Court of Appeal (Vic)|2014-06-27|Before: Tate JA, Redlich JA

Saner v The Queen; Kamal v The Queen [2014] VSCA 134 (27 June 2014)

DPP v Saner; DPP v Kamal (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013)

2 The appellants, Tekin Saner ('Saner') and Matthew Kamal ('Kamal') each appeal, by leave,[1] against the sentences imposed on them in the County Court.[2] The appeals were heard together.

3 The appellants pleaded guilty, on a joint indictment, to one charge of conspiring to commit an armed robbery on a sports bar in Ballarat (charge 1) and one charge of theft of a motor vehicle (charge 10). The motor vehicle was stolen in Ballarat and was connected to the planned armed robbery. They also pleaded guilty to several other offences they had committed separately at around the same time in 2011. Some of these were summary offences.

4 Charges 1 and 10 were the only offences to which they both pleaded guilty.

5 Following pleas in mitigation, the appellants were sentenced by his Honour Judge Pilgrim on 31 May 2013 as follows:

Conspiracy to commit armed robbery [Crimes Act 1958 s 321(1)]

Possess unregistered firearm whilst prohibited person

Deal with property suspected of being proceeds of crime

All Victorian driver's licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991

Forensic sample retention order under s 464ZFB of the Crimes Act 1958

All Victorian driver's licences/permits cancelled and disqualified from obtaining licence for 5 years from 31 May 2013 pursuant to s 89(4) of Sentencing Act 1991

Forensic sample retention order under s 464ZFB of the Crimes Act 1958

Forfeiture of specified property including a revolver

6 The appellants rely on the following grounds of appeal:

The sentence [in respect of charges 1 and 10] breached the parity principle.

(a) The sentencing judge failed to give any or enough weight to the appellant's undertaking to give evidence.

(b) The sentencing judge failed to give enough weight to the appellant's guilty plea.

The individual sentences and total effective sentence are manifestly excessive.

The learned sentencing judge erred in doubly punishing the appellant in respect of charges 1 (conspiracy) and 11 (possessing an unregistered firearm whilst prohibited).

The learned sentencing judge erred by failing to take into account that, since the offence of possessing an unregistered firearm whilst prohibited was committed, the Firearms Act 1996 was amended to attract a lower maximum penalty.

In addition Kamal applied for leave, at the hearing of the appeals, to add a further ground of appeal, ground 4, which raised the issue of parity, as follows:

The sentence imposed on Kamal with respect to charge 1 (conspiracy) infringes the principle of parity when regard is had to the sentence imposed upon Kamal's co-offender, Lloyd Anthony Murrell.

The sentence imposed on Kamal with respect to charge 11 (possess firearms) infringes the principle of parity when regard is had to the sentence imposed upon Kamal's co-offenders, Lloyd Anthony Murrell and Nono Ngaa.

7 Early in the hearing of the appeals the Court raised with the parties the risk that, if the appeals were successful and the sentencing discretion was re-opened, the Court might impose a more severe sentence than the total effective sentence first imposed. It drew the appellants' attention to s 281(3) of the Criminal Procedure Act 2009 which provides:

If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.

8 The appellants submitted that the hearing of the appeals should proceed until the point was reached where the pre-condition expressed in s 281(3) was satisfied, namely, that the Court was 'considering imposing a more severe sentence'. The Court indicated that it had not yet reached the required stage of satisfaction. On this basis, the Court continued to hear the appeals and no warning was given as the Court never reached the stage of considering imposing a more severe total effective sentence.

9 A secondary issue arose in relation to the offences for which no orders for cumulation were made. Saner and Kamal both submitted that, as no complaint was made about the failure of the judge to make orders for cumulation, if the sentencing discretion was re-opened the Court should not make orders for cumulation in respect of those offences. This is discussed further below.[4] Suffice it to say here that the parties were informed and ultimately accepted that if the appeals were successful the Court, in re-sentencing the appellants, might impose orders for cumulation where the judge had failed to do so.

10 In October and November 2011, the appellants conspired with two other men to commit an armed robbery at a gaming venue known as JD's Sports Bar in Ballarat. The other men were Lloyd Murrell (Saner's older half-brother) and Nono Ngaa. Murrell was the 'prime mover' in the conspiracy.

11 Between 14 and 27 October 2011, New South Wales police intercepted telephone conversations of Murrell that revealed a plan to commit an armed robbery in the Ballarat area. The plan involved Murrell arranging for Kamal and another man to travel from Sydney to Ballarat to commit the robbery. New South Wales police advised Victoria police, who subsequently intercepted mobile phone communications between the appellants and Murrell and Ngaa between 27 October 2011 and 2 November 2011. Most of the calls were initiated by Murrell. Investigating police officers also used covert surveillance cameras and physical covert surveillance.

12 In the days leading up to 2 November, Murrell spoke to Kamal about obtaining a handgun for use in the robbery. Murrell asked Saner and Kamal the date of the Melbourne Cup and identified 2 November 2011 as the date for the robbery, that being the day after the Cup in order to maximise proceeds. There was also discussion between Murrell and Saner about stealing a vehicle to use as a getaway car. Murrell suggested to another brother that he (Murrell) would make $20 000 to $30 000 from the robbery.

13 Murrell and Kamal went to several car yards and canvassed streets in Point Cook looking for vehicles to steal. Murrell and Kamal also went to JD's Sports Bar on 30 October and looked around the premises.

14 On the morning of 1 November 2011, Murrell and Kamal were under surveillance as they drove to Braybrook and parked near Kevin Dennis Motors. Kamal entered the car yard and stole a set of keys left on a counter in the office of the Sales Manager, Rodney Tobin. The keys belonged to a 2011 Holden Commodore SS Sedan valued at $40 000. Kamal and Murrell returned later the same day. Murrell entered the yard and used the keys to drive away in the Commodore. Kamal followed in Murrell's vehicle, a Subaru sedan. They drove to Central West Shopping Centre, where Kamal advised Murrell to park the vehicle and collect it later. Murrell phoned Saner and asked whether the stolen car would be able to be tracked by an in-built GPS device. Saner telephoned a Holden dealership and then advised Murrell that the stolen car had no such device. Murrell and Kamal subsequently drove the Commodore to Tottenham where it was parked with a view to retrieving it the next morning for use in the planned armed robbery. However, the car was located by Tobin later that evening and recovered by police (Kamal - charge 8 (burglary) and charge 9 (theft)).

15 On 1 November 2011 there were further discussions about the planned armed robbery. During the night of 1 November, Kamal and Murrell went to Tottenham to retrieve the stolen Commodore but could not locate it. Murrell suggested they go to Ballarat the following morning and steal a car from the railway station. Murrell told Saner that Ngaa and Kamal would be going into the sports bar, that Saner would be the getaway driver and that Murrell would be watching the police station. Saner said that he did not like the idea and he told Murrell that as he had to live in Ballarat he did not want to be seen near the area. He suggested that he could watch the police station and that Murrell could be the getaway driver.

16 Early on the morning of 2 November, the police observed Murrell, Kamal and Ngaa leave Murrell's house in Point Cook and travel to Saner's house in the Ballarat suburb of Canadian. At 7:36am police observed Murrell, Kamal, Ngaa and Saner leave Saner's residence in Murrell's Subaru sedan and travel past JD's Sports bar and into the vicinity of the Ballarat Railway Station. The four men were observed checking several vehicles. At 8.05am Murrell, Kamal and Ngaa gained entry to a 2002 model Holden Statesman Sedan whilst Saner waited inside Murrell's Subaru sedan. Murrell forced the ignition of the vehicle using a screwdriver and, together with Kamal and Ngaa, drove it to Lydiard Street, Ballarat (Kamal and Saner - charge 10 (theft)). They parked the car about ten metres south of the JD's sports bar, ready as a getaway car. The four men then returned to Saner's house for a short period before leaving in two cars. Murrell was driving his Subaru sedan, with Kamal and Ngaa as passengers in the rear of the car. Saner was following Murrell's Subaru in his Nissan Pulsar. They travelled in convoy and started making their way out of Saner's estate towards JD's Sports Bar on Lydiard Street, Ballarat.

17 At 8:40am, four unmarked Special Operations Group police vehicles approached the two vehicles. One police vehicle approached the Subaru from directly in front and activated flashing lights. Murrell swerved to avoid the vehicle, but collided with it. He then reversed, colliding with the Nissan Pulsar being driven by Saner. He then collided with a second police vehicle and again with the first before mounting a traffic island. Two other police vehicles blocked both vehicles.

18 A police officer opened the rear driver's side door of the Subaru, observed Ngaa with hands outstretched towards the driver's seat. He observed a revolver and called out 'gun' to warn other members. Ngaa was pulled from the vehicle. Police located black cable ties, formed into interlocked loops, inside his jacket. He was wearing tactical gloves. Murrell exited the Subaru and was told to get down on his stomach. He was verbally aggressive, yelling towards Ngaa, and was restrained by three police officers.

19 Kamal was physically removed from the car, wrestled to the ground and subdued with a Taser. Tactical gloves were seized from his left pocket.

20 A police officer approached the Nissan Pulsar and told Saner to get out of the vehicle. Saner did not comply and had to be physically removed.

21 Police located in the Subaru a silver 0.38 calibre Smith & Wesson six shot revolver, which was unregistered and loaded with six bullets inside the revolving chamber (Kamal - charge 11 (possess unregistered firearm whilst a prohibited person)).

22 Baseball caps and sunglasses were also located next to each of the men, to be used as disguises. A large pipe wrench was located in the boot of the Subaru sedan. The four men were taken to the Ballarat Police Station for the purposes of a recorded police interview.

23 Multiple search warrants were subsequently executed, as a result of which police recovered a significant amount of property that was traced back to further offending, as described below.

24 On 23 October 2011 Saner stole a 2011 Toyota Corolla sedan parked in the driveway of a family home at Mount Clear. Saner parked the car in his own garage. Police intercepted a conversation between Saner and Murrell where Saner described the car and the location where it had been stolen. Saner kept the car for a few days but agreed to discard it following discussion with Murrell, who did not want it used in the robbery. The car (valued at $22 000) was later recovered by police close to Saner's house and returned to its owner (Saner - charge 2 (theft)).

25 After 10:00pm on 23 October 2011, Saner, Murrell and a third man went to a house in Miners Rest and forced their way into the garage where a limited edition 1985 Holden Commodore sedan, valued at $30 000, was parked. Murrell had contacted Saner by phone on 19 October 2011 and indicated that he was following the Commodore and wanted to steal it. He had followed the car to the address in Miners Rest and advised Saner were it was parked. After stealing the car, it was hidden in Murrell's garage in Point Cook until arrangements were made for it to be towed to a factory in Tottenham to have the engine-bay spray-painted. Investigators executed a search warrant at the factory and recovered the car, which was returned to its owner (Saner - charge 3 (theft)).

26 At approximately 9:30pm on 27 October 2011, Saner, Murrell and a third man arrived at the City West Yamaha store at Hoppers Crossing. A metal pole was used to smash a surveillance camera mounted on the front of the building. A pair of bolt cutters was used to cut off a padlock attached to the metal boulder in front of the main doors. The men then rammed a Toyota van into the front doors, entered the store and moved the sensor for the floodlights inside the store in order to stop security floodlights from switching on. The men then stole eight motorbikes valued at approximately $18 000 and loaded them into the Toyota van. They knocked over several motorbikes in the process, causing approximately $8000 damage. They drove to Murrell's house in Point Cook and secured the motorbikes in the front bedroom of the house. At about 10:50pm the Toyota van was found by police discarded and burnt out in Altona. Intercepted telephone conversations between Saner, Murrell and a third man prior to the burglary revealed that Murrell had made arrangements with Saner to come down from Ballarat and steal a mini motorbike for the birthday of Saner's son on 28th October. A covert police camera installed at Saner's residence depicted his son riding a blue mini motorbike in front of the residence on 28 October 2011. Following the execution of search warrants at the homes of Saner and Murrell on 2 November 2011, the bikes were seized and returned to the lawful owner (Saner - charge 4 (burglary) and charge 5 (theft)).

27 On 31 October 2011, Murrell and Kamal were under police surveillance as they entered a home in Seabrook. Kamal smashed a rear bedroom sliding-window, unlatched a window and gained entry to the house. The two men ransacked the house, and stole property such as jewellery and electronic items to a total value of approximately $14 000. The police later observed the two men and Murrell's son taking stolen items inside Murrell's house in Point Cook. Following the execution of a search warrant at Murrell's house on 2 November 2011, the police located some items stolen during the burglary, including a television, and also found several items of jewellery in Kamal's wallet (Kamal - charge 6 (burglary) and charge 7 (theft)).

28 Following the execution of a search warrant at Saner's house on 2 November 2011 police also recovered two laptop computers and a blue Yamaha motorbike that were identified as stolen property and subsequently returned to the lawful owners (Saner - charge 12 (handling stolen goods)).

29 In addition, the police located several items of jewellery including necklaces, electronic items including laptops and computer parts, hardware and power tools. Most of these items were identified as having been stolen during a burglary in Mt Clear. The total value of the items stolen was estimated at $24 000. The items located at Saner's residence were returned to the lawful owners (Saner - Summary offence (Deal with Property Suspected of being Proceeds of Crime).

30 At the time of the arrest on 2 November 2011, two gold coloured rings and $1200 cash suspected of being the proceeds of crime were located in Kamal's possession (Kamal - Summary offence (Deal with Property Suspected of being Proceeds of Crime x 2)).

31 Saner was interviewed by police on 2 November 2011. During an initial interview he indicated that his brother Murrell was with a couple of mates whom he had never met before and that he was following them to the milk bar. A second interview commenced and he requested to speak to his solicitor. When that interview commenced, he answered no comment to further questions.

32 Kamal was interviewed on 2 November 2011. During an initial interview, he told police that he was in Ballarat because he had lost his father and had come down on 29 October 2011 with some tapes to show his family the funeral. During a second interview he told police that he had been picked up at the airport by his friend Murrell and otherwise declined to answer questions.

33 However, on 17 August 2012, Saner made a confession in a sworn statement of some 11 pages, in which he also implicated his co-conspirators. He also made an early plea of guilty.

34 Kamal did not make any statement, but also pleaded guilty at the earliest reasonable time.

35 At the time Saner and Kamal were sentenced, Murrell and Ngaa had pleaded not guilty and were yet to go to trial. They subsequently pleaded guilty to various offences and were sentenced by a different judge, Judge Howard.[5]

36 Both appellants gave an early indication that pleas of guilty would be entered in relation to the conspiracy offence (charge 1). Their matters were listed for a committal, alongside the other two co-accused, on 2 October 2012. In the course of the committal, the Crown made decisions to withdraw a number of other charges against the appellants, and on 4 October (the third day of the committal), agreement was reached in relation to pleas of guilty being entered to the current charges.

37 The prosecutor submitted on the plea that the conspiracy charge was a very serious example of that offence and there were a number of aggravating features including the extensive planning that had taken place with an expectation for high rewards. The scale of the offending was substantial. Considerable harm could have been caused to the public without the intervention of the police, given that the armed robbery was to occur in broad daylight with a loaded weapon and with an expectation of risk to people, all of which called for general deterrence. While there had been no particular crimes of this magnitude in the appellants' history, there was also a need for specific deterrence. The prosecutor acknowledged that the judge was obliged to take into account Saner's statement to police but submitted that it had 'potential value' rather than 'significant value', as 'the evidence against the other co-accused is quite strong, especially for the main charge of conspiracy'.

38 On the plea, defence counsel for Saner submitted that:

(1) although the conspiracy was a serious example of the offence, Saner had a lesser role than Murrell, who was the prime mover. Murrell had recruited the others, and had been planning the robbery for some time before Saner joined the conspiracy on 20 October 2011;

(2) essentially all of the stolen property was recovered;

(3) Saner's offending occurred in the context of an economically and emotionally impoverished upbringing[6] and a longstanding heroin addiction, which reduced his moral culpability;

(4) Saner's statement to police (detailing his and Kamal's involvement and implicating the other two co-offenders), and his willingness to give evidence in accordance with the statement, was of significant value to the Crown and warranted a discount in sentence;

(5) coupled with Saner's oral evidence of feeling sorry for the people he had stolen from, the police statement went to Saner's genuine remorse, as well as his rehabilitation prospects in that it showed his willingness to break ties with his older half-brother Murrell, who had a much greater criminal history and had led Saner astray.

(1) Kamal stood in a similar position to Murrell as did Saner in that Murrell was the instigator of the conspiracy and responsible for Kamal's recruitment;

(2) although Kamal had spent some time in prison in New South Wales, most of his offending had occurred in the context of a disadvantaged upbringing[7] and an ongoing drug addiction with relapses to feed and fund his drug habit;

(3) the present offending occurred shortly after his father died, in circumstances in which Kamal described himself as having gone off the rails and relapsed into drugs;

(4) although a term of imprisonment was appropriate, a lengthy period on parole should be ordered as Kamal had significant family support and had, during significant periods in the past, shown the capacity to rehabilitate himself through work and staying off drugs.

40 Neither defence counsel for Kamal, nor the prosecutor, made any submission with respect to the matters Kamal has raised in appeal ground 2 (double punishment) or ground 3 (subsequent reduction of maximum penalty for the firearms offence).

41 The sentencing judge[8] accepted that the planned armed robbery was a very serious example of criminal offending. He found that the conspiracy and most of the other offences involved extensive planning.[9] The armed robbery was intended to be committed by at least four persons and, as mentioned above, the preparations involved a loaded revolver as well as black cable ties, tactical gloves, baseball caps and sunglasses. The judge accepted that it appeared that Murrell was the major player in the conspiracy[10] and noted that Murrell was attempting to maximise the takings.[11] He noted that there had been many cars stolen 'all ... for this one nefarious practice'[12] and that the armed robbery was intended to take place in public in one of the main streets of Ballarat.[13]

42 The judge considered that the appellants were active participants in what he called a crime wave, both in the western suburbs of Melbourne and in Ballarat. He viewed their behaviour as deplorable and to be denounced in the strongest of terms.[14]

43 With respect to the pleas of guilty, the judge noted that both appellants pleaded guilty at the earliest opportunity, which indicated remorse and entitled them to a discount.[15] He also said that he would take into account the statement Saner made to police 'and his willingness if required to give evidence should there be a trial'.[16] The judge elaborated on this:

For having pleaded guilty I will impose lesser sentences than I otherwise would have imposed. In other words, you will receive a discounted sentence for having pleaded guilty. Mr Saner, you receive a further discount to your sentence when it is taken into account that you have made a statement implicating others in the commission of these offences. You acknowledged on oath that the contents of that statement are true and correct, and you further undertake to give evidence if required, should that occur.[17]

44 The judge also assured Saner that he would take into account the fact that Saner, who had never been incarcerated before, was in protective custody. He said:

Mr Saner, until going into custody on these offences you had not been incarcerated so no doubt this has been a shock to your system. You now find yourself in protective custody. I assure you that I will take that status into account in arriving at a just sentence because I have been told on many occasions it is more onerous serving a gaol sentence or serving any form of sentence when in protective custody.[18]

45 The judge noted that both appellants had an 'extensive criminal history'.[19] Saner admitted a criminal record containing 47 prior findings of guilt from 11 court appearances, including one conviction for burglary and handling stolen goods, and 22 for theft.[20] As mentioned, he had never before received a term of immediate imprisonment. Kamal admitted a criminal record that the sentencing judge observed was significantly worse than that of Saner.[21] However, there was minimal history of violence and no prior armed robbery offences.

46 The judge referred to Saner's personal circumstances, relying on the report of a forensic psychologist.[22] Saner had left school after year 6, spending his time on the streets, and became addicted to heroin. His father had died at the age of 32, when Saner was a 14-year-old boy. Saner's father had most likely overdosed on heroin when he collapsed and hit his head in the bathroom. Saner had no significant employment until he moved to Melbourne in 2006 and found work installing television antennae, which he did for a couple of years until he gradually drifted out of work because of heroin use.[23] His mother had a previous relationship from which there are five children. Her previous partner was killed in a motor vehicle accident. As mentioned, one of his half-siblings is the co-accused Lloyd Murrell who had been released from prison shortly before planning the conspiracy after having been sentenced in 1996 for multiple armed robberies and other serious offending.[24] This is the same half-brother who was at the centre of the current criminal activity.

47 The judge referred[25] to Saner's family support, noting that he had been in a relationship with the same woman for 15 years, with whom he had three children. Regrettably, his partner is also a heroin user and has significant health problems. His children were living with Saner's mother at the time of sentence. The judge found that Saner's positive relationship with his partner augured well for his prospects of rehabilitation,[26] 'guarded though it may be'.[27] He noted that this was the first time Saner had been in prison. The judge also remarked that when Saner first went into custody, he was receiving methadone at the rate of 140 mg a day, which had been reduced to 100 mg a day at time of sentence.[28]

48 Kamal's background included his mother leaving the family when she suffered a nervous breakdown when he was two years old. His father was supportive. He remarried and Kamal was evicted from the family home by his step-mother when he was 13. He lived on the streets and became addicted to heroin. After his father and step-mother ended their relationship, Kamal moved back with his father until his father died from a heart attack in September 2011. The judge acknowledged that Kamal had been very close to his father and 'went off the rails' after his father's death and relapsed into drugs. After his father's death, Kamal moved in with his partner and the couple continued a relationship for nearly three years and have an infant son. Kamal maintains telephone contact with his partner and has family support in Sydney. His aunt, who operates a drug rehabilitation centre for Anglicare, is one of his most significant emotional supports.[29]

49 The judge said that taking into account Kamal's difficult young life, he had pursued employment with considerable success. He had undertaken secondary college until year 8 and has a certificate 3 in hairdressing. From age 17, he spent two and a half years in metal fabrication. He also worked as a mechanic with his father's company, which business he intends to run on his own upon release from prison.[30]

50 Kamal attended Odyssey House drug clinic for one month when he was 24.[31] He also completed the New South Wales drug court program at the age of 26. Whilst on remand, he completed a three-month drug and alcohol course, called 'breaking the cycle', at the Melbourne Remand Centre. Kamal began a methadone program, starting at 140 mg per day, reduced to 70 mg, and apparently even further reduced his daily intake to 40 mg. The opinion of a forensic psychologist[32] was that Kamal presented with an impaired ability to cope with life's stresses and had dysphoric mood states. He showed symptoms of depression and grief and loss related to the death of his father.[33]

51 The judge assessed Kamal's prospects for rehabilitation as 'guarded because [he is] wrestling with drug and alcohol problems and all of the health problems that flow therefrom'.[34] However, he considered that the prospects for rehabilitation, 'whilst guarded, may be good subject to [him] continuing [his] drug rehabilitation programs that [he had] commenced in prison'.[35] The negative drug screens tendered on the plea indicated Kamal was abstaining from drugs. On release, he will have the support of his aunt in New South Wales who conducts the rehabilitation clinic, and other family support.[36]

52 The parity principle requires a sentencing judge to ensure that a sentence imposed on an offender does not raise a justifiable sense of grievance on the part of either the offender or a co-offender because of the relative severity of their sentences. The principle requires that any material differences in sentencing considerations between co-offenders should be adequately reflected by differences in the sentences imposed on each of them.

53 Saner submitted that the judge erred in imposing an identical sentence of six years in respect of the conspiracy offence (charge 1), which he determined as the base offence, and a difference of only six months in respect of the other joint offence, theft (charge 10), none of which was cumulated. He argued that there were two materially different sentencing considerations between him and Kamal which would justify a shorter sentence on charges 1 and 10: Saner's undertaking to give evidence and Kamal's worse criminal history. Moreover, the six months less that Saner received on charge 10 was of no practical utility given that the sentence was to be served wholly concurrently with that on charge 1. Indeed, it was submitted, the sentence on charge 1 was more beneficial to Kamal because it conferred on him a longer period of concurrency (a sentence of two years made wholly concurrent rather than a sentence of 18 months). The difference in global sentences between Saner and Kamal (a total effective sentence of six and a half years with a non-parole period of four years compared to a total effective sentence of seven years and three months with a non-parole period of five years) can be attributed solely to the orders made in respect of offences not committed jointly by these two offenders. As a result, it was submitted, Saner is justified in feeling aggrieved that he did not receive a comparatively more favourable sentence, given his undertaking to give evidence and Kamal's worse criminal history.

54 The Crown submitted that in order to establish a breach of the parity principle, Saner must satisfy the Court that the lack of disparity between the sentences on the two common offences must be so manifestly inadequate that it is apparent that justice has not been done. It relied upon the principles summarised by Eames JA in R v Goodwin[37] where he said:

The Court would only intervene on grounds of disparity where the disparity, or ... where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done ... Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: ...[38]

55 It is not sufficient to point to a mere disparity between the sentences imposed on two offenders. As King AJA observed in Little v The Queen; Holt v The Queen:[39]

[The] mere disparity between the sentences imposed on co-offenders is not of itself any basis upon which this Court will intervene. The difference between the sentences must be 'manifestly excessive', or 'marked', to the point that it gives the appearance that justice has not, in the particular circumstances, been done.[40]

56 The Crown submitted that Saner could not have any justifiable feeling of grievance in these circumstances because, with respect to charge 10, he had received a sentence that was considerably less than Kamal.

57 Shortly before the hearing of the appeals, further submissions were received from Saner on the parity issue as a result of Murrell and Ngaa having ultimately pleaded guilty to the offences with which they were charged and having been sentenced.[41] Both Murrell and Ngaa had been charged with an additional offence of aggravated burglary, with the sentence imposed for that offence becoming the base for the remainder of their sentences. On the conspiracy charge (charge 1), which they had in common with both Saner and Kamal, Murrell received a sentence of six years' imprisonment with four of those years to be cumulated on the base sentence, while Ngaa received a sentence of five years with three years cumulation. On the other common offence of theft (charge 10 on the joint Saner/Kamal indictment) Murrell received two years with no order for cumulation and Ngaa received 18 months, again with no order for cumulation. Set out below is a table showing the sentencing dispositions for all four offenders.

58 Saner submitted that his sense of grievance is further justified by the fact that he received the same sentence on the conspiracy charge as Murrell notwithstanding that:

(1) Murrell was acknowledged to be the leader and principal organiser of the conspiracy;

(2) Saner had co-operated with the authorities both by making a statement to police and undertaking to give evidence against his co-conspirators;

(3) Murrell had a worse criminal history (including a 13-year sentence served in New South Wales for offences including five armed robberies);[42]

(4) Murrell had been released from serving the 13-year sentence only four months before he commenced offending again in relation to the current charges.[43]

59 It was submitted that, given these considerations, the principle of parity required that Saner ought to have received a more lenient sentence than Murrell.[44]

61 I consider that there are relevant differences between the criminal culpability of Saner and Murrell that have not been reflected in the sentences that have been imposed. Applying the principles summarised by Eames JA in Goodwin, there ought be different outcomes in cases that are different in relevant respects and yet the differences between the level of Murrell's participation in the conspiracy offence, and that of Saner's, has not been reflected in the sentences imposed. I consider the lack of disparity between their sentences to be sufficiently marked, to the point that it gives the appearance that justice has not, in these particular circumstances, been done. The centrality of Murrell to the conspiracy, including to the level of instructions as to the vehicles to be stolen, the choice of the day to maximise proceeds, and instructions on the roles to be played on the day of the robbery, is significantly different from the manner in which Saner participated in the offending.

62 The material differences between Saner and Murrell extend to the markedly different levels of previous offending, Saner having no previous convictions for conduct warranting incarceration while Murrell had been convicted before of armed robbery and offences involving violence.[45]

63 Furthermore, I consider that the co-operation given to the police by Saner, and his undertaking to give evidence if necessary, is a significant difference between Saner's circumstances and that of Murrell that is not reflected in the sentences imposed on the charge of conspiracy.

64 I also consider Saner's co-operation to be a significant difference between his circumstances and that of Kamal's which is not reflected in the sentences imposed on the charge of conspiracy and, to the extent to which it is reflected in the difference in the sentences imposed in respect of the charge of theft (charge 10), the difference (a reduction of six months in a sentence of two years' imprisonment made wholly concurrent with the six years' imprisonment imposed on charge 1) has insufficient practical utility to reflect a proper differentiation.

65 I consider further below the significance that should be attached to the level of co-operation Saner gave.

Ground 2 - Manifest excess - (a) failure to give sufficient weight to undertaking to give evidence

67 Saner's written submissions asserted that his undertaking to give evidence entitled him to 'a substantial discount'. However, at the hearing of the appeals, Saner accepted that the undertaking was not at the higher end of the scale, although he argued that it could not be said to be nominal or of a minor nature. It was submitted that the evidence Saner undertook to give was of substantial assistance to the prosecution, implicating Murrell and Ngaa at a time when they were pleading not guilty, and allowing the Crown to identify the other offenders in the theft of the limited edition 1985 Holden Commodore sedan (Saner - charge 3)[46] and the City West Yamaha burglary and theft (Saner - charges 4 and 5).[47]

68 Counsel for Saner acknowledged that the judge who sentenced both Murrell and Ngaa had noted that both those offenders had given an indication to the Crown at the committal that they would later plead guilty, although no formal offer to plead was made at that stage.[48] Counsel also conceded that it was not clear whether Murrell and Ngaa knew of Saner's statement to the police or his undertaking to co-operate at the time they gave that indication to the Crown at the committal. However, the Crown did not secure pleas of guilty by Murrell and Ngaa until well after Saner had given the undertaking. As a matter of public policy, it was submitted, it should be assumed that Saner's undertaking to co-operate had a role to play in securing those pleas.

69 Furthermore, it was submitted, the undertaking was given at a personal cost, jeopardising Saner's relationship with his half-brother Murrell and leading to him serving his sentence in protective custody, which all accepted would be more onerous. However, on this issue, the Crown pointed to other reasons supporting the placement of Saner in protective custody.[49]

70 Saner emphasised that by giving the undertaking at a time when Murrell and Ngaa had still not pleaded, Saner was exposing himself to the risk of having to give evidence if Murrell and Ngaa decided to contest the charges, notwithstanding the strength of the Crown case. It was also argued that Saner's undertaking demonstrated his remorse and supported his prospects of rehabilitation. It represented 'a willingness on ... Saner's part to turn his back on the influence of his brother that has led him astray ... and a desire to put his past life behind him and to do the right thing.' It showed that there was less of a need for specific deterrence compared to his co-offenders. Despite these factors, however, a comparison of the sentences imposed on Saner for the offences committed jointly with Kamal indicated not only the disparity discussed above but also that the judge gave negligible weight to the undertaking. This compares sharply with Sarvak v The Queen,[50] in which the sentence imposed on Sarvak, on appeal, was 20 per cent higher than that imposed on a co-offender who gave evidence against him, the co-offender's co-operation being the principal basis for the difference.[51]

71 Furthermore, it was submitted, the judge had expressly stated that Saner would receive a further discount by reason of his co-operation. As mentioned above,[52] his Honour stated that he would take into account Saner's statement and his willingness if required to give evidence should there be a trial. He also expressly stated that he would give a further discount, in addition to that to be given for his plea of guilty, because of the statement he gave implicating others. Yet, in the face of these express statements, the judge did not articulate any consideration of the size of the discount or the factors relevant to it. It was submitted that an analysis of the final sentencing disposition would suggest that, despite the indications that a discount would be given, his Honour did not provide any, or any significant, discount.

72 In this context it is relevant that a judge is obliged, when giving a discount attributable to an undertaking to co-operate, to declare, pursuant to s 5(2AB) of the Sentencing Act 1991, that it is imposing a lesser sentence. Section 5(2AB) provides:

If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.

73 However, s 5(2AC) provides that there is no requirement for the court to state the sentence that it would have imposed but for the undertaking that was given.

74 Here, the judge, despite 'announcing' in his reasons that he would provide a discount attributable to the undertaking to co-operate, did not cause to be noted in the records of the court the fact that the undertaking was given or its details.

75 The Crown responded by denying that Saner was entitled to a substantial discount, characterising the level of assistance given as at the lower end of the scale, particularly when viewed in light of the extensive and overwhelming material obtained by the police through surveillance and intercepts. The Crown submitted that it was this independent material, pre-dating Saner's assistance, which would have formed the evidence at any future trial, had Murrell and Ngaa not pleaded guilty. In sentencing Saner the judge had remarked that he was at a loss to understand Murrell's defence given that 'it has all been watched and filmed and taped.'[53]

76 The Crown submitted that the co-operation was to be contrasted with the level of assistance given in a case such as DPP v Bariamis,[54] where the offender gave a 24-page statement that was said to have saved the police months of investigative work. In Bariamis there were three charges of obtaining financial advantage by deception, involving many millions of dollars, brought against the chief financial officer of a group of companies. Bell J noted that the offender had previously given substantial assistance that the police had described as being of an unprecedented level of co-operation. The information provided by the offender was given at significant personal cost and was very high in quality and detail. It was necessary, therefore, that the discount was also significant.

77 Moreover, the Crown submitted, as Saner's complaint falls under the ground of manifest excess,[55] it is necessary to consider more generally the sentences imposed in comparative cases of offending, whether or not an undertaking was given. I consider these cases below.[56]

78 In my view, it is important to recognise that there is a strong public policy reason for encouraging co-operation by offenders with the authorities. The general principles which apply were outlined in a joint judgment of Hunt and Badgery-Parker JJ in R v Cartwright,[57] and adopted by this Court in R v Su,[58] which indicated that a court should not need to investigate the efficacy of an undertaking:

It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender's motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest. What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the inquiry is into the subjective nature of the offender's co-operation. If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice. The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.

Again, in order to ensure that such encouragement is given, the reward for providing assistance should be granted if the offender has genuinely co-operated with the authorities whether or not the information supplied objectively turns out in fact to have been effective. The information which he gives must be such as could significantly assist the authorities. The information must, of course, be true; a false disclosure attracts no discount at all. What is relevant here is the potential of the information to assist the authorities, as comprehended by the offender himself. Information which turns out to be significant, but which is neither comprehended nor intended as such by the offender, has not been given in the spirit of willingness which the discount is designed to achieve. The circumstance that objectively the information subsequently turned out to be effective may perhaps demonstrate that the information possessed such a potential if it is not otherwise obvious upon the face of the information itself, but such effectiveness is not a requirement. As we have already pointed out, the offender will not lose the discount because in fact (unknown to him) the authorities are already in possession of that information. Nor should he lose it if the authorities do not in the end act upon his information, because (for example) they subsequently receive or they have already received more cogent information from another source - or if the offender does not in the end give evidence as promised, because (for example) the person who is the subject of his information has pleaded guilty.

All of these matters should be dealt with in a broad and general way without descending into minute detail. It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to inquire into the investigative and prosecuting procedures in order to ascertain the extent objectively to which that information was in fact effective.[59]

79 The Court of Appeal in R v Su observed that it did not interpret the joint judgment of Hunt and Badgery-Parker JJ as stating that the question of effectiveness is irrelevant; the Court considered that the question of the effectiveness of information is relevant because 'the degree of effectiveness might well throw light upon the questions whether and to what extent the informer has made full and frank disclosure.'[60]

80 The amount of any discount will vary according to the circumstances of each case, including the personal risks taken by the offender by co-operating. As Nettle JA observed in R v Johnston:[61]

While there are decisions which suggest a discount of 50% [for an informer], or perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive. In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough. Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.[62]

81 The difficulties associated with separately identifying the discount to be attributed to a willingness to co-operate as opposed to a demonstration of remorse, or a plea of guilty, were referred to by Gleeson CJ in R v Gallagher:[63]

It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.[64]

82 In my view, Saner was entitled to a discount for the statement he made implicating others and for his undertaking to give future co-operation, including evidence at trial, if necessary. The judge acknowledged twice that Saner was entitled to a discount but he failed to have the undertaking noted in the records of the court and, more significantly, the lack of any real differentiation in the sentences imposed on Saner and Kamal with respect to charges 1 and 10 indicates that no discount was given. Nor did his Honour set out any findings about the quality of the assistance given. Nor did he provide any real assessment about how effective the assistance was likely to be, given the surveillance and intercept information gathered by the police. Furthermore, it is not apparent how Saner's sentence could properly have been increased if it had become necessary to do so if the Director of Public Prosecutions sought to have him re-sentenced for failing to fulfil his undertaking.

83 All of this suggests that his Honour erroneously did not ultimately turn his mind to the extent to which the sentence he was to impose on Saner should be reduced in light of Saner's co-operation.

84 I consider that, although Murrell and Ngaa ultimately pleaded guilty, and although there was extensive independent evidence against them based on surveillance and telephone interceptions, Saner had demonstrated a willingness to make full and frank disclosure at significant risk to himself. The fact that his co-operation would impact adversely upon his relationship with his half-brother Murrell demonstrated the extent to which he sought to distance himself from the wrong-doing with which Murrell was associated. This is not only indicative of remorse but augurs well for his prospects of rehabilitation.

85 Given that this complaint falls to be considered under the rubric of manifest excess, it is useful, although not conclusive,[65] to consider the sentences imposed in

other cases with respect to similar offending.[66]

86 The Crown submitted that it was appropriate in this case to have regard to sentences imposed for actual armed robberies because although Saner was convicted of conspiracy to commit armed robbery, and not the substantive offence, the preparation here was substantial and it included the involvement of a firearm, and the offenders were apprehended on their way to carry out the offence.

87 In R v Bortoli[67] the appellant was sentenced, after pleading guilty and indicating a willingness to co-operate with investigators, on two counts of armed robbery, two counts of conspiracy to commit armed robbery, and one count each of conspiracy to commit robbery, theft and burglary. The weapons used for the armed robbery offences were firearms, and in one instance a machete. The sentencing judge there imposed sentences of five years' imprisonment for both counts of armed robbery, and two years' imprisonment for each of the conspiracy to commit armed robbery offences.[68] The Court of Appeal rejected a submission that the sentences were manifestly excessive, observing that they were at the lower end and that the appellant had received relatively lenient treatment.[69] Redlich JA emphasised the seriousness of armed robbery offences and the potential for violence. He said:

Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. An armed robbery involving the use of loaded firearms at secured premises, with a likely presence of security guards, increases the risk of serious injury or death in the course of the commission of the offence. The armed robberies committed by the appellant fell into this category. These are, as this Court observed in R v Williscroft, offences of such gravity that they call for a 'condign sentence'. The high maximum sentence for such an offence has been viewed as indicating that deterrence is a matter that should be given priority. Armed robberies which are carefully and professionally planned and executed must be viewed as more deserving of exemplary punishment.[70]

88 R v Barci; R v Asling[71] involved three counts of armed robbery, six counts of theft and one count of arson. Firearms were used. Two of the armed robberies involved the hold-up of armoured vans carrying large sums of money: $426 000 and approximately $1 million. The other armed robbery involved some $3500 in takings removed from the store safe as one of the offenders held a gun to the manager's head. During the second of the armoured van robberies, gunshots were fired, one of the co-offenders was killed and Barci incurred severe injuries when the top of his shoulder was blasted away and his chest wall was damaged. The Court of Criminal Appeal described these offences as 'among the most serious encountered in this State ... carried out after careful planning, they were executed in a professional and violent manner by men who carried loaded weapons, and who had other loaded weapons at hand to use, if necessary, in effecting their escape.'[72] The crimes called for punishment in the upper range. The sentencing judge imposed sentences of seven and a half years' imprisonment for both of the armoured van robberies. Taken with the other sentences imposed, and cumulation, the total effective sentence for each of Barci and Asling was 15 years with a non-parole period of 10 years. While the Court observed that ordinarily such sentences would be regarded as 'perfectly proper', it accepted that the sentencing judge had given insufficient weight to Barci's injuries and that his sentence should be reduced.[73] The Court dismissed Asling's application for leave to appeal against sentence.

89 In Driver v The Queen[74] Nettle JA rejected an argument that a sentence of five and a half years' imprisonment was manifestly excessive for what he described as a 'premeditated, elaborately planned armed robbery committed on a bank in daylight hours in circumstances which were calculated to instil terror into the victims and which was potentially capable of leaving them with serious emotional damage. It demanded condign punishment.'[75] That case involved a rifle, albeit unloaded at the time of the offence.[76]

90 The Crown submitted that this line of authority demonstrated that armed robberies that are carefully and professionally planned are deserving of exemplary punishment. Here the conspiracy to commit armed robbery had involved extensive planning, the choosing of pre-allocated and rehearsed roles, the planned use of disguises and the devising of getaway routes. The Crown submitted that Saner had not established that either the individual sentences or the total effective sentence were outside the range of sentencing options available, even given his co-operation and plea of guilty.

92 It can be accepted that there is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. As this Court said in DPP v Fabriczy:[77]

There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. The conspiracy offence is directed at a different mischief - the making of an agreement to act unlawfully - and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly. The court must also take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.[78]

93 Moreover, here the co-conspirators were engaged not only in organisation and planning but the steps taken in furtherance of the conspiracy were extensive and were only interrupted at an advanced stage towards the commission of the planned armed robbery. While the conspiracy was here well planned, it would be wrong to ignore the fact that it was Murrell, and not Saner, who was at the centre of the organisation and planning. Saner was one of the members of the conspiracy who received his instructions from Murrell yet the sentence imposed on Murrell, for the very same conspiracy, was the same as that imposed on Saner (six years) while Ngaa, also one of those who received his instructions from Murrell, was sentenced to one year less in respect of the conspiracy offence. Most significantly, for all the reasons discussed above,[79] it was important that the public utility in encouraging co-operation was recognised by sentencing Saner to an appropriately reduced sentence.

94 In my view, once Saner's co-operation is taken into account, the sentence of six years imposed in respect of the conspiracy offence is manifestly excessive.

Ground 2 - Manifest excess - (b) plea of guilty

96 Given that I have concluded that the sentence imposed on Saner was manifestly excessive, it is unnecessary to consider the second aspect of the sentence relied upon to demonstrate manifest excess, namely, ground 2(b). However, I make some brief observations.

97 As noted above,[80] the judge stated that both Saner and Kamal would receive discounted sentences for their pleas of guilty.[81] In particular, his Honour observed that Saner's plea was made at the earliest opportunity and he accepted that it was indicative of remorse.[82] In giving the s 6AAA declarations for both offenders, he said: 'They indicate, I would imagine, significant discounts because of their pleas.'[83]

98 It is submitted on behalf of Saner that his early plea of guilty entitled him to a discount 'that was close to the maximum available.'[84] He also gave sworn evidence of remorse, which the sentencing judge accepted. The utilitarian value of avoiding a lengthy trial was, according to Saner, high. Nonetheless, a comparison between the s 6AAA declaration and the sentence imposed shows that the discount was less than 20 per cent. It was argued that this reduction was inadequate.

99 The Crown submitted that it could not be said that his Honour's instinctive synthesis produced a sentence that was disproportionate to Saner's degree of criminality.

100 It is settled law that the weight to be given to a plea of guilty is a discretionary matter and that the sentencing judge has a wide discretion when assessing the circumstances of the particular case.[85] In a particular case, a s 6AAA declaration may indicate that the plea was effectively ignored, leading to an error in the exercise of the sentencing discretion, but such a case is rare.[86] And while Nettle JA in R v Howard[87] observed that '[i]n light of s 6AAA of the Sentencing Act 1991 and the social utility of encouraging offenders to enter an early plea of guilty, the discount allowed for an early and unconditional plea of guilty should ordinarily be substantial',[88] the issue of whether an adequate discount has been given for a plea of guilty is a particular of whether the sentence was manifestly excessive, bringing into play all the considerations which apply to that exercise.[89] It is important that it be recognised that a challenge to a s 6AAA declaration is not a separate ground of appeal.[90]

101 While I consider that the sentence imposed was manifestly excessive, I do not consider that the ground based on the early plea of guilty is separately made out.

Conclusion on Saner's appeal against sentence

103 Saner has been successful on grounds 1 and 2(a).

105 Kamal submitted that the individual sentences and the total effective sentence imposed on him were manifestly excessive as wholly outside the range of sentencing options available. He relied on a table of comparable cases including R v Stevens[91] (sentenced to five years' imprisonment in respect of armed robbery and two years for conspiracy to commit armed robbery); Nguyen v The Queen[92] (sentenced to six years six months' imprisonment for armed robbery and two years for possessing firearm); Waugh v The Queen[93] (sentenced to seven years and six months' imprisonment for armed robbery) as well as Sarvak v The Queen and Driver v The Queen which were discussed above.[94]

106 While current sentencing practices are important,[95] care must be exercised when having regard to sentences passed in other cases because while past sentences provide a historical account of what has happened previously,[96] they do not of themselves fix boundaries which must dictate future sentences.[97] Comparisons with other cases will only be of limited assistance in determining an appropriate sentence in an individual case. It is only by reference to the whole of the circumstances giving rise to the offending that unifying principles can be discerned.[98] This was recognised by Ashley, Redlich and Harper JJA in Hudson v The Queen,[99] where they quoted with approval New South Wales authority:[100]

It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority ... At the most, other cases can do no more than become part of a range for sentencing ...

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required.[101]

On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.[102]

107 While the cases relied upon here do indicate broadly the type of sentences imposed in other cases, they are of limited assistance, particularly given the differences in the nature of the offences and the variety of mitigating and

aggravating factors in the individual circumstances of those cases.[103]

108 In further support of his ground of appeal based on manifest excess, Kamal relied on the following factors, all of which he accepted were referred to by the sentencing judge but none of which, in his submission, was given adequate weight: Kamal's plea of guilty, which was accompanied by remorse and, as mentioned above,[104] was made at the earliest possible opportunity;[105] the fact that his criminal history, whilst extensive, contained a minimal history for violence and no prior armed robbery offences; his mitigating circumstances included his difficult childhood, his father's death prior to the offending,[106] his efforts at rehabilitation[107] and the fact that he has a young child.[108] He also pointed to the fact that he was not the instigator of the conspiracy and, while acknowledging, as mentioned above,[109] that there is no principle in law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted,[110] he relies on the absence from his offending of those features which generally characterize armed robbery offences, including the striking of terror into the minds of victims and the use of a weapon.

109 In response, the Crown submitted that the total effective sentence was not manifestly excessive, as it was proportionate to Kamal's degree of criminality (which, it was submitted, represented a serious example of criminal offending), and allowed an inference to be drawn that the sentencing judge was mindful of the principle of totality in that he ordered a modest level of cumulation on charges 6 and 11 only, and no cumulation in respect of charges 7, 8, 9, 10 and summary charges 15 and 16. I discuss the issue of the approach to cumulation taken by the judge in the sentencing exercise below.[111] Suffice it to say here that Judge Howard indicated that he disagreed with the methodology adopted by Judge Pilgrim in his approach to cumulation[112] and I also disagree.

110 I consider that the individual sentences and the total effective sentence imposed here were manifestly excessive for many of the same reasons I expressed in respect of this conclusion in respect of Saner. While Kamal did not provide a statement or an undertaking to co-operate, it remains the case that he was not the principal organiser of the conspiracy; the role he played in the conspiracy was very much at the direction of Murrell.[113]

112 Kamal acknowledged that the discretion to order cumulation is very broad and should not be unduly circumscribed by appellate intervention.[114] Nonetheless, he submitted the sentence imposed for the charge of possessing an unregistered firearm whilst prohibited, as well as the cumulation order, had the effect of doubly punishing him, as his possession of the firearm in question formed a part of the conspiracy constituting charge 1. This amounted to a specific error in contravention of the principle in Pearce v The Queen,[115] as applied in a number of Victorian cases.[116]

113 In Dang v The Queen,[117] this Court recently discussed the principle that an offender ought not be punished twice for the same act or omission:

In Pearce the High Court held that a person should not be twice punished for what is substantially the same act. In a joint judgment, McHugh, Hayne and Callinan JJ said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[118]

114 An example of a sentence which contravened the principle is to be found in R v Langdon and Langdon[119] where the Court allowed appeals against sentence when, following a plea of guilty, each appellant had been convicted of one count of trafficking in amphetamine and one count of possession of amphetamine arising from the same set of circumstances. Gillard AJA[120] concluded that there had been double punishment and said:

The issue of whether there has been double punishment is to be resolved by approaching the matter as a matter of common sense. It is correct that one may traffick without ever having actual possession of the drug and equally, it is possible to have possession without trafficking. Each case must be determined in accordance with its own circumstances. In my view, there is a strong connection between the possession and the trafficking in the present case. Having in possession a trafficable quantity of amphetamines is part and parcel of the trafficking which in this case concerned manufacture and distribution by the same persons who had possession. The Langdons were in possession because they were both the manufacturers and the distributors. Possession was central to their enterprise. In the particular circumstances of this case it is my view that the act of possession was common to both the trafficking and possession counts and accordingly there had been double punishment for the criminal act common to both counts.[121]

115 In the specific context of firearms offences, as raised in Kruzenga v The Queen[122] and Armistead v The Queen,[123] the discussion in Dang proceeded as follows:

The closeness of connection between offences, adverted to by Gillard AJA [in Langdon] may provide a guide as to when there is a risk of double punishment. This is apparent from the recent case of Kruzenga v The Queen where the offender pleaded guilty to one charge of armed robbery and one charge of shortening the barrel of a longarm. He was sentenced to five years' imprisonment for the armed robbery and 18 months' imprisonment for having shortened the barrel of the firearm, 12 months of which was to be served cumulatively with the armed robbery offence, making a total effective sentence of six years' imprisonment. The circumstances of the offending involved the offender driving his mother's car to the National Australia Bank in Camberwell and having with him a backpack in which was concealed the shortened shotgun, a pair of dark sunglasses, and a black wig. He entered the bank through the front door and once the area became clear of customers he approached a counter and removed the sawn-off weapon from his backpack, pointed it at the teller and said 'Give me the money, just give me the 20's and 50's'. He took the money and left by the rear door. Weinberg JA concluded that the sentences imposed involved an element of double punishment and that the sentencing judge had impermissibly treated the shortening of the shotgun both as an aggravating factor of the armed robbery, as well as demanding substantial punishment as a distinct offence, without recognising any need for moderation. His Honour said:

It must be remembered that the shotgun was shortened for one reason only, to enable it to be used in the commission of the armed robbery. It was necessary, in the circumstances of this case, for the sentencing judge to take great care not to treat the shortening of the weapon as both an aggravating feature of the armed robbery, and a separate and distinct offence requiring both a significant measure of punishment and a substantial degree of cumulation.

The necessary care had not been taken. The sentencing judge considered the connection between the two offences justified a greater rather than a lesser degree of cumulation between the two offences. Weinberg JA continued:

The judge took the view that the appellant's act of shortening the weapon made his 'crimes' more serious. Plainly, her Honour treated that act as an aggravating feature of the armed robbery, as well as an offence in its own right. To describe it as an 'aggravating feature' would have been an apt assessment, so far as the armed robbery was concerned, had that offence stood alone. However, there was a clear need to avoid giving significant weight to that factor, when sentencing for the armed robbery, in circumstances where there was to be a separate and substantial punishment for the firearm offence as well.

The approach adopted in Kruzenga was consistent with that adopted earlier by Redlich JA in Armistead v The Queen. In that case the offender was convicted of two counts of armed robbery and, relevantly, one count of possessing an unregistered firearm while being a prohibited person. The possession charge was a distinct offence as the act of possession the subject of the count was not the act of possession at the time of the armed robbery. However, the offender's use of the firearm was an act constituting an element of the armed robbery. His Honour said:

The sentencing judge was therefore required to impose sentences on the possession counts that did not include any penalty for the possession or use of the firearm in the course of the armed robberies. The Crown conceded that to avoid punishing the appellant twice for the same act, the sentence on the ... count of possession needed to be reduced to reflect ... the fact that the appellant was not being punished on that count for the use of the firearm in either of the armed robberies ... .

The sentencing judge had imposed a sentence of two years' imprisonment on the possession count. Redlich JA noted that a sentence of two years or above for possession was typically reserved for those cases where the possession was for the purpose of being used in criminal activity. Having already punished the offender for the use of the firearm in the armed robberies, the sentencing judge could not take into account for a second time the association with criminal activity when sentencing the offender for possession. He said:

Sentences in the order of two years for the offence of possession of an unregistered firearm whilst being a prohibited person are usually reserved for cases where the firearm is in fact used in the commission of an offence, or is possessed for a specific criminal purpose, or is 'associated with ongoing criminal activity'. Cases in which the possession cannot be so characterised normally attract sentences considerably lower than two years' imprisonment. The sentence imposed has left me uneasy that his Honour treated the fact that the appellant used the ... firearm in the armed robberies as establishing that the possession was for a specific criminal purpose so as to aggravate the offence of possession, and in that way an element of double punishment crept into the sentence. Having been punished for his use of the firearm in the armed robbery, the range of sentences open to the sentencing judge was not those for possession associated with criminal activity.[124]

116 In re-sentencing the appellant in Kruzenga Weinberg JA[125] set aside the sentence of 18 months on the charge of having shortened the barrel of the firearm and substituted a sentence of 12 months' imprisonment for that offence. He ordered that four months of that sentence be served cumulatively upon the sentence of five years imposed on the armed robbery offence, which he re-affirmed, making a total effective sentence of five years and four months.[126]

117 In re-sentencing the appellant in Armistead Redlich JA[127] re-sentenced the offender to six months imprisonment with respect to the offence of possession of an unregistered firearm to be served wholly concurrently with the sentence to be served on the first of the armed robbery counts.[128]

118 In my view, the circumstances here are clearer than those that applied in Armistead. Here the act of possession the subject of charge 11 was not based upon conduct distinct from the conspiracy to commit armed robbery. It was based upon conduct that took place during the conspiracy and was only discovered when the car in which Kamal was travelling, with Murrell and Ngaa, towards the JD's sports bar, was obstructed by the police when the conspiracy was detected. Moreover, it is also apparent that the judge took into account the conduct that he relied upon in support of charge 11, Kamal's possession of the firearm, as an aggravating factor in the conspiracy to commit armed robbery. In assessing the seriousness of the offending, the judge considered the fact that 'there was a loaded Smith & Wesson revolver found'[129] alongside other aggravating factors including the theft of multiple cars, the fact that disguises and cable ties were to be used, and the consideration that the armed robbery was to take place in broad daylight in a main street of Ballarat. Having treated the possession of the firearm as an aggravating factor in the conspiracy, it was incumbent on the judge not to punish again for the very same conduct.

119 In its written submissions, the Crown argued that the judge did appropriately moderate the sentence in relation to the charges 1 and 11 in regard to which there was some overlap. This is evidenced, the Crown submitted, by the fact that the sentence imposed on the firearms charge was only four years, representing 26 per cent of the maximum penalty of 15 years, and the cumulation ordered of 12 months was submitted to be at the low end of the scale.

120 However, while the maximum penalty for the possession offence is substantial, the imposition of a sentence of four years for possession of a firearm would, as Redlich JA noted in Armistead, usually be reserved for those occasions on which the possession was linked to its use for criminal activity. In my view, the severity of the sentence on charge 11 indicates that the judge took into account the association of the possession of the firearm with criminal activity in sentencing Kamal under charge 11 while also taking into account the possession of the firearm in sentencing for that very same criminal activity.

121 Moreover, the circumstances here go beyond mere overlap. Analogously to the observations made by Weinberg JA in Kruzenga, here the possession of the revolver was for one reason only, for use in the planned armed robbery. It was thus necessary for the judge to take great care not to treat the possession of the revolver as both an aggravating feature of the conspiracy and a separate and distinct offence requiring a significant measure of punishment as well as a substantial amount of cumulation. Yet there is no reference made in the judge's sentencing reasons to any moderation of sentence to avoid the possibility of doubly punishing Kamal.

122 In my view, the judge failed to take the care required in sentencing Kamal to four years' imprisonment on charge 11, with a cumulation of one year, when he had taken the possession of the firearm into account as an aggravating factor in sentencing Kamal to six years on charge 1, the conspiracy offence. I consider that the judge erred in doubly punishing Kamal. At the hearing of the appeals, the Crown conceded that an element of double punishment had crept into the sentence of four years. It submitted, however, that some degree of cumulation was necessary and that one year might be appropriate.

123 The Crown further submitted that, as the double punishment argument was not advanced on the plea, Kamal should therefore be prevented from raising it on the appeal.[130] This submission should be rejected. There was no obligation on Kamal to make submissions in anticipation that the judge would fall into the error of doubly punishing him by treating the possession of the firearm as an aggravating feature of the conspiracy offence without modifying the sentence he imposed on the possession offence, in the absence of any intimation that this is what the judge intended to do. In light of the nature of the error, and the obligation that rested on the judge to take the necessary care to avoid doubly punishing Kamal, I consider that a failure to make the relevant submission on the plea ought not preclude Kamal from relying on the submission on his appeal.

125 The penalty for the firearms offence of which Kamal was convicted (charge 11), possessing an unregistered firearm whilst prohibited contrary to s 5(1A) of the Firearms Act 1996 was, at the time the offending took place, 1800 penalty units or 15 years' imprisonment. Section 5 read:

(1) A prohibited person must not possess, carry or use a registered firearm.

Penalty: 1200 penalty units or 10 years imprisonment.

(1A) A prohibited person must not possess, carry or use a firearm that is not registered.

Penalty: 1800 penalty units or 15 years imprisonment.

126 Section 5(1A) was repealed in May 2012,[131] and the conduct in question is now proscribed by s 5(1) of the same Act, which provides as follows:

(1) A prohibited person must not possess, carry or use a firearm.

Penalty: 1200 penalty units or 10 years' imprisonment.

The relevant legislative change occurred shortly after the commission of the offence. The offence no longer makes any distinction based on the registration status of the firearm; as is apparent, previously, possession of a registered firearm by a prohibited person had attracted the penalty now contained in s 5(1).

127 Kamal, relying upon the remarks made by Nettle JA in Driver,[132] submitted that the statutory reduction in sentence ought to have been taken into account in sentencing, as it evinced a change in Parliament's attitude to the appropriate maximum for the offence in question.

128 In Driver the applicant had been charged with multiple offences, including theft, armed robbery of a bank, possessing a registered category A longarm (rifle) without being the holder of a licence, shortening the barrel of a longarm, and possession of an imitation firearm (a handgun). With respect to the offence of possessing an imitation firearm, there had been an amendment to the Firearms Act subsequent to the offending that had led to that offence being captured by s 5 of a different Act, the Control of Weapons Act 1990, with a substantially lower maximum penalty. Section 5 of the Control of Weapons Act prescribed a maximum penalty of two years by contrast with the maximum penalty of seven years which applied to the offence when committed.

129 The applicant in Driver cited the principle set out by Howie J in R v Ronen,[133] which concerned the maximum penalty applicable for some offences of conspiracy to defraud the Commonwealth of taxation revenue, where the legislative provisions changed during the course of the conspiracy. The principle was based upon the approach that the maximum penalty reflects the seriousness of the crime in the mind of the public given a voice through Parliament. It was to the effect that although the new maximum penalty subsequent to an amendment of this nature will not necessarily be applicable in formulating the sentence,

[It] may not necessarily follow [that the fact that the new maximum penalty is lower] is totally irrelevant. The Judge in the present case, as a matter of fairness and justice, took into account the change in attitude of Parliament to the seriousness of the type of offences committed by the applicant when determining the appropriate sentences to impose upon them ...[134]

I find it impossible, consistently with this approach, to ignore legislative acts or statements that indicate that Parliament's view of the seriousness of particular criminal conduct, as reflected in the maximum penalty for an offence punishing that conduct, has changed. This is particularly so where the offending occurs at a time relatively proximate to the expression of the change of view. The applicants' criminal conduct came to an end in 2001 the same year that the legislation was amended.[135]

Saner v The Queen; Kamal v The Queen [2014] VSCA 134

At a glance

Court

Decision date

Before

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Judgment (268 paragraphs)

Saner v The Queen; Kamal v The Queen [2014] VSCA 134 (27 June 2014)

Legislation Cited (2)