New South Wales Court of Criminal Appeal CITATION : R v Jarrett [2000] NSWCCA 334 FILE NUMBER(S) : CCA 60721/1999 HEARING DATE(S) : 09/08/2000 JUDGMENT DATE : 9 August 2000 PARTIES : Regina v Elvis Aaron Sean Jarrett JUDGMENT OF : James J at 1; Dowd J LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0038 LOWER COURT JUDICIAL Christie DCJ OFFICER : COUNSEL : R Burgess - Appellant AM Blackmore - Crown SOLICITORS : DJ Humphreys - Appellant SE O'Connnor - Crown DECISION : Leave to appeal granted - Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60721/99 JAMES J DOWD J Wednesday 9 August 2000 REGINA v ELVIS AARON SEAN JARRETT JUDGMENT 1 JAMES J: Elvis Aaron Sean Jarrett has applied for leave to appeal against a sentence imposed on him in the District Court on 19 November 1999 by his Honour Judge Christie, after he had pleaded guilty to one charge of being an accessory after the fact to armed robbery. His Honour sentenced the applicant to a term of penal servitude for four years, consisting of a minimum term of three years and an additional term of one year. 2 His Honour made the sentence commence from 21 February 1999, which was the date on which the applicant was arrested and taken into custody. 3 The principal offenders in the armed robbery were two persons named Austin and another person who was a minor at the time the offence was committed. 4 The armed robbery was committed on 4 February 1999 at a credit union in Bellingen. On that day the applicant drove the three principal offenders from Bowraville to Bellingen. At Bellingen the three principal offenders left the vehicle and committed the armed robbery at the credit union. 5 The objective facts of the armed robbery were serious. A real firearm was used, which was loaded, and a shot was deliberately fired from the firearm as the principal offenders entered the credit union. 6 While the armed robbery was being committed, the applicant waited in the vehicle. The applicant was aware that the others were considering committing a robbery but claimed that he himself was not a participant in any enterprise to commit a robbery. 7 After the robbery was committed, the principal offenders ran to the vehicle and got into it and the applicant drove off. The vehicle being driven by the applicant was pursued by a police vehicle. After a police chase of some duration, the applicant's vehicle collided with a tree and came to a stop. The two Austins and the applicant escaped but the minor was arrested. The applicant was arrested on 21 February 1999 and remained in custody until he was sentenced. 8 The sentencing judge was conscious that he was sentencing the applicant for the offence of being an accessory after the fact to armed robbery and not for the offence of armed robbery. However, on numerous occasions in the proceedings on sentence, both in remarks made on 4 November 1999 and in the remarks on sentence which were delivered on 19 November 1999, his Honour expressed considerable surprise that the Crown had been prepared to accept a plea of guilty to a charge of being an accessory and had not pressed a charge that the applicant had been a principal offender. For example, the sentencing judge said at p 3 of his remarks on sentence: "I hold some very strong views as to whether this alternate charge should have been made available to him but I think I expressed those in terms probably more colourful than I am entitled to do on the previous occasion and I shall not say any more about it, except that I believe the prisoner Elvis Jarrett is extremely fortunate that he was permitted by the Crown Prosecutor to plead guilty to this particular charge." 9 The trial judge admonished himself more than once that he had to dismiss from his mind a belief that the applicant was guilty of a more serious offence than the offence for which he was being sentenced and that he had to sentence the applicant purely for the offence of being an accessory. 10 In his remarks on sentence his Honour said that he regarded the offence as objectively falling within the worst class of case. His Honour said at p 4 of his remarks: "I say that this must be one of the most serious cases of assisting armed robbers after the event, as serious as any I have ever seen, involving, as it does, driving an armed van at speed across the State of New South Wales with the police in pursuit and thus making good his escape. If this is not the worst of its kind of that particular type of offence, then I do not know what is." 11 His Honour then referred to the criminal history of the applicant and concluded: "I believe this offence is about the worst of its kind in its category which ought receive, for a person who offends as often as Mr Jarrett, the maximum sentence but if I were to do that it would fail to take into account his entry of a plea of guilty." 12 His Honour had earlier, in his remarks on sentence, identified the maximum penalty for the offence for which he was sentencing the applicant as being imprisonment for five years. His Honour reasoned that he should not impose a sentence equal to the maximum sentence, because to do would be to disregard the applicant's plea of guilty, his youth (he was twenty years old at the time of the offence) and his aboriginality. Taking those factors into account in favour of the applicant and proceeding on the basis that the maximum permissible sentence would be five years and that the offence committed by the applicant fell within the worst class of case, his Honour arrived at the sentence of four years which he imposed. His Honour held that he was unable to find any special circumstances within s 5(2) of the Sentencing Act. 13 His Honour was in error in saying that the maximum sentence for being an accessory after the fact to armed robbery is imprisonment for five years. In fact, under s 349(2) of the Crimes Act the maximum penalty for being an accessory after the fact to armed robbery is imprisonment for fourteen years. 14 It was pointed out in written submissions for the Crown that the error made by his Honour was an error in favour of the applicant. However, in my opinion the error made by his Honour about the maximum penalty was so fundamental to the reasoning process engaged in by his Honour in order to arrive at the sentence which his Honour imposed, that this Court should hold that the exercise of his Honour's sentencing discretion miscarried and accordingly this Court has to re-sentence the applicant. In re-sentencing the applicant, the Court must apply the Crimes (Sentencing Procedure) Act 1999. 15 It is relevant to note that for the armed robbery of the credit union Judge Christie sentenced each of the Austins to a term of penal servitude for eight and a half years, consisting of a minimum term of five and a half years and an additional term of three years. They were also sentenced at the same time to a fixed term of penal servitude of two and a half years, to be served concurrently, for another armed robbery committed by them on 29 January 1999, in which the applicant had not played any part. I would infer that the sentence imposed by Judge Christie on the Austins for the armed robbery at the credit union was intended by his Honour to contain a component reflecting the criminality in the armed robbery committed on 29 January 1999. Both the Austins are young aboriginal men of about the same age as the applicant but they had worse criminal records than the applicant, including previous convictions for armed robbery. The offences of armed robbery for which they were sentenced were committed while both of them were on parole. 16 Although parity of sentencing in the narrow sense would not apply to the applicant and the two Austins, because they were being sentenced for different offences, nevertheless there should be a proper proportionality between the sentences which were imposed on the Austins and the sentence which should be imposed on the applicant. 17 In sentencing the applicant it is necessary, as his Honour admonished himself, to disregard any suspicion that the applicant was really guilty of armed robbery and to keep steadfastly in mind that the applicant is being sentenced only for the offence of being an accessory after the fact. 18 I have earlier set out the objective facts of the offence and a number of the subjective circumstances of the applicant. In my opinion, the sentencing judge was right to regard the offence as being objectively serious, although I would not agree that the sentence should be regarded as falling within the worst class of case. Accepting, as the Court must, that the applicant did not have prior knowledge that an armed robbery was about to be committed, the applicant had little time to make any considered decision when the principal offenders ran to the car after having committed the armed robbery, entered the car and demanded that the applicant drive the car away. 19 We were referred by counsel for the applicant to the decision of this Court in R v Leonard (2000) 28 NSWCCA, in which the Court of Criminal Appeal, constituted by two judges, after upholding an appeal against sentence, sentenced the applicant to ten months for an offence of having been an accessory after the fact to an aggravated robbery. However, the offence for which Leonard was sentenced was an offence of being an accessory after the fact to an aggravated robbery and not an offence of having been an accessory after the fact to an armed robbery. The maximum penalty for being an accessory after the fact to an aggravated robbery is imprisonment for five years only. In Leonard the principal offenders had committed a robbery with aggravation by robbing a lady of her handbag, occasioning her some injuries. In the present case the principal offenders ran to the car brandishing the firearm which had been carried into the credit union and the applicant became seised with knowledge that the principal offenders had committed an armed robbery using the firearm. Furthermore, the sentence imposed by the Court of Criminal Appeal in re-sentencing Leonard contained a discount for the assistance Leonard had provided in naming the principal offenders and in otherwise co-operating in the investigation of the offence. 20 In re-sentencing the applicant it is necessary to take into account the applicant's plea of guilty, the applicant's subjective circumstances and the principles to be applied in sentencing aboriginal offenders referred to by Wood J in R v Fernando. 21 I would find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act in the applicant's youth, his aboriginality and his need for a longer than usual period of conditional liberty under supervision. 22 In my opinion, leave to appeal against should be granted. The sentence imposed by Judge Christie should be quashed and in lieu thereof the following sentence should be imposed: the applicant should be sentenced to a term of imprisonment for three years, commencing on 21 February 1999: a non-parole period of two years, commencing on 21 February 1999 and expiring on 20 February 2001, should be fixed. I would make a parole order directing the release of the applicant on parole at the end of the non-parole period. 23 DOWD J: I agree with the proposed orders and his Honour's reasons therefor. 24 JAMES J: The orders of the Court are as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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