R v Clarke

1. [1]

   HOEBEN CJ at CL: I have read the judgment of McCallum J and while I agree with her Honour's conclusions in relation to manifest excess and aggregate sentencing, I cannot agree with her Honour's conclusions as to parity.

2. [2]

   I disagree with her Honour on two bases. I have concluded that the sentence imposed on Mr Raman was not only remarkably lenient but was erroneously so. I have also concluded that the parity principle is not properly engaged in this case, i.e. that there are significant differences between the applicant and Mr Raman which would not give rise to a "justifiable sense of grievance" on the part of the applicant.

3. [3]

   While I accept that Mr Raman was comparatively young (21), there is little else in the circumstances of his case which justifies his very light sentence. In accordance with the findings of Madgwick ADCJ, Mr Raman was offered a chance to participate for money in a commercial-type break enter and steal in company with others and he agreed. This was a serious offence with a maximum penalty of imprisonment for 20 years and a standard non-parole period of 5 years.

4. [4]

   The existence of a standard non-parole period, while not having the importance which it had before Muldrock v R [2011] HCA 39; 244 CLR 120, is still relevant as an important guidepost in the sentencing process. In R v Nguyen [2013] NSWCCA 195 the Court (Beazley P, Johnson J and RA Hulme J) said:

5. [5]

   The same reasoning and criticism can be directed at the sentence imposed on Mr Raman by Madgwick ADCJ and his Honour's reasons. His Honour's approach bespeaks error and as already indicated, the sentence is erroneously lenient. That is an important consideration when assessing whether or not the applicant has a "justifiable sense of grievance".

6. [6]

   For the reasons outlined by McCallum J, I am satisfied that the sentencing judge in this case had the remarks on sentence in respect of Mr Raman before him when sentencing the applicant. The sentencing judge concluded that the parity principle did not apply but did take into account the leniency of the sentence imposed on Mr Raman (see [52] hereof). His Honour was justified in concluding that the parity principle did not apply.

7. [7]

   The differences between the applicant and Mr Raman were significant. The most obvious was that the applicant was convicted of two serious offences, both of which involved a "planned and professional activity by a criminal gang". They were committed purely for commercial gain and the amount of equipment and motorcycles stolen in each case was substantial. The damage occasioned to the premises in each case was also substantial. Unlike Mr Raman, who appears to have been brought into the matter at the last moment, the offences of which the applicant was convicted were "coolly planned and executed for the sole purpose of unlawful enrichment". The applicant's part in that planning was significant in that his father's car was involved in the two offences. The applicant, while young (25), was still older than Mr Raman.

8. [8]

   It follows that I am not satisfied that, looked at objectively, there was a proper basis for any justified sense of grievance on the part of the applicant.

9. [9]

   Even if there were, there is the consideration to which I have previously referred that the sentence imposed on Mr Raman was erroneously lenient. In that regard, the majority (French CJ, Crennan and Kiefel JJ) said in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [33]:

10. [10]

    For the above reasons, even if the parity principle were to apply, I would not be prepared to reduce the sentence imposed by Williams DCJ because to do so would reduce it to an inadequate level.

11. [11]

    The orders which I propose are:

    1. (1)

       leave to appeal granted;

    2. (2)

       appeal dismissed.

12. [12]

    ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of McCallum J and, since that time, the reasons for judgment of Hoeben CJ at CL. As their Honours propose outcomes to different effect, it falls to me to choose which is the more appropriate one. This is no easy task, for the reasons of each of my colleagues in reaching their respective conclusions are both principled and persuasive.

13. [13]

    I agree with Hoeben CJ at CL that the sentence imposed on the appellant's co-offender, Mr Raman, was erroneously lenient. Yet the Crown did not appeal the leniency of the sentence and the issue arises as to whether there is disparity and whether, if there be disparity, the Court ought, in that circumstance, exercise its discretion to remedy the disparity: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 (Green & Quinn) at [33].

14. [14]

    As the High Court explained in Green & Quinn, the principle of parity in sentencing is an incident of equal justice. In Green & Quinn at [28], French CJ, Crennan and Kiefel JJ said:

15. [15]

    In Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 (Jimmy), a judgment issued prior to the judgment in Green & Quinn, I said:

16. [16]

    Whether one traces the principle to Solon's "isonomia" (see Green & Quinn at [28] n 35) or to Aristotle, its application is fundamental to our notions of democracy and prevents or ameliorates capriciousness in the application of the law.

17. [17]

    In Green & Quinn, the High Court, for the first time, recognised that the parity principle operated even in circumstances where the co-offenders are charged with different offences. At [30], the plurality said:

18. [18]

    It is rare for the criminal involvement and the subjective circumstances of different participants in a criminal enterprise to be identical. As a consequence, the parity principle is most often applied in a manner that seeks to impose different sentences on co-offenders to reflect rationally the differences in their circumstances. Necessarily, such an exercise involves an evaluation upon which reasonable people may differ, but not to an extent that the different sentences no longer reflect due discrimination between the offenders.

19. [19]

    The foregoing exemplifies the imperfect or imprecise nature of all applications of the parity principle. Even where a judicial officer has a view that offenders are relevantly identical, such a view is evaluative and, at least to that extent, imprecise.

20. [20]

    Therefore, the assessment of Hoeben CJ at CL that there exist relevant differences between the appellant and his co-offender, with which I agree, does not relieve the Court of the task of determining whether the disparity in sentence does not rationally reflect those differences.

21. [21]

    As to the last mentioned assessment, I agree with McCallum J that the differences between the sentences imposed on the appellant and his co-offender do not rationally reflect the differences in offending or offender.

22. [22]

    Arising from the foregoing conclusion, there remains one fundamental issue, namely, whether, as a result of the erroneously lenient sentence imposed on the appellant's co-offender, the Court ought base any comparison of sentence, for parity purposes, on that sentence or exercise its discretion as a result.

23. [23]

    In Green & Quinn the High Court dealt with a similar issue in the context of a Crown appeal against sentence, in the course of which the plurality discussed whether there existed a discretion to reduce a sentence to a less than adequate level as a result of the application of the parity principle. The High court said:

24. [24]

    It is strictly unnecessary to determine whether a discretion exists to reduce a sentence to an inadequate level. In my view, the sentence proposed by McCallum J is at the bottom of the range of adequate sentences and rationally allows for the differences between the appellant and his co-offender.

25. [25]

    Nevertheless, I make it clear that my view is that the structure of the legislation governing sentencing in this State and the role of the Court on appeal, together with the role in law of a sentencing judge (and this Court) in sentencing an offender, would not allow the fixing of an inadequate or inappropriate sentence.

26. [26]

    I agree with both Hoeben CJ at CL and McCallum J that the sentence imposed on the appellant is not manifestly excessive and is within the range available to the sentencing judge.

27. [27]

    For the foregoing reasons, I agree with the orders proposed by McCallum J.

28. [28]

    McCALLUM J: Michael Clarke was, after trial, found guilty of two aggravated offences of breaking into premises and committing a serious indictable offence (larceny) contrary to s 112(2) of the Crimes Act 1900. The circumstance of aggravation was that he was in company. The jury acquitted him of three further counts of the same offence.

29. [29]

    An appeal against the two convictions was dismissed by this Court: see Clarke v R [2012] NSWCCA 272. The applicant had also sought leave to appeal against the sentence passed on him. That application was stood over to a date to be fixed after the determination of the conviction appeal. This judgment determines the sentence appeal.

30. [30]

    The maximum penalty for the offences is imprisonment for 20 years. The offences carry a standard non-parole period of 5 years: see s 54B of the Crimes (Sentencing Procedure) Act 1999 and item 12 of the Table. The applicant was sentenced by Williams DCJ, who had presided over the trial. His Honour imposed an aggregate term of imprisonment for 6 years with a non-parole period of 3½ years.

31. [31]

    The two counts on which the applicant was found guilty were counts 4 and 5 on the indictment. The circumstances of those offences were summarised by Hoeben JA (as his Honour then was) in the judgment on the conviction appeal. The following is a summary drawn primarily from his Honour's judgment at [5] to [10] and [20] to [38].

Count 4

1. [32]

   The first offence was committed on Friday 11 September 2009 at Sutto's Motorcycle Supply. Shortly before 1am that morning an alarm was activated at the premises. The proprietor attended and found that the main roller door had been "ram-raided". The roller door had been forced off its tracks with a wooden pallet, causing substantial damage. The lock on a fire door had also been forced, apparently with an axe. A number of trail bikes and motorcycle accessories had been stolen.

2. [33]

   A portion of those events was recorded on CCTV. The footage showed a 4WD vehicle towing a box trailer with enclosed top and sides entering and exiting the driveway. Three persons wearing hoodies ran out just before the 4WD exited.

3. [34]

   Shortly after that time, call charge records placed the applicant's mobile telephone in the area of the M4 Motorway at St Clair and then in Minchinbury. At around the same time a 4WD Nissan Patrol belonging to the applicant's father was photographed at the M7/M4 Motorway Interchange entry toll collection point. It was towing a trailer containing motocross bikes similar to those stolen from Sutto's Motorcycle Supply. At 1.15am the Nissan Patrol was photographed at the M7 Elizabeth Drive exit, the exit closest to the applicant's home. A photograph found on the applicant's SIM card depicted a trail bike of the same make and model as one stolen during the offence.

Count 5

1. [35]

   The second offence was committed on Wednesday 16 September 2009 at the premises of R & D Husqvana at Emu Plains. At around 1am the owner, Mr Stefan Appelgren, received an intruder alarm activation by SMS to his mobile telephone. He left home immediately and drove to the premises.

2. [36]

   Upon arrival, Mr Appelgren saw a white Nissan Patrol towing a box trailer emerge from the driveway next to his business premises and onto Old Bathurst Road. It was the applicant's father's vehicle. There were trail bikes in the back of the trailer. Mr Appelgren followed the Nissan Patrol and saw it stop to allow two unknown males to get out before it continued along Old Bathurst Road. Mr Appelgren continued to follow the Nissan Patrol to the M4 Motorway and called the police.

3. [37]

   Highway Patrol officers and a Polair helicopter conducted a pursuit of the Nissan Patrol, which was recorded by way of video from the Polair helicopter. At Cowpasture Road, Edensor Park the Nissan Patrol stopped and the two occupants ran into a residential area. They were located and arrested shortly afterwards. One was the applicant. The other was Mr Terrence Raman.

4. [38]

   The applicant was interviewed by police that night. He said that earlier that day some mates of his had wanted him to "move some stuff from a trailer". He had met them at the "Miller Pub" the day before. Their names were "Bill" and "Mohammed".

5. [39]

   He picked them up at 11.30pm. On the way he saw his mate Terry Raman and picked him up as well. The appellant was then offered $1,500 by "Bill" and "Mohammed" to assist them to bring a trailer back. He drove to Emu Plains as a result.

6. [40]

   They arrived at R & D Husqvana. Another unknown male in a white tabletop utility towing a box trailer was there. Either "Bill" or "Mohammed" said they were going to ram the roller doors of R & D Husqvana. The appellant told them that he did not want to be involved. He was told it was too late. Either "Bill" or "Mohammed" took an axe from the back of the Nissan Patrol. The appellant assisted "Bill" and "Mohammed" and the other male because of a threat by "Mohammed" that they "were going to kill us". The appellant complied with their orders, which were yelled at him, by driving off with the motorcycles taken from the premises.

7. [41]

   The appellant then drove the Nissan Patrol from the premises and was confronted on the road by Mr Appelgren. At this stage "Bill" and "Mohammed" got out of the vehicle. The appellant and Raman continued in the Nissan Patrol towing the seven stolen trail bikes onto the M4. He saw the police attempting to pull him over, but panicked and failed to stop.

8. [42]

   The appellant denied any involvement in the break and enter at "Sutto's", which was the only other offence about which he was asked in the ERISP. Following the conclusion of the ERISP, the appellant asked to speak to police further (by way of an unrecorded conversation) and volunteered that he had lied when he told them that the other two men were named "Bill" and "Mohammed". In fact, their names were Matt Russell and Brett Williams.

9. [43]

   Matt Russell and Brett Williams were called by the Crown to give evidence in the trial and denied any involvement.

Remarks on sentence

1. [44]

   The judge opened his remarks on sentence with the following statement:

2. [45]

   That finding must of course be understood in the context that the applicant was acquitted of the first three counts on the indictment. Accordingly, the measure of his role in counts 4 and 5 could not be informed by the degree of professionalism and planning involved in counts 1, 2 and 3.

3. [46]

   The applicant was sentenced on 21 July 2011, before the publication of the decision of the High Court in Muldrock v R [2011] HCA 39. In accordance with the principles then binding upon his Honour, the judge first considered whether the offences were within the middle of the range of objective seriousness for that offence. His Honour found that they were, for the following reasons:

4. [47]

   Against those findings, the judge said:

5. [48]

   The judge had regard to a pre-sentence report and a report from a psychologist tendered at the proceedings on sentence. His Honour evidently accepted a relatively optimistic assessment of the applicant's rehabilitation recorded in the pre-sentence report. His Honour appears further to have accepted, on the strength of the psychologist's report, that the applicant was clinically depressed at the time of his offending. However, his Honour rejected the proposition that the applicant's mental state was causally related to his offending, finding that the offences were "coolly planned and executed for the sole purpose of unlawful enrichment". His Honour found that there was a need for general deterrence but no need for personal deterrence in the circumstances.

6. [49]

   It is not clear whether the judge accepted that the applicant was remorseful. His Honour recorded a statement to that effect made by the psychologist in his report, but noted (separately) that the applicant had maintained his innocence of the offences.

7. [50]

   Sentence was passed in the following terms:

8. [51]

   In specifying an aggregate term, the judge evidently intended to exercise the power under s 53A of the Crimes (Sentencing Procedure) Act to impose an aggregate term instead of imposing a separate sentence for each offence. However, his Honour also pronounced an order imposing a separate sentence for each offence. That was no doubt intended to reflect the requirement of s 53A(2)(b) to indicate to the offender the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. The importance of fulfilling that requirement was recently explained by R A Hulme J in R v Nykolyn [2012] NSWCCA 219 at [58]; Hall J agreeing at [51]:

9. [52]

   However, it is important to appreciate that, when the power under s 53A is exercised, there is only one sentence imposed and it is the aggregate sentence. Any term of imprisonment identified for each individual offence is recorded for indicative purposes only (for the good reasons stated by Hulme J). It should not be expressed as a separate sentencing order.

Grounds of appeal

1. [53]

   The notice of appeal identified a single ground of appeal in respect of the sentence, as follows:

2. [54]

   It should be noted that the offence in count 5 was alleged to have been committed in the company of three others. However, two were never apprehended. Accordingly, the only possible comparator for parity was the sentence passed on Mr Raman.

3. [55]

   At the hearing of the sentence appeal, the applicant was granted leave to add an additional ground that the sentence imposed was manifestly excessive. It is appropriate to consider that ground first.

Consideration of the ground of manifest excess

1. [56]

   As already noted, the sentence imposed was an aggregate sentence. The indicative sentences themselves are not amenable to appeal, although it has been accepted that an erroneous approach in the indication of the sentence that would have been imposed may well reveal error in the aggregate sentenced reached: R v Brown [2012] NSWCCA 199 at [17] per Grove AJ; Macfarlan JA and I agreeing at [1] and [2] respectively.

2. [57]

   Accordingly, the question is whether, leaving aside the parity ground, an aggregate sentence of imprisonment for 6 years with a non-parole period of 3½ years is manifestly excessive having regard to the circumstances of counts 4 and 5 and his Honour's findings as to the applicant's subjective circumstances.

3. [58]

   It is well established that, in order to establish a ground of manifest excess in the absence of any patent error in the sentencing process, an offender must establish that the sentence was unreasonable or plainly unjust so as to fall outside the broad sentencing discretion of the court at first instance. I do not think that has been established in the present case. The ground was principally sought to be supported by reference to the statistics maintained by the Judicial Commission of New South Wales. Those statistics, whilst helpful, do not determine the range of appropriate sentencing. When regard is had to the maximum penalty and the standard non-parole period for the present offences and the seriousness of the offences, I do not think that it can be concluded that the aggregate sentence imposed was outside the range.

Consideration of the parity ground

1. [59]

   The parity ground is more difficult. Mr Raman pleaded guilty to the same offence as count 5 on the indictment against the applicant. Raman was sentenced by Madgwick DCJ on 3 August 2010. He told police that two of the co-offenders picked him up and asked him whether he wanted to make some money by "picking up some bikes". He had agreed to go with them, but told police that he took no active part in the commission of the offence. He said that he just sat in the car for ten minutes "having a smoke". He further told police that he had no knowledge of any bikes being in the trailer until one fell on the road whilst the men were being pursued by police. Madgwick DCJ rejected that account as "a ridiculous story". His Honour found that Mr Raman "was offered the chance to participate, for money, in a commercial-type break enter and stealing in company and he agreed".

2. [60]

   Mr Raman entered his plea of guilty at an early stage and was allowed a 25% reduction to the prison sentence that would otherwise have been imposed. He had a prior conviction for the same offence, albeit as a juvenile. He was 21 years old at the time of the present offence (the applicant was 25). The judge stated that Mr Raman came from "an excellent family, hardworking people who have stood by him". His Honour noted that it appeared, from a psychologist's report, that Mr Raman may have had a learning difficulty at school which went unnoticed and that had led to his being "work shy", progressing to regular use of cannabis by the age of 16.

3. [61]

   Madgwick DCJ said:

4. [62]

   His Honour rejected a submission that Mr Raman had good prospects of rehabilitation, finding that he did not appear to have a proper understanding of "the seriousness of his position". His Honour noted, however, that Mr Raman was young, that this was his first serious adult offence and that it would be his first time in gaol, expressing the view that Mr Raman "would likely learn more about criminality in gaol than out of it". His Honour was satisfied that Mr Raman had played "only a subordinate part" in the offence, adding "I doubt, frankly, that he would have the energy or the wit to plan the whole thing himself".

5. [63]

   Mr Raman was sentenced to a term of imprisonment for a period of 18 months suspended upon his entering into a bond to be of good behaviour for the period of the sentence. Taking account of the discount for the plea, the starting point for the sentence passed was imprisonment for 2 years.

6. [64]

   It is not clear whether the sentencing judge had the remarks on sentence in respect of Mr Raman before him. His Honour expressly stated that he did not (at ROS 6.2), but that evidently prompted the Crown to provide further material during the remarks on sentence. The judge then recorded that the Crown had "just now" handed up "a bail report" for Mr Raman. His Honour subsequently referred to "the transcript of the proceedings on sentence for Mr Raman" as being "not very helpful". The judge's remarks do not otherwise reveal what was handed up by the Crown, but the record of the proceedings describes the Raman remarks on sentence as being part of Exhibit A in the applicant's sentencing proceedings.

7. [65]

   On the issue of parity, his Honour said:

8. [66]

   The remarks on sentence in respect of Mr Raman disclose that his complaint of duress was also rejected.

9. [67]

   As noted by the learned sentencing judge, the sentence imposed on Mr Raman was remarkably lenient. However, I do not think it can be characterised as being erroneously so, having regard to Mr Raman's youth and the fact that he was not suggested to have been involved in any planning of the offence. There was no Crown appeal against Raman's sentence.

10. [68]

    In comparing the two sentences, it is necessary to bear in mind the fact that the applicant received an aggregate sentence. I see no reason in principle why, in order to determine whether there has been equal justice, a sentence passed on a co-offender may not be compared with an aggregate sentence, taking due account of the other offences comprehended within the aggregation. A primary consideration in that exercise will of course be to consider the indicative sentence for the equivalent offence. That is one of the functions of the requirement under s 53A(2) for the judge to identify the sentence that would have been passed if not an aggregate sentence. It does complicate the task but that is no warrant for overlooking the norm of equal justice, in my view.

11. [69]

    It cannot be disputed that the difference between a sentence of 2 years (adding back the discount for the plea) and the indicative sentence of 5 years imprisonment with a non-parole period of 3 years for count 5 specified by Williams DCJ in respect of the applicant is stark. The critical question is whether the disparity is objectively unjustifiable.

12. [70]

    Plainly, there are some distinctions between the two co-offenders. The most important is the fact that the applicant was found guilty of two offences whereas Mr Raman was sentenced for only one. Mr Raman was also younger, although the applicant was also relatively young. Conversely, Mr Raman had a prior conviction for the same offence whereas the applicant had no significant priors (only two traffic offences).

13. [71]

    It may be inferred from the remarks on sentence of Williams DCJ that his Honour considered the applicant to have been involved in the planning of the offences. As already noted, some care must be taken in that respect not to allow the evidence in respect of the three offences of which he was acquitted to inform an assessment of his involvement in the two of which he was convicted. However, since the offences involved the use of the applicant's father's car, he plainly had a higher degree of involvement in the planning than Mr Raman.

14. [72]

    Even allowing for those distinctions, in my view the disparity between the two sentences is unjustifiable. The difference between the terms of imprisonment itself is marked. When there is added to that the consideration that Mr Raman received the additional leniency of having his sentence wholly suspended, the inevitable conclusion in my view is that a sense of grievance on the part of the applicant is justifiable.

15. [73]

    The existence of a justifiable sense of grievance is a ground for intervention, since unjustifiable disparity is an infringement of the equal justice norm: Green v R; Quinn v R [2011] HCA 49 at [32]. In that case, the High Court considered whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. It was noted in that context that the existence of a discretion to reduce a sentence to one which is inadequate does not amount to an obligation to do so.

16. [74]

    As already stated, however, whilst I would accept that the sentence passed on Mr Raman was very lenient, I do not think it was erroneously so. The sentence passed on the applicant was not lenient. In my view, it would be open to reduce the sentence in some degree without producing a sentence that fails adequately to reflect the objective seriousness of the applicant's offending.

17. [75]

    The issue is complicated by the fact that the applicant received an aggregate sentence where there is no parity argument in respect of the other count. That complication necessarily informs the exercise of this Court's discretion. Due regard must be had to the fact that the hypothetical term indicated by the learned sentencing judge in respect of count 4 has not been impugned or suggested to reveal error in the aggregate sentence reached. Further, I see no error in the judge's assessment that the measure of objective criminality was the same for each offence. However, the term indicated for count 5 reveals error in the sense explained by the High Court in Green v R; Quinn v R in that there is unjustifiable disparity with the sentence passed on a co-offender. That combination of circumstances is plainly anomalous.

18. [76]

    Notwithstanding that complication, I am persuaded that this Court should intervene. The perception of an unjustifiable disparity is not cloaked by the aggregation of the sentence, nor is it removed by its mathematical dissection. Those considerations merely indicate that the application of the principle of equal justice is necessarily imperfect.

19. [77]

    In re-sentencing the applicant, I would again impose an aggregate sentence. On the strength of the findings of the learned sentencing judge, which have not been successfully challenged, but in order also to reflect the principle of parity, I indicate that the sentence that would have been imposed for count 5 if not for the aggregate sentence is a term of imprisonment of 3 years and 4 months. As I have acknowledged, in the unusual circumstances of this appeal the result is that there is an anomaly between my indicative term for count 5 and the learned sentencing judge's indicative term for count 4. Further, the aggregate sentence I propose will be a lesser sentence than that term. For the reasons already explained, I do not think that should preclude our intervening and I am persuaded that we should intervene. In my view, this Court should impose an aggregate sentence of 5 years with a non-parole period of 3 years.

20. [78]

    The orders I propose are:

    1. (1)

       That leave to appeal be granted;

    2. (2)

       That the appeal be allowed;

    3. (3)

       That the sentence imposed in the District Court be quashed and in lieu thereof that the applicant be sentenced to an aggregate sentence of imprisonment with a non-parole period of 3 years commencing on 21 July 2011 and expiring on 20 July 2014 and a balance of term of 2 years expiring on 20 July 2016. The first date on which the applicant will be eligible for release on parole is 20 July 2014.