Regina v RUTTER

CITATION : Regina v RUTTER [2003] NSWCCA 306 HEARING DATE(S) : 01/10/03 JUDGMENT DATE : 26 October 2003

JUDGMENT OF : Tobias JA at 1; Howie J at 2; Shaw J at 32 DECISION : Leave to appeal granted; Appeal dismissed.

CATCHWORDS : Criminal Law - sentencing - parity - relevant principles LEGISLATION CITED : Crimes Act 1900 s 113(2) Anderson (1981) 2 A Crim R 379; Engert (1995) 84 A Crim R 67; Gibson (1991) 56 A Crim R 1; Lovelock v The Queen (1978) 19 ALR 327; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1996) 189 CLR 295; R v Cox (1996) 66 SASR 152; R v Duggett (Unreported, NSWCCA, 24 March 1997); CASES CITED : R v Fahda [1999] NSWCCA 267; R v Ilbay [2000] NSWCCA 251; R v Koomson [2001] NSWCCA 176 R v Litteri (Unreported, NSWCCA, 18/3/1992); R v Mooney (Unreported, CCA (Vic), 21 June 1978); R v Osenkowski (1982) 30 SASR 212; R v Schultz [2002] NSWCCA 462; R v Wahabzadah [2001] NSWCCA 253; Scognamilglo (1991) 56 A Crim R 81; Wright (1997) 93 A Crim R 48; Regina PARTIES : Daniel Gordon RUTTER - Applicant

FILE NUMBER(S) : CCA 60163/03 COUNSEL : M Conditsis - Applicant D Howard - Crown SOLICITORS : Conditsis and Associates - Applicant S O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0392; 01/11/1277 FILE NUMBER(S) : LOWER COURT McGuire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60163 of 2003

Tobias JA Howie J Shaw J

Regina v Daniel Gordon RUTTER Judgment 1 Tobias JA: I have had the benefit of reading in draft the judgments of Howie J and Shaw J. I agree with the orders proposed by Shaw J for the reasons advanced by both him and Howie J. 2 Howie J: I agree with the orders proposed by Shaw J and generally with his Honour's reasons. I would wish to make a few additional comments about the ground of appeal relating to the relevance of the applicant's mental state and that alleging that the applicant had a justifiable sense of grievance by reason of the sentence imposed upon his co-accused, Tolmie. 3 The applicant asserted that his Honour did not give sufficient weight to the applicant's mental state as described in the report of a psychologist Dr Lennings. Judge Maguire was obviously unimpressed by the finding that the applicant was in the borderline mentally retarded range based upon tests administered by the Doctor. It was open to his Honour to reject that finding as anything but an aberration based upon the applicant's mental state at the time he was assessed. His Honour, however, was prepared to accept the finding that the applicant was 'chronically unhappy' and that, from a psychological perspective, the applicant was 'an incredibly fragile man'. His Honour took these findings and other material into account in finding special circumstances for the purpose of fixing the non-parole period. One could not cavil with his Honour's finding that there were special circumstances, although the resulting minimum term was arguably unduly lenient. 4 The ground of appeal asserts that his Honour ought to have given little, if any, weight to general deterrence because of the finding by Dr Lennings that the applicant was 'suffering from both depression and somaticisation (sic) disorder'. In support of this contention the applicant relies upon a line of authority which holds that, in an appropriate case, the Court may give less weight to general deterrence where the offender is suffering from a mental disorder or abnormality. The policy behind this approach is that such an offender 'is not an appropriate medium for making an example to others': R v Mooney (Unreported, CCA (Vic), 21 June 1978). 5 It is unnecessary once again to trace the genesis of this principle or traverse the many decisions of this and other appellate courts that have considered the scope and application of it. Many of them are helpfully reviewed in R v Fahda [1999] NSWCCA 267. But it is necessary to emphasise that it is not any mental condition or abnormality that would justify such an approach. The cases make it clear that the offender must be suffering from a mental disorder or severe intellectual handicap before a court would be entitled to give less weight to general deterrence by reason of the mental condition of the offender. It is only in an extreme case, that general deterrence could be completely outweighed by other factors arising from the offender's mental state: R v Litteri (Unreported, NSWCCA, 18/3/1992). 6 While it is not necessary that the mental condition be so severe as a amount to a 'significant mental illness or retardation' for the principle to apply, 'the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case': Wright (1997) 93 A Crim R 48. The mental condition of the offender is relevant to many aspects of the sentencing process, some of which may point in different directions, so that 'it is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances': Engert (1995) 84 A Crim R 67. 7 In my opinion the evidence of the mental condition of the applicant fell well short of the type of mental disorder that would have required his Honour to give less weight to general deterrence given the serious nature of the offence in which the applicant was involved. While each case must be approached on its own facts, I note that in R v Koomson [2001] NSWCCA 176 a mental condition described as 'major depression/severe adjustment disorder with a depressed mood' was not considered to be the type of disorder which would justify the principle being applied in that case, an offence of malicious wounding with intent to cause grievous bodily harm. 8 I, therefore, agree with Shaw J that there is no merit in this attack upon his Honour's sentence. 9 On the hearing of the appeal the solicitor for the applicant conceded that the ground asserting disparity was his best ground of appeal. I tend to agree but that is because of the patent lack of merit in the other grounds. A justifiable sense of grievance does not necessarily arise on the part of an appellant simply because his co-offender received, or appeared to receive, more favourable treatment when being sentenced for the offence in which they were both involved. The simple fact that there is disparity between the sentences imposed upon the appellant and the co-offender does not itself enliven the Court's discretion to interfere with a sentence passed upon the appellant which is otherwise appropriate. It is only where the disparity cannot be explained by reference to any difference in the criminality of the two offenders or their subjective circumstances or the proper application of sentencing principles that the grievance is a justifiable one calling for the intervention of this Court. 10 In Lowe v The Queen (1984) 154 CLR 606 the High Court considered the principles to be applied by an appellate court where there is a challenge to a sentence imposed on the appellant on the basis of disparity with the sentence imposed upon a co-offender. In the course of his judgment Gibbs CJ said at 609:

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, have to be taken into account." 11 In his judgment Brennan J at 618 repeated what he had said in Lovelock v The Queen (1978) 19 ALR 327 at 331 (footnotes not reproduced):

Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because `a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance' (per Walters J in O'Malley v French ; and see R v Steinberg ). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind. 12 In Postiglione v The Queen (1996) 189 CLR 295 the High Court considered the principle of parity in a case where there were differences in the criminal history of the co-offenders. Gaudron and Dawson JJ, at 301, stated (footnotes not reproduced):

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ' a justifiable sense of grievance '. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

………………different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody………… 13 McHugh J, at 313, quoted with apparent approval the following passage from the judgment of Doyle CJ in R v Cox (1996) 66 SASR 152 at 159:

I do not understand the principles stated by the High Court in Lowe v The Queen to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community.

Gummow J quoted the same passage in his judgment at 325. 14 Kirby J, at 336 to 377, set out a number of principles that his Honour identified from various authorities in relation to the court's discretion to interfere with a sentence on the basis of alleged disparity. It is necessary for present purposes to quote only one of those principles (footnotes not reproduced):

3. Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that when performing their function sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts.

So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders………The proper approach is one of vigilance within a context of appellate restraint. It was recently expressed by Lamer CJ for the Supreme Court of Canada in R v M (CA) [(1990) 105 CCC (3d) 327 at 375] in words which are applicable here: "Appellate courts, of course, serve an important function in reviewing and minimising the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada ... But in exercising this role, courts of appeal must still exercise a margin of deference before interfering in the specialised discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ... Sentencing is an inherently individualised process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the `just and appropriate' mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred." 15 The applicant's argument that the Court should interfere because of the disparity in the sentences imposed upon himself and Tolmie must be considered on the basis that the sentence imposed by Judge Maguire was one which fell within his Honour's discretion on the facts found by him and applying correct sentencing principles. If the sentence was erroneous, the correction of the sentence might dissipate the disparity. I agree with Shaw J that there was no error in the sentence imposed. The sentence was one that Judge Maguire determined to be appropriate to address the purposes of punishment in the applicant's particular case. That sentence was, of course, not only concerned with providing for the rehabilitation of the applicant but it also had to appropriately reflect denunciation, retribution and deterrence. It was an exercise of discretion aimed, ultimately, at the protection of the public for that is the purpose of punishment. 16 So too the sentence imposed upon Tolmie was an exercise of a sentencing discretion with the same ultimate goal, the protection of the public. In Tolmie's case there may have been more concern to protect the public from him personally than existed in respect of the applicant. It is trite to observe that Judge Morgan's sentence had to take into account all the subjective matters that were present in respect of Tolmie, not only those that tended against the grant of leniency in his case, such as his criminal record and the fact that he was on parole. It should be stressed that this Court is not concerned with whether there was any error in the sentence imposed upon Tolmie. Disparity can arise where neither of the sentences being compared could be set aside for error. 17 With respect it is, in my view, too simplistic to approach the matter in the way that the solicitor for the applicant sought to do. It is not a case of looking at the sentence passed upon the applicant in light of the favourable factors present in his case, such as his good antecedents and the plea of guilty, and compare his sentence with the sentence imposed upon Tolmie having regard to the matters which were unfavourable to him, such as his criminal record and the fact that he was on parole. It is necessary to go deeper into the exercise of the sentencing discretion with respect to each offender and consider the basis upon which the sentences were imposed by Judge Maguire and Judge Morgan. It is not without significance that Judge Morgan was not only aware of the sentence imposed upon the applicant but her Honour also had been provided with the sentencing remarks of Judge Maguire. It was a case of an experienced judge imposing the sentence that she did on Tolmie notwithstanding the sentence that had been imposed upon the applicant. 18 It is unnecessary for me to say any more about the sentence imposed upon the applicant or the basis upon which that sentence was derived. That is a matter that, with respect, has been adequately dealt with by Shaw J in his reasons for dismissing the appeal. 19 It is necessary, however, to say a little more about the sentencing of Tolmie. The only patent error attributed to Judge Morgan by the applicant was that her Honour was of the view that the maximum sentence for the offence was imprisonment for 20 years when in truth the prescribed maximum penalty was imprisonment for 14 years. I do not, for myself, see how that error impacts upon the question under consideration. Having noted twice that the maximum penalty was imprisonment for 20 years, Judge Morgan did not indicate in any way that the sentence to be imposed upon Tolmie was influenced by that consideration or that Judge Maguire thought that the maximum penalty was imprisonment for 14 years. Her Honour appears to have proceeded to attempt to achieve parity between Tolmie and the applicant regardless of what she considered to be a mistake made by Judge Maguire. The submission that it was a further basis for a justifiable sense of grievance on the part of the applicant that Tolmie received his sentence against an assumed maximum penalty of 20 years imprisonment is without merit. 20 Judge Morgan was clearly aware that Judge Maguire had sentenced the applicant on the basis that he had no criminal record and had received a twenty-five per cent discount for the plea of guilty. Her Honour also noted that Tolmie had, what she referred to as, 'an extensive criminal record' and that he had been on parole when he committed the offences for which he was to be sentenced. There can be no valid assertion that her Honour in some way misunderstood the basis upon which the applicant was sentenced or the basis upon which Tolmie was to be sentenced, and none is made. 21 It seems clear that her Honour accepted submissions made on behalf of Tolmie as to the relative criminality between him and the applicant. Those submissions were summarised in the remarks on sentence and were to the effect that Tolmie had a lesser role to play for the following reasons: the applicant and another person had organised the offence; they had recruited Tolmie to commit the offence and the applicant had supplied Tolmie with the gun. In my opinion her Honour was justified in coming to a view of the facts that led her to the conclusion that there was a difference in criminality between Tolmie and the applicant in Tolmie's favour. Her Honour was entitled to reflect that finding in determining the sentence to be imposed upon Tolmie having regard to the sentence imposed upon the applicant. In any event, it is not for this Court to review her Honour's findings of fact. 22 There was a substantial subjective case presented on Tolmie's behalf. There were in evidence reports from a psychiatrist, a psychologist and a drug counsellor. A prison chaplain, Tolmie's uncle and the offender himself gave evidence. Her Honour was clearly affected by the evidence she heard, especially from Tolmie. It seems that ultimately there were three matters that had a significant affect upon her Honour's assessment of the sentence to be imposed upon Tolmie; the first was the nature of Tolmie's imprisonment, the second was his health and the third was his prospects for rehabilitation. 23 The evidence before her Honour was that Tolmie was to serve his sentence in protection because of information he had at some stage given to prison authorities. Her Honour heard evidence from the prison chaplain as to the onerous conditions of Tolmie's past imprisonment and the fact that he had been seriously assaulted on two occasions that resulted in his confinement in hospital. Her Honour said:

It is obviously an extremely onerous situation in which he finds himself in custody and will continue to serve any sentence under those conditions because of the extreme fears for his safety because of the sensitive information he has given to the authorities.

This was clearly a matter that her Honour was not only entitled to take into account but was required to consider when determining the appropriate sentence to be imposed upon Tolmie. It is unnecessary to refer to authority for that proposition. It was a consideration that primarily affected the length of the head sentence. 24 The second matter was Tolmie's health. He was an epileptic and at the time of sentence was in considerable pain because of an injury to his shoulder. He was awaiting an operation. 25 The third matter, and perhaps the crucial one in understanding the sentence imposed upon Tolmie, was that her Honour formed the view that he may have reached a stage where rehabilitation might finally have some prospect for success. Tolmie was aged 42 and had spent the greater part of his life in prison. He had been an addict of prohibited drugs and alcohol for the whole of his adult life and his criminal history was related to this addiction. It is unnecessary to detail the material in this regard that her Honour reviewed in her lengthy remarks on sentence. Towards the end of those remarks her Honour stated:

However, as I have said, one of the matters that has concerned me is the aggravating features in that all of these offences, particularly the trial matters, were committed whilst he was on parole and the higher courts have had a lot to say about the way we should deal with those as a deterrent [ ] in view of the abuse of his freedom that he has been given.

On the other hand, as I say, I have regard to those matters raised by his counsel and I also think, somewhat tentatively, but I think that there are some prospects of rehabilitation. I think he may well have reached the age where he, as he has said, had enough of that life. I think he is genuine in those sentiments as expressed to me. It will of course be a matter entirely for him as to whether on his release he follows them out. 26 This is an adoption of a course of sentencing which finds its best expression in an often-quoted passage from a judgment of King CJ in R v Osenkowski (1982) 30 SASR 212. His Honour stated:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform . The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. (my underlining)

This approach is often based upon a finding that the offender is ' at the cross-roads '. Mercifully her Honour avoided that over-used analogy, but she made it quite clear what was her intention in determining upon a sentence, which, on any view, was a lenient one. 27 Judge Morgan, as I have indicated, is a very experienced judge particularly in the criminal jurisdiction of the District Court. Her Honour was entitled to take the approach she did and extend to Tolmie a degree of leniency that might otherwise have been unjustified. It was a sentence determined with full knowledge of the sentence imposed upon the applicant and with a full appreciation of the relevant sentencing principles. 28 Why then should the applicant receive unmerited leniency because of leniency shown to his co-offender derived from matters peculiar to the co-offender? The applicant submits that a reasonable person in the community would be affronted by the disparity in the sentence given the respective subjective circumstances of the two offenders. But, in my view, that would only be so if the reasonable person did not have an appreciation of all the facts, had no understanding of sentencing principles, and ignored the aspect of punishment that each judge sought to achieve in exercising the sentencing discretion as he or she did. 29 The applicant relied heavily in oral submissions upon the judgment of Wood CJ at CL in R v Schultz [2002] NSWCCA 462. That was a case where the same sentence had been given to co-offenders notwithstanding a significant difference in their respective criminality. The Court concluded that the same sentence was not justified having regard to their respective subjective circumstances. In particular, reliance was placed upon that part of the judgement where the Chief Judge stressed the objective nature of the sense of grievance with which the court is concerned. But there is nothing in that judgment to suggest that the objectivity of the grievance does not take into account the reasons for the disparity reflected in the sentencing remarks relating to the two offenders. Nor is there anything else said by Wood CJ at CL which assists the applicant. It was a decision based upon its own facts and the application of established principle. The finding was that the offenders were not equal in every respect and, therefore, equal sentences were not justified. 30 In the present case the applicant and Tolmie were not equal in every respect both as to their criminality and their subjective circumstances. Tolmie in the end result received a heavier sentence than the applicant. The fact that it was not as heavy as it might have been in view of some of his unfavourable subjective circumstances was because there were other mitigating factors that acted as a counter-balance. The result is explicable and, in my view unexceptional, when one has regard to the sentencing exercise performed by both judges. 31 If the applicant feels aggrieved at the result, so be it. But, in my opinion, it is not a grievance that this Court should seek to alleviate by reducing his sentence. Intervention by this Court on the basis of disparity is a discretionary matter and I do not believe the applicant has made out a case for its exercise. In particular the non-parole period of three years imposed by Judge Maguire was, in my view, the very least that could have been imposed upon the applicant in respect of the offence he committed. It was itself a considerable act of charity on the part of Judge Maguire, because, for my part, I can see little or nothing that justified such a lenient minimum period of custody or such a lengthy period on parole. 32 Shaw J: The applicant (Daniel Gordon Rutter) seeks leave to appeal against a sentence which flowed from a plea of guilty to a charge of break, enter and steal brought under s 113(2) of the Crimes Act 1900. The charge alleged that he, with a common purpose, was involved in the break-in, with the intention of committing a serious indictable offence, with a co-accused, Mr Donald Tolmie. Mr Tolmie apparently brandished a silver coloured pistol at the time of the entry into the dwelling. The maximum period of imprisonment for this charge is 14 years. 33 At about 11.30 pm on 3 June 2001, the applicant, in company with Donald Tolmie, drove to a house in North Narrabeen in Sydney. The applicant remained in the vehicle while Mr Tolmie entered the dwelling, waking the residents and representing himself as a police officer purporting to execute a search warrant. During this home invasion there were telephone communications between the co-offenders. 34 There were certain other charges brought against the applicant, involving the trafficking of illegal drugs, but the sentence in relation to those matters is not the subject of any appeal. 35 Judge McGuire of the District Court, following the plea of guilty, sentenced the applicant to a total term of 6 years to expire on 11 December 2008, and, finding special circumstances to exist, fixed a non-parole period of 3 years to expire on 11 December 2005. The sentence in relation to the charge in question was made concurrent with the sentence in relation to the supply of illegal drugs. 36 I agree entirely with the sentencing judge who characterised the offence as gross criminal conduct, involving an armed home invasion. His Honour was correct to find that this was conduct of a type 'which raises in the community justifiable fear and anger'. His Honour went on to find, again correctly in my opinion, that this was conduct in respect of which right thinking members of the community have the justifiable expectation that judicial officers will respond with appropriate penalties, and that this was conduct which must be appropriately deterred. Accordingly, a significant period of incarceration was inevitable. 37 Nevertheless, the applicant's case must be determined in accordance with legal principles and, it appears to me, that there are at least some reasonably arguable questions concerning the length and appropriateness of the sentence in all of the circumstances of the case. 38 However, I do not think there is any real substance in the arguments of the applicant directed to observations made, in argument, by the sentencing judge about the opinion of a psychologist, Dr Lennings of 17 August 2002. 39 It is true that in discussion with counsel, Judge McGuire tended to discount the opinions of the psychologist to the effect that the applicant was suffering from both depression and somaticisation disorder at the time of the commission of the offence. However, in the result, his Honour did give appropriate regard to that opinion by using it to find special circumstances in terms of determining the non-parole period. 40 In particular, his Honour found that the medical evidence led to a view that the prisoner will suffer additional hardship in gaol by reason of his mental and physical state, and so with regard to the prospects of rehabilitation, McGuire DCJ varied the statutory ratio. His Honour therefore accorded adequate regard to the uncontested psychological evidence despite some disparaging remarks made in arguendo. 41 In my opinion, the Crown is right to submit that the psychological evidence, taken at its highest, does not establish such severe depression or disorder as should bring in to play a mitigation of the Court's role in giving effect to the principles of general deterrence in sentencing. I bear in mind the observations of Badgery-Parker J in Litteri (Unreported, NSWCCA, 18 March 1992) who pointed to authority for the proposition that: in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others…. 42 It is true that the concept of general deterrence loomed large in the reasoning process of the sentencing judge, but I think it is difficult to say that any such consideration was excessive. In Scognamilglo (1991) 56 A Crim R 81, Grove J held (at 85) that: …even if the offender is suffering from a condition which predicates further violence, the potential loss of reduced sentence on that account does not justify increase either for personal deterrence of the offender or general deterrence. 43 Further, I take into account his Honour's observation that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given very little weight, applying the judgment of Young CJ in the Victorian case of Anderson (1981) 2 A Crim R 379. 44 In short, I am unable to find that the sentencing judge inappropriately disregarded the psychological evidence and I think, in the exercise of his discretion, gave due consideration to it. 45 It is next said that there were various findings of fact adverse to the applicant that were not reasonably open on the evidence. In the broad discretion involved in the sentencing process, I find the arguments of the applicant unpersuasive in this respect in that they focus upon observations about peripheral factual matters. My view, having regard to the evidence generally, is that these findings were reasonably open to Judge McGuire. 46 The applicant concedes that it was open to the trial judge to reject the applicant's explanation as to how he came to be involved in the offence. However, the applicant demurs from the view that it was open to McGuire DCJ to find that a motive for the involvement of the applicant may have been that he was going to get a share out of the robbery proceeds and that this fact constituted an aggravated feature of the offence. 47 My view is that the evidence, viewed as a whole, constitutes a reasonable sub-stratum of fact to justify the findings on sentence of Judge McGuire. 48 The more substantial aspect of the applicant's argument, as was candidly conceded by his solicitor before this Court, is focussed on an alleged disparity between the sentence given to Mr Tolmie on 9 May 2003 by her Honour Judge Morgan, of a total term of imprisonment of 7 years with a non-parole period of 4 years, the sentences to commence from 16 February 2002 and that given to the applicant by McGuire DCJ. 49 The argument about disparity is at least arguable. Mr Tolmie had a lengthy criminal record and had served previous terms of imprisonment. The applicant had no prior convictions. The applicant did not enter the dwelling at the time of the relevant offence and so it is submitted by the applicant that his culpability is 'significantly less' than the culpability of Mr Tolmie. Moreover, it must be relevant that the present applicant entered an early plea of guilty whereas Mr Tolmie was sentenced following a defended trial. 50 However, Judge McGuire allowed for this fact by granting the applicant a discount of 25% for his early plea of guilty and, further, his Honour expressly acknowledged the applicant's lack of prior convictions. 51 The question is whether the applicant is entitled to feel a 'justifiable sense of grievance' having regard to the disparity between the two sentences: Lowe v The Queen (1984) 154 CLR 606; Gibson (1991) 56 A Crim R 1; Postiglone v The Queen (1997) 189 CLR 295.

52 As I have indicated, I regard that question as fairly arguable on the part of the applicant. However, detracting from its cogency are a number of factors. 53 In R v Wahabzadah [2001] NSWCCA 253 Howie J (with the agreement of Wood CJ at CL) said (at [16]): …disparity only arises when the difference between these two sentences cannot be justified by a difference in the degree of culpability of the offenders or in their personal circumstances. 54 In the detailed summary of reasons for the sentencing of Mr Tolmie, Judge Morgan expressly had regard to the sentence that was imposed by Judge McGuire on the applicant and noted that the sentence was reduced by a discount of 25 per cent for the plea. Her Honour also observed that the sentencing judge in the case of the applicant was dealing with a person with no previous criminal history. Contemplating those circumstances, her Honour thought that it appropriate that a sentence of 7 years with a 4 year non-parole period should be imposed in relation to Mr Tolmie. 55 It is true that her Honour assumed, without correction from the Crown, that the charge attracted a maximum penalty of 20 years whereas the statutory maximum was 14 years, but it is difficult to see that this misapprehension logically assists the applicant in the present case. 56 Morgan DCJ recognised some differences in the circumstances of the co-offenders, their degree of criminality and prior records. Significantly, her Honour recognised clear differences in their prospects for rehabilitation. 57 This is a case when the sentencing of the co-accused was dealt with after the sentencing of the applicant and, in fact, consideration was given to the sentence of the applicant. 58 In these circumstances, it seems to me difficult for the applicant to maintain the proposition that there was some serious or substantial disparity of sentencing, or that there was otherwise some tangible miscarriage of justice, in the context of this undoubtedly serious crime. Disparity in the sentences of co-offenders can constitute a discrete ground of appeal against a sentence. The test is an objective one. As Sully J said in R v Duggett (Unreported, NSWCCA, 24 March 1997): What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved but that a reasonable mind looking overall at what has happened, would see that his sense of grievance is a justified one. See also Wood CJ at CL in R v Schultz [2002] NSWCCA 462 at [44]. 59 A person complaining of disparity must show that a 'reasonable person' would regard the offender's grievance as 'justified': R v Ilbay [2000] NSWCCA 251 per Grove J at [6]. I agree with the observations of Howie J that this reasonable person is one invested with knowledge of the two sentencing decisions and that any rational explanation of the differences between the sentences would be balanced against the offender's grievance to determine if such grievance is 'justified'. 60 I appreciate the force of the submission put by the applicant that, on the basis of sentencing statistics provided by the Judicial Commission of New South Wales, this sentence is at the upper end of the range. However, I think that the submission of the Crown is persuasive that such statistics, though no doubt a useful and relevant consideration, must be regarded with some caution in light of the fact that according to the Judicial Information Research System (or JIRS), the statistics are appearance (or person) based and only the 'principle offence' for each finalised matter is retained for use in JIRS. As such, all secondary offences are excluded from the data, and where two or more charges are proved against a person, the charge with the most severe penalty is taken as the 'principle offence'. 61 The sentence may appear severe. Nevertheless, it must be steadily borne in mind that we are dealing with a home invasion involving a weapon. Although it is right to note that the trial judge could not find definitively whether or not the gun was operative, nevertheless the applicant entered into an agreement with the co-offender which involved the real prospect of violence, in that he engaged in a common purpose with a person with a past criminal record. Further, he provided the gun and drove Mr Tolmie to the premises of the victim. He also entered into an arrangement of a financial nature with a third person who had a real connection with the plan of invading the home of the victim and robbing him. The offence was objectively very serious. It occurred at night. Further, the applicant was central to the organisation of the crime, and was in telephone contact with Mr Tolmie at the time of the commission of the offence. Violence was also a real and tangible prospect in the scheme that was entered into. The plea of guilty was no doubt prompted, in large part, by the fact that there were telephone intercepts which demonstrated an active involvement in the criminal activity on the part of the applicant. Accordingly, the Crown case was overwhelming. 62 It seems to me that the sentencing judge has taken due account of the appropriate circumstances and that he has exercised his discretion in formulating an appropriate sentence. The non parole period of three years is moderate. Any alleged disparity is at best marginal, and would involve this appellate court in tinkering with the determination at first instance contrary to established principle. 63 In all of the circumstances I think that, in light of the fact that there are some arguable points that the applicant has advanced, leave to appeal should be granted, but the appeal should be dismissed.

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