Wilken v R

Court of Criminal Appeal (NSW)|2013-07-09|Before: Basten JA, Price J, Campbell J

Judgment 1BASTEN JA: The applicant, Levon Wilken, was convicted of the "specially aggravated" offence of kidnapping and was liable to imprisonment for 25 years: Crimes Act 1900 (NSW), s 86(3) ("Crimes Act"). The sentence imposed by Freeman ADCJ was 7 years, 2 months, with a non-parole period of 5 years, 2 months. The applicant sought leave to challenge this sentence on the basis that the non-parole period was so much longer than that of a co-accused, found by the sentencing judge (who sentenced both) to bear equal responsibility for the offending, as to give rise to a justifiable sense of grievance. The applicant further sought to complain that the trial judge had not adequately explained the basis of the difference. 2It is convenient to deal with the second point first. The basis for the differential treatment was clear. Each offender was sentenced by the judge to periods of imprisonment for a number of offences, which included, in each case, two common offences and two separate matters. For each offender, the sentencing judge sought to ensure that the balance of term was approximately one-third of the mandatory period of imprisonment. That proportion reflects the limit for a particular sentence, absent special circumstances, provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). ("Sentencing Act"). It is an entirely legitimate application of sentencing principle. 3In written submissions, counsel for the applicant accepted that this might have been the rationale underlying the approach adopted by the sentencing judge but said that if this were so, "then this is an error and the correct approach would have been to impose the same non-parole period, and to partly accumulate that sentence on the earlier imposed sentences": written submissions, par 29. It is true that the same effective result could have been achieved by that means. However, both approaches were available and neither was necessarily preferable. The equivalent moral culpability of each offender was reflected in the imposition of identical overall sentences. No error was revealed by the approach adopted by the sentencing judge. 4Nothing said so far reveals any basis for granting leave to appeal. The background to the offending (which was undoubtedly serious), the subjective circumstances of the offenders and details of the offences for which each was sentenced, as set out by Campbell J in his reasons, provides no better basis for a grant of leave. 5The Court should refuse leave to appeal. If leave is granted, the appeal should be dismissed. 6PRICE J: I have had the advantage of considering the draft judgments of Basten JA and Campbell J. As their Honours point out, the sentencing judge was seeking to ensure that the statutory ratio was maintained in relation to the overall effective sentences to be imposed on the applicant and Carroll. The applicant has not established a justifiable sense of grievance. I agree with Campbell J that leave to appeal should be granted and the appeal dismissed. 7CAMPBELL J: The applicant seeks leave to appeal from one component of the sentence passed on him by Freeman ADCJ in the District Court on 20th January 2012. The component about which the applicant is aggrieved is the non-parole period imposed as part of a sentence of imprisonment for an offence occurring on 14th January 2010 of taking and detaining a female victim for advantage in its specially aggravated form under s.86(3) Crimes Act, in that at the time she was taken, actually bodily harm was occasioned to her. 8The sentence for the s.86 offence was one of three sentences passed on the applicant by the sentencing judge. He was also sentenced on the call-up of a bond under s.9 of the Sentencing Act of two years imposed on 5th December 2008 for an offence of stealing property in a dwelling house contrary to s.148 Crimes Act. That offending occurred on 12th August 2007. The other sentence related to a charge of common assault of a male victim, which immediately preceded the s.86 offence. 9The applicant's substantial complaint is that a marked and unjustified disparity exists between the non-parole period imposed on him for the s.86 offence compared with that imposed on one of two co-offenders for the same offence, a man named Carroll. There is no complaint about the sentence passed on the other co-offender, Sheen. Alternatively he complains that the reasons given by the learned sentencing judge were inadequate to explain the difference between the two non-parole periods and, in any event, that the sentence passed was manifestly excessive.

The sentences imposed 10The sentences imposed on the applicant are as follows: (a)On the call-up for the breach of his bond, a fixed term of 12 months imprisonment commencing on 12th October 2010 and expiring on 11th October 2011 to be served concurrently with a 6 month sentence imposed in the Local Court commencing on 12th October 2010 for other offences; (b)For the common assault, a fixed term of imprisonment of 3 months commencing on 12th October 2011 and expiring on 11th January 2012; and (c)For the s.86 offence, a term of imprisonment having a non-parole period of 5 years and 2 months, commencing on 12th January 2012 and expiring on 11th March 2017 with an additional term of 2 years commencing on 12th March 2017 and expiring on 11th March 2019. 11Freeman ADCJ dealt with Carroll on the same day. Earlier that day he had been sentenced by his Honour for an offence of dangerous driving occasioning death. He was then sentenced at the same time as the applicant for the assault and s.86 offence, together with five related offences brought up into the District Court under s.166 Criminal Procedure Act 1986 (NSW). Chronologically, the sentences are as follows: (a)For the dangerous driving occasioning death, a term of imprisonment having a non-parole period of 3 years and 9 months, commencing on 23rd February 2010 and expiring on 22nd November 2013, with an additional term of 1 year and 3 months commencing on 23rd November 2013 and expiring on 22nd February 2015; (b)For the five s.166 offences, concurrent fixed terms of imprisonment of varying lengths, each commencing on 20th January 2012, the longest of which, for the unauthorised possession of a police uniform, was of 2 months duration, expiring on 19th March 2012; (c)For the common assault, a fixed term of imprisonment of 3 months commencing 23rd June 2013 and expiring on 22nd September 2013; (d)For the s.86 offence, a term of imprisonment having a non-parole period of 4 years and 6 months, commencing on 23rd September 2013 and expiring on 22nd March 2018, with an additional term of 2 years and 8 months commencing on 23rd March 2018 and expiring on 22nd November 2020. 12The total effective sentence for the applicant's offending was one of 8 years and 5 months, having a non-parole period of 6 years and 5 months. For Carroll, the total effective sentence was 10 years and 9 months, having a non-parole period of 8 years and 1 month. One should not lose sight of the consideration that Carroll is required to spend an additional period of 20 months in gaol before he becomes eligible for parole compared to the applicant.

Summary of the facts 13The male victim owed Sheen $200. There is no evidence of the circumstances in which that debt was incurred. The male victim had been uncontactable, he said, because of mobile phone difficulties. When Sheen finally got onto him, he insisted on a meeting at a service station in Sydney's southern suburbs. 14The male victim suspected trouble and arranged for his partner, the female victim, to drive him to a place near the service station. After concealing the car nearby, with his partner ready to drive him away if necessary, the male victim approached the service station on foot. On his arrival at the service station, his suspicions were justified when he saw that Sheen had brought two other males - the applicant and Carroll - to the meeting. Sheen walked towards him and invited him to get into the car. When the male victim declined, Sheen was insistent, using violent language, and was supported verbally by Carroll. Sheen swung a punch at the male victim, missing him. The male victim then ran away, pursued by the applicant. He did not return to his partner's car, but ran further down the road managing to gain a lead that enabled him to hide himself in a driveway. During the chase, the applicant was carrying an object in his right hand, which he later claimed was a beer bottle. The co-offenders eventually abandoned their search for the male victim. From his hiding place, he sent a text message to his partner, warning her to go home. These facts constituted the assault. As the sentencing judge observed, none of the co-offenders actually touched the male victim. 15The female victim felt uncomfortable waiting and drove from her hiding place. When they spotted her, the three co-offenders instructed their driver, a young woman, who was dealt with separately, and about whose sentence the applicant makes no parity complaint, to give chase. 16The female victim was forced to halt by the pursuit vehicle running her into the side of the road, blocking her passage. 17After the female victim stopped, the three co-offenders ran towards, and crowded around, her car. Carroll apparently had taken command. One of them opened the unlocked driver's door. Carroll grabbed the female victim by the hair, pulling her face close to his and aggressively yelling an inquiry about the whereabouts of the male victim, which she did not know. Carroll would not accept this. He accused her of lying and struck her across the face a number of times. A passing motorist, who is to be commended for interrupting his journey to retrace his steps to report the matter at the nearest police station, witnessed this confrontation. 18The co-offenders got in the female victim's car and continued to question her about the whereabouts of the male victim, asserting that she was lying to them. She was extremely scared and in her fear offered to drive them to the home of the male victim's brother. They directed her to do this, continuing to threaten her during the journey. At their destination, Carroll demanded and was given the car keys so the female victim was unable to flee when the three co-offenders approached the premises. When they returned to the car, the applicant took a piece of material he found on the back seat and used it as a ligature around the female victim's neck, forcing her head back against the seat and choking her. While this was occurring, Carroll threatened that she would be choked to death; that she would be killed and buried where no one could find her; that she would be disfigured. 19The female victim was roughly hauled into the back seat and made to crouch in the seat well with a jacket over her head. The choking ceased. 20In her fear, the female victim agreed to attempt to contact the male victim, and her mobile phone, which had previously been taken from her, was returned for this purpose. The male victim did not reply to the initial text message. The applicant attempted to reassure her that she would not be harmed if she co-operated, but Carroll indicated otherwise. 21In the meantime, the male victim had left his hiding place and went looking for the female victim, who, he discovered, had abandoned the hiding place where he had left her and her car. He then received the phone call from her, which she had been directed to make by the co-offenders. Under their instruction, she did not let on she had been taken by them and the male victim arranged to meet her at a nearby aquatic centre. Before the co-offenders could spring their trap they sighted a patrolling police car and abandoned their plan, absconding and leaving the female victim alone still crouching in the rear seat well of her car. 22When she eventually looked up, she saw the co-offenders walking away. She got into the driver's seat and drove off. She saw a parked police car. The officers were speaking to the young woman who had been driving the offenders' car. In her hysterical and terrified state, the female victim approached the police officers and asked for help. They observed she was sweating, appeared to have been crying, was shaking and could not stand still. She said, "they're going to kill me, they're after me". The officers observed the red mark around her neck. She was taken to the police station, where the injuries of a soft tissue nature to her face, neck and upper body were recorded. 23Sheen and Carroll were arrested on 15th January 2010, when the female victim was assisting police in an attempt to recreate the events of the previous evening. She pointed them out. They were arrested, declining to be interviewed. They were charged and taken into custody on 21st January 2010. 24The applicant was not taken into custody until 6th October 2010, when he was arrested in relation to subsequent offending. He denied any knowledge of this offence, but a DNA profile matching his had been detected during the investigation and whilst in custody he made admissions during lawfully intercepted telephone calls.

The subjective circumstances of the offenders 25The applicant was born in October 1987, was 22 years of age at the time of the offending, and 24 when sentenced. His criminal history includes other violent crimes extending to common assault, stalking and intimidating, making threats over the telephone, stealing property in a dwelling house, assault occasioning actual bodily harm, and a further offence of stalking and intimidating, subsequent to January 2010. 26He had generally been treated leniently in the past, including by way of bonds. At the time of this offending he was subject a bond of two years imposed in respect of the offence of stealing in a dwelling house; a charge to which he pleaded guilty after a charge bargain was made. That offence had been accompanied by an assault occasioning actual bodily harm, for which he was ordered to perform 200 hours of community service. As the sentencing judge noted, of real concern was that this couplet of offences related to the applicant lending assistance in the collection of a debt. In other words acting as a kind of "stand-over man", as again in this case. 27For a late plea, on the second day fixed for trial, the applicant received a utilitarian discount "in the order of 10 per cent". 28It appears that the sentencing judge did not accept the evidence tendered to establish that the applicant was deeply remorseful and had developed insight into his past activities including drug use. This material consisted of evidence from his father, references from community supporters and a report from a forensic psychologist. It seems that an essentially similar case had been put before the District Court when the bond was imposed on 5th December 2008, which the applicant breached by committing these offences. The sentencing judge found he had lied then when he said he had given up drugs. Moreover, the applicant had continued to offend until he was taken into custody. The learned judge found that there was no easy or quick fix to transform the applicant into a productive and law-abiding member of the community, and at best, his prospects of rehabilitation were no more than fair, notwithstanding offers of employment in his roof tiling trade, and the birth of a child to his partner. 29When sentenced, Carroll was aged 41. His criminal record has not been provided to this Court and is not detailed in the sentencing judge's reasons because he had dealt with it in his reasons for imposing his sentence in his serious driving charge earlier that day. I infer from what was said in the proceedings on sentence that his record extended to other crimes of violence. 30He too received a ten per cent discount for a late plea. The trial judge accepted psychological evidence that Carroll had suffered an abusive and destabilising childhood at the hands of his violent father. He developed psychological problems because of his perception of his inability to defend his sister and mother from his father, which led to substance and alcohol abuse. He was estranged from his immediate family. 31His psychological problems had been made worse by business failures, apparently through no fault of his own, and on account of the fact that the victim of the serious driving offence was a young friend, whose death produced a post traumatic stress disorder from which Carroll was still suffering and for which he required treatment. 32His Honour recorded that Carroll "had busied himself commendably in undertaking courses and in securing and succeeding in employment whilst in gaol". He had regained "the religion from which he had previously lapsed".

Reasons for sentence 33His Honour found that whilst not in the worst category, the offending of the co-offenders was "a very serious example of the aggregated form of offence under s.86(3)". His Honour found that, fortunately, the physical injuries suffered by the female victim had been relatively minor, but that the psychological trauma "has had severe ongoing consequences, including [on] her ability to hold down employment. There can be no doubt that the emotional harm done to her is significant." He found, however, that the s.86(3) offence was "improvised rather than organised". 34In dealing with the issue of parity, his Honour said [AB p21]: It seems to me that the roles played by each of the offenders does not provide much material to differentiate between them. Sheen must have been the instigator because he was the one attempting to collect money from [the male victim]. Carroll appears to have taken the lead in terms of directing their activities and being the first to assault [the female victim]. Wilken was the one who strangled her and kept her down with her head covered and none is entitled to be regarded as significantly less culpable than his fellows. 35When passing sentence on Carroll for the offences in common with the applicant, his Honour said this [AB p32]: ... whilst [the sentence for assault] is cumulative upon part of the sentence delivered earlier today, it is also partly concurrent with that sentence. This is in deference to the principle of totality, although the crimes themselves are completely different. Your plea has earned you a deduction of ten months. On the specially aggravated kidnapping charge, I set a commencement date of 23 September 2013. I sentence you to a non-parole period of 4 years and 6 months, with a balance of 2 years and 8 months. The special circumstances I found in your case are the accumulation of your sentences. The balance is then adequate to address your rehabilitation in the community. You will be eligible for release to supervised parole as from 22 March 2018. Your sentence will expire in its entirety on 22 November 2012. 36Of the applicant, his Honour said [AB p 33]: ...in your case I found the special circumstances of this sentence being accumulated on the sentence earlier indicated [on the call up of the bond]. I therefore impose on you a sentence for the assault on [the male victim] ... of three months, to date from 12 October 2011. The sentence to expire on 11 January 2012. On the charge of specially aggravated detain for advantage, I sentence you to a non-parole period of 5 years 2 months, to date from 12 January 2012. You will be eligible for release to supervised parole as from 11 March 2017. The balance of sentence is 2 years. The sentence will expire on 11 March 2019.

The appeal 37The focus of the proposed appeal relates to the non-parole period component of the sentence for the s.86 offence. In the applicant's case and in the case of Sheen the sentencing judge imposed a non-parole period of 5 years and 2 months. In the case of Carroll, the non-parole period imposed was 4 years and 6 months. Mr J Trevallion of counsel, who appeared for the applicant, argued that this difference in this component of the sentencing structures offends the "parity principle" requiring that like offenders should be treated in a like manner: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 743 [28]. Counsel acknowledged that the principle "allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances" (Green at 473 [28]). He argued, however, that even if this flexible exception has been engaged, the learned sentencing judge made an error of law by failing adequately to state reasons identifying the relevant difference and its effect. For this reason the applicant remained entitled to be aggrieved. Counsel also said the sentence is manifestly excessive, which latter ground was permitted to be advanced orally by leave of the Court. With respect to counsel, it must be said that this third ground was advanced but faintly. This is understandable given that "a ground of appeal based on disparity operates... in respect of sentences within the appropriate range": OM v R [2009] NSWCCA 267; 212 A Crim R 532 at [7] per Basten JA. 38The Crown acknowledged that the parity principle applies to all aspects of a sentence including the non-parole period, but submitted that the principle is concerned with ameliorating a justifiable sense of grievance on the part of the co-offender. Disparity occasioned by operation of law can give rise to no justifiable sense of grievance: R v Wahabzadah [2001] NSWCCA 253 at [15] - [16]; R v Do [2005] NSWCCA 209 at [17] - [19]. In the present case, the relevant law was the principle of totality, and the necessity to accommodate the finding of special circumstances. That the effect of accumulation across a number of sentences may constitute special circumstances is clearly established: R v Moffitt (1990) 20 NSWLR 114 at 121, 136; Simpson v R (1992) 61 A Crim R 58 at 60 - 61. 39The Crown argued that passages quoted at [35]-[36] above demonstrate that this is the approach the sentencing judge took. The need to sentence each of the applicant and Carroll by having regard to the separate offending of them both provided a relevant difference between them justifying a degree of disparity in fixing the non-parole period for each of them for the s.86(3) offence. 40The Crown accepted the judge had an obligation to provide reasons, but argued that he discharged that duty by explaining his approach to his finding of special circumstances in the case of each of the applicant and Carroll. 41So far as manifest excess was concerned, the Crown said the argument could not be seriously entertained having regard to the sentencing judge's findings as to the objective seriousness of the applicant's offending, the prospects of rehabilitation being only "fair", the aggravating circumstance of committing the offence in breach of a previous bond, and the subsequent offending also in breach of the bond. The latter consideration showing an on-going attitude of disobedience of the law.

Decision 42The parity principle is well established. In Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 Dawson and Gaudron JJ described the principle as: An aspect of equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (Emphasis added). In Green v The Queen; Quinn v The Queen at 473 [28], the plurality said: As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (Emphasis added) 43Demonstration of disparity depends upon satisfaction of an objective standard, that is to say, the appellant needs to satisfy this Court that "the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance of justice not being done": Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 609 - 610 per Gibbs CJ. 44It may be accepted that relevant disparity in non-parole periods or in the relationship between non-parole periods and total effective terms is capable of satisfying that objective standard: Stewart v R [2013] NSWCCA 185 at [46]. 45In the case of Carroll and the applicant, the totality of the offending for which they were being sentenced was relevantly different. Carroll had the dangerous driving occasioning death charge and the applicant faced sentence on the call-up on his bond. In each case, the sentencing judge was required to approach his task in accordance with the dictates of the well-known passage in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [4] - [5]; that is to say, as he was sentencing each offender for more than one offence, his Honour was required to first fix an appropriate sentence for each offence "and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". One reason why it is necessary "to ensure proper sentencing on each count" is to avoid "artificial claims of disparity between co-offenders": Pearce at 624 [48]. 46At the same time, I am conscious of the statement of Howie J in Tatana v R [2006] NSWCCA 398 at [33] that in applying Pearce, the preservation of proper parity between co-offenders needs to be borne in mind, and "may itself amount to special circumstances". But the function of a finding of special circumstances may be to preserve the statutory ratio in an appropriate case. It need not always be to ameliorate it: Moffitt at 136; Simpson at 60-61. 47In my judgment the relevant differences to which I have referred, which were clearly identified by the sentencing judge, fully justified the imposition of a different non-parole period for the s.86(3) offence on each offender in the context of the requirement of accumulation across a number of separate sentences in order to accommodate and reflect the principle of totality and preserve the statutory ratio established by s.44 Sentencing Act: Gray v R [2013] NSWCCA 169 at [42]. 48It is a settled and entrenched principle that the provision of reasons supporting a decision is an incident of the exercise of judicial power, especially by the courts of ordinary jurisdiction. This duty extends, of course, to sentencing. In so far as the content of that duty is concerned, it is probably sufficient for present purposes to adapt the reasoning of the High Court expressed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [29] - [30], albeit in the context of s.54B(4) Sentencing Act, that the duty requires "the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed". The purpose of the rule may be taken to be to inform the offender why he has received the sentence imposed, assist appellate review, promote consistency in sentencing generally and to "increase public awareness of the sentencing process". None of this should be taken as suggesting that judicial reasons in this area need to be especially elaborate, complex or detailed. Indeed, such an approach is more likely to obscure than clarify, especially when one bears in mind the purposes of informing the offender and the public. From the standpoint of appellate review, reasons need to be read fairly and as a whole, without an eye too keenly attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287. Pozzolanic is an administrative law case but the principle is apposite, at least in a general way, to judicial decisions: Hall v Van der Poel [2009] NSWCA 436 at [54]. 49To my mind, the passages from the sentencing judge's reasons, set out [35]-[36] above, clearly and adequately state the ground on which his Honour differentiated between Carroll and the applicant in fixing the non-parole period for the s.86(3) offence. It would be clear to any reasonably informed reader that his Honour fixed different non-parole periods to take account of the requirements of Pearce relating to questions of concurrence, accumulation and totality, and in that context the preservation of the s.44 ratio. I would reject the second ground of appeal. 50I have already remarked that there are difficulties in successfully arguing that a sentence is manifestly excessive when one's principal complaint invokes parity, because a parity complaint proceeds on the assumption that the sentence is otherwise appropriate. I am not satisfied that the sentence passed on the applicant is in any respect wholly unreasonable. The Crown submissions in this regard should be accepted. When one has regard to the objective seriousness of the offending, the aggravating factor of the commission of serious offences whilst subject to a bond, the applicant's criminal history before and after these offences, and his only fair prospects of rehabilitation, I am satisfied that the sentences imposed both individually and in toto were within an appropriate range. I am not of the opinion that another less severe sentence is warranted in law and should have been passed. The orders I propose are: (1)Leave to appeal granted; (2)Appeal dismissed.

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