Pashley v R

1. [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. [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. [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. [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:

   1. (1)

      robbery in company: Crimes Act 1900 (NSW), s 97(1) (count 1);

   2. (2)

      taking or detaining a person without that person’s consent with the intention of obtaining an advantage in circumstances where actual bodily harm is occasioned to that person (kidnapping): Crimes Act, s 86(3) (count 2); and

   3. (3)

      taking and driving a conveyance: Crimes Act, s 154A(1)(a) (count 3).

5. [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.

6. [6]

   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.

7. [7]

   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).

8. [8]

   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.

9. [9]

   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.

10. [10]

    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.

11. [11]

    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”.

12. [12]

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

    1. (1)

       the appellant and the co-offender were close associates and would speak to each other by text almost daily;

    2. (2)

       the appellant’s phone was in the name of “Mr McRae” and a credit card in the name of Mr McRae was in the possession of the co-offender;

    3. (3)

       the co-offender had previously worked as an employee at the Hotel but his employment had been terminated on 20 January 2014 because he was found to be under the influence of alcohol while on duty;

    4. (4)

       to the knowledge of the appellant, the co-offender was going to Jindabyne to sell cocaine to an associate and had told the appellant that he would repay a debt to the appellant from the proceeds of the drug deal;

    5. (5)

       on 12 March 2014 the appellant and the co-offender drove from Canberra to Jindabyne together in a silver Ford Falcon, which belonged to the appellant’s father and which the co-offender borrowed from time to time as he asserted that the car which the appellant had sold him had broken down;

    6. (6)

       before the appellant and the co-offender left Canberra, the registration plates of the Ford had been replaced with plates from a similar vehicle which belonged to a car yard business in Braddon, an inner-city suburb of Canberra;

    7. (7)

       the co-offender’s fingerprints were found on the replacement number plates which had been affixed to the Ford for the journey to Thredbo on 12 March 2014;

    8. (8)

       the Ford was sighted and identified by Roads and Maritime Service cameras at the following locations and times, at which the appellant admitted that he was in the Ford with the co-offender:

    9. (9)

       the distance between Cooma and Jindabyne is 61.83km;

    10. (10)

        the distance between Jindabyne and Thredbo is 34.88km and would take, in the weather conditions such as those on 12 March 2014, about 20 minutes;

    11. (11)

        at about 4.14am on 12 March 2014 two men whose faces were covered, one of whom was identified by Mr Sheriden as the co-offender, entered the Hotel and encountered Mr Sheriden, the night auditor;

    12. (12)

        the two men threatened Mr Sheriden with a knife and a claw hammer before tackling him to the ground; Mr Sheriden’s hands were taped behind his back;

    13. (13)

        the co-offender took money from the safes while the other stayed with Mr Sheriden; when the co-offender emerged, the second man took a key to the van from the reception and the two men took Mr Sheriden outside; the men put Mr Sheriden in the back of the van and tied his legs from his knees to his ankles with duct tape;

    14. (14)

        the co-offender drove the van with Mr Sheriden in the back and, in the course of the journey, made threats to Mr Sheriden of what would happen to him and his family if he reported the matter to police;

    15. (15)

        Mr Sheriden escaped by jumping out of the moving van near Jindabyne and suffered injuries as a consequence;

    16. (16)

        the van was abandoned in East Jindabyne with a broken window and its key missing;

    17. (17)

        a tyre lever was found near the abandoned van which was of the same type as the tyre lever which was missing from the Ford;

    18. (18)

        the Ford was sighted and identified by Roads and Maritime Service cameras at the following locations and times, at which the appellant admitted that he was in the Ford with the co-offender:

    19. (19)

        at the time of the appellant’s arrest on 26 June 2014, the original number plates had been returned to the Ford; and

    20. (20)

        the last call from the co-offender’s mobile phone service to the appellant on 11 March 2014 was at 11.42pm and the first call from the co-offender’s mobile phone service to the appellant on 12 March 2014 was 9.21am.

13. [13]

    The principal issue in the trial was whether the second assailant was the appellant.

14. [14]

    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.

15. [15]

    In order to prove that the appellant was the second assailant, the Crown relied on the following:

    1. (1)

       the appellant’s opportunity to commit the robbery and his presence in the area;

    2. (2)

       the evidence of the CCTV cameras (including the two vehicles depicted in the footage taken from the BP service station at Jindabyne) and the RMS cameras at Cooma and Bredbo;

    3. (3)

       the appellant’s relationship with the co-offender;

    4. (4)

       the fact that the plates had been changed on the Ford (which belonged to the appellant’s father but was regularly used by the appellant) shortly prior to the journey being undertaken from Canberra;

    5. (5)

       Mr Sheriden’s evidence that he saw lights from a second vehicle travelling some distance behind the van 10-12 minutes after the van had left Thredbo;

    6. (6)

       Mr Sheriden’s evidence of the similar height and build of the two assailants, which broadly accorded with Detective Hardman’s assessment when he arrested the appellant and the co-offender;

    7. (7)

       the lack of text messages or phone contact between the appellant and the co-offender during the period of the robbery; and

    8. (8)

       the tyre lever which was found near the van which was of the type missing from the Ford.

16. [16]

    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.

17. [17]

    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:

18. [18]

    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.

19. [19]

    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”.

20. [20]

    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.

21. [21]

    The trial judge then summed up. His directions about circumstantial evidence were as follows.

22. [22]

    At Summing Up (SU) 1-2 his Honour directed the jury:

23. [23]

    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:

24. [24]

    At SU 7-8 his Honour gave the jury directions about drawing inferences from facts, which included the following warning:

25. [25]

    The trial judge gave examples as to the drawing of inferences at SU 8-9. At SU 9 his Honour directed:

26. [26]

    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:

27. [27]

    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:

28. [28]

    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:

29. [29]

    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:

30. [30]

    I will address the grounds of appeal on conviction (grounds 1-3) before addressing the proceedings on sentence and the remarks on sentence.

31. [31]

    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.

32. [32]

    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.

33. [33]

    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:

34. [34]

    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.

35. [35]

    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.

36. [36]

    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.

37. [37]

    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.

38. [38]

    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.

39. [39]

    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) 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].

40. [40]

    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.

41. [41]

    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.

42. [42]

    The Crown tendered the appellant’s criminal history which indicated that he had no convictions aside from minor traffic infringements.

43. [43]

    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.”

44. [44]

    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.”

45. [45]

    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.

46. [46]

    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.

47. [47]

    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.

48. [48]

    His Honour recounted the facts, in a narrative form, of which the following is a summary.

49. [49]

    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.

50. [50]

    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.

51. [51]

    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.

52. [52]

    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:

53. [53]

    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:

54. [54]

    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.

55. [55]

    His Honour referred to Mr Cohan’s report and his opinion that:

56. [56]

    His Honour said of Mr Cohan’s evidence:

57. [57]

    His Honour concluded:

58. [58]

    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”.

59. [59]

    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).

60. [60]

    As to the respective roles of the appellant and the co-offender, his Honour said:

61. [61]

    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”.

62. [62]

    His Honour addressed the respective roles of the appellant and the co-offender and other matters on the question of parity as follows:

63. [63]

    His Honour concluded:

64. [64]

    His Honour took into account mitigating and aggravating factors as follows:

65. [65]

    The trial judge summarised the factors which had caused a delay in the appellant being brought to trial as follows:

66. [66]

    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.

67. [67]

    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:

68. [68]

    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%.

69. [69]

    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.

70. [70]

    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.

71. [71]

    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.

72. [72]

    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.

73. [73]

    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:

    1. (1)

       the co-offender was, given his knowledge of the hotel, the instigator who played a leading role;

    2. (2)

       the co-offender’s criminal history was worse;

    3. (3)

       the appellant played a “less aggressive role in the robbery”;

    4. (4)

       the kidnapping was a “spur of the moment impulse”;

    5. (5)

       there was no evidence that the appellant was aware of, or was party to, the threats made by the co-offender to Mr Sheriden between Thredbo and Jindabyne while Mr Sheriden was bound in the back of the van.

74. [74]

    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).

75. [75]

    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.

76. [76]

    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.

77. [77]

    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.

78. [78]

    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.

79. [79]

    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. [80]

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

   1. (1)

      Leave granted to raise ground 3 in the appeal against conviction.

   2. (2)

      Appeal against conviction dismissed.

   3. (3)

      Leave to appeal against sentence refused.