SCICLUNA v R

The accomplice 23 Haynes was thirteen years younger than the applicant. He was sentenced on 5 June 2003 by Milson DCJ, sitting in the Drug Court for three offences of aggravated breaking, entering and stealing. The circumstance of aggravation in each case was that the offences were committed in company. The applicant was not involved in two of the offences, which also involved breaking into premises and cutting into automatic teller machines with oxy-acetylene equipment. The first offence was committed on 15 November 2002 and involved a loss of $40,000; the second occurred on 27 November 2002, involving a loss of almost $143,000 and the third was the present offence. Haynes had admitted his guilt when arrested and volunteered what the judge described as "a great deal of information about the planning of the offences though not all he could have provided as to the identification [of his accomplices]", although he did name the applicant. It appears that, as a security officer, he was able to significantly assist in the commission of the offences because he held a security licence and was qualified and worked in the field of alarms. As the sentencing judge observed, the offences were aggravated because of their planning and organisation. 24 Haynes had indicated his intention to plead guilty at an early stage and pleaded guilty in due course. Milson DCJ said that heretofore he had been a person of good character and had committed the offences because of his addiction to drugs and his consequent connection with his accomplices upon whom he was dependent for his drug supply. In respect of the first offence Haynes was sentenced to a fixed term of eighteen months. In respect of the other offences he was sentenced to concurrent fixed terms of two years three months, reduced by seven weeks to account for time spend in custody, cumulative upon the sentence for the first offence. The sentences were then suspended to enable the offender to undertake the Drug Court programme. 25 Haynes' Drug Court programme was terminated on 6 February 2006. On 17 February 2006, in lieu of the initial sentences passed on each of his three offences, convictions were recorded, he was conditional discharged under s 9 of the Act and placed on a good behaviour bond in each case subject to the supervision of the Probation and Parole Service. The judge noted that he had been in the programme for some two years and eight months, having entered it on 6 January 2004, moving to Phase 2 on 6 January 2004 and Phase 3 on 5 May 2004. Despite some failings, there had been a substantial improvement and he had come "very close" to graduating. Overall, he had spent nine weeks in pre-programme custody, and about nine weeks in custody during the programme as well as over six months in a residential rehabilitation placement. The judge noted that he had significant "mental health" issues.

Prior Record 26 The applicant's criminal history commenced with a conviction in 1977 for breaking, entering and stealing as a child. He was almost fifteen years of age. A two-year committal to an institution was suspended on his entering into a good behaviour bond. Almost three years later he was placed on twelve months probation for stealing. There followed some driving offences. In 1990 he was convicted and fined for a firearms offence. In November 1991 he was convicted of twenty counts of passing valueless cheques and two counts of obtaining a financial benefit by deception, receiving two hundred hours of community service and placed on a two-year good behaviour bond. Several driving offences ensued and then the sentences for the drug offences imposed on 28 October 2005 to which I have already referred. On 19 June 2006 he was sentenced to three months' imprisonment for being in possession of goods reasonably suspected of having been unlawfully obtained.

Subjective features 27 The applicant was forty years of age as at the date of the offence. Pre-sentence reports and a psychologist's report were tendered. There is nothing of particular significance in his family history. It appears, however, that the applicant's brother was diagnosed with Huntington's disease in 2005 and the applicant became extremely anxious and depressed about the possibility that he also might have the disease. However, as was disclosed to the sentencing judge, the applicant does not, in fact, have Huntington's disease.

The appeal 28 The sole ground of appeal is that the applicant has "a justifiable sense of grievance" as that phrase is used by Mason J in Lowe v The Queen (1984) 154 CLR at 617-618, in light of the sentence passed on his accomplice Haynes. It is instructive to note the entire passage in which this phrase is used (and see also R v Steel (NSW CCA 17 April 1997) per Simpson J) - "What is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate." 29 The sentencing judge referred to Haynes' sentence as follows - "It was submitted on behalf of the offender that the principles of parity should apply to any sentence imposed on [the present charge]. However, his co-offender…who had only a very limited criminal history at the time and was also much younger than the offender was dealt with in the Drug Court. On 5 June 2003 terms of imprisonment were imposed on this matter as well as for other offences. The sentences were suspended for the duration of the Drug Court program. On 17 February 2006, a s9 bond of twelve months with supervision was imposed. In these circumstances I do not consider it is appropriate that the principles of parity should apply." 30 It is obvious that her Honour did consider the issue of parity. The principles apply to all cases where co-offenders are being sentenced. However, the principle does not always require an adjustment to the sentence that might otherwise be imposed. This can only be appropriate where there would be a "justifiable sense of grievance" were the offender to receive a sentence out of kilter with that of a co-accused. The grievance would not be justified, of course, if the differences between the co-offenders were such as to explain the different sentences. In my view, the remarks of the sentencing judge did not suggest that her Honour did not have regard to the principle of parity. Her Honour meant merely that the differences between Haynes and the applicant were such, as she saw them, that no use could be made of the sentence imposed on Haynes for the purpose of sentencing the applicant. 31 It is contended by Mr Marr of counsel for the applicant that the differences between the applicant and Haynes were not such as to justify disregarding the sentence passed on Haynes. He points to five relevant features of the comparison: first, Haynes' involvement in the offence was at least as significant as the applicant's; second, the fact that Haynes' "very limited criminal history" arose from the simple fact that he was not charged with the earlier crimes until after he had committed the present offence; third, that Haynes' earlier crimes were far more serious than those of the applicant; fourth, the markedly lesser sentence passed on Haynes in accordance with the Crimes (Sentencing Procedure) Act 1990 (the Act); and, finally, the suspension of Haynes' sentence to enable him to undertake the Drug Court programme. 32 The first of these matters is, I think, correct: the applicant had the welding experience and Haynes' had the security experience. The second and third points are to my mind well taken. The criminal record of Haynes may fairly be regarded, so far as the nature of the crimes committed is concerned, as being as serious or even perhaps more serious than that of the applicant, since it comprised, in addition to the present serious offence, two other similar offences which involved the loss of about $200,000, whilst that of the applicant comprised crimes of far less criminality except, perhaps, for the offences associated with the manufacture of amphetamines. It might be said that Haynes' offences were committed in a relatively short time frame and the applicant offended over a longer period, but this does not really count for much in my opinion. Although there was an age difference of some thirteen years, Haynes was twenty-seven years old at the time of the offence, so he was a mature man and no mere youth. The fourth point is without substance. There was a period during which judges who intended to refer offenders to the Drug Court programme did not complete the sentencing process before doing so and this needs to be borne in mind when comparing what might be called conventional sentences and those involving Drug Court referrals made in this period. For present purposes, Haynes' sentence should be considered as analogous to a fixed term. This is a period which (suspension aside) an offender must serve. For the purposes of comparison it is analogous to a non-parole period, not the head sentence. Furthermore, a head sentence of two years and three months would have been so manifestly inadequate that I am sure that the sentencing judge had not intended that it should be so considered. So regarded, the applicant therefore was, in substance, sentenced to a lesser period of minimum imprisonment than Haynes (two years as compared to two years and three months.) A non-parole period of two years three months implies a head sentence, on the assumption that there were no special circumstances, of three years. 33 I agree that there is a marked difference between the implicit head sentence applying to Haynes and the head sentence of four years imposed on the applicant. In comparing these sentences it is necessary to consider in some detail the different situations presented by each of the applicant and Haynes. Of considerable importance is the course each took in relation to the offence: Haynes confessed at an early stage, gave significant information to the police and pleaded guilty throughout. On the other hand, the applicant sought to change his plea and significant resources were expended before he ultimately pleaded. His first plea was entered on the morning his trial was to commence. Somewhat generously to my mind, the applicant was afforded a 10% utilitarian discount.

34 There was convincing evidence of Haynes' remorse and his prospects of rehabilitation were good. The sentencing judge mentioned in her reasons the opinion of the psychologist that "with treatment, guidance and supervision [the applicant's] overall prognosis is quite positive". He had also expressed "considerable regret" to the psychologist, who thought it was genuine. In my view, the applicant and Mr Haynes' cases differed significantly in respect both of the nature and extent of their remorse for the offence and their prospects for rehabilitation. 35 Leaving aside the question of the suspension of Haynes' sentence so that he could undertake the Drug Court programme and his final sentence, the comparison of the sentences, taking into account the differences between Haynes and the applicant which I have mentioned, does not to my mind demonstrate an unjustifiable difference in the sentences. On the contrary, I think they bear a reasonable degree of parity. 36 Mr Marr submits, as I mentioned, that the suspension of Haynes' sentence to enable his participation in the Drug Court programme represented a very substantial amelioration in the severity of the sentence and created such a disparity between the punishment meted out to him as contrasted with that imposed on the applicant as to give rise to a justifiable sense of grievance. Mr Marr submits that the fact that Haynes was a drug addict should not be put in the scales in his favour so as to justify treating the applicant with substantially greater severity. This argument, of course, applies both to the head sentence and the non-parole period imposed on the applicant. 37 Of course, the applicant's sentence of four years could not be suspended since it was for a term greater than two years: s 12 of the Act. Nor was the applicant able, since he was not a drug abuser, to be dealt with under the Drug Court regime. 38 It is clear enough that the sentencing judge considered that the fact that Haynes was dealt with by the Drug Court was a substantial reason for disregarding his sentence - in effect, its suspension - as relevant in setting the applicant's sentence. Had Haynes been given a suspended sentence not subject to the Drug Court regime there would a great deal of force in the applicant's argument, although to have done so would certainly have been manifestly too lenient. In this event, however, the outcome could not be that the applicant's sentence should also have been suspended - that would simply have been to impose another manifestly too lenient sentence. Nevertheless, it would have been necessary to consider whether Haynes' suspended sentence created such a marked discrepancy between his punishment and that meted out to Haynes as to give rise to a justifiable sense of grievance. Of course, there was never any prospect of Haynes' sentences being suspended in the ordinary course: it was only the availability of the Drug Court programme that justified the course taken by Milson DCJ. It should be noted also that the regime imposed by Part 4A of the Crimes (Administration of Sentences) Act 1999 involves severe restrictions on the offender's freedom, sufficiently described for present purposes as "closed detention", "semi-open detention", and "community custody". Nevertheless it cannot be gainsaid that, in substance, the suspension of Haynes' sentence to undergo the compulsory drug treatment programme resulted in a punishment outcome considerably more lenient than that meted out to the applicant. In my view the question whether there should have been an adjustment in the sentence otherwise appropriately imposed on the applicant in light of the sentence in substance imposed on Haynes is a live one. 39 As I have already mentioned, the applicant did not have available a potential for suspension: first, his (head) sentence was four years and a two year sentence was simply below the available discretionary range; secondly, he did not quality for the Drug Court programme as he was not a drug user. His case is, overall, that it is not fair that, not being a drug user, he was so much more harshly punished than his co-offender when his co-offender's criminality was not less than his and this crime was the third of a series of similarly serious offences, even making every fair allowance for the differences in the respective utilitarian discounts and Haynes' better prospects for rehabilitation. 40 The question, then, is whether it is appropriate to bring into account, when comparing sentences for the purpose of ascertaining whether "there is a manifest discrepancy such as to engender a justifiable sense of grievance", the fact that the sentence of one offender has been suspended to enable that offender to undertake the Drug Court programme. I think that there can be no doubt that the fact that a co-offender is given, say, a community service order would be regarded as relevant for comparison purposes; so also must be an order that a sentence be served by way of periodic detention or home detention. There is no reason in principle why the fact that a sentence is suspended under s 12 of the Act and ultimately the offender was subjected to a s 9 bond ought not be taken into account when comparing that outcome with that afforded to a co-offender whose sentence is not suspended and who did not receive a bond. In the conventional case, continuation of a suspension is dependent upon compliance with a bond to be of good behaviour: par 12(2)(a). It is also obvious, as I think, that a comparison may be made between a sentence of imprisonment passed on an offender and an order deferring the passing a sentence on his co-offender under s 11 of the Act or with the imposition in lieu of imprisonment of a bond under s 9. These comparisons are essential in order to enable an examination to be made as to whether, in substance - whatever the form - the sentencing outcomes for co-offenders satisfy the fundamental requirement of equal justice: see Postiglione v The Queen (1997) 189 CLR 295, for example, per Dawson and Gaudron JJ at 301-302. This is not a principle that depends upon matters of form; the Court must step back from the technical aspects of particular sentencing outcomes and consider their substance in terms of parity of punishment. 41 Is the fact that Haynes' sentence was suspended to enable him to undertake the Drug Court programme to be taken into account in comparing the punishment meted out to him by the Courts and that meted out to the applicant? In my view, the answer to this question must be yes; a fortiori, the initial suspension and ultimate bond. As the legislation stood at the time Haynes was sentenced, he was required to be sentenced pursuant to the Act before he was referred to the Drug Court. That sentence, in the Drug Court Act 1998 called the "initial sentence", is to be reconsidered if the offender fails to comply with the conditions of the programme and a final sentence then passed which takes into account what has happened since the passing of the initial sentence. When the offender is referred to the Drug Court, that Court "must make an order suspending execution" of the initial sentence whilst the offender undergoes the programme. In principle, as it seems to me, this is no different from the case of a co-offender whose sentence is deferred. This Court has held that the mere fact that a co-offender was sentenced in the Children's Court whilst an applicant was dealt with (say) in the District Court does not exclude comparison although the different sentencing objectives and considerations applicable in the Children's Court limit its value: see a review of the cases by Smart AJ in Ersman (2007) 171 A Crim R 560 at 570ff. It should be noted, however, that there is a substantial difference between the purpose of the Children's Court and that of the Drug Court. Offenders come into the former because of the public policy considerations that necessarily apply to children, whilst they come to the Drug Court because of their drug abuse, having already been subject to an initial sentence in the District Court or else they must be sentenced by the Drug Court before admission into the drug programme; in short, the very condition that brings them there is criminal conduct punishable in the District Court and, if their participation in the programme is terminated, the Drug Court will sentence the offender under the Act in the conventional way, imposing "any penalty that could have been imposed by the District Court" (if the referral was from that court): s 15. If the fact that a co-offender is sentenced in the Children's Court is not an impediment to considering sentence, then it follows by parity of reasoning that a suspension of sentence under the Drug Court Act is also not such an impediment, still less when the final sentence is a s 9 bond. It seems to follow that regard to the Drug Court sentence need not be so "cautious" (adopting the language of Smart AJ at 171 A Crim R at 573) as needs to be the case with a Children's Court sentence, since the different way children are treated is not material to an offender in the Drug Court. 42 The general principle of equal justice is a fundamental concept that should not be deflected by technical distinctions. It binds the courts in their administration of the criminal law. The Drug Court programme is not, juristically considered, a rehabilitative programme administered by the Executive as part of the sentence imposed by a Court. The suspension of the sentence imposed on Haynes was the order of a Court following a decision by a Court as to the mode by which his sentence was to be served. It was a judicial determination following the statutory regime. Failure to satisfy the requirements of the programme leads to final sentencing by the Court, not a mere change in the prison regime. Substantial compliance also leads to termination of the programme and the imposition of a final sentence: Division 2 of the Drug Court Act. In this case, Haynes' final sentence was a s 9 bond. 43 In principle the requirements as to parity are directed to the Courts in their administration of criminal justice: that the courts must deal as equally or as differently with co-offenders as the circumstances require is a fundamental rule of justice as administered by the courts. The question, in the end, is a simple one, for all that in the particular case it may not be easy to answer: considering what the Court has done to each co-offender, has like been treated as like and is there "due proportion between those sentences…having regard to the different circumstances of the co-offenders in question and their different degrees of criminality" (to adopt the language of Dawson and Gaudron JJ in Postiglione (154 CLR at 301)). The mere fact that a court has applied a particular statutory regime to an offender cannot change the fundamental point that it does so by an order applied to a particular offender by way of punishment. Nor does the mere fact that the order enlivens a statutory scheme change its essential character for the purposes of applying the basic principles of equal justice. One sentence (albeit incomplete) was suspended by order of the Court and one was not. This would be enough in my view to require comparison but there was also, in this case, a comparable final sentence, namely a s 9 bond.

44 It remains to say that, where the degree of disparity invites a reduction in the sentence imposed on the applicant, the Court will not do so if the result would produce a sentence disproportionate to the objective and subjective criminality involved (R v Boney [2001] NSWCCA 432, per Wood CJ at CL) in the sense that it would be a sentence which lies outside an applicable discretionary range.

Conclusion 45 The marked disparity between the respective orders applied by the sentencing courts to the applicant and his co-offender can in part be justified by the differences between them to which I have referred. But, in my respectful view, the difference between the applicant's sentence and Haynes' sentence is so marked as to give rise to a justifiable sense of grievance in the applicant and, in considering that it was not, the sentencing judge erred. 46 Accordingly, it is appropriate to read the applicant's affidavit filed on the appeal. He states, in effect, that he has been entrusted with work that indicates he is a trusted prisoner. He claims to suffer from problems with his heart and dizziness and also from depression. His older brother passed away in October 2007 and his other brother suffers from Huntington's disease. He has been visited in gaol by his partner. 47 The head sentence of four years, though within a permissible range, is not at the bottom of that range. I would reduce it, accordingly, to three years. Usually, the sentencing judge, having found special circumstances justifying a departure from the ratio specified in s 44(1) of the Crimes (Sentencing Procedure) Act 1990, this Court would extend the benefit of that finding to the fresh sentence. However, in my opinion, the non-parole period of two years imposed below is at the bottom of the permissible range and cannot be further reduced.

Orders 48 I propose the following orders - 1. Leave to appeal is granted. 2. The sentence of four years for charge (i) is quashed and in lieu thereof a sentence is imposed of three years' imprisonment commencing 26 April 2008 and expiring 25 April 2011. 3. In all other respects the appeal is dismissed. **********

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