Steven Gregory Browne v Regina

Court of Criminal Appeal (NSW)|2006-02-01|Before: Sully J, Latham J

Introduction 1 On 19 November 2004 the present applicant, Mr. Browne, pleaded guilty before a Local Court Magistrate to a charge of robbery; and to three charges of robbery in company. He was committed accordingly to the District Court for sentence. He adhered, in the District Court, to his pleas of guilty. 2 The applicant stood for sentence on 26 April 2005 before his Honour Judge Knight. At the request of the applicant his Honour took into account a further offence of robbery in company. 3 An offence of robbery contravenes section 94 of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. An offence of robbery in company contravenes section 97(1) of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for 20 years. 4 His Honour passed sentence as follows: · On the count of robbery: a fixed term of 1 year · On one count of robbery in company, and taking into account the additional robbery in company offence which the applicant had asked to be so taken into account: a non-parole period of 2-1/2 years and a balance of term of 2-1/2 years. · On each of the remaining counts of robbery in company: a non-parole period of 2 years and a balance of term of 2 years. 5 The sentences were dated so as to be partly cumulative and partly concurrent. That dating yielded an overall non-parole period of 3-1/2 years and an overall balance of term of 2-1/2 years. The overall head term was, therefore, one of 6 years. 6 The applicant now seeks leave to appeal against sentence. He relies only upon a parity point which is expressed as follows in the formal Notice of Grounds: "The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and those imposed upon his co-offenders Matthew Jones and Samantha Fratus."

As to the offence of robbery: "At 7.30 p.m. on 1 March 2004 a Mr. Gilling boarded a train at St. Leonards Railway Station to travel to Mulgrave. Upon reaching Blacktown Railway Station he saw you walk through the carriage in which he was seated. The train arrived at Mulgrave Railway Station about 9 pm. Mr. Gilling got off the train and was followed by you, you having also got off behind him. You then grabbed Mr. Gilling by the shirt and turned him round, faced him and holding your hand in a fist said "I'm just going to take your shit. Put it on the ground, give me your phone and wallet". Mr. Gilling felt intimidated . He handed over his wallet and his Nokia mobile phone. He placed his laptop bag on the ground. You went through the wallet and removed $15 cash and put the phone in your pocket. You then said "I'm going to take your car, I'll leave it at Richmond Railway Station. You catch a train there to Richmond". Mr. Gilling pleaded with you not to take his car but you pushed him forwards. You then ran towards Riverstone Railway Station with Mr. Gilling's property. Mr. Gilling got into his vehicle and left. You were subsequently arrested at your address at 20 Rodger Street, Kingswood at 8.30 pm and taken to Penrith Police Station where you were interviewed electronically and made full admission. You displayed remorse for your actions and you were charged with robbery and allowed bail."

As to the offence of robbery in company which was taken into account at the request of the applicant: "The next offence in terms of time was that which is contained in the schedule attached to the form 1. The facts in relation to that offence are: that at about 9.30 pm. on 27 March 2004, you, a Mr. Dyer and another unknown male caught a westbound train at St. Marys Railway Station, having previously been spoken to by the police that evening on the station or near the station. Before the train arrived at Werrington Station, you and your co-offenders approached the victim Cemil Ates and demanded a bracelet that he was wearing. Mr. Ates refused and you then punched him in the nose with a closed fist which obviously caused him immediate pain. He then attempted to get away from the three of you by climbing over the railway carriage seats. He was grabbed by one of the three of you and punched by your co-accused Mr. Dyer. You then grabbed Mr. Ates's bumbag, took $200 and a mobile phone from it and then you and your two co-offenders got off the train at Werrington. Mr. Ates reported the robbery to the guard, got off the train at Penrith where he was spoken to by the police. As a result of the robbery he sustained a sore lip and a sore cheekbone. CCTV footage of your getting on the train at St. Marys and off the train at Werrington with Mr. Dyer and the other male person was obtained and your appearance and clothing matched the description given by Mr. Ates. Accordingly you were arrested on 10 August 2004. You participated in a record of interview, identified yourself on the CCTV footage but denied the offence. Of course at the time that you committed this offence you were on bail for the robbery committed on 1 March 2004."

As to the three offences of robbery in company, each of which was charged as a substantive offence: "The next three offences which were all committed on 17 June 2004 occurred as follows: - At about 9 pm on 17 June 2004 you and your co-accused Nicole Parry boarded an east-bound train at Penrith Railway Station. You were also in company with Samantha Fratis, Matthew Jones and a man Tim Grice. You also had with you three small children aged between 1 month and 18 months, who are the children of Samantha Fratis and Nicole Parry. The train stopped at Werrington Railway Station and then continued on. Between Werrington Railway Station and St. Marys Railway Station, you and your co-accused Parry, Jones and Fratis, walked to the lower level of the carriage you were travelling in. Seated in the lower level were the three victims, Graham Newton, Owen Douglas and Matthew Hubbard. The two women, Parry and Fratis, approached Messrs. Newton, Douglas and Hubbard and asked them if they had any money or mobile phones on them. Those men said they did not. You, who were standing nearby, then approached Matthew Hubbard and indicated that he had a thick wallet. Mr. Hubbard, fearing for his safety removed his wallet from his pocket and handed it to you. You then removed a $50 note from the wallet and gave the wallet back to Mr. Hubbard. You then turned your attention to Mr. Newton who was sitting nearby. You searched the pants pockets of Mr. Newton and located a wallet and a mobile phone. You demanded that Mr. Newton hand them to you and Mr. Newton indicated that you could have the wallet but he refused to hand over the mobile phone. He removed $90 in cash from the wallet and held it in his hand. You then took that money from him. You reached into his pocket and removed an Ericsson brand mobile phone. You then approached the victim Mr. Douglas and removed a wallet from his pants. You searched through it and took a $10 note. Throughout this incident you and your co-offenders were all in the immediate area and there was some influence exerted on the victims by your very presence making them believe that they would be assaulted should they resist the taking of their property. Your co-accused Mr. Jones then picked up Mr. Owen Douglas's shopping bag from the floor, rifled through the bag which contained clothing and gave it back to Mr. Douglas. Mr. Jones continued to pat Mr. Douglas down. You then approached the victim Hubbard with a clenched fist in your left hand, pretended to punch him in the face. You did this with the sole intention of frightening him. You then threw another punch in the direction of Mr. Newton, but again pulled the punch causing Mr. Newton to flinch and both you and Mr. Jones then began to laugh. The train slowed down to stop at St. Marys Railway Station and you and your co-offenders then left the victims and left the train at St. Marys. The victims travelled on to Mr. Druitt Railway Station where they reported the matter to the police. Once you had alighted at St. Marys Railway Station, you and your co-offenders walked along the platform towards the stairway and lift entrance." 8 His Honour observed, correctly, that: "These three offences were of course committed whilst you were on bail for the first offence committed on 1 March 2004 and also while you were on bail for the offence which is referred to in the schedule to the form 1, committed on 27 March 2004." 9 His Honour continued: "It does not need words of mine to indicate that these offences all involve very considerable criminality. These people, the victims of these offences were simply minding their own business and travelling in a railway carriage, or in the case of Mr. Gillings, walking on the railway platform having alighted from the carriage. You quite blatantly robbed them of their property. The last four offences were committed whilst you were in company and any right-thinking member of the community would regard these offences as having both considerable criminality and considerable moral turpitude. The criminality is enhanced by the fact that there were in fact three separate episodes of criminality involved and the last two of those episodes were committed whilst you were on bail for offences of the same nature." 10 I concur respectfully with the entirety of his Honour's remarks. I would add that, for my own part, I regard these offences as outrages against public order and against the persons of the victims. In terms of objective criminality they are offences deserving of condign punishment in aid of the proper protection of the right, - not the privilege: the right, - of any law-abiding citizen to travel in safety on any form of public transport, and to use in safety any of the associated public facilities such as railway stations. 11 There were, of course, subjective matters particular to the applicant and proper to be brought to account in the setting of appropriate ultimate sentences. They were examined in careful detail by his Honour. It is not submitted that there is any identifiable error in his Honour's examination, analysis and ultimate balancing of those subjective matters. There is, therefore, no present need for an extended repetition of his Honour's remarks concerning the subjective matters. 12 His Honour found special circumstances. Once again, no present complaint is made either about that finding or about the way in which his Honour gave effect to the finding. Once again there is, therefore, no present need for an extended repetition of his Honour's remarks upon the topic of special circumstances.

Parity: General Principles 13 These are conventionally taken to have been established by two decisions of the High Court of Australia: Lowe v The Queen (1984) 154 CLR 606; and Postiglione v The Queen (1997) 189 CLR 295. 14 It will suffice by way of general introduction to quote from the reasons of Gummow J in the latter case: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done." [189 CLR, 323] 15 The principles thus encapsulated have provided a launching pad for a steady flow of sentence appeals based upon an alleged "justifiable sense of grievance" of the kind described in the cited passage. More often than not, and the present application is a text book example, that launching pad is underpinned by two or more sentences cast individually by different Judges, and sometimes in different Courts. It is, if I may remark, a mystery to me why, in the age of case management, list management, resource management and the like, it so often happens that co-offenders, even if sentenced in one particular Court, are sentenced by different Judges of that Court. It might be useful to suggest that such an approach is tantamount to an invitation to the most severely sentenced co-offender to try his luck with a parity appeal. That seems, at least to me, to be an odd way of achieving apparent justice reflected in consistent and principled sentencing. 16 Problems of the kind have induced variously constituted Benches of this Court to attempt to rein in the more enthusiastic forensic attempts to find a parity point. 17 Thus, in Reg v Diamond, (unreported: NSWCCA, 18 February 1993), Hunt CJ at CL, (James J concurring and Smart J dissenting) said: "The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one. In Hutchinson's Case, it was not thought that that line had been passed. In my opinion, that stage has well and truly been passed in the present case, and a reduction of the applicant's sentence to a community service order would similarly be described as an affront to the proper administration of justice. The sentence imposed by Judge Flannery was, as I have said, appropriate and not excessive. That imposed by the magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one." 18 This approach was expressly adopted by this Court, (Hayden JA, Sully and Levine JJ), in Reg v Chen & ors [2002] NSWCCA 447.

The Application of the Foregoing Principles 19 The co-offender Jones was sentenced, but not by Judge Knight, on 25 May 2005. He had previously stood trial upon three charges of robbery in company, and had been found guilty of all three. He was sentenced on each count to imprisonment for 2 years with a non-parole period of 1 year. All sentences were ordered to be served concurrently and by way of periodic detention. 20 At the hearing of the present application the remarks on sentence in the co-offender's case were provided to the Court. It is clear from those remarks that the sentencing Judge who dealt with Mr. Jones did so with a knowledge of the earlier remarks of Judge Knight in the present applicant's case. 21 The reasoning of the sentencing remarks in Mr. Jones' case is, with respect, economical. It is clear that the sentencing Judge dealt with Mr. Jones upon the basis of a finding that his case was materially distinguishable from that of the present applicant. The points of distinction seem to be: first, that Mr. Jones did not, on the available evidence, say or do anything in respect of the victims Hubbard and Newton; secondly, that Mr. Jones did not "simulate punching one of the victims which was done with the intent to instil fear in them"; thirdly, that Mr. Jones, unlike the present applicant, was to be sentenced only in respect of the three robberies in company; and fourthly, that "………..his part in the offence (sic) was significantly less than that of both Mr. Brown and Ms (sic) Fretas. He is young (and) he has no significant previous record ………". Overarching the approach taken in Mr. Jones' sentencing there was, however, a perception that the sentencing Judge expressed thus: "These were three fit young men travelling in a group on a train. There is no doubt however, that they were put in fear and that property was taken from them. ……………………………….. Having said all that, I must say that in terms of the scale of seriousness of robberies, both in terms of the impact on the victims and the amount involved, this is about as far down on the scale of criminality as it is possible to imagine. There is no doubt that the victims were intimidated: it is the nature of the offence and the offence is very serious." 22 I make, with respect, two observations. 23 First, it is not clear to me how an offence can be simultaneously "about as far down on the scale of criminality as it is possible to imagine", and "very serious". 24 Secondly, the proposition that "…….. in terms of the scale of seriousness of robberies, both in terms of the impact on the victims and the amount involved, this is about as far down on the scale of criminality as it is possible to imagine" is, in my respectful opinion, seriously misconceived. I know of no principle either of law or of common sense which entails that "three fit young men travelling in a group on a train" are less entitled than any other individual or group to the full and resolute protection of the law against unprovoked loutish and threatening behaviour that entails their being stood over and robbed while travelling lawfully on a public suburban train service. 25 In my opinion Mr. Jones was sentenced with a remarkable and undeserved degree of leniency, and it would be an affront to public justice to allow that outcome to constitute an accidental wind-fall in the different individual case of the present applicant. 26 The co-offender, Samantha Fratus, was dealt with in a closed Children's Court on 21 February 2005. This Court has had the advantage of seeing the Court transcript of those proceedings. Their flavour can be gauged from the following excerpts: "LEAMEY: I ask you to consider what is in the Juvenile Justice report. She is presently seventeen, she is eighteen in June. She has got a three year old daughter. In relation to the offences it is the first in a group being an assault in November 2004. She says it was a general fight that she gave as good as what she got, she was drunk. She had been drinking red wine and a bottle of port. In relation to the malicious damage that was at DOCS where she got some bad news in relation to the residence of her child, that was in July 2004 and in relation to the robbery in company in June 2004 that seems to have been a series of incidents, some of which she was involved to a great or lesser extent. They seem to have started with - at a train station and she was drinking and she had, she actually had money she had received a family payment of $600. The first of them being a -- HIS HONOUR: Is this a bonus from Mr. Howard? LEAMEY: So she has taken some for herself to buy a drink with so she wasn't in need of money from a robbery perspective and it must have just been the alcohol. So the first instance she had patted down someone and taken $50 out of his wallet and nicely said "can I have this" and meanwhile there was some sort of an altercation going on with some males from her group who must have been doing something similar and all she can say is that she was like an extra if you like in relation to the robberies committed by the males. So her involvement would have been if anything just being there. She has pleaded guilty on the facts but her involvement seems to be a lesser extent, must (sic) lesser extent in relation to the other robbery. All she can say is that apart from the alcohol is that it was some sort of showing off to the group. There was then an assault after they got off the train and she is not sure exactly what happened there because she was pretty drunk." 27 Equally illuminating are the sentencing remarks of the learned Magistrate, which were: "HIS HONOUR: Samantha stand up will you. These offences on 17 June are pretty terrible. I know you were drinking, that is no excuse. If there was a party of life I think it was when DOCS got involved as a result of you being out of control. I will deal with you this way - those offences merit a custodial sentence and I note the advice of Juvenile Justice that you are assessed as suitable for Community Service work and -- FOR EACH OF THE MATTERS YOU WILL BE REQUIRED TO DO THIRTY HOURS OF COMMUNITY SERVICE, SO THAT IS SIXTY HOURS IN TOTAL. YOU ARE TO REPORT TO JUVENILE JUSTICE TO MELISSA PRESTON WITHIN SEVEN DAYS. Now that has absolute priority you have got to get it done within the next couple of months because if you don't cooperate with them they will tell me and you will have to come back. FOR ALL OTHER MATTERS YOU ARE REQUIRED TO ENTER A PROBATION ARRANGEMENT UNDER S33(1)(E) OF THE ACT FOR A PERIOD OF TWELVE MONTHS CONDITIONED THAT YOU ACCEPT THE SUPERVISION OF JUVENILE JUSTICE AND YOU BEHAVE YOURSELF. Now do you understand you have got sixty hours Community Service work and you have got to sign the probation arrangement. WESTMAN: Is that with or without conviction your Honour? HIS HONOUR: Without. No more trouble now do you understand, you look after that baby." 28 It will suffice to say that there can be, in my opinion, no reasonable basis upon which those proceedings could engender a justifiable sense of grievance in the present applicant. Everything about them demonstrates that to attempt a parity comparison between the two cases is to attempt the equation of chalk with cheese. 29 In my opinion the applicant's submissions on parity have not been made good.

Conclusions and Orders 30 Without the availability of a valid parity point there is, in my opinion, no cause shown for the present intervention of this Court. 31 I propose, therefore, these orders:

[2] Appeal against sentence dismissed. 32 LATHAM J: I agree with Sully J.

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.

CITATION: Steven Gregory Browne v Regina [2006] NSWCCA 62

Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Postiglione v The Queen (1997) Reg v Diamond (unreported: NSWCCA 18/2/93) Reg v Chen & ors [2002] NSWCCA 447

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