ROBERTS v REGINA

CATCHWORDS: CRIMINAL LAW - APPEAL - error in calculation in special circumstances - parity in sentencing - justifiable sense of grievance - impact of hardship on third party only exceptionally a factor in reducing sentence but may be special circumstances.

Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: R v Douglass [2001] NSWCCA 250 R v Edwards (1996) 90 A Crim R 501 R v Wirth (1976) 14 SASR 291

PARTIES: Brendan John ROBERTS (Appellant) Regina (Respondent)

COUNSEL: H. Cox (Appellant) D. Woodburn (Respondent)

SOLICITORS: S.E. O'Connor (Appellant) S. Kavanagh (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/2121

BARR J ADAMS J ROTHMAN J

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".

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.

The offender Sloan sat between the two victims and told Ms Sluiter to kiss him on the cheek. She complied, obviously out of fear. Ms Kucukozman then complained of becoming jealous and started to perform oral sex upon Sloan. Sloan told Mr Wardle to look at them but he turned away and said he did not want to.

Sloan and Kucukozman then proceeded to have sexual intercourse in the back of the van. This was followed by Kucukozman again performing oral sex upon Sloan, during which Sloan directed Ms Sluiter to get into the back of the van and give him a hug and a kiss whist that was going on. Ms Sluiter partially complied. The offender Kucukozman said "You don't known what you're missing out on". Sloan directed Ms Sluiter to look at his penis. She did, and noticed a particular abnormality.

Sloan and Kucukozman proceeded to ask Ms Sluiter and Mr Wardle personal questions about their relationship. They were asked whether they had engaged in particular sexual activity and they replied that they were not ready and wanted to wait until they were married. At one point Sloan said to Mr Wardle "Can't you see your missus is on heat, I want to see you both get it on". He then told Ms Sluiter to giver Mr Wardle a head job and when she refused he said that Kucukozman could do it. Roberts added that "You can always lick some pussy, that's not sex". Ms Sluiter was directed to continue driving. They stopped at some shops and the offender Roberts alighted and purchased some soft drink. Sloan and Kucukozman were still engaging in oral sex.

At around this time Sloan placed a silver necklace around Mr Wardle's neck, saying "I want you to have this, it was my mother's". Ms Sluiter was directed to continue driving around Airds. Kucukozman told her "They're really dangerous, don't do anything" and then kissed Ms Sluiter on the top of the head. Mr Wardle offered to pray for the offenders and Ms Sluiter was directed to stop the van at a reserve. All alighted and formed a circle, holding hands, with Mr Wardle praying for the offenders. Sloan then said, "We'll pay you back for what you we took. We don't like doing these things. If you go to the police we know where you live and we'll come after you". The offenders Sloan and Roberts then wiped the van with a towel and with the offender Kucukozman walked away. 4 The sentencing judge described the applicant's subjective features thus - The offender Roberts was born on 18 December 1978 and was thus aged twenty-five at the time of the offence and is twenty-seven now.

He has a criminal history that commenced with a stealing offence in the Children's Court when he was seventeen. Before the offences with which I am concerned he last appeared before the courts in August 2002 for two dishonesty offences. His record is not overly long and it is notable that all matters have been dealt with in Magistrates' Courts. He has never been sentenced as an adult to imprisonment. It is a record that denies to him the leniency that would otherwise be extended to someone without prior convictions.

The offender's background is set out in a report of Ms Katie Seidler, psychologist. He was the second eldest of four sons. His parents separated when he was about four and he remained with his mother and brothers. It is reported that his father was a heavy drinker and was violent. The offender did not get on well with his mother, nor with his brothers. He suffered physical abuse and was also sexually assaulted on a number of occasions by a male family friend around the age of eight. A good proportion of his childhood was spent living with family friends in Condobolin with whom he got on well. Ms Seidler described his family life and upbringing as "disturbed and dysfunctional".

In other material before me - the pre-sentence report and evidence from the offender's mother - it is indicated that the offender was diagnosed with ADHD as a child.

The offender's schooling was limited and he was forced to leave in year nine because of poor attendance and disruptive behaviour. He completed his School Certificate equivalency through TAFE and obtained a certificate in landscaping through Skill Share. Despite this he has never held full-time employment but has worked casually in farm labouring positions.

The offender was in a relationship for about three years with a woman who was considerably older than he was. They had a daughter, Kayla, who is now aged five. She was diagnosed with Glutaric Aciduria which is said to be a rare genetic condition affecting the functioning of the nervous system and is incurable. She spends considerable time in hospital. Her mother has nothing to do with her and so the offender has been the primary care giver. The Probation and Parole officer reported that the offender had been on a carer's pension for the three years prior to going into custody. The girl has been cared for by the offender's mother since then. The offender told Ms Seidler that children with Glutaric Acideria do not live past middle childhood. This is largely confirmed in a letter from Ms Yvonne To'a, the Aboriginal Liaison Officer at Blacktown Hospital (exhibit 6). Mrs To'a confirms some evidence that was given by the offender's mother to the effect that Kayla is quite distressed at the enforced separation from her father. She frets on occasion and this exacerbates the difficulties she experiences with her poor immune system.

The offender has a length history of alcohol and drug abuse. He began drinking at the age of ten and regards himself as an alcoholic. He started smoking cannabis at the age of twelve and regarded his use of this drug as "problematic". He also abused benzodiazepine medications, amphetamines and crystal methamphetamine. As a means of coming down from amphetamine he injected heroin several times a day every second day. In the period leading up to the offences it would seem that the offender's abuse of such substances was rampant. It begs the question how devoted he could have been to the care of his daughter.

The offender has had minimal participation in drug rehabilitation programs in the past. It is a matter of some concern that whilst he acknowledged that he had a problem with drugs and alcohol he "questioned the usefulness of treatment or counselling and instead stated that he believes he needs to address his substance abuse independently". I respectfully agree with Ms Seidler's assessment that such ideas are unrealistic and naive. I note that there is contradictory material in the pre­sentence report. It is there indicated that the offender had attended some alcohol and drug counselling sessions in gaol, albeit his response was not entirely satisfactory, and had said that he would be interested in entering a residential drug rehabilitation program.

A further matter of concern noted in Ms Seidler's report is the suggestion that the offender has potentially developed a psychotic-like illness. This is a matter that requires expert evaluation by a psychiatrist. I note that the Probation and Parole officer has made a referral to the prison psychiatrist.

Other matters noted by Ms Seidler in her catalogue of the offender's difficulties include a reported history of depression. A history of suicide ideation, and a self-description of quick temperedness. She administered a number of tests and found him to be "a man functioning at a low level of intelligence in the borderline range". She describes has as "a simple man intellectually, whose cognitive resources would be further compromised by stress, emotional difficulties or the ingestion of drugs and alcohol".

Ms Seidler concludes her report with a variety of recommendations and suggestions for the offender's rehabilitation. Quite clearly he is a man who needs intensive assistance both whilst in custody and following release into the community. Whether he accepts this to be the case and would thereby respond to such assistance is another matter. The uncertainty as to his attitude towards the treatment of his substance abuse issues is a matter of concern. The pre-sentence report concludes with similar recommendations as to the need for intensive assistance.

Further material relating to the offender's background and the situation relating to his daughter is before me in the form of a letter and oral evidence from his mother Ms Anne Brown. She indicated when the offender is released they have planned that he will live with her and seek employment and she will continue to assist in the care of Kayla. She also indicates he is motivated to "get rehabilitated" but whether there is an appreciation of the need for intensive intervention in this regard is not clear. 5 In the first ground of appeal the applicant complains that although his Honour made a finding of special circumstances, the sentence failed properly to reflect that finding. During the remarks on sentence his Honour said this - It is clearly the case in respect to both offenders that they are in need of intensive assistance both whilst in custody and following release on parole in order to assist them with their complex array of problems identified in the reports that are before me. An extended period of parole supervision is necessary and 1 propose making an appropriate allowance for this. An adjustment of the usual proportions is also necessary because of the manner in which I propose to accumulate sentences.

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.

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.

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 -

In terms of objective seriousness alone the sentences for the s86 offences to be imposed upon Sloan should be greater than those to be imposed upon Roberts because he played a more leading role. The robbery sentences should generally be the same as they both played a roughly equal role. There are subjective circumstances which warrant other distinctions in the sentences to be imposed.

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:

(1) That his Honour did not implement in the ultimate sentence imposed the finding of special circumstances that was intended to be reflected;

(2) That his Honour erred in not finding highly exceptional circumstances including hardship to third parties justifying a reduction in the prison sentence to be imposed;

(3) Parity: the applicant had a justifiable sense of grievance compared to the sentence imposed on his co-offender.

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.

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.

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.

Impact on Third Party 62 The remaining ground of appeal raised is the issue associated with the subjective circumstances of the serious illness of the applicant's infant child. As set out in the judgment of Barr J the principles associated with the mercy to be granted because of the serious impact upon innocent third persons have been established in a number of cases. With the exception of cases such as R v Douglass [2001] NSWCCA 250 (where the circumstances were such that the Court took the view that the applicant was suffering extra curial punishment which could be taken into account), the circumstances in which the effect on third persons will be taken into account by the Court when sentencing are and must remain exceptional. If persons have significant subjective circumstances associated with the need to care for a person, they should be matters that impact upon the decision of the person to offend against the law. They can rarely be circumstances which allow the Court to forgo punishment imposed by the Parliament for the criminal offence in question. 63 Nevertheless, such subjective circumstances may be able to be taken into account more readily in the ratio of non-parole period to the remainder of sentence. In that way, the conduct of the offender will itself determine the success or otherwise of the application for parole and society can continue to exercise supervision over the conduct of the offender in question.

Conclusion 64 The inconsistent determination of the sentencing judge requires correction. In the circumstances, the determination that the applicant ought be sentenced to the same non-parole period as his co-offender gives rise to a justifiable sense of grievance. That justifiable sense of grievance requires the Court to exercise its own discretion in relation to the matter. I take into account the principles of parity and my determination of the proper relationship between the offences. I otherwise take into account the findings of his Honour the sentencing judge in every other respect. I add to the special circumstances the situation with the applicant's child and allow for the circumstance that, if the applicant's conduct is such as to warrant parole, he would be eligible to return to his child earlier than otherwise contemplated. 65 I propose the following orders: (a) Leave to appeal be granted and the appeal be granted in part. (b) The sentence imposed on the applicant by his Honour Judge Hulme SC on 10 February 2006 for the offences of aggravated (being in company) detain for advantage (2 counts) be quashed and in lieu thereof the following sentences be imposed: (i) In respect of each of the offences of aggravated detain for advantage the applicant, Brendan John Roberts, be sentenced to imprisonment for a non-parole period of two years and eleven months that will commence on 15 December 2005 and expire on 14 November 2008 with a remainder of sentence of a further two years and ten months to expire on 14 September 2011. (ii) The applicant will first be eligible for parole on 14 November 2008. **********

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