ROBERTS v REGINA

ROBERTS v REGINA - [2007] NSWCCA 112 - NSWCCA 2007 case summary — Zoe

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20 APRIL 2007 BRENDAN JOHN ROBERTS v REGINA Judgment 1 BARR J: Brendan John Roberts seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty at the Local Court to two charges of the aggravated offence of detaining for advantage in company and to four charges of robbery in company. Each of the six offences attracted a maximum penalty of imprisonment for twenty years. The applicant was committed to the District Court for sentence. On 10 February 2006 Hulme SC DCJ sentenced the applicant for the two offences of detention to imprisonment comprising a non-parole period of three years and nine months, dating from 15 December 2005, and a balance of term of two years, expiring on 14 September 2011. For each of the four offences of robbery in company his Honour sentenced the applicant to imprisonment for a fixed term of three years commencing on 15 December 2004 and expiring 14 December 2007. The total effective sentence thereby achieved was a non-parole period of four years and nine months and a balance of sentence of two years. 2 A co-offender, Ashley Dwayne Sloan, was sentenced at the same time. 3 The facts were described thus by the sentencing judge - In the early evening of 29 February 2004, Ms Susan Sluiter and her boyfriend, Mr Scott Wardle, drove to the car park near the Dumaresq Street cinema in Campbelltown. They were in a silver Tarago van and when they arrived they sat in the van discussing which movie they wanted to see. The offender Sloan approached the driver's side of the van and said to Ms Sluiter, "Is there any chance you could give us a lift?" and also whether she had any spare change that he could use to catch a bus or a taxi. Ms Sluiter became uncomfortable and told the offender to go away. Mr Wardle locked his door and reached across to lock the driver's door but the offender placed his arm on the window preventing it being wound up. He produced a screwdriver and said "We're going to have a look through your wallets".

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It was at this point that the victims became aware of the offender Roberts approaching from behind Sloan. Both offenders demanded money from the victims' wallets. Sloan was pointing the screwdriver at them at the time. The victims were asked for their names and addresses which they divulged. Mr Wardle and Ms Sluiter were forced to hand over fifty dollars and twenty dollars respectively. The offender Roberts then demanded Mr Wardle's bank card and his personal identification number. There was mention of going to the nearby ATM. At this point, Ms Sluiter attempted to unlock the steering wheel and put the keys in the ignition but Sloan said to her "Don't start the car, I've got a gun". Roberts opened the sliding door and both offenders entered the rear of the van. Ms Sluiter was then told to drive to an ATM. During the drive, the offender Sloan told the victims J that he had just been released from prison for having killed someone. The offenders told the victims to turn off their mobile phones, and they complied. At the direction of the offender Sloan, Ms Sluiter drove to Woodhouse Drive, Ambarvale and parked. At his direction, she then gave her bank card and PIN to Mr Wardle who then alighted from the van with the offender Roberts and was taken to an ATM. Roberts had his hand under his shirt and was covering his face as they approached the machine. At Roberts' direction, Mr Wardle withdrew seventy dollars from his own account and forty dollars from Ms Sluiter's account. Mr Wardle and the offender Roberts returned to the van. At this point Ms Sluiter was crying. Mr Wardle said to the offenders, "You have our money and we're driving you around, just please don't harm us or kill us". One of the offenders responded "If you play the game right nobody will get hurt". The offender Sloan then told Ms Sluiter to drive to the taxi rank at Campbelltown. When the arrived Roberts alighted and returned a short time later with a female, Ms Cidgem Kucukozman, who was referred to as "Cindy". Ms Sluiter was then directed to drive to various places and ultimately they ended up in a car park near a reserve on Georges River Road. Here, the two offenders and Ms Kucukozman injected themselves with what they said was Valium and heroin. At one point the offender Sloan pointed a used needle at Mr Wardle and Ms Sluiter and said "I've got AIDS, if I wanted to, if you're uncooperative, will jab you with it". It was at about this time that the offenders wrote the victim's addresses down and threatened that if they went to the police their houses would be burned down. The facts document also indicates that the victims were in such fear that on several occasions they begged for their lives.

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6 Then, having announced the sentences, his Honour said - Mr Roberts the total effect of that is that the total term of imprisonment is seven years and effectively there is a non-parole period amounting to four years and nine months. 7 It was submitted on appeal that his Honour miscalculated. The total effective term was six years and nine months, not seven years as announced. It followed that his Honour's intention, which was to reduce the non-parole period by six months, was not achieved. The result was only a three-month reduction. That was insufficient for the purposes of parole identified by his Honour. 8 I do not accept that submission. His Honour nowhere said that there should be a reduction of six months. His Honour did say that there was a need for an extended period of parole and did give effect to that need. Nothing about the case suggests to me that his Honour's mathematical error lay in the calculation of the non-parole period rather than in the total effective sentence. Nothing in the judgment suggests to me that the purposes identified by his Honour could be achieved if the balance of term were two years and three months but not if it were only two years. 9 This ground of appeal has not been made good. 10 In the second ground of appeal the applicant complains that his Honour erred by not finding that such highly exceptional circumstances existed as justified a reduction in sentence. Those circumstances were the degree of hardship that the sentence would cause for third parties. 11 It was submitted to the sentencing judge that the effect of imprisonment upon the applicant's five-year-old daughter and his mother, who cared for her, was so exceptional as to justify a reduction in sentence. His Honour did not accept that submission, saying - Mr Matouk has submitted that I should find the situation relating to the offender's daughter to be so highly exceptional that 1 should take it into account. The child is gravely ill - so much I accept. Anyone would be moved by sympathy for her plight. I do, however, have significant reservations whether the circumstances can be described as highly exceptional. The child is being cared for by the offender's mother and there is no suggestion that such care is inadequate in any way. In the pre-sentence report it is indicated that Miss Brown is willing to care for the child for as long as is required. It is also noted that she is receiving some respite care. When it has been necessary for the child's spirits to be lifted with the offender that has been arranged in the form of telephone calls to the gaol. Miss Brown also takes the child to visit the offender. Whilst as 1 have said I am sympathetic to the considerable difficulties faced by young Kayla, the proper application of sentencing principles requires me to impose sentences that adequately reflect the objective seriousness of the offences.

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12 It was submitted on appeal that his Honour erred. Attention was drawn to the evidence of the effects of the child's condition. There were severe delays in speech, movement and learning. The child experienced dystonia, a fluctuation of movement in the arms and legs, severe muscle spasms and seizures. She had to be fed by a tube into the stomach. She was wheelchair-bound and so restricted in movement that all she could do was roll on her back and shuffle around the bed. There were frequent fits and frequent upper respiratory tract infections. It was necessary to take her to hospital from time to time. She suffered from asthma. The applicant's mother was willing to continue to care for the child but was ageing and finding her duties stressful. The child had a strong bond with the applicant who, before his imprisonment, had cared for her himself. The child fretted and became ill without regular contact with the applicant. 13 It must hardly ever happen that the imprisonment of one person will not have a serious effect upon innocent persons. The courts routinely impose substantial prison sentences upon breadwinners and carers of children and the disabled. In R v Edwards (1996) 90 A Crim R 501 Gleeson CJ reviewed the authorities and cited this passage from the judgment of Wells J in R v Wirth (1976) 14 SASR 291 at 295 - 6. Wells J said this - The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence? … Hardship to spouse, family, and fiiends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. ... It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence, or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners. But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.

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14 The sentencing judge was well aware of the principle that applied. In considering the effect of the applicant's imprisonment upon the child, his Honour noted that she was being cared for and that there was no suggestion that the care was inadequate, that the evidence showed that the applicant's mother was prepared to continue to care for the child. The child missed her father but his Honour noted that her spirits could be lifted by her speaking to him on the telephone. The applicant's mother had taken the child to the gaol to visit the applicant. 15 In my opinion it was open to his Honour upon the evidence to be satisfied that appropriate measures had been taken for the child's care. His Honour also questioned, and I think was entitled to question, the degree of devotion of the applicant for his daughter and, perhaps, the effectiveness of any care he was prepared to offer, in view of the fact that during the period leading up to the commission of the offences he was rampant in his abuse of illegal substances. 16 It seems to me that his Honour's assessment of the circumstances, tragic though they were, as not of that highly exceptional nature as to justify a reduction in sentence, was one that was open. 17 The applicant tendered further evidence on appeal, being evidence of the development or continuation of circumstances known upon sentencing. The evidence comprised a report of a paediatrician, Dr Andrew McDonald, and an affidavit of Mrs Brown, the applicant's mother. 18 Dr Roberts' report is undated but was probably written in September 2006. It says something about the effects of the condition Glutaric Aciduria Type 1 but does not suggest that the effects on the child differ from what the sentencing judge was given to understand. Dr McDonald observes that the child's weight has now increased to 22 kilograms, making her heavy to lift. Mrs Brown has to lift her in and out of the commode chair for showering. Dr McDonald also says something about the age and physical condition of Mrs Brown, though those were all matters known at the time of sentencing. Dr McDonald offers the opinion that the burden of care on Mrs Brown is unsustainable in the longer term and observes that if Mrs Brown becomes unwell or unable to look after the child the only option will be long-term foster care, which might damage the child's mental state. 19 Mrs Brown for the most part repeats what she said to the sentencing judge but draws attention to the increasing weight of the child and to the increasing difficulty she has in caring for her. She has difficulty getting her on and off public transport and find it necessary to use taxis from time to time. That is burdensome even though she has a taxi subsidy. 20 This evidence shows that things are no better, and probably a little worse, than in February 2006 when the applicant was sentenced. Even so, the evidence does not in my view make this case of so highly exceptional a nature that the applicant's sentence ought to be reduced on account of the hardship resulting to the child and to the applicant's mother. I note that the non-parole period is due to expire about two and one half years from now. 21 This ground of appeal has not been made good. 22 In the third ground of appeal the applicant complains that his sentence is unjustly high compared to that imposed upon his co-offender. 23 The offender's total sentences of five years and nine months for the detention offences and three years for the robbery offences produced an overall total sentence of six years and nine months. Sloan had to be sentenced for those offences, for two assaults provided for on a schedule, for the two acts of indecency he committed with Ms Kucukozman and for escaping from lawful custody. His total sentence for the detention offences was seven years and six months, his Honour having taken into account on the first of those offences the two assaults on the schedule. The sentences imposed for the four robberies were identical to those imposed on the applicant. For the two acts of indecency Sloan was sentenced to concurrent terms of one year and six months and for escaping from lawful custody to a term of one year, comprising a non-parole period of nine months and a balance of term of three months. The total effective sentences for all those offences was of nine years, comprising a non-parole period of six years and a balance of term of three years. 24 Attention was drawn on appeal to the greater role that Sloan played in the detention offences. It may be accepted that Sloan did play a more important role. His Honour said this -

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25 The subjective circumstances of the two co-offenders were different. Both had had difficult childhoods characterised by deprivation of the support and example of responsible adults. Both had been in trouble with the law before, though Sloan's was a more serious record than the applicant's. As a juvenile Sloan had committed assault, affray, aggravated entry of a dwelling with intent to use corporal violence, malicious damage and robbery in company. As an adult he had been convicted of possessing a prohibited drug, being carried in a conveyance, having stolen goods in his custody and possessing implements to use and drive a conveyance, as well as of traffic offences. He had had a long association with the use of illegal drugs. However, he was only twenty-one years old when he committed the subject offences. 26 The applicant had been found guilty in the Children's Court on several occasions of stealing and kindred offences. In the Local Court he had been convicted of stealing, of making a false instrument, of using a false instrument, of behaving in an offensive manner and of assault. 27 To my mind the most significant difference subjectively between the applicant and Sloan was that of their ages. A difference in age of four years between two men in their early twenties is significant. It seems to me that Sloan had a greater entitlement because of that difference to point to his deprived childhood as something to be taken into account in fashioning the sentence. His Honour did so. 28 It is correct to say, as the applicant submits, that the sentences imposed upon Sloan for the acts of indecency and the escape ran internally to all the other sentences imposed. It would not be correct, however, to conclude that Sloan was not punished for those offences. He was entitled, as I have said, to draw attention to his youth and to lay claim to the operation of the principles of totality of criminality. 29 Comparing the two overall sentences, nine years and six years nine months, and taking into account the greater role played by Sloan in the detention offences, it seems to me that the relative sentences fell well within the discretion of the sentencing judge. In my opinion the applicant's sense of grievance is not a justifiable one. This ground of appeal has not been made good. 30 I propose that leave to appeal be granted but that the appeal be dismissed. 31 ADAMS J: I agree with Rothman J. 32 ROTHMAN J: Brendan John Roberts seeks leave to appeal against sentences imposed by His Honour Judge Hulme SC DCJ on 10 February 2006. 33 The applicant for leave to appeal had pleaded guilty to two charges of aggravated detain for advantage (contrary to section 86(2)(a) of the Crimes Act 1900 (NSW)) and four counts of robbery in company (contrary to section 97(1) of the Crimes Act 1900 (NSW)). The aggravated detain for advantage in company carries a maximum sentence of imprisonment of twenty years and the robbery in company also carries a maximum sentence of imprisonment for twenty years. 34 His Honour Judge Hulme SC DCJ sentenced the applicant in the following way: (a) Counts 1 and 2 (aggravated detain for advantage in company): imprisonment for a non-parole period of three years and nine months to date from 15 December 2005 and expire on 14 September 2009 with a balance of term of two years to expire on 14 September 2011; (b) Counts 3 - 6 (four counts of robbery in company): imprisonment for a fixed term of imprisonment of three years to date from 15 December 2004 and expire on 14 December 2007. 35 The applicant seeks leave to appeal on three grounds:

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Facts 36 Barr J sets out the findings of Hulme SC DCJ as to the facts that underpin the sentencing exercise being undertaken. His Honour also sets out the findings made by Hulme SC DCJ on the subjective features that apply to the applicant. It is unnecessary to repeat them. 37 It is important to recite that the applicant with two others, one male and one female, apprehended a male and female victim who had parked in the car park at or near Campbelltown Cinema and were intending to attend the movies. 38 The two victims were in a Tarago van. They were apprehended at the point of a screw driver by the male co-offender and required to produce their wallets. All three offenders, i.e. the applicant and the male and female co-offenders entered the vehicle and required the two victims to drive around, attend an Automatic Telling Machine and obtain moneys. They intimidated the two victims in a number of ways. Those ways included the male and female co-offenders engaging in a variety of sexual acts in the back of the van and made suggestive advances towards the female victim. 39 During the course of these events, the applicant, Roberts, was not engaged in any of the sexual conduct, which the other two offenders performed. However, Mr Roberts (the applicant in these proceedings) did demand money from the victims, threatened them either by conduct or statements and forced the male victim to withdraw monies ($70 from his account at the ATM). 40 The three offenders eventually left the two victims without having physically injured them but having significantly affected them in terms of their emotional and psychological well-being. On leaving, the male co-offender threatened the two victims if they were to report these matters to the police. 41 His Honour found that the male co-offender who was sentenced at the same time as the applicant, was, in terms of objective seriousness of the section 86 (detain for advantage) offences more culpable than the applicant. While, his Honour the sentencing judge determined that the robbery sentences should generally be the same, he found that the co-offender "played a more leading role" in the detain for advantage offences. However, his Honour found that the criminality of the applicant was not "much less". This he found because, while the applicant was not the instigator of most of the conduct that occurred, he had supported his co-offender and reinforced the fear that they had sought to instil in the victims. 42 It should be borne in mind that the male co-offender who was sentenced at the same time as the applicant was also charged with and had pleaded guilty to two aggravated acts of indecency carrying a maximum sentence of three years and a count of escape from lawful custody carrying a maximum sentence of ten years. 43 In relation to the subjective circumstances of the applicant, Barr J has set those out, and I reiterate that his Honour the sentencing judge found special circumstances.

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Ground 1: Special Circumstances 44 His Honour found the existence of special circumstances and the need for the applicant to be on an extended period of parole to assist him in his complex array of problems. His Honour found, apart from making an appropriate allowance for the necessity of extended parole supervision, that there was a need to adjust the sentence because of the effect of accumulation on the sentence. His Honour then said (remarks on sentence page 27.6): "Mr Roberts, in respect of the offences of robbery in company, each of them, you are sentenced to imprisonment comprising fixed terms of three years. They are to date from 15 December 2004 and to expire on 14 December 2007. In respect of each of the offences of aggravated detain for advantage you are sentenced to imprisonment comprising a non-parole period of three years and nine months that is to date from 15 December 2005 and to expire on 14 September 2009. Thereafter you will be eligible for release on parole. There will be a balance of the term of the sentence of two years. Mr Roberts, the total effect of that is that the total term of imprisonment is seven years and effectively there is a non-parole period amounting to four years and nine months." 45 In fact the sentence imposed was for a period of six years and nine months with a non-parole period of four years and nine months. Absent special circumstances, the application of the statutory ratio to a total term of imprisonment of six years and nine months would warrant a non-parole period of approximately five years. The "special circumstances" in fact effected a reduction in the non-parole period of three months. 46 It is clear from the above quotation from his Honour's remarks that the three paragraphs cannot logically sit together and give a consistent result. The final paragraph which recites the overall sentence is inconsistent with the sentence otherwise imposed. 47 The difficulty for this Court is to determine which of the two results was the intention of his Honour. In the circumstances, it is necessary for us to discern an intention or to exercise our own discretion. 48 However the quoted extract from his Honour's sentence makes clear that his Honour miscalculated that which his Honour was intending. If his Honour's total effective sentence was as described, there would have been a reduction of six months in the non-parole period and a consequent extension in the period of supervision. This seems to have been the intent of his Honour and, with respect to him, it seems as if his Honour has miscalculated in making the adjustment for the accumulation of sentences. 49 A finding of special circumstances will not always warrant a reduction in the non-parole period and the level of reduction in the non-parole period, if any, determined by a sentencing judge will not ordinarily be subject to review on anything other than a criterion which would warrant the interference with an exercise of discretion. However, in the current circumstances, I am of the view that the sentence imposed by his Honour did not reflect his Honour's intention and a further reduction to give effect to a six month reduction in a non-parole period would give effect to his Honour's reasoning and his Honour's actual intent.

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Parity 50 The applicant also submits that there exists a justifiable sense of grievance in the sentence imposed upon him compared to the sentence imposed upon his male co-offender. 51 The principles of parity in sentencing have been dealt with on a number of occasions and are now well settled. Justice Dawson (with whom Wilson J agreed) summarised the principle in Lowe v The Queen (1984) 154 CLR 606, in which his Honour said: "There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." (154 CLR at 623) 52 His Honour Justice Dawson in a joint judgment with Justice Gaudron in Postiglione v The Queen (1997) 189 CLR 295 developed the statement in the following terms: "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 in the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v R, 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." 53 The application of the principle embodied in the joint judgments and applied on innumerable occasions can often lead to some difficulty. In the present proceeding the notion of parity must take account of the circumstance that the co-offender was charged with, and sentenced for, a number of offences over and above those offences with which the applicant was charged. Further, in order to compare like with like, it is not simply a question of ignoring the sentence imposed for the further offences. The principle of totality of sentencing required his Honour to take account of the totality of the criminal conduct of the co-offender and this may have impacted, not only by virtue of the sentence imposed for the additional offences, in the sentence imposed for the charges common to both the applicant and the co-offender. 54 The sentencing judge, in this case, was, in relation to the co-offender, required to deal with two counts of aggravated acts of indecency pursuant to the terms of section 61O of the Crimes Act 1900 (NSW). For those offences his Honour imposed a term of imprisonment of eighteen months fixed term for each. His Honour also sentenced for an escape. Each such sentence being wholly concurrent with the other. Further his Honour dealt with the principle of totality by providing for partial accumulation. The sentencing judge said: " Accumulation or Concurrence and the Principle of Totality It is appropriate that there be a degree of partial accumulation of the sentences to reflect the fact that there was a difference in the type of offences committed and the fact that there were two victims, but in so accumulating I will bear in mind that the offences were committed on the one occasion and involved a considerable degree of overlapping criminality. In relation to the offence of escape it is necessary that this sentence be completely accumulated upon the other sentence to be imposed on the [co-] offender." 55 It is clear that in these circumstances the principle of totality has been accommodated by the degree of accumulation or concurrence of the sentences rather than an alteration in the sentences provided. In those circumstances one can more readily compare the sentence imposed on the applicant and his co-offender. 56 The co-offender was sentenced for the robbery in company to a fixed term of three years' imprisonment. For the same offences the applicant was sentenced to the same fixed term of imprisonment. This accords with his Honour's stated intention and finding that in relation to the robbery the criminality of both offenders was identical. 57 In relation to the offence of aggravated detain for advantage, the co-offender was sentenced to imprisonment, in relation to the female victim, for a non-parole period of three years and nine months and the balance of the term of sentence being three years and nine months. That sentence commenced twelve months after the sentence for aggravated acts of indecency, which, in turn, commenced twelve months after the offence for robbery in company. In relation to the aggravated detain for advantage for the male victim, the same sentence was imposed and it was wholly concurrent with the sentence of the female victim. 58 In relation to the applicant the non-parole period was identical but there was imposed a lesser (by one year and nine months) parole period. In the circumstances faced by the sentencing judge, the finding was made, with respect correctly, that the offences of detain for advantage should result in a sentence imposed upon the co-offender that was greater than that imposed upon the applicant. 59 His Honour the sentencing judge also considered subjective circumstances and found that an extended period of parole supervision was necessary. He stated that he intended to structure the sentences so that "there is scope for a longer effective parole period than would otherwise be imposed but it would be a matter for the Parole Board to assess the utility of allowing the offenders the benefit of this based upon the attitudes that they exhibit in the future." 60 On the basis of these findings on the involvement in the detain for advantage, it is clear that the instigator of the offences and the person who took the leading role in the offences was the co-offender. In those circumstances, to impose a sentence on the applicant for these offences which, when compared to his co-offender, is identical in the non-parole period imposed but less in the parole period, gives rise to a sense of grievance which, in the circumstances, is justifiable. 61 The difficulty is that the offence is a serious one. To reduce the sentence to a level that brings the law into disrepute is impermissible, even if that requires inappropriate disparity. I intend to maintain the overall sentence and reduce the non-parole period to effect the same ratio as the sentencing judge effected for the co-offender. While this results in a sentence that is lower than would otherwise or ordinarily be justified, it is not so low as to warrant the non-application of the parity principle.

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