Stuart v R

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J.

2. [2]

   HARRISON J: Mr Stuart seeks leave to appeal to this Court against the sentence imposed upon him by Garling ADCJ on 29 November 2013 on the single ground that his sentence, when compared to that imposed upon a co-offender Laurence Glover, gives rise to a justifiable sense of grievance.

Background

1. [3]

   Mr Stuart and Laurence Glover appealed unsuccessfully against their convictions to this Court: Glover v R; Stuart v R [2015] NSWCCA 285. The factual background to the charges faced by each man is conveniently summarised at [8] – [20] in the judgment of Basten JA as follows:

2. [4]

   Mr Stuart was sentenced to an aggregate sentence of 16 years imprisonment commencing on 12 September 2011 and expiring on 11 September 2027 with a non-parole period of 10 years expiring on 11 September 2021. Mr Glover was sentenced to an aggregate sentence of 11 years and 6 months imprisonment commencing on 12 September 2011 and expiring on 11 March 2023 with a non-parole period of 7 years and 2 months expiring on 11 November 2018.

Submissions

1. [5]

   Mr Stuart submitted that there was a lack of proportionality in the aggregate sentences imposed upon him and Mr Glover. That lack of proportionality was said to be so marked as to give rise to a justifiable sense of grievance. For example, there was no difference at all in their respective culpability for the trial offences and “not a lot” of difference in their subjective cases. The only real differences were the additional charges faced by Mr Stuart and the fact that he was at the time on conditional liberty. Mr Stuart contended that those differences were insufficient to justify the disparate sentences.

2. [6]

   Mr Stuart also emphasised that his Honour indicated in the course of the sentencing proceedings that Mr Stuart’s sentences for the additional offences would be served concurrently and be accumulated by a term of 18 months on the common robbery charges. Mr Stuart submitted that while it was unusual for a judge to specify the amount of accumulation when imposing an aggregate sentence, his Honour’s comments served to demonstrate the extent of the difference between his sentence and that imposed upon Mr Glover. The further offences were also less serious than the trial offences.

3. [7]

   Mr Stuart conceded that the fact that he was on a community service order at the time was an aggravating feature unique to him. He submitted that it should aggravate his offending to a minor degree only, having regard to the nature of the charges and the seriousness of the offending. In summary, the 40 percent difference of 4 years and 6 months between the aggregate head sentences and 2 years and 10 months in the non-parole periods demonstrated such a marked lack of proportionality as to give rise to a justifiable sense of grievance.

Consideration

1. [8]

   In his remarks on sentence concerning Mr Glover, his Honour adverted to the question of parity with his co-offenders Mr Stuart and Mr Carr in the following terms:

2. [9]

   Correspondingly, when sentencing Mr Carr, his Honour said this in his remarks on sentence:

3. [10]

   Mr Stuart pleaded guilty to two additional offences. The first was a charge of receiving a Mercedes motor vehicle stolen from Manning Road, Double Bay on 6 July 2011 that he subsequently stored in the garage of Jessica Mylne. That vehicle was under electronic surveillance at the time. The second was a charge of aggravated break, enter and steal on 9 August 2011 at Brighton-Le-Sands. Mr Stuart stole car keys with which he was then able to steal a high performance Mercedes motor vehicle which was later used in two of the offences for which he stood trial, being the attempted armed robbery at the Malabar RSL Club on 7 September 2011 and the armed robbery of the Regent Hotel on 12 September 2011. In sentencing Mr Stuart for these two offences, which were additional to those with which Mr Glover was charged, his Honour remarked as follows:

4. [11]

   It seems apparent that his Honour at all times had the issue of parity clearly in mind when sentencing all of these offenders. Mr Stuart therefore faces the considerable obstacle that his Honour was fully aware of the differences between and among these individuals and accordingly gave clear reasons for departing from the sentences imposed upon Mr Stuart and Mr Carr when he came to sentence Mr Glover: see Tatana v R [2006] NSWCCA 398 at [28] and Loader v R; Dunn v R [2013] NSWCCA 215 at [91] – [95].

5. [12]

   The significant reason for the difference in the sentences is the additional offences for which Mr Stuart was sentenced. Mr Glover had no additional offences or any matters on a Form 1. By reference to the indicative sentences it is clear that his Honour intended Mr Stuart and Mr Glover to serve the same terms for the offences for which they had both been convicted. Mr Stuart was also subject to a community service order to which his Honour specifically referred in his remarks on sentence. However, it is also important to note that Mr Stuart was on a good behaviour bond at the time of the commission of the offences for which he stood to be sentenced. His Honour did not refer to that fact, and it amounts to a further feature of distinction between Mr Stuart and Mr Glover.

6. [13]

   Apart from his concern about parity, Mr Stuart makes no complaint that his Honour erred in any other particular respect, such as that he inappropriately accumulated sentences or failed properly to have regard to the principles applying to aggregate sentences. Mr Stuart does not contend that his sentence is manifestly excessive. Mr Stuart’s complaint about the percentage mark up on his sentence is not a separate complaint of error, as much as a method by which to emphasise or justify his sense of grievance.

7. [14]

   Mr Stuart’s argument in this appeal must necessarily confront what was discussed by Campbell JA in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [203] as follows:

8. [15]

   Mr Stuart’s head sentence is 4.5 years longer than Mr Glover’s and his non-parole period is 2 years and 10 months longer. The difference is referable to the two further offences with which Mr Stuart was charged and for which he was sentenced. Mr Stuart contended that the difference demonstrated a lack of proportionality that is so marked as to give rise to a justifiable sense of grievance. I am however unable to agree.

9. [16]

   It is trite to observe that the sense of grievance that would warrant appellate intervention must be justifiable, not merely a general dissatisfaction with the fact that a co-offender in a series of joint criminal activities may for legitimate and understandable reasons not have received a comparable sentence. Mr Stuart was sentenced to a longer term of imprisonment than Mr Glover because he committed further offences. One of the additional charges faced by Mr Stuart that was not faced by Mr Glover, being an offence contrary to s 112(2) of the Crimes Act 1900, carried a standard non-parole period of 5 years by itself.

10. [17]

    The sentence imposed upon Mr Stuart is not otherwise attacked. In the circumstances it is not possible to say that his Honour erred in sentencing comparable offenders to different terms of imprisonment. Mr Stuart has not demonstrated that there is any basis for him to have a justifiable sense of grievance in the circumstances.

Conclusion and orders

1. [18]

   In my opinion the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [19]

   DAVIES J: I agree with Harrison J.