Johnson v R, Moody v R [2010] NSWCCA 124 (25 June 2010)

Last Updated: 28 June 2010

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Johnson v R, Moody v R [2010] NSWCCA 124


FILE NUMBER(S):
2009/2869
2009/2870

HEARING DATE(S):
21/05/2010

JUDGMENT DATE:
25 June 2010

PARTIES:
Paul Robert Johnson, Regina
Michael Ronald Moody, Regina

JUDGMENT OF:
James J Simpson J Barr AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/2869, 2009/2870

LOWER COURT JUDICIAL OFFICER:
Frearson DCJ

LOWER COURT DATE OF DECISION:
14/05/2009


COUNSEL:
H Dhanji - Applicant Johnson
F Veltro - Crown


SOLICITORS:
S O'Connor - Applicant Johnson
Applicant Moody in person
S Kavanagh - Crown

CATCHWORDS:
Application for leave to appeal against sentences - multiple offences of robbery armed with a dangerous weapon - whether sentences manifestly excessive

LEGISLATION CITED:
Crimes Act 1900 - ss 95, 97(1), 97(2)
Firearms Act 1996 - s 7(1)
Crimes (Sentencing Procedure) Act 1999 - ss 23, 37, Pt 3 Div 3

CATEGORY:
Principal judgment

CASES CITED:
R v Goundar [2001] NSWCCA 198; 127 A Crim R 331
R v JW [2010] NSWCCA 49
R v Breedon (NSWCCA, 3 December 1992, unreported)
R v Hoschke [2001] NSWCCA 317
R v Wright [2009] NSWCCA 3
GAS v The Queen [2004] HCA 22; 217 CLR 198
The Queen v Pearce [1998] HCA 57; 194 CLR 610
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Veen v The Queen(No 2) [1988] HCA 14; (1988) 164 CLR 465
R v Wickham [2004] NSWCCA 193
Hillier v Director of Public Prosecutions [2009] NSWCCA 312
Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
R v Baleiovalau [2009] NSWCCA 153
R v Ta [2009] NSWCCA 196
R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38
R v Henry (1999) 36 NSWLR 346

TEXTS CITED:


DECISION:
In the application of Paul Robert Johnson - grant leave to appeal but dismiss the appeal.
In the application of Michael Ronald Moody - grant leave to appeal but dismiss the appeal.



JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/2869

2009/2870

JAMES J

SIMPSON J

BARR AJ

FRIDAY 25 JUNE 2010

Paul Robert JOHNSON v R
Michael Ronald MOODY v R

Judgment

1 JAMES J: I have had the advantage of reading in draft the judgment of Barr AJ and the judgment of Simpson J.

2 In her judgment Simpson J agrees with the orders proposed by Barr AJ and, subject to one reservation, with his Honour’s reasons. Her Honour’s reservation concerns what weight, if any, should have been given to the different roles played by the two offenders in committing the common offences, in determining Moody’s ground of appeal based on the alleged disparity between the sentences imposed on him and the sentences imposed on Johnson.

3 As regards the sentencing of offenders who were parties to the same joint criminal enterprise, Simpson J has in her judgment referred to statements of principle in previous decisions of this Court and in particular R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 and R v JW [2010] NSWCCA 49.

4 It is clearly established that a judge sentencing offenders who were parties to the same joint criminal enterprise should “begin with” and “not lose sight of” the fact that they were all participants in the commission of the same crime. However, it is not the case that the offenders are necessarily to be regarded as having had the same objective criminality.

5 In the present case it seems to me from my reading of the sentencing judge’s remarks on sentence, including the parts quoted by Simpson J in her judgment, that his Honour was clearly aware of the principles he was required to apply and, mindful of those principles, decided that some weight should be given to the different roles played by the two offenders in the commission of the common offences.

6 I do not consider that this Court should hold that the sentencing judge was wrong in deciding to give some limited significance to the different roles played by the two offenders in the commission of the offences. The significance his Honour gave to this factor was quite limited, because, as Simpson J has pointed out, there were other, uncontroversial, reasons why the total sentence imposed on Moody should have been heavier than the total sentence passed on Johnson, including that Moody was on parole when the offences were committed, Moody was to be sentenced for a further offence and there was an extra additional offence to be taken into account in sentencing Moody for the offence charged in the first count.

7 I am not, of course, to be taken as suggesting that in sentencing offenders for an armed robbery the driver of a get-away vehicle should necessarily receive a lesser sentence than an offender who entered the premises where the robbery was committed.

8 I agree with the other parts of Barr AJ’s judgment and, consequently, with the orders proposed by his Honour.

9 SIMPSON J: I agree with the orders proposed by Barr AJ, and, with one reservation, with his Honour’s reasons.

10 That reservation concerns the weight to be given to the distinction between the roles of the two offenders (see para [94]).

11 In my opinion, when sentencing co-offenders engaged in a joint criminal enterprise, some caution needs to be exercised in drawing fine distinctions between what each actually did.

12 The overriding circumstance is that the two or more offenders have engaged in an enterprise that calls upon each to perform his or her assigned role. The objective cannot or may not be achieved unless each participant plays his or her part. In those circumstances it may be unfair to treat one offender, who happens to have been assigned a role that involves less active participation in the actual crime than others, more leniently than those whose task it was, for example, to carry out the essential act constituting the crime.

13 This has been recognised on previous occasions in this Court. In R v Goundar [2001] NSWCCA 198; 127 A Crim R 331, Wood CJ at CL, with whom Powell JA and Sully J agreed, said (referring to R v Breedon (NSWCCA, 3 December 1992, unreported)):

“31 This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as ‘being of the same quality’ upon the basis that they had involved themselves ‘in a course of criminal conduct which could be described as a joint criminal enterprise’.

31 This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect.

33 On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim.

34 The present case, however, was not such a case since the robbery went according to plan, without violence beyond that contemplated and threatened by the presence of the weapon.” (italics added)

To the examples given by Wood CJ at CL in [33] as circumstances possibly permitting differentiation, I would add that, where two or more offenders participate in a joint violent crime, it might well be appropriate to differentiate between them by reference to the level of violence actually inflicted by either or any of them. As will be seen, each case will call for examination on its own facts.

14 In R v Hoschke [2001] NSWCCA 317 Carruthers AJ said:

“18 ... If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of the criminal enterprise.”

15 That passage was quoted in R v JW [2010] NSWCCA 49 at [160] by Spigelman CJ, who went to say:

“161 It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with ‘precision’, because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced ...”

16 At [162] his Honour described as “a more complete statement of the applicable principles” a passage in R v Wright [2009] NSWCCA 3, in which James J said:

“28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise ...

[29] ... In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act.”

His Honour referred to GAS v The Queen [2004] HCA 22; 217 CLR 198 at [23].

17 In JW, Allsop P agreed with the Chief Justice. However, in a joint judgment, McClellan CJ at CL, Howie and Johnson JJ said:

“213 With respect, we agree with what the Chief Justice has written about sentencing [for] offences committed by offenders acting under a joint criminal enterprise. But in assigning roles to the specific participants, the sentencing judge should not lose sight of the fact that they were all participants in the crime ... Regardless of who had the knife that was used upon the victims or regardless of whether the offender might not actually have been at the scene when the second offence occurred, he was a participant in two armed robberies. By his plea of guilty to the offences he [admitted that he] contemplated, not only that knives would be used, but also the possibility that the victims might be wounded in those offences being carried out. There was no suggestion that his co-offenders overbore the respondent in any way or that his culpability in being a participant in such serious offences was diminished. In those circumstances the fact that the offender might not have been more culpable than one of the other participants was of limited significance.”

18 It is not entirely clear how the sentencing judge in the present case approached the differentiation of the roles played by the two offenders. He said:

“I also have regard to the difference in the roles of the two offenders. It is true that Mr Moody was the person who went in and menaced the people with the firearm and the role of Mr Johnson was to be the driver and whilst they are equally guilty in terms of their liability for the offence, I do have regard to the differing roles they played in determining what sentence should be imposed upon each of them.

It is true that, whilst Johnson was the driver, it is also true that he was well aware that his cousin Mr Moody, who was drug crazed at the time, was going about haphazardly and with his encouragement and assistance, committing these very serious crimes.”

19 There seems, to me, to be some conflict between these two paragraphs; in the first, his Honour appears to be clearly attributing less culpability to the offence of Johnson, because he was the driver, and not the perpetrator of the actual offence; in the second, he appears to increase Johnson’s culpability by reason of his knowledge of the state and condition of Moody.

20 It is simply not possible to be clear about what weight he attributed to the fact that Johnson drove the car while the Moody committed the offence.

21 If, as it appears to me, he did take into account Johnson’s role as making him less culpable, I do not think, on the authority of Goundar and JW, and the cases there cited, that was, in the circumstances of this case, a correct approach. I do not accept, as Barr AJ does (at [94]) that Moody’s offence was more serious than Johnson’s because he was the actual perpetrator. Johnson’s participation made Moody’s offence possible.

22 However, there were other, valid, differentiations between the two applicants. As has been noted, they had much in common. But Johnson was to be sentenced in respect of six offences; Moody in respect of eight. The two additional offences were both of possession of prohibited firearms. One was a separate charge; one was taken into account under the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999. The offence that was the subject of the additional charge carried a maximum penalty of imprisonment for 14 years, and a standard non-parole period of 3 years. Additionally, and significantly, Moody was on parole at the time of the offences.

23 Although the judge imposed a discrete sentence in respect of the fourth offence, by reason of its length and commencement date it was fully subsumed in the other sentences.

24 The discrepancy in sentencing is, in respect of both the head sentence and the overall non-parole period, 1 year and 8 months. The question for present determination is whether the two circumstances, that undoubtedly warranted differentiation, justified a discrepancy of that magnitude.

25 It is also to be observed that, in respect of each individual armed robbery, in which the two were participants, the sentences imposed on Moody were longer than those imposed on Johnson. The sentence imposed on Moody in respect of the first offence was 9 years with a non-parole period of 6 years, as against a head sentence of 7 years and 10 months with a non-parole period of 4 years and 10 months imposed on Johnson. That is a differential, in respect of both the head sentence and the non-parole period, of 14 months, or 15 percent on the head sentence, 24 percent on the non-parole period.

26 The sentences imposed on Moody in respect of each of the second and third offences was of 5 years, against sentences of 4 years imposed on Johnson – that is, an additional 25 percent.

27 The fact that Moody was on parole at the time he committed the offences plainly justified – and called for – longer sentences than those imposed on Johnson. This Court repeatedly draws attention to the fact that having the benefit of conditional liberty at the time of committing an offence is an aggravating, and a seriously aggravating, feature.

28 I do not think the additional charge has a bearing on the relativity of the sentences for the common offences. That ought to have been dealt with by the imposition of a discrete sentence, made cumulative, or partly so, upon the common charges.

29 But the additional Form 1 offence does have a bearing upon the sentence imposed in respect of the first count.

30 I have come to the view that having regard to Moody’s parole status, and the additional Form 1 offence, it was open to his Honour to extend that sentence by the 14 months that he did, and that that cannot be held to be excessive.

31 As to counts 2 and 3, the only real distinguishing feature is Moody’s parole status. The loading in those cases was 25 percent. I have concluded that that cannot be sustained.

32 Moreover, Moody suffered by comparison with Johnson in the extent of accumulation. Each of Johnson’s second and third sentences was accumulated by one year. In Moody’s case, the second commencing sentence (that imposed in respect of count 3) was accumulated on the first commencing sentence (for count 2) by 18 months. The third commencing sentence was accumulated by one year. I do not think that this can be sustained.

33 In my opinion, the requirements of The Queen v Pearce [1998] HCA 57; 194 CLR 610 have not been complied with.

34 But I am unable to conclude that, for two additional offences, each of firearm possession, and for the recognition of the aggravating feature that Moody’s offences were committed whilst on parole, the overall result (an additional term of 1 year and 8 months) was not a proper exercise of sentencing discretion. Had the sentencing judge imposed a discrete partially cumulative sentence in respect to the firearms charge, in such a way as to extend Moody’s overall term of imprisonment by 14 months, no valid complaint could have been made.

35 Although I think the structure of the sentences was somewhat flawed, and notwithstanding non-compliance with Pearce, I would not interfere in the overall result.

36 BARR AJ: The applicants, Paul Robert Johnson and Michael Ronald Moody, committed a number of offences together. They pleaded guilty in the Local Court and were committed to the District Court for sentence. On 14 May 2009 Judge Frearson of Senior Counsel imposed sentence. The applicants seek leave to appeal against the sentences.

37 The offences may be summarised thus -

1. On 30 January 2008 at Cessnock, while armed with a dangerous weapon, namely a shortened .22 rifle, they robbed an employee of Eagle Boys Pizza of $2,015, a mobile telephone, keys and a bag.

2. On 24 February 2008 at East Maitland, while armed with a dangerous weapon, namely a shortened .22 rifle, robbed an employee of MacDonalds of $400.

3. On 24 February 2008 at Kurri Kurri, while armed with a dangerous weapon, namely a shortened .22 rifle, robbed an employee of Domino’s Pizza of $150.

38 In addition the applicant Moody committed this offence, namely on 29 January and 26 February 2008 at Cessnock and elsewhere he possessed a prohibited firearm, namely a shortened .22 rifle, without the authority of a licence or permit.

39 Each of the first three charges was laid under s 97(2) Crimes Act 1900 and attracted a maximum sentence of 25 years’ imprisonment. The fourth charge was laid under s 7(1) Firearms Act 1996 and attracted a maximum sentence of 14 years’ imprisonment.

40 His Honour sentenced Johnson as follows:

On count 1, and taking into count 3 matters under s 32 Crimes (Sentencing Procedure) Act, a non-parole period of 4 years and 10 months, commencing on 25 October 2010 and expiring on 24 August 2015 and a balance of term of 3 years expiring on 24 August 2018;

on count 2, a fixed term of 4 years commencing on 25 October 2008 and expiring on 24 October 2012; and

on count 3 a fixed term of 4 years commencing on 25 October 2009 and expiring 24 October 2013.

41 The total effective head sentence was 9 years and 10 months with a non-parole period of 6 years and 10 months. The matters taken into account on the first count were -

Robbery while armed with a dangerous weapon at Telarah on 23-24 February 2008;

Robbery while armed with a dangerous weapon at East Maitland on 24 February 2008; and

Robbery with corporate violence at Toronto on 23 February 2008.

The Telarah offence was against s 97(2) Crimes Act and carried a maximum sentence of 25 years. The East Maitland offence was against s 97(1) Crimes Act and carried a maximum sentence of 20 years. The Toronto offence was against s 95 Crimes Act and carried a maximum sentence of 20 years.

42 On the counts identical to Johnson’s, his Honour sentenced Moody as follows -

On count 1, and taking into account 4 offences under s 32 Crimes (Sentencing Procedure) Act, a non-parole period of 6 years commencing 25 May 2011 and expiring 24 May 2017 and the balance of term of 3 years expiring 24 may 2020;

On count 2 a fixed term of 5 years commencing 25 November 2008 and expiring 24 November 2013; and

on count 3 a fixed term of 5 years commencing on 25 May 2010 and expiring on 24 May 2015.

On the fourth count his Honour imposed a non-parole period of 2 years commencing on 25 May 2011 and expiring on 24 May 2013 and a balance of term of 1 year expiring on 24 May 2014.

43 The total effective sentence was a non-parole period of 8 years and 6 months and a balance of term of 3 years.

44 Of the four matters taken into account on the first count, three were identical to those taken into account for Johnson. The fourth was the possession of a prohibited weapon at Tenterfield on 25 February 2008, for which the maximum penalty would have been imprisonment for 14 years.

45 The facts were agreed. Count 1 arose out of the events of 30 January 2008. At 10 pm the applicants went by car to a pizza shop in Cessnock. Johnson was driving. He remained in the car while Moody entered the shop wearing a balaclava. He was carrying a shortened .22 rifle. He told the two occupants that if they did not give him their money he would kill them. He got away with $2,000 from the till and $15, keys and a mobile phone and some personal belongings the property of a young female employee. $15 was all she had. Johnson drove them away. The female employee was badly affected and eventually had to give up the job. She was prescribed medicine for what she described in her Victim Impact Statement as depression.

46 Count 2: Just after midnight on 24 February 2008 the applicants went by car to a McDonald’s hamburger shop in East Maitland. Johnson stopped the car in the drive-through and Moody pointed the shortened rifle at an employee. One of them threw the employee a bag and demanded that he fill it. The employee complied. The applicants got away with $400.

47 Count 3: At about 11 pm on 24 February 2008 Johnson drove Moody and a woman to a pizza shop in Kurri Kurri. Moody and the woman ran into the shop while Johnson waited in the car. Moody was disguised. He carried the shortened rifle. He demanded money and threatened to shoot. He got away with $150 from the till.

48 Count 4 (Moody): On 25 February 2008 the offenders were travelling with others in two vehicles near Tenterfield. Police wished to stop one of the vehicles to breath test the driver. There was a chase, in the course of which one of the vehicles rammed a police car. Eventually the applicants were arrested. In one of the vehicles were found documents and things linking them with the robberies. Also found were a sawn-off rifle and ammunition and a set of handcuffs. This last item was the subject of the fourth count.

49 The first in time of the three form 1 offences was committed at 12.30 pm on 23 February 2008 at Toronto. A car stopped near two women who were walking in the street. One of the offenders got out and overcame some determined resistance on the part of the women and managed to snatch a purse containing $83, a mobile telephone and other items. Both women sustained minor injuries.

50 Just before midnight on 23 February 2008 the offenders stopped their car and held up two people in the street as they were walking home from the Telarah Bowling Club. The shortened rifle was used, as before, and there were threats to shoot. They stole a watch, about $10 in change and other items.

51 About an hour later four people including the two offenders sprang out of a car at East Maitland and accosted a man in the street. One held a knife to his throat. $95 and some personal items were stolen.

52 The fourth offence taken into account in sentencing Moody was his possession of a prohibited weapon, the shortened rifle, on his arrest at Tenterfield.

The Application of Paul Robert Johnson
53 The first four grounds of appeal were argued together in written submissions and orally on the hearing of the application. I shall deal with them together. They are -

1. The sentencing judge erred in the manner in which he took into account the applicant’s prior criminal record.

2. The sentencing judge erred in the manner in which he took into account the matters on the form one.

3. The sentencing judge erred in giving too much weight to personal deterrence.

4. The sentencing judge erred in giving too much weight to retribution.

54 In sentencing Johnson his Honour referred to the offences taken into account under s 23 Crimes (Sentencing Procedure) Act and said that he proposed to take them into account “in accordance with the guideline judgment”.

55 It was submitted that his Honour’s reference to the guideline judgment must have been to the decision of this Court in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; (2002) 56 NSWLR 146. In that appeal Spigelman CJ said at [42] -

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

56 From there the argument proceeded as follows. On the authority of that appeal, the only deterrence that could be affected by the taking into account of the offences was personal deterrence. If, by the use of the word “deterrence” his Honour intended to increase the weight to be given to general and personal deterrence his Honour was in error. It, on the other hand, his Honour was consistently with the judgment of Spigelman CJ, confining the deterrent effect of sentencing of the Form 1 matters to personal deterrence, his Honour was still in error, as it was put -

In failing to take account of the interplay (and overlap) between the considerations relevant as a result of the Form 1 and those resulting from the applicant’s prior history.

57 Having dealt with Moody’s record, his Honour said this about Johnson’s prior offences -

Similarly, I have noted Mr Johnson’s record and he has many serious driving breaches but he has enough matters of dishonesty to again demonstrate a persistent disobedience of the law and, again, it is a record that does not merely deny leniency, it is an aggravating record in terms of the sentence.

58 Reference was made to the authorities dealing with the manner in which an offender’s criminal record may sound in sentence: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; Veen v the Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629.

59 It was submitted that his Honour had already increased the weight given to retribution and personal deterrence in taking into account the matters under s 32 Crimes (Sentencing Procedure) Act. It was submitted that there was no acknowledgement by his Honour of the relationship between the weight given to retribution on the basis of those matters and the weight given to retribution on the basis of the record. It was submitted that while the increase in the weight to be given to retribution because of the Form 1 matters might to some extent be considered separate, stemming from the fact that no penalty had been imposed for the Form 1 offences, the same could not be said of personal deterrence. It followed that in taking the record into account his Honour must, in effect, have doubled up in the significance of personal deterrence. Reference was made to Hillier v Director of Public Prosecutions in the judgment of R S Hulme J at [76].

60 Reference was made to the danger of double counting and authorities were referred to. There is no need to do so here.

61 The submission continued to the effect that his Honour failed to acknowledge the different nature of the offences on Johnson’s record. It was pointed out that there were no prior robbery offences and no offences of violence. In the absence of an express limitation, it was submitted, it must be assumed that his Honour increased the weight to be given to personal deterrence to deter the applicant from crimes similar to those for which he stood for sentence but of which he had no prior history. Alternatively, his Honour increased the weight to be given to personal deterrence that failed to recognise and properly take into account the significantly less serious nature of the matters on the record. The additional weight that could be given to personal deterrence when sentencing for the robbery offences was extremely limited but no such limitation was acknowledged.

Consideration

62 His Honour said that the Form 1 offences were being taken into account in accordance with the guideline judgment. I accept that that was a reference to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518 and that his Honour had in mind the manner in which such matters may sound in sentence. So much appears from his Honour’s reference to “retribution and deterrence”. I note that in para [44] of the same judgment Spigelman CJ said this -

44 The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)

63 It seems to me that there is no reason to suppose that his Honour did other than he said he would do, namely take the Form 1 matters into account in the manner required by this Court.

64 His Honour’s reference to Johnson’s criminal history was brief but accurate. The history was long, stretching back to 1998, when Johnson was 16 years old. He had many convictions for offences of or involving theft and unlawful entry on to premises. Those offences were the “matters of dishonesty” that his Honour was referring to. It would not have been lost on his Honour that robbery includes theft. In my opinion his Honour was entitled to come to the view that Johnson’s record was an aggravating feature.

65 His Honour was not required to state whether or exactly how he took account of “the interplay (and overlap) between the considerations relevant as a result of the Form 1 and those resulting from the applicant’s prior history”.

66 It seems to me that the applicant’s submissions proceed on two misconceptions. The first is to assume by reference to things his Honour did not say that he must have reasoned in an impermissible way. The second is to assume, because his Honour said first that he intended to give effect to the Form 1 offences and then that he intended to give effect to the criminal record, that his Honour considered the first without regard to the second and vice versa. Such a construction is not warranted. A sentencing judge who has to take into account a number of matters is obliged to mention them one at a time. One may not infer from that that the judge deals with any before any other or without regard to any other. The synthesis of a sentence is an instinctive process.

67 In my opinion, his Honour properly had regard to the Form 1 matters and to the criminal record. His Honour did not say exactly how he was giving effect to those separate considerations but he was not required to do so. I do not think that error has been shown by anything his Honour said or did not say.

68 Ground 5 is as follows -

5. The sentences imposed on the applicant are, individually and in their cumulative effect, manifestly excessive.

69 This ground relied on no frank error (other than might have become apparent after consideration of the other grounds). The length of the individual sentences and the degree of accumulation were said to bespeak error.

70 Attention was drawn to the maximum sentence of 25 years imprisonment applicable to the s 97(2) offence in count 1 and to the starting point before the plea of guilty, which, it was submitted, must have been almost 10½ years. It was submitted that s 97(2) Crimes Act may apply to offences having much more serious features than were present here. Examples were given.

71 Reference was made to two unrelated cases which resulted in sentences more favourable than those under attack; R v Baleiovalau [2009] NSWCCA 153 and R v Ta [2009] NSWCCA 196. The appellant in Baleiovalau received a head sentence of 10½ years and a non-parole period of 7½ years following a plea of guilty, a result very similar to Johnson’s, where the features of the case were much worse than in Johnson’s. I will not repeat them. The appellant Ta received a head sentence of 8 years and a non-parole period of 6 years. Ta’s case was said to have features far more serious than Johnson’s.

72 The Court has pointed on a number of occasions to the difficulty of demonstrating error by reference to the facts and sentences in unrelated cases. In R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 at [48] this Court, constituted by Wood CJ at CL, Adams and Kirby JJ said -

We are unable to gain any meaningful assistance from a reference to these cases. It is unnecessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 at [98]- [101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing ...

73 While there may be cause to seek such limited assistance for offences for which no discernible sentencing pattern has emerged, such consideration does not seem to me to be warranted in other cases. It should be firmly discouraged.

74 All the submissions under this ground really amount to a submission that the sentences individually and collectively are so high as to demonstrate error. They do not strike me that way. This was a succession of most serious offences calling for sentences calculated to protect the community from a dangerous offender. I do not think that the sentences individually or collectively fall outside the proper range of his Honour’s sentencing discretion.

75 None of the grounds of appeal has been made good.

The Application of Michael Ronald Moody

76 The applicant was more than two years younger than Johnson, but had a serious criminal record, commencing in 2000. He had committed a large number of offences of theft and kindred offences. He had been convicted of possessing a loaded firearm in a public place and firing a firearm near a public place as well as of having custody of a knife in a public place. He had served a number of periods of full time custody. His Honour considered that the record was an aggravating factor. His Honour recognised that he was the gunman throughout. His Honour found that his prospects of rehabilitation were not good. He was satisfied that he had shown remorse.

77 It is convenient to deal first with the second and third grounds of appeal. These complained that the sentence on the first count was manifestly excessive and that his Honour failed to give proper effect to the principle of totality.

78 This applicant submitted first that the head sentence of 9 years imposed after his plea of guilty, was manifestly excessive as outside the range referred in R v Henry (1999) 36 NSWLR 346. The applicant accepted that he did not fall into the description of the offender dealt with in the Henry guideline though, he submitted, he fell into all the criteria of that guideline judgment other than the criterion of having little or no criminal history.

79 The applicant pointed out that his father had died not long before these offences were committed and that he had committed them under the influence of drugs. He was a long term drug user. He had been diagnosed as suffering from schizophrenia and was on long term medication.

80 Dealing with the principle of totality, the applicant submitted that the effective head sentence of 11 years and 6 months with the effective non-parole period of 8 years and 6 months was excessive for a “criminal spree” of robberies that took place over about 5 weeks. He submitted that it would have been appropriate and proper, to make all the sentences concurrent. The sentencing judge erred, it was submitted, in accumulating them at all.

81 In my opinion the guideline judgment of R v Henry has no application to the sentence imposed on any of the counts. The applicant was not a young person who had little or no criminal record. He was being sentenced on the first count not only for the serious offence of the first hold-up and its consequences. That sentence had to be increased to take account of the matters on the Form 1, each a very serious matter. The criminality comprehended by the offence in the first count and all the matters to be taken into account far exceeded that in a case fitting within the R v Henry guideline.

82 I do not accept the submission that these sentences should not have been partly accumulated. Five weeks may not be a long time, but it is not a particularly short time either. Some of the offences appear to have been committed at short notice and without much or any individual planning. However, all were committed following considerable preparation. Motor vehicles were stolen, the shortened rifle was obtained and ammunition was provided. A separate decision must have been made to go out on each of the nights and days of the offences and commit offences of some such kind as were committed.

83 In my opinion his Honour would have erred if he had not accumulated the sentences.

84 His Honour did take into account the features relied on by the applicant as favouring him. His Honour accepted that he was remorseful. His Honour was aware that the applicant was a drug user and under the influence of drugs though, in my opinion, those matters did not mitigate his criminality. His Honour recognised the difficult life the applicant had had and noted the recent death of his father.

85 In my opinion it has not been demonstrated that any of the sentences fell outside his Honour’s proper range of sentencing discretion. It has not been shown that the total effective sentence fell outside that sentencing discretion.

86 In his written submission the applicant raised a matter that might be regarded as requiring leave. If leave were needed I would grant it. The applicant pointed out that he had been arrested on 25 February 2008 and that he was obliged to serve two months’ balance of parole. His complaint was that, allowing for that period, his sentence ought to have been backdated to April 2008. In fact his Honour ordered the sentences to commence on 25 November 2008. That, it was submitted, was an error.

87 In his remarks on sentence his Honour noted the date of arrest and observed that the applicant had been serving sentences until 19 April 2009. His Honour remarked that was “some nexus” between those matters and noted that the applicant owed a couple of months for parole.

88 The record shows that the applicant was sentenced on 20 October 2008 at the Local Court, Armidale to serve imprisonment for six months for driving under the influence of alcohol or other drugs. The period of that imprisonment commenced on 20 October 2008 and expired on 19 April 2009. That was the matter referred to by his Honour in the remarks on sentence.

89 Although it is not altogether clear, the “nexus” suggests some connection with the events out of which the present charges arose. The applicant’s co-offender Johnson was always the driver in the commission of the offences for which sentence was imposed and in the matters taken into account. However, there were two vehicles involved in the chase at Tenterfield, and it seems possible that the applicant was a driver on that occasion.

90 However that may be, by backdating the commencement of the first of the sentences to 25 November 2008, his Honour intentionally produced a concurrency of all but 5 weeks of the 6 months sentence imposed at Armidale. In my opinion, his Honour dealt fairly with the offender in selecting the commencement date. There was no error.

91 The first and remaining ground of appeal asserts that the applicant has a justifiable sense of grievance by comparing his sentence with that imposed on his co-offender Johnson.

92 The applicant submitted that this was a joint criminal enterprise. Their guilt was equal and so, therefore, should be their sentences. The applicant submitted that the respective criminal histories of himself and Johnson were similar. While acknowledging that he was the offender who used the weapon, he submitted that it was significant that he had never discharged it. He submitted that he and Johnson were not so very far apart in age and that each had a history of drug use and had undergone similar difficulties in their personal lives. Both were held in protective custody. Both were remorseful. The difference between the charges and the matters taken into account, it was submitted, was insignificant. While he accepted the judge’s finding that he was on parole at the time of the offences, that, it was submitted, was for a “minor matter” and should not have had such a significant influence on the sentence. Further reference was made to the commencement date selected by his Honour. The submissions concluded with the statement that in a joint criminal enterprise with substantially similar factors the sentences for both offenders should be either exactly the same or substantially similar.

93 It is correct to say, as the applicant submitted, that he and Johnson had much in common. It may be accepted that they were much of an age, no longer young enough to call that circumstance in aid in sentencing, both well experienced in the commission of crime, both unfortunately users of illegal drugs and both having had difficult family and personal histories. There is, however, no principle that offenders who are equally guilty and present many features in common should not be treated discriminately on sentence. It seems to me that there were some important features which distinguished them. The fact that the applicant was on parole when he committed these offences was an important aggravating feature, as his Honour recognised. It is not to the point that the parole resulted from some allegedly minor matter. The conditions of parole placed an additional obligation on the applicant not to offend.

94 In my opinion his Honour was correct to distinguish between the roles the two offenders played. It was more serious to enter premises and repeatedly level a firearm and threaten people’s lives then to wait outside in a car. His Honour was bound, also, to take account of the number of offences which each offender had committed.

95 Johnson’s effective head sentence was 9 years and 10 months and his period of availability of parole was 3 years. The applicant’s effective head sentence was 11 years and 6 months incorporating a period of 3 years for parole if he should earn it. Bearing in mind the similarities and dissimilarities, I do not think that the relative sentences imposed by his Honour fell outside the proper range of sentencing discretion. I do not think that the applicant’s sense of grievance is justifiable.

Orders

96 In the application of Paul Robert Johnson I would grant leave to appeal but would dismiss the appeal.

97 In the application of Michael Ronald Moody I would grant leave to appeal but would dismiss the appeal.

**********

LAST UPDATED:
25 June 2010