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Before: Murrell CJ, Mossop and Wigney JJ

Decision: Appeal dismissed.

Catchwords: APPEAL – CRIMINAL LAW – Severity appeal against sentence – aggravated robbery – robbery committed in company – co-offender – disparity between the sentences imposed on the offenders – parity principle – whether disparity in sentences was justified by differences in the subjective circumstances of the co-offenders – whether disparity in sentences was justified by differences in the objective seriousness of the offending – difference between offenders’ prospects of rehabilitation – difference between age of offenders – acknowledgement of relevant differences when sentencing co-offenders – whether appellant could establish a justifiable sense of grievance

Legislation Cited: Criminal Code 2002 (ACT) ss 310, 318 Firearms Act 1996 (ACT) s 172(2)(a) Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37O(7)

Cases Cited: Green v The Queen [2011] HCA 49; 244 CLR 462 Hiron v The Queen [2018] NSWCCA 10 Le Clair v The Queen [2017] ACTCA 19 Lloyd v The Queen [2017] NSWCCA 303 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Pavicevic v The Queen [2010] ACTCA 25 Postiglione v The Queen (1997) 189 CLR 295 R v Lock [2016] ACTSC 319 Rubino v The Queen [2015] ACTCA 22 Singh v The Queen [2017] ACTCA 17

Parties: Jason Thompson (Appellant) The Queen (Respondent)

Representation: Counsel Mr P Edmonds (Appellant) Ms M Jones (Respondent)

Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 24 of 2017

Decision under appeal: Court/Tribunal: ACTSC Before: Burns J Date of Decision: 29 May 2017 Case Title: R v Thompson Citation: [2017] ACTSC 141

THE COURT:

The appeal

1. On, 29 May 2017, Burns J (the sentencing judge) imposed the following sentences:

(a) Aggravated robbery (robbery in company) contrary to s 310 of the Criminal Code 2002 (ACT) (Criminal Code): four years and six months’ imprisonment from 11 November 2016 to 10 May 2021 (maximum penalty of 25 years’ imprisonment and a fine).

(b) Possessing an unregistered prohibited firearm contrary to s 177(2)(a) of the Firearms Act 1996 (ACT): one year and 10 months’ imprisonment from 11 July 2020 to 10 May 2022 (maximum penalty of 10 years’ imprisonment and a fine).

(c) Dishonestly driving a motor vehicle without consent contrary to s 318 of the Criminal Code: nine months’ imprisonment from 11 January 2022 – 10 October 2022 (maximum penalty of five years’ imprisonment and a fine).

2. The total sentence imposed by the sentencing judge was five years and 11 months’ imprisonment from 11 November 2016 to 10 October 2022.

3. The sentencing judge set a nonparole period of four years from 11 November 2016 to 10 November 2020.

4. The appellant appealed against the severity of the sentence imposed for the aggravated robbery offence. The only ground of appeal was the disparity of the sentence imposed on the appellant when compared to that imposed on the co-offender, Mr Kaine Lock.

5. The appeal was brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). The Court’s powers to deal with the appeal are set out in s 37O(7) of the Act.

Facts

6. At 7.36 pm on Wednesday, 27 April 2016, the appellant and the co-offender parked a vehicle outside a liquor store in Nicholls. The vehicle had been stolen on 20 April 2016.

7. The offenders entered the store wearing balaclavas. The appellant was armed with a shortened .22 Magnum bolt action rifle. He approached the counter, raised the firearm, pointed it at the shop attendant and demanded money. The attendant opened the cash register and stepped aside. The offenders walked behind the counter. The co-offender began to fill a bag with cigarettes. The appellant escorted the shop attendant to the back of the shop, where he poked the attendant twice in the back with the barrel of the rifle while telling him to “hurry up”. When the attendant opened a locked store safe to reveal that it was empty, the appellant yelled at him. The attendant pointed to a metal cashbox. The appellant took the cashbox. The appellant returned to the front of the store with the victim and emptied the contents of the cash register into an empty box. The offenders departed with cash and cigarettes worth a total of $4,123.85. The appellant drove the stolen vehicle from the scene.

8. The events were observed by a witness who was sitting inside her parked vehicle near the liquor store. At the beginning of the incident, she saw the appellant leave his vehicle with a firearm. She lay across the front passenger seat of her vehicle so that she would not be observed. After she heard the offenders drive away, she called the police.

9. When the stolen vehicle was located, it contained the shortened rifle, ammunition and clothing that included two pairs of gloves and two black balaclavas. A forensic examination revealed the offender’s fingerprints on the vehicle and the offender’s DNA on one of the items of clothing found in the car.

10. On 28 April 2016, the co-offender was arrested.

11. The appellant was not located until 11 May 2016, when he was arrested in New South Wales in relation to a burglary on 19 April 2016. The firearm used on 27 April 2016 had been stolen during that burglary.

12. In August 2016, the Queanbeyan Local Court sentenced the appellant for the burglary to 14 months’ imprisonment from 11 May 2016 to 10 July 2017. The Local Court imposed a nonparole period of eight months, expiring on 10 January 2017.

13. The appellant was released to parole on 10 January 2017, and was immediately extradited to the ACT. The following day, he pleaded guilty in the Magistrates Court and was committed to the Supreme Court for sentence.

Sentencing judge’s reasons

14. When dealing with the objective seriousness of the offence of aggravated robbery, the sentencing judge observed that:

(a) There were two “aggravating” features: the appellant was both in company and armed with a firearm.

(b) Although there was no evidence that the rifle was loaded, in carrying and using it, the appellant intended that the shop attendant would believe that it was loaded. The appellant pointed the firearm at the attendant and poked the attendant in the back with the firearm.

(c) The robbery was planned: the appellant took a firearm, both offenders wore balaclavas and the offenders used a stolen getaway car.

15. The sentencing judge observed that the offence of dishonestly driving a motor vehicle without consent was “in the lower range of such offences”: at [18].

16. In relation to the appellant’s subjective circumstances, the sentencing judge referred to the following matters.

(a) The appellant had a substantial criminal history involving about 69 prior criminal convictions. Among the prior convictions were three convictions for robbery, a conviction for aggravated robbery, a conviction for attempted aggravated robbery and convictions for arson, burglary and various offences of violence. In 2006, the appellant was sentenced to three years and six months’ imprisonment and in February 2016, he was sentenced to five months’ imprisonment.

(b) The appellant had a difficult childhood. The appellant’s father died when the appellant was about 11 years old. Soon thereafter, the appellant’s mother evicted him from her home because of his behaviour. The appellant completed Year 6. Later, he attempted to complete Years 7 and 9, but was expelled for violent behaviour. Thereafter, he experienced short periods of employment between bouts of incarceration.

(c) As a child, the appellant was introduced to alcohol and drugs. His parents abused substances and actively encouraged the appellant to do so. At 18 years of age, he began to use amphetamines. Several attempts at residential rehabilitation were unsuccessful. The sentencing judge accepted that at least one of the reasons for the commission of the offence was to obtain money and goods that could be used to obtain drugs: at [20].

(d) The appellant first came into contact with ACT Mental Health Services in 1997 when he was 12 years old. In 2010, he was diagnosed with a depressive condition. In 2013, he was diagnosed with a personality and behaviour disorder. In 2014, he was diagnosed with Obsessive Compulsive Disorder.

(e) The appellant had been imprisoned in NSW for offences committed about the same time as those before his Honour.

(f) The appellant’s pleas of guilty had real utilitarian value, although his Honour doubted that they reflected real remorse. His Honour discounted each sentence by about 25 per cent.

Sentence of co-offender

17. On 17 October 2016, the sentencing judge sentenced the co-offender: R v Lock [2016] ACTSC 319. For the offence of aggravated robbery (robbery in company), the sentencing judge imposed a sentence of two years and three months’ imprisonment (reduced from three years’ imprisonment for the plea of guilty). For the offence of dishonestly riding in a motor vehicle, his Honour imposed a sentence of four months’ imprisonment, of which one month was made cumulative upon the sentence for aggravated robbery. Consequently, the total sentence imposed for the offences was two years and four months’ imprisonment.

18. At the same time, Mr Lock was sentenced for eight offences that were part of another series of offending conduct, including an offence of attempted aggravated robbery on 30 October 2015.

19. The sentencing judge set a nonparole period of two years and one month’s imprisonment, which related to both sets of offences.

Sentencing judge’s approach to parity

20. The sentencing judge was cognisant of the need to consider parity with the sentences imposed on the co-offender: reasons at [14].

21. When dealing with the question of parity, his Honour noted the following similarities and differences between the objective offending and the subjective circumstances of the offenders:

(a) At the time of the offences, the co-offender had just turned 20 years of age. The appellant was 30 years of age.

(b) The co-offender had a limited criminal history and the appellant had a very substantial criminal history that extended over many years.

(c) The co-offender had not previously served a term of imprisonment, whereas the appellant had served many terms of imprisonment, including sentences imposed for similar offences.

(d) It was the appellant who had obtained and used the firearm. The co-offender was unarmed.

(e) The appellant had driven the motor vehicle and had exercised control over it. The co-offender had been a passenger.

(f) Both the appellant and the co-offender had experienced an unstable childhood and each had commenced substance abuse at an early age.

(g) The co-offender’s prospects for rehabilitation were good; while in custody awaiting sentence he had commenced drug rehabilitation and obtained employment. On the other hand, the appellant “[appeared] to have a settled into a criminal lifestyle and [had shown] no real motivation or commitment to change”: reasons at [16]. The sentencing judge observed that, having regard to the co-offender’s youth and prospects of rehabilitation, when sentencing the appellant, rehabilitation should be given less weight and other sentencing considerations, such as punishment, deterrence and protection of the public should be given greater prominence.

Consideration

22. The appellant conceded that the sentencing judge had correctly stated the law and had made findings about prospects for rehabilitation that were open to his Honour. The appellant accepted that the co-offender’s youth and prospects of rehabilitation justified the co-offender receiving a significantly lower sentence than that imposed on the appellant.

23. However, the appellant submitted that the extent of the difference in the aggravated robbery sentences could not be justified; the appellant’s sentence was twice that imposed on the co-offender and gave rise to “a justifiable sense of grievance” on the part of the appellant.

24. The notion that like cases should be treated alike is fundamental to any rational and fair system of criminal justice: Lowe v The Queen (1984) 154 CLR 606, 610–11 per Mason J. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen [2011] HCA 49; 244 CLR 462 at [32] (Green). However, just as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48] (Le Clair).

25. In order to establish error, an appellant must establish a “justifiable sense of grievance”; that, from an objective perspective, a substantial disparity in sentences cannot be justified by the differences between co-offenders. Such disparity must be “marked” or “manifest” before appellate intervention is justified: Postiglione per Gummow J.

26. An appellate court will not intervene where disparity is justified by differences between the subjective circumstances of co-offenders (such as age, background, criminal history or general character) or by differences in the objective circumstances of the offending behaviour (such as the part that each played in the relevant criminal conduct or enterprise): Green at [31]. Another relevant consideration is whether co-offenders have been sentenced for the same offence, although parity remains a somewhat relevant consideration in most circumstances where co-offenders were involved in the same criminal enterprise: Hiron v The Queen [2018] NSWCCA 10 (Hiron) at [54].

27. Further, an appellate court will have regard to the “qualitative and discretionary judgments” required of the primary judge in drawing distinctions between co-offenders: Green at [32]. As in any case of appellate review of sentencing, the appellate court must accept that sentencing is a quintessentially discretionary exercise; just as “there is no single correct sentence”, there is no single correct degree of differentiation between co-offenders: Lloyd v The Queen [2017] NSWCCA 303 at [96]–[97] per R A Hulme J citing Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27].

28. Hiron provides an example of co-offenders receiving very different sentences that were held to be justifiable. For an offence of assault with intent to rob while armed causing wounding, the appellant was sentenced to six years and three months’ imprisonment with a nonparole period of four years and eight months’ imprisonment. The co-offender was sentenced for the lesser offence of reckless wounding while in company to two years’ imprisonment to be served by way of intensive correction order. The NSW Court of Criminal Appeal considered that differences in the subjective circumstances of the offenders (age, prior criminal history and expression of remorse) and differences in the role that each played in the criminal enterprise justified the outcome.

29. If the circumstances do satisfy the test of “justifiable sense of grievance”, then a sentence will be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentences: Postiglione at 301 per Dawson and Gaudron JJ.

30. In this case, the sentencing judge approached the question of parity in the proper manner, considering both differences between the objective seriousness of the offences committed by the offenders and differences in their subjective features: see [21] above.

31. The appellant’s role and conduct in connection with the offence was of significantly greater objective seriousness. It is true that, as far as the objective seriousness of an offence is concerned, there are limits to the amount of differentiation that may be allowed among co-offenders to a joint criminal enterprise: Pavicevic v The Queen [2010] ACTCA 25 at [9].

32. It is accepted that, in this case, by the stage when the offenders left the stolen vehicle for the purpose of entering the liquor store, the co-offender must have known that the offender was in possession of a firearm. However, as the sentencing judge observed, the co-offender was unarmed. Conversely, the appellant was armed with a shortened firearm, he brandished the firearm in a manner that terrified the victim, and he escorted the victim to the rear of the shop where he delivered further threats, both verbally and by using the firearm. In Le Clair, the Court observed that the use of a weapon by one offender was a justifiable point of distinction (although, in that case, it resulted in a sentencing difference of about 20 per cent). In Hiron, the use of a weapon by one offender was considered to be an important point of distinction.

33. In addition, the subjective circumstances of the offenders were very different.

34. The appellant had a lengthy criminal history. He had served significant periods of full-time imprisonment. He had been released from prison a little over two months before the offences were committed. The co-offender had no significant criminal history.

35. The age difference between the offenders was very significant. The co-offender was a young adult offender. The appellant was 30 years old. It is well-established that youth may be a significant sentencing consideration informing the sentencing purpose of rehabilitation. Rehabilitation is a prominent sentencing purpose in the case of almost any young offender. In addition, in this case, at the time when he was sentenced the co-offender was actively seeking to rehabilitate himself. There were good reasons for the sentencing judge to conclude that appellant and co-offender had fundamentally different rehabilitation prospects.

36. Having regard to the significant differences in both the objective and subjective circumstances of the offenders, the sentencing judge was justified in imposing the much more substantial sentence that was imposed on the appellant.

37. The appeal is dismissed.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Mossop and Wigney JJ.

Associate:

Date: 19 February 2018