Culshaw v The Queen [2001] FCA 1590

FEDERAL COURT OF AUSTRALIA

Culshaw v The Queen [2001] FCA 1590

CRIMINAL LAW – appeal against sentence – whether disparity between sentences imposed on co-offenders – sentencing principles – discount for plea of guilty.

Crimes Act 1900 (ACT), ss 429A, 429B Lowe v The Queen (1984) 154 CLR 609 followed Siganto v The Queen (1998) 194 CLR 656 followed Steer v The Queen [2000] FCA 462 followed CHRISTOPHER PATRICK CULSHAW v THE QUEEN No A 80 of 2000 BLACK CJ, SPENDER and DOWSETT JJ CANBERRA 7 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 80 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHRISTOPHER PATRICK CULSHAW

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: BLACK CJ, SPENDER and DOWSETT JJ

DATE OF ORDER: 7 DECEMBER 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The sentence imposed on the appellant on 4 December 2000 be set aside. 3. In lieu, the appellant be sentenced to imprisonment for 6 years, with a non-parole period of three and a half years, both periods to date from 4 December 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 80 OF 2000

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHRISTOPHER PATRICK CULSHAW

APPELLANT

AND: THE QUEEN

RESPONDENT

JUDGES: BLACK CJ, SPENDER and DOWSETT JJ

DATE: 7 DECEMBER 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal against sentence by Christopher Patrick Culshaw. On 4 December 2000 the appellant pleaded guilty upon arraignment, and was convicted and sentenced by a single judge of the Supreme Court in respect of the manslaughter of Bradley John Stewart ("the deceased") in January 2000. The appellant was sentenced to seven years imprisonment, to serve five years of that sentence before being eligible for parole. Each of those periods would date from 4 December 2000. 2 The sentence proceeded on a statement of agreed facts, as set out below in pars 3-11: 3 On New Years Eve 1999 the appellant (who was then 19 years old), his older brother Peter (23 years old) and Barry England (19 years old) went into Civic together. Also with them were a number of other friends and acquaintances. In the early hours of 1 January 2000 the appellant, with his brother and England were downstairs playing pool in the Gypsy Bar. Also playing pool downstairs at the Gypsy Bar at that time were the deceased and his friend Jason Boag. The two groups played against each other from time to time during the course of the morning. 4 Some time shortly after 6 am, an argument developed between the appellant, his brother and Barry England, and the deceased and Jason Boag. Security staff who were in the process of closing up and asking patrons to leave made the appellant, his brother and England leave the bar. The deceased and Boag were told to sit down and finish their drinks before they left. This was done by staff in order to try and avoid any further confrontation between the groups, by allowing the first group to leave the area before the second emerged. 5 About five minutes later the deceased and Jason Boag left the Gypsy Bar. The appellant, Peter Culshaw and Barry England had remained outside. The appellant was angry. One of his friends, Stewart Black, had told him to forget about it and go home, but he refused. Upon exiting the bar the appellant, Peter Culshaw and Barry England approached the deceased and Boag, and started to punch them. Both the deceased and Jason Boag were punched to the face and head. Boag attempted to extricate himself from the fight by returning into the Gypsy Bar, but was ejected by security. Security then broke up the fight. Boag ran off towards Braddon. He had a severely lacerated lip. 6 The deceased walked away from the area towards the bus interchange. He had blood on his face and shirt. One of the bouncers grabbed the appellant and told him "Leave it at that, they are walking away." Barry England and the appellant followed the deceased to the interchange. The deceased stopped in the middle of Mort Street, turned to Barry England and Christopher Culshaw and said something to the effect that he did not want to fight them and that he had had enough. He had his hands by his sides. The appellant and Barry England proceeded to take turns in punching the deceased in the head. The deceased offered no resistance. Indeed, after each punch the prisoner and England waited for the deceased to lower his hands from his face before striking him again in the head. 7 Witnesses described how the pair seemed to take their time and line up their punches. The deceased was punched hard to the head around six times by the appellant and England. After the last punch he slumped to the roadway unconscious. A number of bystanders went to his assistance. One witness waved down police who were in the area and pointed out the appellant to them as he was walking away with Barry England, Peter Culshaw and Stewart Black. 8 Police followed the group, who started to run. The appellant stopped running after about 50 metres and was spoken to by police. He admitted hitting the victim and gave police his personal particulars. Barry England's particulars were also taken. They were allowed to leave. 9 The deceased was conveyed to hospital where he died a few days later. He did not regain consciousness. Death was caused by the rupture of a major artery to the brain, leading to bleeding, major pressure on the brain and subsequent loss of brain function. This artery was not predisposed to such rupture. The rupture was caused by one of the blows inflicted by the appellant and Barry England to the head of the deceased whilst he stood in the middle of Mort Street. 10 The appellant was subsequently spoken to again by police but declined to take part in a formal interview. He agreed to take part in a line up and was identified by a number of witnesses. Forensic evidence also established that blood from the deceased was found on the appellant's clothing. Although the matter proceeded to a full committal hearing the appellant, through his counsel, had advised that he did not require any witnesses to be called, and counsel asked no questions of those witnesses who were required to be called by counsel for the co-offender. 11 The appellant's co-offender Barry England maintained his plea of not guilty and stood trial by judge alone early in 2001. 12 In the course of his sentencing remarks concerning the appellant, the sentencing judge said: "Nothing can make up for the tragic loss the relatives of the deceased have suffered, and no amount of punishment that I can impose is likely to be perceived as enough. I fully accept that. I also accept that the relatives of the offender believe he is a worthy young man who has had a momentary lapse which he now regrets. No doubt, they will be gravely distressed by his incarceration. In my view, the balance to be struck by the court does demand a custodial sentence. … Had I been unrestrained by authority the penalty may have been greater. It was a vicious, unprovoked assault, carrying a strong risk of at least serious injury. Had it not been for the plea of guilty and promise of co-operation, I consider a head sentence of 12 years would have been warranted with a 7 year non-parole period. Having regard to the various matters put, and the offender's background, I propose to impose the following sentence. Christopher Patrick Culshaw, stand. On the count of the indictment of unlawfully killing, you are sentence[d] to 7 years' imprisonment, and you are to serve 5 years of that sentence before being eligible for parole." 13 The maximum penalty for manslaughter in the Territory is 20 years imprisonment. 14 On 24 April 2001, and after trial by judge alone, Miles CJ found the co-offender, Barry England, guilty of the manslaughter of Bradley John Stewart and on 26 April 2001, Miles CJ sentenced England to seven years imprisonment with a non-parole period of four years, both periods to date from 24 April 2000. 15 In the course of his reasons for convicting England of manslaughter, Miles CJ said: "It is unnecessary to make specific findings about which blows were delivered by the accused and which by Christopher Culshaw. The nature of their attack on the deceased in the second incident is such that the conduct of one is not to be differentiated from that of the other for the purpose of criminal liability. Each was there willingly acting in support of the other and receiving support from the other. It is a classic case of acting in concert so that each is responsible for the criminal conduct of himself and that of the other. If the death was caused by the conduct of one or the other, both are responsible." 16 This statement is consistent with the agreed facts on which Culshaw was to be sentenced. Moreover, each of them was 19 years old at the time of the offence, and had no previous convictions. 17 In the course of the sentencing remarks concerning Barry England, Miles CJ said: "Ultimately, I see nothing to distinguish the degree of culpability as between this offender and Christopher Culshaw. Culshaw of course pleaded guilty, and no doubt the sentence in his case attracted a discount appropriate to the plea, and for contrition otherwise shown, and for his promise to give evidence, if necessary, in the subsequent trial. The present offender is not to have his sentence increased because of his plea of not guilty. There is I think an element of contrition on his part independent of the plea. That contrition was expressed in his evidence and also, and perhaps persuasively, by his brother and his brother's wife, whose evidence I have no reason to question in any way." 18 Miles CJ referred to the most unfortunate family circumstances of Barry England, and noted that: "…despite the overwhelming odds the offender appears to have freed himself from the abusive background of his early years." Later, Miles CJ said: "In this case before me now, there is another question, that is to say, the parity of the sentence with that imposed on Culshaw. Culshaw received a sentence of 7 years' imprisonment, with a non-parole period of 5 years, after a discount for the plea of guilty and the promised co-operation. Both counsel acknowledged that was a severe sentence. However, it needs to be said that it is not for me to analyse the reasons for sentence in the case of Culshaw, or to express any opinion about whether or not I agree with it. Furthermore, the principle of parity applies in this way, that I should not impose on this offender a sentence which would give him cause for grievance, having regard to the sentence imposed on Culshaw. What I must not do, and will not do, is to arrive at a sentence and then increase it, in order to avoid a sense ofgrievance on the part of Culshaw. … As far as rehabilitation is concerned, Barry England is in my view at some risk of corruption in the prison community. If he is able to resist that, I have confidence in his rehabilitation in the community, particularly whilst he remains on parole. I therefore fix a head sentence which will be directed principally, but not solely to culpability, and a non-parole period which will cater, so far as is possible, for the matter of rehabilitation." 19 Chief Justice Miles then imposed the sentence of seven years with a non-parole period of four years, to date from 24 April 2000. The observations by the Chief Justice clearly recognise that it was not his function, when sentencing England, to be compelled by the sentence imposed on Culshaw to impose a heavier sentence on England than would otherwise be the case without that circumstance: any question of disparity about Culshaw's sentence compared with England's was a matter for an appeal court. 20 It was submitted on behalf of the appellant that he has been left with a "justifiable sense of grievance" when comparing his sentence with that imposed on the co-offender Barry England. In Lowe v The Queen (1984) 154 CLR 609, Gibbs CJ said: "… It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as 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, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. … After referring to the power in the Court of Criminal Appeal to quash a sentence and substitute another "if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed", Gibbs CJ said at 609-610: "The … words … are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal." 21 Gibbs CJ was in the majority in refusing special leave to appeal in that case. Mason J would have granted special leave, with Brennan J. Mason J said, at 610-611: "Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 22 Mason J, at 613, asked: "… what is the correct principle to be applied in cases of discrepancy?" and answered that question as follows: "It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate." (Emphasis added) 23 In this case, the criminal culpability of England and Culshaw has to be viewed as substantially equal. They were each 19 years old at the time, and each had no previous convictions. At the time of sentencing, however, s 429A of the Crimes Act 1900 (ACT) set out a number of matters to which a judge, in sentencing an offender, shall have regard. These included, at subs 429A(1)(u), whether the person has pleaded guilty and, if so, the stage of the proceedings at which the person did so or indicated an intention to do so, and at subs 429A(1)(h), the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences regard (see now s 342 relevantly to the same effect). These considerations have been endorsed and discussed in the cases of Siganto v R (1998) 194 CLR 656 at 663-4 per Gleeson CJ, Gummow, Hayne & Callinan JJ and Steer v The Queen [2000] FCA 462 at pars 57-60 per Miles and von Doussa JJ. As recognised by the trial judge, both provisions applied in the case of the appellant who pleaded guilty and provided assistance to the police. He was, accordingly, entitled to a discount on the sentence that would otherwise have been imposed upon him. 24 It was accepted by Mr R. Refshauge SC, the Director of Public Prosecutions in the Territory, that there was a disparity in the sentences. There was no challenge by the Crown to the sentence imposed on England. In these circumstances, in order to give a genuine recognition to the discount to which the law entitles the appellant as a result of his plea of guilty and the assistance given to authorities, the sentence imposed on Culshaw should be adjusted with a view to ameliorating, if not eliminating, the existence of a justifiable sense of grievance by the appellant. 25 In the circumstances, both the head sentence and the non-parole period should be adjusted to sentences that are less than those imposed upon the appellant's co-offender, England. The sentence of seven years imprisonment with a non-parole period of five years should be set aside, and in its place, the appellant should be imprisoned for six years with a non-parole period of three and a half years, both periods to date from 4 December 2000.