Thorpe v The Queen; Ward v The Queen [2011] VSCA 346

CRIMINAL LAW - Leave to appeal against sentence - Armed Robbery - Theft and Dishonesty Offences - Whether judge had proper regard to principle of totality - Personal circumstances properly taken into account - No sentencing error - Leave refused - No point of principle.

CRIMINAL LAW - Leave to appeal against sentence - Fixing of parole period - Whether non-parole period appropriate - No sentencing error - Leave refused - No point of principle.

Mr C Hyland, Solicitor for Public Prosecutions (Ms A Renieris)

3 On 29 April 2010, after a trial in the County Court at Melbourne, the applicants, Benjamin John Thorpe ('Thorpe') and Rachael Colleen Ward ('Ward') were found guilty of armed robbery ('the armed robbery offence').

4 On 5 March 2010, Thorpe pleaded guilty to three other counts comprising theft of jewellery, obtaining property by deception and handling stolen goods ('the jewellery offences').

5 Thorpe was sentenced to 5 years' imprisonment in relation to the armed robbery offence and after cumulation, a further 6 months in relation to the jewellery offences.

6 Thorpe seeks leave to appeal against his sentence.[1]

7 Ward was sentenced to 4 years and 2 months' imprisonment in relation to the armed robbery offence. The sentencing judge indicated that Ward would have received 5 years, the same sentence as Thorpe, but was entitled to a reduction in order to provide for substantial concurrency between the armed robbery and the jewellery offences.

8 In relation to the jewellery offences, Ward had previously pleaded guilty to four counts. Three of the four counts were the same as Thorpe's. She was sentenced by his Honour Judge Murphy on 21 January 2009 to 18 months' imprisonment with a 10 month non-parole period. The sentence included one other unrelated charge to which Ward pleaded guilty.

9 Ward had served her sentence in full for the jewellery offences by the time she was sentenced for armed robbery, whereas Thorpe pleaded guilty to the jewellery offences at a much later date.

10 Ward seeks leave to appeal against her sentence.[2]

11 The applicants had been in a de facto relationship since 2007. In 2008, they resided at an address in Hampton, approximately four kilometres from the Sandbelt Hotel.

12 On 7 May 2008 at around 2:11 am, the applicants entered the Sandbelt Hotel (located on the corner of South and Bignall Roads in Moorabbin) and attended the outdoor smoking area where the victim, Karen Wiltshire ('Ms Wiltshire'), was having a drink with an unknown male.

13 Prior to the applicants' arrival, Ms Wiltshire had won approximately $442 on the pokies and kept the cash in her jacket pocket. The applicants spoke to Ms Wiltshire and one of the applicants indicated to Ms Wiltshire that they were after money to play pokies and buy drugs.

14 At one stage, Ms Wiltshire revealed unwittingly the roll of cash from her winnings. Thorpe saw the cash and said to her: 'Don't flash that around or I'll take it off you'.

15 The hotel closed at around 4 am and the four occupants of the smoking area were ushered from the venue. At this stage, Ms Wiltshire was beginning to feel uneasy in the company of the applicants and the security guard offered to call a taxi for her. When the taxi arrived, Thorpe approached it and sent the taxi away.

16 The unknown male offered to accompany Ms Wiltshire to a nearby service station so she could call a taxi. They were followed by the applicants in a car and approached about 50 metres from the hotel.

17 Ward exited the car and the unknown male ran away. Thorpe then exited the car. He was carrying a knife in his left hand and raised it in a threatening manner to Ms Wiltshire. He said: 'Give me the money, I know you've got it. Give it to me now'. Ms Wiltshire started to shake and attempted to dial '000' on the phone which was in her pocket. She then threw her jacket down on the ground and said: 'Look, just don't hurt me, everything I've got is in there, just don't hurt me'. Ward took the contents from the pockets of the jacket before both applicants re-entered the car and sped off.

18 Ms Wiltshire ran back to the hotel for help where she suffered a number of epileptic fits. She was taken by ambulance to the hospital.

19 On 16 May 2008, the applicants attended Chadstone Shopping Centre and stole a black leather Gucci handbag from Mrs Patricia Newton ('Mrs Newton'). At approximately 1:30 pm, Ward caused a diversion at the coffee shop where Mrs Newton was having coffee and Thorpe removed her handbag. The applicants then left the café separately. The contents of the handbag included personal papers, other valuable items and jewellery which were estimated to be worth approximately $130,000.

20 On 23 May 2008, Thorpe and Ward went to a second-hand dealer. Ward pawned a yellow gold bangle set for $600.

21 Following the event at Chadstone, CCTV footage was released and the police attended Thorpe and Ward's home on 26 May 2008 where they were both arrested.

22 Police later executed a search warrant at the applicants' property and seized items of clothing alleged to be have been worn by them during the armed robbery. The police also found other items which belonged to Mrs Newton and a number of other victims.

23 On 29 April 2010, his Honour Judge Taft sentenced Thorpe (aged 34) as follows:

24 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) ('the Act'), his Honour declared that but for Thorpe's guilty pleas in relation to the jewellery offences, he would have ordered a term of imprisonment of 20 months with a non-parole period of 13 months.

The learned sentencing judge erred in failing to have due regard to the principle of parity when imposing sentence upon the applicant.

26 Counsel for Thorpe submitted that his Honour was bound to take into account Ward's reduced sentence to a greater extent than he did when sentencing Thorpe. It was submitted that his Honour should not have distinguished between them as they both:

• had an equal role in the commission of both offences;
• have significant prior criminal histories; and
• have problematic rehabilitative prospects.

27 The Crown submitted that there was parity and it was appropriate to significantly moderate the head sentence on Ward's armed robbery offence having regard to the fact that Ward had served her sentence in full in relation to the jewellery offences. But for the need to moderate the head sentence, the sentence would have been exactly the same, namely 5 years.

28 The Crown's written submissions highlighted a number of factors the sentencing judge properly had regard to:

(a) Ward was entitled to a significant discount regarding the jewellery offences for her earlier plea and cooperation;

(b) although the distinctions were not significant, Ward was sentenced on additional charges regarding the jewellery offences;

(c) Ward was sentenced to 5 months' imprisonment on other unrelated charges, which were served in full despite the fact that 4 months was served concurrently with the existing sentences; and

(d) the need to consider totality in the context of Thorpe having spent an additional 179 days (almost 6 months) in custody, not reckoned as time served, regarding his restored parole.

29 It is well established that this Court will only intervene where disparity between sentences imposed on co-offenders is manifestly excessive.[3] The disparity must be such as to engender a justifiable sense of grievance[4] or to give the appearance in the mind of an objective observer that justice has not been done.[5]

30 The notion of equal justice is not violated if different sentences reflect different circumstances. In Postiglione v The Queen,[6] Dawson and Gaudron JJ said:

The parity principle upon which the argument in this court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. [7]

Before turning to consider what ought to have been taken into account in this case, it is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody. [8]

32 The sentencing judge found that Thorpe and Ward 'acted in concert and [they] should be treated in the same manner, save for Ms Ward's early entry of pleas of guilty which are to be contrasted to [Thorpe's] belated entry of such pleas'. [9]

33 His Honour also considered a number of other factors:

• Ward's head sentence was reduced given her period in custody prior to the sentence for the armed robbery;
• both have 'appalling criminal histories' where Thorpe has made over 28 separate court appearances involving 232 charges and Ward has made 31 prior appearances involving 412 charges;
• that despite the largest number of priors for dishonesty offences, Thorpe's pattern of offending reflects long-term drug addiction and offending to support the habit; and
• that immediate prospects for rehabilitation in Thorpe's case were 'bleak'. [10]

34 The disparity of 10 months, taking into account the fact that Ward had served the jewellery sentence in full, would not give rise to a justifiable sense of grievance on the part of Thorpe. Thorpe may have received a sentence of 10 months more on the armed robbery offence but on the other side and in relation to the jewellery offences, he received 10 months less than Ward.

35 In my opinion, the factors that the sentencing judge took into account in reducing the sentence imposed on Ward were entirely appropriate in the circumstances. Accordingly, ground 1 is not made out. As this is the only ground, in my opinion, the application for leave to appeal against sentence should be refused.

36 On 21 January 2009, his Honour Judge Murphy sentenced Ward in relation to the jewellery offences.[11]

37 On 29 April 2010, his Honour Judge Taft sentenced Ward (aged 35) for armed robbery. An overview of sentences imposed on Ward is as follows:

Dealing in property suspected of being proceeds of crime[13]

38 In total, Ward received an 18 month sentence with a non-parole period of 10 months for the jewellery offences and served the sentence in full as she was not eligible for parole at the time whilst awaiting the armed robbery trial.

39 Pursuant to s 6AAA of the Act, his Honour declared that Ward would have been sentenced to 24 months with a non-parole period of 13 months had she not pleaded guilty.

40 On 16 October 2009, Ward was further sentenced to 5 months' imprisonment with respect to an unrelated summary offence. In effect, 1 month of this sentence was served concurrently and four months cumulatively on the sentence for the jewellery offences.

41 His Honour sentenced Ward to 4 years and 2 months' imprisonment for the armed robbery offence. His Honour stated in his reasons that but for other factors, he would have ordered a sentence of 5 years' imprisonment for the armed robbery offence which is the same sentence imposed on Thorpe.

42 The reduction provides for substantial concurrency between the armed robbery and jewellery offences. It was also supported by Ward's early guilty plea to the jewellery offences. Finally, his Honour took into account the total time Ward had spent in custody since May 2008.

The sentence imposed on the applicant offended against the principle of totality when regard is had to the fact that the applicant had been in custody for over 22 months before being sentenced but only 44 days of that period was to be counted as presentence [sic] detention.

44 Counsel for Ward submitted that the 'notional sentence of 5 years made insufficient allowance for totality, taking into account the offending which had "soaked up" much of the 22 month pre-sentence detention'.

45 Further, in so far as the sentence is concerned, it was submitted that the offence itself could not properly be characterised as a serious example of armed robbery given the relevant circumstances. A further submission was made to the effect that insufficient weight was given to Ward's personal circumstances. These matters do not appear as separate grounds of appeal.

46 The Crown submitted that his Honour, after sentencing argument, properly took into account the totality principle. It was submitted that his Honour did not err in characterising the offence as he did and that Ward's personal circumstances were properly taken into account. Further, the Crown submitted that the parties agreed with his Honour at trial that a reduction of Ward's sentence for armed robbery was the only mechanism to give effect to totality.

47 The totality principle requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencing judge should ensure that the total sentence remains 'just and appropriate' for the whole of the offending.

48 In Mill v The Queen,[14] the High Court said that the totality principle is ' ...a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences.'[15] The Court said:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when...cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. [16]

49 In Principles of Sentencing, the principle is expanded:

The principle applies to all situations in which an offender may become subject to more than one sentence: where sentences are passed on different counts in an indictment or on different indictments, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases 'the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.[17]

50 The sentencing judge indicated that he would have imposed a sentence of 5 years for the armed robbery offence, thereby achieving parity with the sentence imposed on Thorpe, and gave adequate reasons for the reduction of the total effective sentence to account for Ward's period of incarceration.

51 The sentencing judge acknowledged Ward's difficult upbringing and personal circumstances in his reasons. Ward's father died from a drug overdose when she was nine and her mother became involved with Dennis Allen, a notorious criminal at that time. Ward lived with them for a few months where she saw Russian Roulette being played and ran away at the age of ten. Ward's mother was murdered after she gave evidence in a trial.

52 Ward started using heroin and speed when she was around 13 or 14 and was placed in Winlaton periodically over three years. Otherwise, she lived on the streets until she was imprisoned at Fairlea at age 17.

53 Ward spent much of her life since age 17 serving various prison sentences.

54 Since then, as acknowledged by the sentencing judge, Ward had made efforts to overcome her drug dependency. In 2007, she fell pregnant with Thorpe's child. When the child died in 2008, she quickly relapsed to heroin use and committed various offences to support her habit.

55 The sentencing judge also noted that Ward was accepted into the voluntary residential drug program at the Dame Phyllis Frost Centre. Ward's psychologist reported that from June to December 2008, she was drug free, complied with the program's requirements and engaged well in counselling.

56 In my opinion and as previously discussed, Ward's personal circumstances were all properly taken into account and balanced against her criminal history, prospects of rehabilitation in the medium term and the seriousness of the armed robbery offending. The sentencing judge specifically referred to Ward's unfortunate history of drug dependence and other appalling circumstance relating to her upbringing, family life and her own loss of a child. Having properly and adequately considered all of the matters, I am unable to detect any sentencing error as submitted.

57 The total sentence imposed does not offend the principle of totality in the manner identified. The period in custody was substantially in regard to the serving of sentences for the jewellery offences and as pointed out, this period of incarceration was taken into account. Further, I am not prepared to disturb his Honour's finding that the offending could not properly be regarded as a serious example of armed robbery.

58 Implicit in the submission is the suggestion that the sentence was manifestly excessive, although this was not raised as a separate ground of appeal.

59 A general overview of sentences imposed in like cases provides some indication of the range available to the sentencing judge, subject of course to relevant discretionary factors.[18] So far as the sentencing range is concerned, reference may be made to the following cases:

In DPP v Morgan,[19] the respondent was a drug user and had a long criminal history. He robbed a woman with a knife in the street. He pleaded guilty and was sentenced to 4½ years for armed robbery. In total, he received a sentence of 6 years and 9 months with a non-parole period of 3 years.

In R v Tayar,[20] the respondent was a young offender and drug user with a troubled background. His previous convictions were numerous. He used a knife against a post office staff and pleaded guilty to armed robbery. He was sentenced to 4½ years for the offence and received a total effective sentence of 5 years with a non-parole period of 3 years.

In R v Rowlands,[21] the respondent robbed a staff member at a shop whilst carrying a long knife. He was a drug user with troubled background and had numerous previous conviction. He pleaded guilty and was sentenced to 4½ for one count of armed robbery with a non-parole period of 2 years.

In Musso v The Queen,[22] the applicant robbed the victim of heroin and used a taser gun against him. The applicant's prior criminal history was serious and had moderate prospect of rehabilitation. The applicant pleaded guilty and on appeal received 4 years for armed robbery and with a total effective sentence of 6 years with a non-parole period of 4 years.

In Sharkey v The Queen,[23] the appellant pleaded guilty to one count of robbery from a store cashier at knife point. On appeal, he was sentenced to 4 years for armed robbery and received a total effective sentence of 4 years and 8 months with a 3½ year non-parole period.

60 I am of the opinion that the sentence imposed was reasonably open to the sentencing judge and is sufficiently within the range of a sound sentencing discretion. I consider that the sentencing judge dealt sufficiently with all of the relevant factors and sentencing principles.

61 In my opinion, there has been no sentencing error as identified. The sentence is not 'so far outside the range of a reasonable discretionary judgment as to itself bespeak error'[24] and accordingly, this ground is not made out.

The sentence imposed on the applicant offends the principle of parity when regard is had to the sentence imposed on Thorpe, the pre-sentence custody served by the applicant, her role in the offence, her antecedents and her efforts to overcome her drug addiction.

63 Counsel for Ward submitted that she is entitled to a lower sentence than Thorpe as she had pleaded guilty to the jewellery offences, assisted the authorities to recover some of the jewellery and had 'measurably better prospects of rehabilitation than Thorpe'. Furthermore, only 6 months of Thorpe's sentence for the jewellery offence is cumulative upon the armed robbery sentence, compared to Ward having served her full term of 18 months.

64 The Crown submitted that there is no marked disparity between the sentences imposed on Ward and Thorpe giving rise to a justifiable sense of grievance.[25]

65 With respect to parity, the sentencing judge treated the applicants in the same way.[26] They were properly regarded as equally culpable and, but for the very factor that Ward relies on - her period of incarceration - would have received the same sentence.

66 The sentence imposed on Ward for armed robbery was 10 months less than Thorpe's. The result is that in relation to the counts directed to each of them (and not Ward alone) Ward received a total sentence of 5 years and 6 months and Thorpe received the same sentence of 5 years 6 months.

67 Accordingly, there is not a marked disparity between the sentences imposed on Thorpe and Ward giving rise to justifiable sense of grievance. I am not persuaded that either the earlier (than Thorpe) plea of guilty or the limited assistance provided to the police in relation to the recovery of specific items of jewellery are in and of themselves sufficient to justify any different sentence. The earlier plea of guilty simply means that Ward was incarcerated earlier and that Thorpe would have to spend more time in jail after Ward's release. As pointed out, this matter was sufficiently taken into account by the sentencing judge.

68 In my opinion, the sentencing judge properly took into account the sentence imposed on Thorpe, Ward's period of pre-sentence detention, her role in the offence, personal circumstances and other relevant matters. Accordingly, ground 3 is not made out.

The learned sentencing judge erred in fixing a parole period which was inappropriately short when the effect of the time served by the applicant prior to sentencing was taken into account.

70 Counsel for Ward submitted that the non-parole period fixed is in effect just over 80 percent of the head sentence.[27] Counsel submitted that Ward's history and efforts to overcome her addiction during imprisonment called for a more conventional non-parole period.

71 The Crown submitted that there is no 'usual' non-parole period[28] and that the non-parole period is reasonable having regard to principles of parity and totality.

72 In my opinion, the fixing of a non-parole period is within the discretion of the sentencing judge. I am not satisfied that the sentencing judge's discretion has miscarried and accordingly, ground 2 is not made out.

73 The application for leave to appeal against sentence is refused.

[1] An application for leave to appeal against conviction was abandoned and dismissed on 2 September 2011.

[2] An application for leave to appeal against conviction was abandoned and dismissed on 21 July 2011.

[3] R v Rule [2008] VSCA 154 (Warren CJ, Neave and Weinberg JJA).

[4] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[5] R v Werner Paul Roberts [2004] VSCA 1 [135] (Batt JA).

[6] [1997] HCA 26; (1997) 189 CLR 295 ('Postiglione').

[7] Ibid 301 (emphasis added) (citations omitted).

[8] Ibid 303 (emphasis added) (citations omitted).

[9] DPP v Thorpe & Anor (Unreported, County Court of Victoria, Judge Taft, 29 April 2010) 580 [14] ('Reasons').

[10] Reasons (Unreported, County Court of Victoria, Judge Taft, 29 April 2010) 580 [14]-[15], [20].

[11] In relation to the jewellery counts, Ward's presentment contained one additional count of dishonestly handling stolen goods (count 3), which is not on Thorpe's presentment.