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Pashley v R [2019] NSWCCA 119 (12 June 2019)

Last Updated: 12 June 2019



Court of Criminal Appeal
Supreme Court
New South Wales

Case Name:
Pashley v R
Medium Neutral Citation:
Hearing Date(s):
27 May 2019
Decision Date:
12 June 2019
Before:
Simpson AJA at [1]
Walton J at [3]
Adamson J at [4]
Decision:
(1) Leave granted to raise ground 3 in the appeal against conviction.

(2) Appeal against conviction dismissed.

(3) Leave to appeal against sentence refused.
Catchwords:
CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – whether trial judge obliged to give Shepherd direction regarding identification of vehicle on CCTV footage – identification of car not an indispensable intermediate step

CRIME – appeals – appeal against conviction – alleged failure to direct jury regarding use of circumstantial evidence – directions not in accordance with Bench Book – no deficiency identified

CRIME – appeals – appeal against conviction – alleged unreasonable verdict – verdicts open to jury – appeal dismissed

CRIME – appeal against sentence – question of parity – co-offender’s appeal against sentence not finally determined – leave to appeal refused
Legislation Cited:
Cases Cited:
Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mulato v R [2006] NSWCCA 282
R v Prasad (1979) 23 SASR 161
Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:
Principal judgment
Parties:
Lawrence Pashley (Appellant)
Regina (Crown)
Representation:
Counsel:
S Kluss (Appellant)
B Hatfield (Crown)

Solicitors:
Ross Hill & Associate Solicitors (Appellant)
Director of Public Prosecutions (NSW) (Crown)
File Number(s):
2014/188642
Decision under appeal:

Court or Tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
22 September 2017
Before:
Williams ADCJ
File Number(s):
2014/188642

JUDGMENT

  1. SIMPSON AJA: I agree with Adamson J that the appeal against conviction should be dismissed for the reasons given by her Honour. With respect to the ground of appeal that asserts that the verdicts were unreasonable, I have considered the whole of the evidence and am satisfied that the verdicts were reasonably open to the jury, and that the Crown case established the appellant’s guilt of all charges.
  2. With respect to sentence, I agree with Adamson J that the appellant has failed to sustain any of the grounds pleaded. That would ordinarily result in leave to appeal against sentence being granted, and the appeal dismissed. However, there is an additional consideration. The co-offender, against whose sentence the parity arguments were made, has also appealed against his conviction and sentence. That appeal has been heard, but not disposed of. Against the possibility that his appeal might meet with more success than that of the appellant, it is appropriate to refuse leave. That preserves the right of the appellant to seek reconsideration of the parity grounds if the co-offender’s sentence is reduced.
  3. WALTON J: I agree with the orders proposed by Adamson J for the reasons given by her Honour. I am satisfied that the verdicts of guilty were reasonably open to the jury.
  4. ADAMSON J: On 5 June 2017 Lawrence Pashley (the appellant) was arraigned in the District Court on an indictment that charged the following three offences:
  5. A jury was empanelled and a trial commenced before Williams ADCJ. At about 11am on 14 June 2017, the jury retired to consider its verdicts. At about 2pm on 15 June 2017, the jury returned unanimous verdicts of guilty on each of the charges. On 22 September 2017, Williams ADCJ sentenced the appellant to an aggregate term of 13 years’ imprisonment to commence on 15 June 2017 with a non-parole period of 8 years.

The Crown case

  1. The Crown case was that the appellant and Daniel O’Brien (the co-offender) were close associates who acted together in drug dealing. In the early hours of 12 March 2014, the appellant and the co-offender drove together from Canberra to Thredbo in a Ford Falcon (the Ford) belonging to the appellant’s father, which the appellant frequently used. Before they left Canberra, they changed the registration plates of the Ford to avoid detection for the robbery, which they had planned. The appellant was the driver and the co-offender was the passenger. They passed through Bredbo at 1.57am and Cooma at 2.11am and continued through Jindabyne to Thredbo.
  2. The Crown case was that when they arrived in Thredbo, they went to the Kosciuszko Thredbo Hotel (the Hotel), an establishment with which the co-offender was familiar as he had previously worked there. At about 4.15am, they threatened the night auditor, Dane Sheriden, with a knife and claw hammer. Mr Sheriden described his two assailants as being of similar height and build and estimated that they were both about 184cm high, which was 10cm taller than he was. They took about $30,000 which was held in the safe of the Hotel (count 1).
  3. The co-offender and the appellant bound Mr Sheriden’s hands with duct tape and, after taking the keys to one of the Hotel’s vehicles, a Hyundai van (the van), they took Mr Sheriden outside and pushed him into the back of the van. They bound his legs with tape so that he could not escape.
  4. On the Crown case the appellant and the co-offender detained Mr Sheriden to delay discovery of the robbery (count 2) and stole a van owned by, or in the possession of, Kosciuszko Thredbo Pty Ltd which they later abandoned (count 3). The Crown case was that the co-offender drove the van (with Mr Sheriden inside) from Thredbo to Jindabyne while the appellant followed him in the Ford. Between about 10 and 12 minutes after they left Thredbo Mr Sheriden saw lights of another vehicle through the small back window of the van. He could not estimate the distance between this vehicle and the van. The Crown submitted that the lights Mr Sheriden saw were the lights of the Ford which was being driven by the appellant. On the journey from Thredbo, the co-offender made threats to Mr Sheriden, including that he had a hole dug for him at Cooma with ten guys from Sydney waiting to kill him.
  5. The Crown case was that the two vehicles which passed the BP Service Station at Jindabyne heading east at 4.47.26 and 4.48.05am were the van driven by the co-offender followed by the Ford driven by the appellant. As the van was heading up out of Jindabyne towards East Jindabyne, Mr Sheriden managed to escape from the van by opening the sliding door and rolling out of it when it was travelling at speed. He suffered injuries as a result of the impact with the road. Mr Sheriden was not aware of any other vehicle following the van at this point. He managed to get to a house in Jindabyne where he obtained help. An ambulance was called at 5.21am. On the Crown case, the co-offender abandoned the van in East Jindabyne, where the appellant or the co-offender broke the window and disposed of the key to make it appear that the van had been taken by joy-riders. The appellant, who was driving the Ford, picked up the co-offender in East Jindabyne and drove back to Canberra, passing through Cooma at 5.34am and Bredbo at 5.48am.
  6. Detective Hardman arrested the co-offender on 7 May 2014. His height and build were noted in police records as being, at the time of arrest, “175-180cm” and “medium”. When Detective Hardman arrested the appellant on 26 June 2014, the appellant’s height was recorded as “170-175cm” and his build was described as “medium”. Detective Hardman described the recorded heights as being “general estimates”.

The trial

Matters not in dispute

  1. There was no dispute in the trial about the following matters:

Matters in issue

  1. The principal issue in the trial was whether the second assailant was the appellant.
  2. The Crown relied on CCTV cameras at various points on the route between Bredbo and Jindabyne, including footage from a CCTV camera at the BP service station at Jindabyne which showed one vehicle passing the service station at 4.47.26am and another vehicle passing the service station at 4.48.05am. On the Crown case, the first vehicle was the van which was being driven towards East Jindabyne by the co-offender (before it was abandoned at East Jindabyne) and the second vehicle was the Ford being driven by the appellant. It was relied on as tending to establish a connection between the co-offender’s activities with the van and the Ford driven by the appellant and also as being inconsistent with the appellant’s case (described in more detail below) that, after dropping the co-offender at the car park, he had gone to a particular dirt area and waited for him there.
  3. In order to prove that the appellant was the second assailant, the Crown relied on the following:
  4. At the conclusion of the Crown case on 8 June 2017, the appellant’s counsel asked for a verdict by direction on the ground that there was insufficient evidence of identification; or, in the alternative, a Prasad direction (see R v Prasad (1979) 23 SASR 161 at 163 and since disapproved: Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 [2019] HCA 9; (2019) 364 ALR 407 at [56]- [57] (Kiefel CJ and Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)). On 9 June 2017, the trial judge refused both applications.

The appellant’s case

  1. The appellant’s case at trial was that he was not the second assailant and was not involved in the crimes committed by the co-offender. He had given a notice of alibi (which was marked exhibit 4) which said:
“At the time of the alleged offences concerning the Thredbo Alpine Hotel, Hyundai Panel Van and Dane Sheriden, the Accused was in the Bay Street car park adjacent to the Banjo Patterson Park in Jindabyne, New South Wales (“NSW”) and then travelled to, and remained on, a dirt area on the side of Kosciuszko Road, East Jindabyne NSW.”
  1. The appellant gave evidence. He said that he did not know that the number plates of the Ford had been changed when he drove the co-offender from Canberra to Jindabyne. He said that he dropped the co-offender off at the Bay Street Car Park next to Banjo Patterson Park in Jindabyne. He had been told by the co-offender that he was going to do a drug deal involving cocaine in Jindabyne. The appellant’s evidence was that the co-offender wanted the appellant to wait for him at a “dirt area” about 5-7 minutes’ drive east from the Bowling Club at Jindabyne. The appellant said that he did not know anything about the co-offender’s plan to rob the Hotel. He said that he dropped the co-offender off at the car park at 3.35 or 3.40am and went to the dirt area where he waited for him. According to the appellant, the co-offender arrived at the appointed meeting place at 5am, at which time they both set off for Canberra.
  2. The appellant’s evidence was that he was about 174cm high and weighed about 98kg as at 12 March 2014. He described the co-offender as “maybe 8 to 10 centimetres taller than me and he carried a lot more muscle than I did”.
  3. The defence case was that there was no DNA evidence to indicate that the appellant was ever at the Hotel; no evidence from Mr Sheriden capable of identifying the appellant; and no evidence that any of the cash stolen from the Hotel or any of the items used in the robbery, such as a hammer, knife or screwdriver, were in the possession of the appellant. The defence also relied on the circumstance that the CCTV footage for the Hotel only showed one vehicle (tr. 236). The defence submitted that this vehicle was the van and was not the Ford which, on the defence case, had not travelled west of Jindabyne on the morning of 12 March 2014 and therefore had never been in the vicinity of the Hotel.

The summing up

  1. The trial judge then summed up. His directions about circumstantial evidence were as follows.
  2. At Summing Up (SU) 1-2 his Honour directed the jury:
“You have heard reference to this being a circumstantial case, and that is very true. Indeed, there is really only one issue in this case and that is: has the Crown proved to you beyond reasonable doubt that Mr Pashley was the other person at this robbery?”
  1. At SU 4 his Honour directed the jury to look at "all of the circumstances" together before drawing an inference. At SU 7 his Honour directed the jury as follows:
“Let me talk to you about the circumstantial case. The Crown case against Mr Pashley - and this is solely in regard to the area of proving that he was the other person involved in the robbery - the only evidence that establishes that, if you find it so, is circumstantial evidence. As has been pointed out to you, there is no DNA involved here, there are no fingerprints found anywhere. No-one comes along and says the second person who came out of the hotel, ‘Well I was there, I think it was Mr Pashley.’ None of that, none whatsoever. At the best, you have a generalised description of the other offender given by Mr Sheriden. You have heard evidence put to you by the Crown and Mr Purnell as to how you would regard that.”
  1. At SU 7-8 his Honour gave the jury directions about drawing inferences from facts, which included the following warning:
“Remember, the other thing is that you are here - as I said, you can draw inferences, there are no problems about that, but what you cannot do is act on suspicion, or probabilities, or possibilities. Possibilities and probabilities and suspicions are not evidence sufficient to be proof beyond reasonable doubt. Indeed, a suspicion is not proof of anything.”
  1. The trial judge gave examples as to the drawing of inferences at SU 8-9. At SU 9 his Honour directed:
“There are all sorts of reasonable inferences that can be drawn, so that when you are looking at a circumstantial case and the inference that you are asked to draw from all the separate factual circumstances, to use it against Mr Pashley, you must be satisfied beyond reasonable doubt that that inference is the only reasonable inference that can be drawn from those facts.”
  1. In addition to these directions his Honour also gave directions, at SU 9-11, which were substantially in accordance with the circumstantial case directions in the Bench Book at [2-520] "Suggested direction - strands in a cable case". At SU 11, his Honour said:
“Remember, you have to be satisfied beyond reasonable doubt that there is no other reasonable inference or conclusion that can be drawn from the facts. If you think that there is another reasonable conclusion that can be drawn from the facts, you are not entitled to say, ‘Well, we will go with the guilty version rather than the other version.’ If there is another reasonable conclusion that can be drawn, you must find the accused not guilty. It is as simple as that.”
  1. His Honour identified and summarised the various circumstances relied on by the Crown to prove the circumstantial case (set out above) and, in the course of so doing, reminded the jury of the alternative interpretations for which the appellant contended. After summarising submissions made on behalf of the appellant, his Honour directed the jury as follows at SU 21:
“The Crown has to prove beyond reasonable doubt and what they have to prove beyond reasonable doubt in regard to this case is that the other robber was Mr Pashley. Two things there: you have to be satisfied beyond reasonable doubt of that inference and you have to be satisfied beyond reasonable doubt that there is no other reasonable inference that can be drawn in regard to the identity of that person or lack of identity of that person from the facts that the Crown says you should draw that inference.”
  1. The trial judge resumed the summing up on the following day. The appellant’s counsel requested a Shepherd direction (see Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56) in relation to the footage from the BP service station at Jindabyne. His Honour ultimately read the part of the Shepherd direction to the jury as requested (at SU 43-44) which was followed by a clear direction that this case “is really strands in a rope.” His Honour added a further direction that the jury could only find the appellant guilty if that was the only reasonable inference which could be drawn from the Crown's circumstantial case. This part of the summing up is set out below:
“I am just going to read this out to you. You may think it is irrelevant; it is certainly legally correct:
‘The law is that, generally, no particular fact or circumstance relied upon in a circumstantial case needs to be proved beyond reasonable doubt. There may, however, be a circumstantial case where one or more of the facts relied upon by the Crown is or are so fundamental to the process of reasoning to the guilt of the accused that the fact or facts must be proved beyond reasonable doubt, being an indispensable link in a chain of reasoning towards an inference of guilt.’
In this particular case, one of the expressions that are used to describe circumstantial cases is whether the circumstances are links in a chain or whether they are strands in a rope, if you can understand that analogy. This case is really strands in a rope. As I said to you yesterday, the CCTV footage, that is, the BP service station and the hotel, does not establish beyond reasonable doubt who the second car was that goes past at the relevant time. You may be able to detect that it is a Ford vehicle, a light-coloured vehicle. I was not looking at it closely enough to make that call myself.
What the Crown says, though, is that, look, we do not have to prove that it was beyond reasonable doubt the Ford vehicle and the vehicle driven by Mr Pashley. What we are saying is that when you look at that circumstance there and then you look at all the other circumstances, the strands in the rope, they are sufficient to establish beyond reasonable doubt that he was driving that car at that time and had participated in that robbery. As I said, that is the essential ingredient or issue in this case that you have to be satisfied of. If there is a reasonable hypothesis or conclusion that can be drawn by you that is inconsistent with guilt, then you are not entitled just to pick the guilty one.
If there is another reasonable hypothesis and it is consistent with innocence, then you must find the accused not guilty. You do not just pick one. You have got to be satisfied beyond reasonable doubt that the only reasonable hypothesis that you can draw from the Crown's circumstantial case is that Mr Pashley was the other person in the robbery. I just remind you again, having drawn your attention at the request of counsel to the descriptions that were given of the second person, that description of itself cannot possibly prove that it was Mr Pashley who was the person there. Indeed, the defence says when you look at the heights it could not have been him. Again, it is another link - not another a link in the chain - it is another strand in the rope.”

The appeal

  1. There are seven grounds of appeal, the first three of which relate to the conviction and the last four to the sentence. Leave is required for grounds 3, 4, 5, 6 and 7, but not for grounds 1 and 2 (which involve questions of law alone). The grounds are as follows:
“1. His Honour failed to properly direct the jury regarding their use of circumstantial evidence.
2. His Honour's re-directions as to circumstantial evidence were confusing and misleading.
3. The verdict of the jury in respect of the three counts should be set aside on the ground that it is unreasonable, or cannot be supported on the evidence.
4. The sentencing judge erred in his assessment of the objective seriousness of the kidnapping offence, and in doing so passed a sentence which was manifestly excessive.
5. The appellant has been left with a justifiable sense of grievance given the sentences imposed upon Mr O'Brien.
6. His Honour erred in applying indicative sentences that were higher than those applied to Mr O'Brien, thereby affecting the aggregate sentence applied.
7. His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern [sic]) and the sentences are manifestly excessive.”
  1. I will address the grounds of appeal on conviction (grounds 1-3) before addressing the proceedings on sentence and the remarks on sentence.

Appeal on conviction

Grounds 1 and 2: alleged failure to direct the jury properly regarding their use of circumstantial evidence and giving re-directions which were misleading and confusing

  1. The appellant’s principal submission on ground 1 was that the trial judge was obliged to give the jury a Shepherd direction with respect to the alleged fact that the second vehicle depicted at 4.48.05am in the footage from CCTV at the BP service station in Jindabyne, which showed eastbound traffic, was the Ford driven by the appellant.
  2. A Shepherd direction may be required where it is necessary for the jury to reach a conclusion as to a particular fact as an “indispensable intermediate step” in the reasoning process. The metaphor commonly used for such a step is that it is a “link in the chain” rather than a “strand in a cable”. A link in the chain must be proved beyond reasonable doubt. By contrast, a strand in the cable is a fact which need not be proved beyond reasonable doubt because the Crown case does not depend on its being made out, although it may assist the drawing of an inference.
  3. There is no automatic rule as to whether an intermediate step requires a Shepherd direction. In Shepherd v The Queen, Dawson J said at 585:
“Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.”
  1. This Court in Burrell v The Queen [2009] NSWCCA 163; (2009) 196 A Crim R 199 at [126]- [128] approved the following test for determining whether a fact is an indispensable step in the reasoning process (which the trial judge had postulated during argument with counsel): what is the effect on the Crown case of removing the fact said to be an indispensable intermediate step? If there had been no CCTV camera at the BP service station at Jindabyne, there would still have been a Crown case against the appellant based on the circumstances referred to above. The lack of that piece of evidence would have deprived the jury of the opportunity to compare the image of the second vehicle with the photographs in evidence of the Ford but it would have left the balance of the circumstantial evidence listed above intact.
  2. Ms Kluss, who appeared on behalf of the appellant, was unable to identify any logical reason why it was necessary for the jury to be satisfied beyond reasonable doubt that the second vehicle was the Ford driven by the appellant. Indeed, the Crown at trial put the evidence no higher than that the appearance of the second vehicle was consistent with its being the Ford which the appellant was driving, the lights of which Mr Sheriden had observed between Thredbo and Jindabyne.
  3. Ms Kluss also submitted that the trial judge had not given directions relating to circumstantial evidence in accordance with the suggested directions in the Bench Book and that this led to the directions being insufficient, confusing and misleading. She was, however, unable to identify any substantive discrepancy between what was suggested in the Bench Book and what was said by the trial judge in the summing up.
  4. A summing up is required to include directions on topics which invariably arise in criminal trials, such as the onus and burden of proof and the right to silence. It is also required to include such directions as are apposite to the actual case, such as, where a case is a circumstantial one, the process of reasoning where the evidence is circumstantial and the requirement that every reasonable hypothesis consistent with innocence be excluded beyond reasonable doubt. It will be a matter for judgment whether a Shepherd direction is required in any given case. As long as the directions given comply with the law in a substantive way, there are no particular words required to be uttered in such directions. Experience has shown that trial judges adopt different styles in summing up, each of which is acceptable provided the directions are clear, correct and sufficient as a matter of law. The examples given in the Bench Book comprise useful suggestions of the ways in which proper directions may be given; they do not prescribe the language in which such directions must be given.
  5. I am not persuaded that any deficiency has been identified in the trial judge’s directions as to circumstantial evidence or that the directions can fairly be regarded as confusing or in any way inadequate. The appellant has failed to make out grounds 1 and 2.

Ground 3: alleged unreasonable verdict

  1. Because the identity of the second assailant was the principal issue in the trial, it is not necessary to address the undisputed evidence or the evidence as to the circumstances of the robbery which has been sufficiently summarised above. The task of this Court is to consider the whole of the evidence relied on by the Crown to prove the identity of the second assailant and to decide whether it thinks that, upon that evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the second assailant: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; [1994] HCA 63. If this Court has a doubt in that process, it must consider whether the doubt is one that the jury, too, ought to have had. It is only when the Court considers that the doubt could have been resolved by the jury hearing and seeing the witnesses that it may conclude that there has been no miscarriage of justice: M v The Queen at 494-495; see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [55]- [58]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]- [14]; and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12]. Where there is no successful challenge to the directions given by the trial judge, the weight to be given to the jury’s verdict may be considerable: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]- [66].
  2. The hypothesis raised by the appellant at trial rested on the supposition that, after he had parted company with the appellant at Jindabyne, the co-offender met with some other person with whom he drove to Thredbo and committed a robbery before returning to Jindabyne without the second person to join the appellant for the return journey to Canberra. The jury can be taken, by the verdicts, to have rejected the appellant’s evidence that he dropped the co-offender in Jindabyne at 3.40am or 3.45am and then travelled to East Jindabyne where he waited until 5am for the co-offender to join him. No other reasonable, that is, non-fanciful, hypothesis consistent with innocence has been postulated. That hypothesis having been excluded, the inference that the appellant was the second assailant was overwhelming.
  3. I have considered the evidence implicating the appellant in the offences of which he was convicted, including the compilation disc showing the CCTV footage (Exhibit O), on which the footage taken at the BP service station at Jindabyne at 4.47-4.49am on 12 March 2014 was reproduced. Having considered all of the evidence, I am satisfied that the verdicts of guilty were open to the jury. I am satisfied that the evidence established beyond reasonable doubt that the appellant was the second assailant and, accordingly, that the appellant was guilty of all three offences. The third ground of appeal has not been made out. However, I propose that leave be granted in respect of this ground.

The proceedings on sentence

  1. The Crown tendered the appellant’s criminal history which indicated that he had no convictions aside from minor traffic infringements.
  2. At the sentence hearing the appellant tendered a report from Ilan Cohan, a psychologist, dated 9 August 2017, as well as a reference from his partner’s mother, Dianne Deane. Ms Deane described the appellant as a “very educated, intelligent and gentle person”, who has a “great deal to offer, is talented and capable.”
  3. The appellant, on sentence, also relied on character evidence which had been adduced during the trial, including from his parents, his partner, Renuka Deane, and others. His father, Richard Pashley, gave evidence that the appellant had graduated with a degree in Pure Mathematics from the Australian National University. He had trained Australian athletes for the Olympic Games in Beijing in 2008 and had joined the Australian squad for the London Olympics in 2012 although he had not competed there. At the time of the offending, the appellant lived with his partner, Renuka Deane, in Braddon but, from time to time, he stayed with his parents in Cook, a suburb of Canberra. His partner gave evidence at the trial that, at the time of the offences, the appellant was about to start work at the Department of Health. She was unaware that the appellant had a cocaine habit. A friend, Utah Nirvana, described the appellant as “academic”, said that he had never seen him to be physically violent but “had to draw the conclusion [from observation] that maybe he’s using a substance.” A family friend, Katarina Christenson, described the appellant as “polite and nice” and “honest” and said that she had “never seen any evidence of violence or anything that would show bad character.” Another witness, Mary-Anne Kirk, a friend of the appellant’s family, described the appellant as “compassionate and caring.”
  4. At the trial the appellant gave evidence, which was relied on at the sentence hearing, that he had been a professional athlete at the Australian Institute of Sport, had enrolled in a Master’s Degree in Economics, was fluent in Mandarin and had worked for several Government departments and instrumentalities, including the Bureau of Meteorology, the Department of Resources, the Murray Darling Basin Authority and the Department of Health.
  5. At the sentence hearing the appellant contended that, in addition to the differences between the roles played by the appellant and the co-offender, there were “significant and considerable differences in the criminal history, general character and subjective factors” between them which would warrant a substantially lesser sentence than was imposed on the co-offender. The factors relied upon were: the difference in criminal histories, compliance with bail conditions and character; the appellant’s better prospects of rehabilitation; the appellant’s history of responsible employment; the delay between charge and trial for the appellant; and the appellant’s mental health issues which were said to have contributed to his offending and which would make incarceration more onerous.

The remarks on sentence

  1. His Honour noted that the maximum penalty for count 1 was 25 years’ imprisonment; for count 2, 25 years’ imprisonment; and count 3, 5 years’ imprisonment. None of the three offences has a standard non-parole period.

The facts

  1. His Honour recounted the facts, in a narrative form, of which the following is a summary.
  2. The three offences of which the appellant was convicted were committed on the same day as part of a joint criminal undertaking in which the appellant and the co-offender robbed the Hotel of $30,205.80, kidnapped the night manager, Mr Sheriden, and stole a vehicle which belonged to the Hotel. The two men travelled from Canberra to Thredbo via Cooma and Jindabyne using the appellant’s vehicle to which false number plates had been affixed. When they arrived at the hotel at about 4.30am, Mr Sheriden was the only person on duty. The Hotel’s float of $30,000 was kept in a safe at the hotel; the balance of the day’s takings was kept in a security company strongbox. The two offenders, disguised with face masks, were armed. The co-offender had a knife and a hammer and the appellant had a knife and a screwdriver. They opened the safe and broke into the float box. They tied Mr Sheriden with duct tape and stashed the cash in bags. They demanded that Mr Sheriden give them the key to a van which was parked outside the Hotel. They forced Mr Sheriden into the van and bound his legs with duct tape. The co-offender drove the van and the appellant followed in the Ford with the false number plates. Between Thredbo and Jindabyne the co-offender made it clear to Mr Sheriden that he knew who he was and threatened to kill or harm him or his family if he said anything about the co-offender to the police.
  3. As the van went through Jindabyne, Mr Sheriden, who recognised the co-offender as they had previously worked together at the Hotel, managed to release himself and jump out of the van. He suffered serious injuries, including three fractured ribs, a punctured lung, a gash to the back of his head, grazes, bruises and abrasions. The co-offender drove the van to East Jindabyne and abandoned it after breaking the driver’s side window. The Ford was observed returning to Canberra through Jindabyne and Cooma.
  4. The appellant and the co-offender were separately tried. The appellant raised an alibi. He gave evidence that he had waited for the co-offender at a location 450m closer to Jindabyne than where the van was later located by police. The jury can be taken not to have accepted his evidence.

Assessment of seriousness

  1. His Honour assessed the robbery as “just above the mid-range of objective seriousness” and the kidnapping as being “well above such a hypothetical mid-range”. His Honour said:
“[T]his was a professionally planned robbery of a hotel in the early hours of the morning. That is serious enough. But it was then followed by an unnecessary kidnapping resulting in serious and potentially life-threatening injuries to the victim, all in the cause of obtaining a substantial sum of money, to which neither offender was entitled.”

Character and subjective circumstances

  1. At the time of the offence the appellant was 33 years old and had no previous convictions. His good character was attested to. It was his first time in custody. His Honour referred to the appellant’s academic success and sporting achievements in the field of athletics. He lived slightly beyond his means, engaged in regular drug use and obtained some financial support from his parents. He had difficulty maintaining long-term employment. His Honour referred to the report of Mr Cohan, psychologist, who noted that the appellant was spending $600-900 per week on cocaine. His Honour considered that this “may well have been a reason for him to agree with this undertaking.” His Honour found:
“There was no suggestion at trial that he had any major debts, health or psychological issues. I would accept that it is unlikely that he will reoffend and it would appear that he has good prospects of rehabilitation.”
  1. His Honour noted that the appellant had already lodged a notice of intention to appeal against his conviction and found that there was no remorse.
  2. His Honour referred to Mr Cohan’s report and his opinion that:
“[The appellant] as at the date of the offence and now, suffers and suffered from major depression, post-traumatic stress disorder, cocaine induced depressive disorder and alcohol dependency which he described as at the date of the offending as having had a significant, extremely severe and pervasive effect on [the appellant’s] day to day functioning. The posttraumatic stress disorder is said to result from the death of a friend in 2012. This caused him to abuse alcohol and cocaine to a significant degree.”
  1. His Honour said of Mr Cohan’s evidence:
“I have significant reservations about Mr Cohan's report and his evidence, particularly as to the level of seriousness he has assessed Mr Pashley's illnesses, and his consequent functionality. There is little in his report by way of evidence of the signs and symptoms of Mr Pashley's major depression and post-traumatic stress disorder. Both of these illnesses have a number of specific and pervasive signs and symptoms.”
  1. His Honour concluded:
“I am not satisfied on the balance of probabilities that Mr Pashley was suffering from any relevant psychological illness at the date that he committed this offence such as to enliven some of the De La Rosa considerations relevant to moral culpability and the like. The pre-sentence report adds little to the situation but does confirm many of the personal aspects referred to in the psychologist's report.”
  1. His Honour noted the disparity between what the appellant told Mr Cohan about the circumstances of the offence, that he was the co-offender’s “driver” but that he did not know it was going to be a robbery, and the case the appellant ran at trial. His Honour said that he had difficulty understanding why the appellant became involved in these offences “which seem to have had little relation to major depression, post-traumatic stress disorder, or anxiety”.

Parity

  1. His Honour noted that Hoy DCJ had already sentenced the co-offender to an aggregate term of 14 years with a non-parole period of 9 years. There was a finding of special circumstances which resulted in a variation of the statutory ratio of 75% to 64%. The indicative sentences were 6 years (count 1); 12 years (count 2); and 1 year (count 3).
  2. As to the respective roles of the appellant and the co-offender, his Honour said:
“. . . I have no doubt that O’Brien was the instigator given his inside knowledge of the hotel and the more leading role he seemed to play throughout. However, this was a joint criminal undertaking and whilst some things that happened might have been unexpected by Mr Pashley, such as Mr Sheriden’s leap to freedom, both offenders are equally responsible for the actions of the other. The fact that someone in Mr Sheriden’s situation might try to escape his predicament could hardly come as a surprise to the perpetrators.
Further, Mr Pashley must have been aware of the general situation and realised why Mr Sheriden was being abducted. Additionally, whilst the initial kidnapping became part of the criminal offending, it was in my view an unnecessary part. That is, it did not have to be part of the robbery in company and it is therefore deserving of at least a partial accumulation of sentence.”
  1. His Honour noted that the co-offender had a criminal history which involved “four drink driving offences, a drive whilst disqualified, a theft offence, offensive behaviour and an assault occasioning actual bodily harm, for which he received a sentence which was dealt with by way of periodic detention.” His Honour also noted that Hoy DCJ had found that the co-offender “could not be said to have had no significant criminal record”.
  2. His Honour addressed the respective roles of the appellant and the co-offender and other matters on the question of parity as follows:
“Whilst Mr Pashley played a less aggressive role in the robbery, he must have been involved in its planning and has to know that at the time and location there would be a probability of there only being one person on duty.
As to the kidnapping, granting that this may have been a spur of the moment impulse, Mr Pashley participating in the duct taping of the victim, placing him inside the stolen van to be driven away to who knows where and to what fate. If the decision was Mr O'Brien's to do this, Mr Pashley participated in it when he could have desisted or refused to assist in any way. The problem the offenders faced was that there is, realistically, only one road out of Thredbo back to Canberra and it is about 36 kilometres between Thredbo and Jindabyne, which takes about half an hour to drive.
If Mr Sheriden had been left at the hotel and managed to free himself, he could have alerted police at Jindabyne to the hotel's van being stolen, making the offenders' capture fairly inevitable. This may be a consideration in whether or not the kidnapping was planned, after all, both offenders could have left in the car they came in. The theft of the hotel van made it easier to transport the victim and the proceeds of the crime.
Whilst Mr O'Brien may not have been aware who the night manager was going to be, he would have immediately recognised Mr Sheriden and [there] would have been a concern that he was, himself, recognised. Mr Sheriden says that O'Brien went into the safe whilst Mr Pashley tied him up with black duct tape which had been clearly brought along for that purpose. I agree that there is no evidence that Mr Pashley knew about, or was party to, the threats made by Mr O'Brien in the half hour trip to Jindabyne. The other side of that coin, though, is that Mr Pashley must have realised the fear that Mr Sheriden would have been feeling being kidnapped by armed intruders and driven off into the night to who knows where and to what fate, as I previously said.
In particular, disparity due to differences in age, background, criminal history, general character and the part played in the joint criminal undertaking will usually not result in an appellate court intervening.
. . .
Whilst those factors do apply to Mr Pashley, the degree of difference between he and Mr O'Brien is not such as to justify a significant difference in penalty. Ultimately Mr Pashley relies on his lack of criminal antecedents, his good character, his good prospects of rehabilitation, low risk of reoffending, severe mental health disorders now and at the time of offending and his lesser role in culpability, a substantial need to overcome alcohol and cocaine dependencies, his motivation to engage in treatment, being his first time in custody, his mental disorders creating a harsher time in prison and the necessary accumulation of some of the sentences as warranting a greater reduction in the length of the non-parole period, indeed, a substantial one.”
  1. His Honour concluded:
“Like his Honour, I intend to impose an aggregate sentence and a single non-parole period reflective of the overall criminality of Mr Pashley, taking into account his subjective circumstances. In that regard I cannot agree with the submission that Mr Pashley's sentence warrants a substantially disparate sentence from that of Mr O'Brien but it does deserve some distinction. I do not accept the level of Mr Pashley's psychological difficulties. . . In the present case the variation in sentence basically reflects Mr Pashley's prior good character and, to a lesser extent, any psychological issues and the part he played in these offences.”

Aggravating and mitigating circumstances

  1. His Honour took into account mitigating and aggravating factors as follows:
“For the two principal offences the aggravating features under s 21A(2) [of the Crimes (Sentencing Procedure) Act 1999 (NSW)] would appear to be (b) actual or threatened use of violence, (c) actual or threatened use of a weapon, (g) substantial physical harm, (l) the victim was vulnerable because of his occupation at the time and in a remote location, (n) it was a planned activity, and (o) it was committed for financial gain.
The mitigating features under subs (3) would appear to be Mr Pashley has no previous convictions. He is a person of good character, although the cocaine issue somewhat clouds that, he is unlikely to reoffend, and he has good prospects of rehabilitation. I am aware of the De Simoni principle and note that the kidnapping offence was especially aggravated because (1) it was committed in company, and (2) resulted in actual bodily harm to the victim. That harm was the substantial harm I referred to under s 21A(2)(g).
However, the additional aggravating features in s 21A(b) and (c) do not relate to that special aggravation, but to other threats made by the offenders, and the nature of the weapons used. I have not double counted these factors to further aggravate the offending.”

Delay

  1. The trial judge summarised the factors which had caused a delay in the appellant being brought to trial as follows:
“Delay occurred in this matter initially due to a lack of forensic evidence linking Mr Pashley with the crime, a plea of not guilty, and a successful application to have Mr Pashley tried separately to Mr O'Brien. The joint trial was listed for the Queanbeyan sittings of the District Court on 30 November 2015. On 7 December 2015 the Court granted a separate trial. Mr O'Brien was tried on 10 December 2015, but the jury was discharged. Mr O'Brien was listed for trial again on 20 September 2016 and the trial concluded on 29 September 2016. Mr Pashley's trial was not reached at that sitting.”
  1. His Honour noted that the appellant had been on bail since 24 June 2014, reporting three times a week with conditions that he not leave the Australian Capital Territory and a substantial cash surety. He had not re-offended. He had lost his public service security clearance because of the offences.

The sentence imposed

  1. On 22 September 2017, the trial judge sentenced the appellant to an aggregate term of 13 years’ imprisonment to commence on 15 June 2017 with a non-parole period of 8 years. He indicated sentences of 6 ½ years for count 1; 12 years for count 2; and 1 ½ years for count 3. When indicating the sentence for count 2 (kidnapping) of 12 years, his Honour said:
“The kidnapping was especially aggravated, carrying a maximum penalty of 25 years. It was directly related to another serious offence of robbery and caused actual bodily harm to the victim in what must have been a moment of extreme trauma and terror for him, as reflected in the victim impact statement. Not unnaturally, there has been ongoing trauma suffered by the victim as well as fear of future retribution by the offender, O'Brien.”
  1. There was a finding of special circumstances. His Honour adjusted the statutory ratio of 75% (s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) to 61.5%.

Application for leave to appeal against sentence

Grounds 4 and 7: alleged error in assessment of objective seriousness leading to manifestly excessive sentence or that the sentence was unreasonable or plainly unjust and excessive

  1. The assessment of objective seriousness is pre-eminently a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J). This is particularly so where, as in the present case, the sentencing judge has also been the trial judge and is required to make findings of fact in accordance with the verdicts and the evidence at trial as well as on sentence.
  2. In my view, the assessment by his Honour that the offending in count 2 was “well above . . . mid-range” was open to his Honour for the reasons given in the sentencing judgment. As his Honour found, although the kidnapping may have been relatively spontaneous, the robbery was planned. The purpose of the kidnapping was to evade detection by deferring the inevitable raising of the alarm and to prevent the identification of the perpetrators becoming known to police. Its effect was, as his Honour found, to engender such “extreme trauma and terror” in Mr Sheriden that he was prepared to expose himself to the inevitable risk of serious injury in order to free himself from the van. Although the detention was for a relatively short time, it was brought to an end by the actions of the victim in freeing himself sufficiently from the duct tape to slide open the door of the van and throw himself out. It is not to the point that the physical injuries sustained by Mr Sheriden were not directly inflicted by his captors since they were a direct consequence of his desperate efforts to overcome his incarceration to avoid what it can be inferred he assumed would be a worse fate if he remained in the van.
  3. There is no appeal against the indicative sentence as such since it is not a sentence that has been imposed. This Court may, however, consider the indicative sentence to determine whether any alleged excess in the aggregate sentence may arise from excess in the indicative sentence. I am not persuaded that the indicative sentence for count 2 is excessive, having regard to the maximum penalty which is a significant guidepost in sentencing. Grounds 4 and 7 have not been made out.

Grounds 5 and 6: the parity grounds

  1. It is convenient to address grounds 5 and 6 together as they both relate to parity. Ground 5 raises parity in general terms. Ground 6 raises the difference in indicative sentences for the appellant and the co-offender. These grounds must be dealt with last because a parity challenge presupposes that the sentences imposed on the co-offenders are otherwise correct.
  2. The appellant contended that there ought to have been a greater difference between the sentence imposed on him and that imposed on the co-offender because of the following differences between them:
  3. An assessment of the respective roles played by co-offenders engaged in a joint criminal enterprise will be relevant to the assessment of relative moral culpability which may justify a difference in the sentences imposed. This assessment of roles depends on the facts and circumstances of the case and not on the label ascribed to the person, such as “principal” or “aider and abettor”: GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [23] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
  4. The appellant provided the transportation for the joint criminal enterprise and drove in the Ford with the co-offender from Canberra to Thredbo. He and the co-offender were both armed, disguised and active participants in the robbery. They both participated in binding Mr Sheriden’s arms and legs with duct tape and putting him in the back of the van, knowing that he would be driven away from where he was working, to, as his Honour put it, “who knows where and to what fate”. Although the co-offender was the one in a position to make the threats to Mr Sheriden in the course of the journey from Thredbo to Jindabyne, his Honour found that the appellant “must have realised the fear Mr Sheriden would have been feeling being kidnapped by armed intruders”. The co-offender’s greater familiarity with the Hotel did not warrant any significant distinction being drawn between them, since there was a significant degree of planning as to the timing, the items available in the Ford that were used by the appellant and the co-offender to threaten and restrain Mr Sheriden, and the co-operation between the two in the commission of the robbery.
  5. Ultimately the difference in the aggregate sentences imposed on the co-offender and the appellant turned on the appellant’s better subjective circumstances, rather than any difference in their roles. I consider that this judgment was open to his Honour.
  6. While it is somewhat difficult to understand the difference in the sentences indicated by his Honour as compared with those indicated by Hoy DCJ, nothing turns on this as the aggregate sentence imposed on the appellant was lower, both in terms of total term and non-parole period, than for the co-offender. An appeal lies only against the sentence actually imposed and not against the indicative sentences.
  7. I am not persuaded that the appellant has any justifiable sense of grievance as a consequence of any disparity between the aggregate sentence imposed on him and that imposed on the co-offender. Accordingly, neither ground 5 nor ground 6 has been made out.
  8. I agree, for the reasons given by Simpson AJA, that it is preferable for leave to appeal against sentence to be refused rather than for leave to be granted and the appeal dismissed.

Proposed orders

  1. For the reasons given above, I propose the following orders:

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