CATCHWORDS CRIMINAL LAW - Crown appeal against sentence - armed robbery - suspended sentence - rehabilitation in community interest - disparity of sentences for co-offenders - desirability of Crown making submissions to sentencing judge. THE QUEEN v SONNY ELEAZAR MOLINA No. NTG 14 of 1984 Woodward, Neaves and Beaumont JJ. 24 August 1984 Darwin IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY No. NTG 14 of 1984 DISTRICT REGISTRY we GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: THE QUEEN Appellant and SONNY ELEAZAR MOLINA Respondent JUDGES MAKING ORDER : Woodward, Neaves and Beaumont JJ. DATE OF ORDER : 24 August 1984 WHERE MADE : Darwin THE COURT ORDERS THAT: The appeal be dismissed, IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY No. NTG 14 of 1984 DISTRICT REGISTRY ee ee GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: THE QUEEN Appellant and SONNY ELEAZAR MOLINA Respondent JUDGES: Woodward, Neaves and Beaumont JJ. DATE: 24 August 1984 REASONS FOR JUDGMENT THE COURT This is an appeal by the Crown against the sentence imposed by Muirhead J. on one of two young men who were involved in an armed robbery. The grounds of appeal are that the sentence was manifestly inadequate and failed to give due weight to considerations of retribution, deterrence and parity of sentencing. It is clear that this Court is required to apply to the appeal the same well-established principles which are observed when a convicted person appeals against sentence. See R v Tait and Bartley (1979) 24 ALR 473 at 476-7. The sentence imposed by his Honour was one of 5 years imprisonment with hard labour, suspended forthwith on the respondent entering into his own recognizance in the sum of $1000 to be of good behaviour for 3 years. The conditions of the bond were centred around submission to a rehabilitation programme, including medical and psychiatric treatment, at Banyan House "an institution which has had some success in treating people with long standing drug problems in this Territory" - to quote from his Honour's judgment. Armed robbery is, of course, a very serious offence. As Muirhead J. pointed out in his reasons for sentence, it carries a penalty of life imprisonment. Those who commit this erime cannot expect to receive leniency (R v Knight (1981) 26 SASR 573 at 574-5). In all but a few cases they must expect, on conviction, to receive a custodial sentence of at least several years. In the present case the respondent's co-accused was effectively sentenced to imprisonment for eight years, with a non-parole period of three years. However the rule is not absolute, and there will be cases where, in the proper exercise of its discretion, a court may decide that the interests of the community permit or even require a sentence which is not custodial. It must be remembered that the ultimate purpose of all punishment is the protection of society. It will often be in the best interests of society if emphasis is put on rehabilitation, particularly in cases where the offender can genuinely be said to be at the crossroads between a useless, drug-ridden and probably criminal existence and a relatively normal life in society, supported by a caring family. See R v William Davey (1980) 2 A Crim R 255 at 260-1 and Channon v R (1978) 20 ALR 1 at 5. In order to determine whether the discretion of the sentencing judge miscarried in the present case, it is necessary to consider the circumstances of both the offence and the offender. So far as the offence was concerned, it was reasonably typical of the inexpert armed robberies which are all too prevalent, planned and executed the same day, but in this case devoid of any circumstances of aggravation. It involved the use of an unloaded rifle to threaten the manager of a small supermarket and several other people. They were, of course, frightened by the sight of the weapon and the threats that accompanied it, but no other violence was used. Some $400 was taken from the till, and the stocking-masked hold-up man then apologised and left. The respondent had meanwhile been waiting nearby in a borrowed car. He had been involved earlier in the day in the planning of the robbery; but it is clear that he was very much the junior partner in the enterprise. He received $100 for his part in it. Although he had previously stolen a bank cheque from a wallet and paid it into his own account -a pointless and easily detected crime for which he had made restitution and was on a bond at the time of the present offence -he had not before been involved in any crime of violence. His co-accused was still on parole after completing three years of a nine year sentence for two previous armed robberies. Medical evidence showed that the respondent, because of the effects of his drug addiction, was a person who was impulsive and suggestible, lacking a proper realization of the seriousness of his actions or of his resulting position. Police inquiries led them to the respondent and his co-accused. They co-operated with the police, although the respondent at first tried to minimize his part in the offence. However, when challenged about this, he readily agreed that he had been involved in planning the robbery. When first arraigned he pleaded not guilty, but later changed his plea. The respondent was 24 years old at the time of the offence. He comes from a good family which is prepared to give him full support - a fact to which Muirhead J. gave some weight. He has a de facto wife and a baby daughter to whom he is very attached. He failed to complete year 11 at school and has found it difficult to get regular work. Some two to three years ago his financial worries, and in particular his inability +o support his wife and child, led him to the use of Serapax, which was originally prescribed to overcome depression and help him sleep. He then became addicted to its use as well as being a regular smoker of marijuana. The addictive use of Serapax did nothing to assist his problem in finding employment; it merely made him less responsible in finding and keeping employment. Since his arrest for the offence he has made a clumsy attempt to commit suicide, and he at first resisted, then accepted, entrance into the rehabilitation programme at Banyan House. A brain scan has indicated a degree of brain damage - "a moderate degree of cerebral cortical atrophy which could be associated with epilepsy, or drug or alcohol abuse". This was another matter to which Muirhead J. attached considerable weight. In fact the evidence established to his Honour's satisfaction that the programme of rehabilitation on which the respondent had then been engaged for some months has a reasonable chance of curing him of his addiction, thus enabling him, with family support, to function as a normal law-abiding member of society. On the other hand the probabilities ere that a substantial period of imprisonment would leave him with a hopeless future. His Honour said he would "probably return to drugs and the community may again be hurt in the process". There was ample expert evidence to justify Muirhead J's conclusions on this subject. His Honour was very conscious of the unusual nature of the step he was taking and of the uncertainty of its success. He described the situation as "a very rare one", but concluded that "the community just may benefit by allowing your opportunities of rehabilitation to continue rather than by ordering your immediate imprisonment for a long time". This amounted to a finding that the community's interests would probably be better served by the current course of rehabilitation than by placing reliance on considerations of retribution or deterrence. The community would in any event have noted the lengthy sentence imposed on the chief perpetrator of the offence and should be aware of the five years' sentence hanging over the respondent's head. We turn now to consider probably the strongest argument the Crown was able to adduce for the intervention of this Court. This was the apparent disparity between the sentences imposed several months apart, but by the same judge, on the two men who pleaded guilty to the present offence. It is clear that marked disparity between sentences imposed upon co-offenders for the same offence will, unless capable of explanation by reason of "the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence" call for intervention by an appellate court, Lowe v The Queen (High Court, unreported, 2 August 1984). However, before such a court will interfere, it must be shown that the difference in sentences is manifestly, not merely arguably, excessive (Pecora v The Queen 1980 VR 499 at 504). The words in quotation marks are from the judgment of Gibbs CJ, and the expression "marked disparity" is that adopted by Mason J. Although the Court was divided as to whether special leave should be given in the particular case, the principle emerges clearly. Pecora v The Queen was cited with approval by both Mason and Dawson JJ, although it was disapproved by Brennan J, who was alone in holding that manifest disparity should not itself be a ground for successful appeal, but regarded simply as evidence of error. On the question of the propriety of drawing distinctions between co-offenders, see also R v Homer (1976) 13 SASR 377 at 381-2. In our view the respective head sentences of 8 and 5 years were entirely appropriate in the present case having regard to the previous records of the co-offenders and the part that each played in the offence. The major offender suggested the crime, produced the weapon and carried out the major role. Although he has a tragic background, the fact that he was at the time on parole for two similar offences precluded anything other than a lengthy custodial sentence. However, in the view of the sentencing judge, the respondent fell narrowly on the side of a line where the community's best interests would probably be served by a strenuous attempt at rehabilitation. It must not be forgotten that a prolonged and rigorous drug rehabilitation programme, followed by the balance of three years of parole supervision, with the ever present threat of imprisonment for any breach of the terms of his bond, is an alternative form of punishment (Anderson v R (1977) 19 ALR 212 at 217). We bear in mind that Muirhead J. is a very experienced judge in this field and has an almost unequalled knowledge of the special requirements of sentencing for crime in the Northern Territory. We cannot see that his Honour's discretion miscarried in any way and the appeal will accordingly be dismissed. Before leaving the matter we should say something about the fact that the Crown has appealed in this case without having put any submission to the sentencing judge about the desirability of a custodial sentence. His Honour gave this case exceptionally careful attention and had the benefit of lengthy reports from social workers and doctors. He dealt with the matter on 22 and 23 November 1983 and 24 April 1984 before passing sentence on 4 May 1984, by which time the respondent had been a resident of Banyan House for over 5 months. The course which he was considering had been made obvious over that period and there had been no demur from counsel for the Crown. Admittedly, the Crown was in a difficult position. It is a long established practice for the Crown not to urge any particular type or length of sentence on the sentencing judge. The proposed deferral of sentencing, to find out whether rehabilitation had any prospect of success in the present case, did not formally commit the judge or anyone else to any particular future course. Certainly if it had produced negative results, the judge's course would have been clear. If, however, the results proved to be encouraging, there would be an understanding onthe part of the respondent that the rehabilitation programme would be proceeded with. Indeed any other course on the part of the sentencing judge would have been difficult to understand. The question arises whether, in those circumstances, there was some obligation on those representing the Crown to put expressly to the trial judge some of the matters which have now been argued so forcefully on appeal. Although the reasons for the Crown's reticence are understood and appreciated, there seems to be something anomalous about the Crown standing silently by when it becomes clear that the sentencing judge is embarking on a course which will lead to the expectation in the convicted person of a chance of rehabilitation, in return for a special effort and a degree of sacrifice on his part, but will almost -~ 10 - certainly lead the Crown to an appellate court some months later when even more water has flowed under the bridge. We would respectfully agree with what was said on this subject by the Court of Criminal Appeal in South Australia in R v Wilton (1981) 4 A Crim R 5 at 10, "... this Court should allow the prosecution to put to it on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General." This statement is consistent with previous decisions of this Court in R v Tait (1979) 46 FLR 386 at 389-99, cited with approval in The Queen v Valentini (1980) 48 FLR 416 at 481. We do not suggest that counsel for the Crown need be astute to foresee and forestall a non-custodial sentence in a case which, in the view of the Crown, warrants a custodial sentence. However, when a sentencing judge makes it clear that a non-custodial sentence is in contemplation, and he either -11- invites a Crown submission (which may be an appropriate course in a borderline case) or he provides ample opportunity for the seeking of instructions and the making of a submission, then in our view the Crown should give him the benefit of a submission. This is particularly so in a case such as the present, where the respondent has in the meantime consented to undergo a deprivation of his liberty and privacy and submission to a rigorous regime designed to build up his self-control and help him overcome his drug problem. When such a programme has been operating successfully for 9 months, as the fresh evidence we have accepted indicates, it would be particularly harsh and destructive of confidence if the respondent were to be suddenly cast into prison. Even if we had thought that the discretion of the sentencing judge had miscarried in this case, we would not have interfered at this late stage in the absence of any relevant submission by the Crown to the sentencing judge. As we have already indicated, the appeal will be dismissed. I hereby certify that this and the ten (10) preceding pages are a true and accurate copy of the Reasons for Judgment herein of the Court bowen na ate to ome Mr. Justice Woodward Dated: 24 August 1984