Spinks v R

Court of Criminal Appeal (NSW)|2007-03-22|Before: Sully J, Bell J, Hoeben J, Gaudron JJ

The applicant was sentenced for this offence to 15 years' imprisonment with a non-parole period of eight years and nine months.

12 The applicant asked the Judge to take into account five offences on a Form 1 in dealing with him for the robbery of the Pendle Hill newsagency. These five offences all arose out of the same incident which occurred on 30 December 2000 at the Best Road Takeaway, Seven Hills: Armed with intent to assault contrary to s 114(1)(a);

13 The applicant was sentenced in each case to a fixed term of seven years' imprisonment for the armed robberies of the Artarmon LiquorLand and the Blaxland Fine Wine Cellars.

14 Each of the sentences imposed on the applicant was expressed to commence on 14 July 2003, which was the date of his arrest. Judge English allowed a discount of 25 percent for the utilitarian value of the applicant's early pleas of guilty. The structure of the sentences imposed by English DCJ was such that considerations of totality were reflected in the sentence imposed for the Toongabbie robbery: R v Spinks [2005] NSWCCA 459 per Grove J at [23] - [24].

15 Lea-Caton was arrested on 9 July 2003. He was sentenced for two aggravated armed robberies: 3.7.03 - the Concord Newsagency;

8.7.03 - the Blaxland Fine Wine Cellars. Lea-Caton asked Berman DCJ to take into account on two Form 1 documents four aggravated armed robbery offences: 26.6.03 - the Toongabbie Newsagency;

26.6.03 - Neil Champion a customer of the Toongabbie Newsagency;

3.7.03 - Sandro Zegarelli a customer of the Concord Newsagency;

7.7.03 - the Windsor Sparkling Jewellers. 16 Lea-Caton was sentenced for the aggravated armed robbery of the Concord newsagency to a term of eight years' imprisonment with a non-parole period of five years. This sentence was expressed to commence on 9 October 2005. He was sentenced for the aggravated armed robbery of the Blaxland Fine Wine Cellars to eight years' imprisonment with a non-parole period of four years. This sentence was expressed to commence on 9 October 2009. Lea-Caton's effective sentence for the armed robbery offences was ten years' imprisonment with a non-parole period of six years.

17 The approach adopted by Berman DCJ in sentencing Lea-Caton for the two offences was that commended by the High Court in Pearce v R [1998] HCA 57; 194 CLR 610 at 623 -624 [45]. Totality was addressed in the extent of the order for accumulation. His Honour discounted the sentences by 10 per cent to reflect Lea-Caton's late pleas of guilty.

18 The applicant and Lea-Caton each pleaded guilty and/or admitted guilt in respect of seven aggravated armed robbery offences, which arose out of five separate incidents. There were three incidents in common which led to each offender being charged with five offences of aggravated armed robbery: the Toongabbie newsagency (2 counts);

19 The Blaxland Fine Wine Cellars robbery was the only offence of which the applicant and Lea-Caton were both convicted on indictment. No complaint of disparity arises with respect to the sentence imposed on Lea-Caton for this offence.

20 The applicant pleaded guilty to two offences on indictment that were not charged against Lea-Caton: the Pendle Hill newsagency robbery and the Artarmon LiquorLand robbery. He asked the Judge to take into account the five offences committed at the Best Road Takeaway in sentencing him for the Pendle Hill offence.

21 Lea-Caton asked the sentencing judge to take into account an armed robbery of a jewellery store in Windsor, which was an offence that was unconnected to the applicant.

22 The aggravated armed robberies of which the applicant and Lea-Caton were convicted (or admitted in a Form 1) followed a similar pattern; each was committed by two men, one of whom was armed with a .22 sawn-off rifle, and involved the robbery of relatively small amounts of money.

23 In written submissions senior counsel for the applicant summarised the position in this way: (i) The applicant was involved in seven robbery offences arising out of five separate incidents. Lea-Caton was a co-offender in relation to five (or six) of the seven robbery offences. The applicant was involved in one robbery offence in which Lea-Caton was not implicated, that is the robbery at Artarmon on 1 July 2003. The applicant was also involved in a separate, much earlier incident involving violence and a replica firearm. (ii) Lea-Caton was involved in seven robbery offences arising out of five separate incidents. The applicant was a co-offender in relation to five (or six) of the seven robberies. Lea-Caton was also involved in one robbery in which the applicant was not implicated, that is the robbery at Windsor on 7 July 2003. Lea-Caton was also charged with offences of dishonesty in relation to motor vehicles and some drug offences.

24 The reference in parenthesis to six common offences in the applicant's summary relates to the armed robbery of the Pendle Hill newsagency. This was the first count for which the applicant stood for sentence. The facts before English DCJ stated that the co-offender was Lea-Caton. Lea-Caton was not charged with the commission of the Pendle Hill newsagency robbery. Senior counsel for the applicant did not submit that Lea-Caton was to be viewed as a co-offender in the commission of this offence. This was an appropriate concession: the fact that a co-offender escapes detection does not give rise to a justified sense of grievance: R v Wurramarbra (1979) 1 A Crim R 291 at 292.

25 Senior counsel for the applicant submitted that the totality of criminality of the two men was in the context of their joint offending (and relatively minor nature of their separate offending) close to identical. In his submission there was no significant difference in the background of the two: each had a lengthy criminal record, but neither had been convicted of offences of such seriousness. Each committed the offences (or some of them) in breach of conditional liberty; the applicant was in breach of a Queensland Parole order, and Lea-Caton was the subject of a suspended sentence imposed by the Drug Court. The applicant was aged 28 years and Lea-Caton was aged 32 years. Each was addicted to drugs and each had taken steps towards rehabilitation. Each was remorseful and genuinely desirous of rehabilitation.

26 In the applicant's submission the measure of the disproportion as between his sentence and that imposed on Lea-Caton is best assessed by a comparison of the respective sentences absent the discount that each received for his plea of guilty. The applicant received a 25 percent discount. Judge English's starting point for his sentence was thus 20 years. Lea-Caton received a 10 percent discount. Judge Berman's starting point for the aggregate sentence was thus 11 years.

27 A second and distinct consideration was said to militate in favour of intervention in this case, which is the public policy that encourages early pleas of guilty: R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383. The applicant entered pleas of guilty in the Local Court and adhered to them in the District Court. Lea-Caton delayed pleading guilty until April 2005. By choosing not to co-operate with the prosecution at an early stage it was submitted that Lea-Caton secured an advantageous charge bargain. If the Court were to refuse the applicant's appeal upon the footing that he stood for sentence in respect of twice as many armed robbery offences as Lea-Caton it would serve as an object lesson to offenders to delay entering pleas of guilty with a view to a successful charge bargain closer to the date fixed for trial.

28 Counsel acknowledged that the application of the principle of parity was not without difficulty in this case: the applicant was convicted of four armed robberies while Lea-Caton was convicted of only two. Counsel accepted that these considerations made it inevitable that the applicant would receive a greater sentence. His complaint was as to the suggested extent of the disproportion. In counsel's submission the difference in the number of offences with which each was convicted did not stand in the way of the application of principles of parity. In this respect counsel relied on passages in the judgment in R v Kerr [2003] NSWCCA 234.

29 In Kerr the appellant was convicted at trial of aggravated robbery (involving the use of corporal violence), an offence that carries a maximum of 20 years' imprisonment. He was sentenced to a term of 13 ½ years' imprisonment. A co-offender was charged with robbery simpliciter contrary to s 94, an offence that carries a maximum of 14 years' imprisonment. The co-offender pleaded guilty and was dealt with by an ordered to perform 500 hours community service. The trial Judge accepted the Crown Prosecutor's submission that "no issue of parity" arose. In this Court, Miles AJ (with whose judgment the other members of the Court agreed) said this: [13] However the principle of parity in sentencing, or rather policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined. [14] Clearly neither of the two was treated as a co-offender but at the same time each was implicated in the events which gave rise to the aggravated robbery. [15] There are two aspects to the principles. Like has to be and may only be compared with like and imbalance must be enough to justify on objective analysis a sense of grievance on the part of the offender who complains of the heavier sentence: Postiglione v The Queen (1997) 189 CLR 295. As to the first aspect, the principle is difficult to apply in the present case since neither of the two co-offenders was charged with the offence of aggravated robbery. It may have been that the facts did not support that charge, at least against Tickner, although it is noteworthy that Tickner received the suspended prison sentence, having remained in the vehicle and driving the other two from the scene. This was a sterner penalty than that received by Oliver who was ordered to perform community service, having accompanied the applicant into the house disguised in a balaclava and wielding the cricket bat. The charging of robbery simpliciter against Oliver appears explicable on the basis of his cooperation with the authorities rather than his actual participation in the events. … [19] It is established that disparity so called can arise when a co-offender is sentenced after the aggrieved offender has been sentenced: Postiglione v The Queen . In such cases there can be no error on the part of the judge sentencing the offender later aggrieved: Lowe v The Queen (1984) 154 CLR 606 at 610 - 611. It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice.

30 In R v Formosa [2005] NSWCCA 363 the Court again considered the application of the principle of parity in circumstances where two offenders were charged with different offences arising out of their involvement in an offence. The appellant in that case pleaded guilty to maliciously inflicting grievous bodily harm whilst in company. CW pleaded guilty to being an accessory after the fact. Simpson J (with whose judgment the other members of the Court agreed) observed that the prosecution had treated CW generously. In dismissing the appeal Simpson J said: [31] On behalf of the applicant it was submitted that: The policy behind the principle of parity is not rendered otiose by the co-offender being sentenced to a lesser charge on election by the prosecuting authority to accept a plea to a lesser offence. [32] The decision of this Court in R v Kerr [2003] NSWCCA 234 was cited as authority for that proposition … … [39] In both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences with that of the appellant. Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties. [40] The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and the applicant it is difficult, if not impossible, to see how that principle can be applied. … [44] I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle. … [47] What appears to be suggested on behalf of the applicant is that, because CW was charged with a more minor offence, then the applicant should also have been sentenced proportionately to the sentence imposed upon him. In my opinion this is a distortion of the parity principle and, if adopted, would give rise to a distortion of the sentencing process. … [50] Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision-making process. That is not something over which this Court has supervisory jurisdiction, even by the back door method of supervising sentencing. 31 Simpson J's reservations about the extension of the parity principle to offenders who are charged with different offences as the result of the prosecutorial decision-making (and who are thus not co-offenders) are apt to the circumstances of the present case. The prosecution elected to accept Lea-Caton's plea of guilty to two counts and to allow him to admit his guilt pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999 in relation to the remaining offences with which he had been charged. This resulted in Lea-Caton's conviction for a lesser number of offences. The Court does not know the reasons that led the prosecution to take the course that it did with respect to these two offenders. It may be that the Crown did not have sufficient evidence to support the conviction of Lea-Caton for each of the offences with which he had been charged. The assumption that underlay the submissions advanced on the applicant's behalf, that Lea-Caton had secured an advantageous charge bargain by delaying his pleas of guilty may, or may not be, correct. The Court is not to know.

32 The claimed disproportion in the sentences imposed on the applicant and Lea-Caton is somewhat less when account is taken of the effect of the sentences on each in light of his custodial situation. The applicant was arrested for these offences on 14 July 2003. Each of the sentences fixed by English DCJ commenced on that day. This was despite the fact that the applicant had been charged with a number of unrelated offences, including larceny of a motor vehicle, hindering a police officer in the execution of duty, goods in custody, and possession of implements to enter/drive a conveyance. He was sentenced at the Port Macquarie Local Court on 14 July 2003 to a non-parole period of nine months with a balance of term of three months. The sentences imposed by English DCJ wholly subsumed the sentences imposed in the Local Court. As the applicant's counsel acknowledged it was reasonable to view the applicant's effective sentence for the armed robbery offences as having been ameliorated by nine months.

33 Lea-Caton was arrested in connection with the armed robbery offences on 9 July 2003. At the time of his arrest he was subject to a suspended sentence imposed by the Drug Court. As a consequence of his arrest for the armed robbery offences that sentence took effect. Berman DCJ structured the sentences for the two armed robbery offences such that they were accumulated on the earlier sentence. His Honour fixed the first of the sentences for the armed robbery offences to commence on 9 October 2005. The aggregate non-parole period to which Lea-Caton was sentenced was eight years and three months with an aggregate head sentence of 12 years and three months. In sentencing Lea-Caton Berman DCJ had to consider totality in the light of the sentence then being served. The first date on which the applicant is eligible for release on parole is 13 April 2012. His sentence will expire on 13 July 2018. The first date on which Lea-Caton is eligible for release on parole is 9 October 2011. His sentence will expire on 8 October 2015.

34 The Court must impose a sentence upon an offender that is appropriate to the offence. The extent to which offences on a Form 1 may be taken into account for the purpose of sentence is limited: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146. As senior counsel for the applicant acknowledged, the circumstance that the applicant stood for sentence for four offences of aggravated armed robbery while Lea-Caton stood for sentence for two necessarily involved that the applicant would receive an effective sentence of greater severity. Accepting that this must be so, the complaint that the sentence imposed on the applicant remains disproportionate when compared with that imposed on Lea-Caton is in my opinion without merit.

35 For these reasons the orders that I propose are: 1. Grant leave to appeal against the severity of the sentences imposed by English DCJ;

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Lea-Caton v R [2006] NSWCCA 285 Pearce v R (1998) 194 CLR 610 Postiglione v R (1997) 189 CLR CASES CITED: R v Formosa [2005] NSWCCA 363 R v Kerr [2003] NSWCCA 234 R v Spinks [2005] NSWCCA 459 R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wurramarbra (1979) 1 A Crim R 291

2 BELL J: On 20 August 2004 the applicant was sentenced in the District Court on his pleas of guilty to four counts of aggravated armed robbery contrary to s 97(2) of the Crimes Act 1900. He asked the sentencing Judge to take into account a number of offences that were set out in two Form 1 documents. He was sentenced to an aggregate term of 15 years' imprisonment with a non-parole period of eight years and nine months. He sought leave to appeal against the severity of these sentences. On 6 December 2005 this Court (after considering the merits of his grounds of challenge) refused him leave to appeal: R v Spinks [2005] NSWCCA 459.

5 Lea-Caton sought leave to appeal against the severity of the sentences imposed on him. On 5 September 2006 the Court granted leave, but refused the appeal: Lea-Caton v R [2006] NSWCCA 285.

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