evidence led prior to his change of plea revealed that the applicant and four others had invaded the home of the principal victim who lived there with his wife and two children. Two or three of the offenders had entered from an upstairs balcony and had then broken down a door before confronting the principal victim's wife. She was assaulted and threatened and money was demanded from her. The remaining offenders, of whom the applicant was one, were let in through the front door. The principal victim was violently assaulted with baseball bats and perhaps other objects which caused him to bleed extensively. There was evidence of blood on the walls and floors of the premises. The applicant had blood on his clothes which, upon analysis, turned out to be the blood of the principal victim. 7 The motive for the offence was said to be, from the applicant's perspective at least, the theft of drugs and money. When interviewed by police the applicant denied any involvement in the offence and sought to provide an innocent explanation for the presence of blood upon his clothing. It was only after the trial Judge had admitted DNA evidence that the change of plea occurred. The trial Judge took the view that the evidence against the applicant was overwhelming. 8 The applicant gave evidence during the course of the sentencing proceedings as to his role in the episode. Having heard that evidence, Finnane DCJ concluded, albeit reluctantly that he was "a watchman outside the door or, in the popular slang, a cockatoo" (ROS at 15). He was not satisfied beyond reasonable doubt that the applicant had actually inflicted any of the violence in the house. These were very favourable findings from the applicant's perspective. However it is viewed this offence and the applicant's role in it, revealed very serious criminal conduct. 9 The applicant complains that he has a justifiable sense of grievance by reason of the sentences imposed upon two of his co offenders, Christian Kaye and Paul Seru, each of whom were sentenced by Payne DCJ. The remarks of her Honour on sentence were before Finnane DCJ. Mr Kaye was sentenced to four years, four months and three weeks to be accumulated upon six months of a pre existing sentence. No non parole period was fixed. Mr Seru received a sentence of three years, two months and one week, with a non parole period of sixteen months. 10 The principles in relation to parity in the sentencing process are well established. In Lowe v The Queen (1984) 154 CLR 606, at 609 Gibbs CJ said: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence has to be taken into account.

Dawson J said, (at page 623): Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. 11 In the present case, as is often the case, there were features which distinguished the applicant's case from those of his co offenders, for example both Mr Kaye and Mr Seru pleaded guilty at an early stage and had expressed remorse and contrition. Each was thus entitled to, and indeed received, larger discounts on their sentence than did the applicant by reason of those considerations. Although the co offenders had matters taken into account by Payne DCJ when they were sentenced, neither of them was before the court, as was the applicant, on an entirely different offence committed some considerable time after the offence in which they were jointly involved. Mr Seru had never previously been imprisoned and has a less significant criminal history than the applicant. The applicant, on the other hand, was no stranger to prison and in addition had previously committed many offences of break, enter and steal. All that can be said in his favour is that his record disclosed no previous offences of violence. 12 Moreover, the applicant committed both offences whilst on parole, a matter which is also regarded as a serious matter of aggravation, especially when, as here, they included matters of a similar nature to those offences in respect of which he was on parole. Mr Kaye was also on parole but this was not a relevant factor in Mr Seru's case. Mr Kaye, however, was on protection whereas the applicant is serving his sentence in the general prison population. 13 It is to be noted that neither of the co-offenders were sentenced on the basis that they had inflicted any of the violence that had occurred in the house that was invaded. 14 It is apparent that Judge Finnane had regard to the relevant principles that govern the issue of parity and indeed his Honour referred to various matters which differentiated the various cases in his remarks on sentence. Moreover it would appear, having regard to the debate which occurred during submissions on sentence, that it was primarily considerations of parity that constrained his Honour to impose the sentence which he did. 15 In any event, I discern no error in relation to the way in which his Honour approached the issue. 16 The applicant also complains that Finnane DCJ erred in not ordering that the second sentence should be served concurrently with the first sentence. No argument of any significance has been advanced which would demonstrate in what way his Honour fell into error in this respect. Given that it was an entirely unrelated offence committed many months after the first offence and whilst the applicant was on parole, it appears to me that it was well within the scope of his Honour's discretion to have taken the course which he did. In any event, the actual sentence which was imposed was of no great severity given all the circumstances of the case. 17 Finnane DCJ heard and considered an extensive body of evidence in relation to other subjective features of the applicant's case. His Honour allowed a discount of 12.5% on account of the applicant's belated plea of guilty to the aggravated break and enter offence. His Honour was also prepared to find "special circumstances" on account of the fact that the applicant was apparently making some endeavours to confront his drug problems. His Honour did indicate however some scepticism about the applicant's commitment in that respect having regard to his prior history. Although his Honour observed that he did not believe that his "special circumstances are all that significant" he did make some adjustment to the non-parole period. 18 It may seem at first blush that there is some inconsistency between his Honour's finding that there were "special circumstances" and the way in which the second sentence was structured. I am not persuaded that this is so but even if error had been demonstrated I would not form the view pursuant to s 6(3) of the Criminal Appeal Act that "some other sentence...is warranted in law and should have been passed". 19 Accordingly I propose the following orders:

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