New South Wales Court of Criminal Appeal CITATION : R v Achurch [2000] NSWCCA 537 revised - 22/03/2001 FILE NUMBER(S) : CCA 60056/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 18 December 2000 PARTIES : Crown - Respondent Rodney Joseph ACHURCH - Applicant JUDGMENT OF : Simpson J at 1; Howie J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0530 LOWER COURT JUDICIAL Payne DCJ OFFICER : COUNSEL : W G Dawe QC - Crown G Nicholson QC SOLICITORS : S E O'Connor - Crown M Rumore - Applicant LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 R v Jurisic (1998) 45 NSWLR 209 at 215 Lowe v R (1984) 154 CLR 606 R v Diamond unreported NSWCCA 18 February 1993 CASES CITED: R v Smith (1997) 95 Crim R 373 R v Lambrinos, unreported 17 July 1998 NSWCCA R v Byrne, unreported 5 August 1998 NSWCCA R v Pearce (1998) 194 CLR 610 DECISION : Leave to appeal granted, each appeal granted, each sentence quashed, applicant re-sentenced. IN THE COURT OF CRIMINAL APPEAL 60056/00 SIMPSON J HOWIE.J 19 December 2000 REGINA v Rodney Joseph ACHURCH Judgment SIMPSON J : 1 On 28 January 2000 the applicant appeared for sentence before her Honour Judge Payne in the District Court, having pleaded guilty to seven counts brought under s 188 of the Crimes Act 1900. Six counts were of disposing of stolen property and one was of receiving. Each carries the same maximum penalty, imprisonment for ten years. On four counts Judge Payne sentenced the applicant to consecutive fixed terms of imprisonment of, respectively, seven months, seven months, six months and six months, and on three counts to terms of ten months, each with a minimum term of one month and an additional term of nine months. These sentences she ordered to be served concurrently with one another, but cumulatively upon the fourth of the previously imposed consecutive sentences. The effect of the combined sentences is that the applicant will serve a minimum term of twenty-seven months and an additional term of nine months. 2 The applicant seeks leave to appeal against the severity of the sentences. Three principal grounds of appeal were argued on his behalf. The first of these concerns asserted disparity between the sentences imposed upon the applicant and those imposed upon a number of co-offenders. It will be necessary to consider the circumstances of the co-offenders shortly. The second ground concerns the approach taken by Judge Payne to developments in pronouncements by this court as to the effect of a sentence ordered to be served by way of home detention. That matter arose in the context of a parity argument regarding a co-offender. The third complaint is that insufficient credit was given to the applicant in respect of his pleas of guilty. The facts 3 The subject matter of all offences were motor vehicles. Put shortly the applicant was engaged in what has become to be known as "rebirthing" of stolen motor vehicles. A ring of co-offenders also participated. The scheme involved the purchase of motor vehicles in poor condition, the theft of better quality vehicles of similar make and style, and the reconstruction of the latter by the use of indicia of identification from the former. The re-constructed vehicles were then sold. The sentencing judge accepted that the applicant was "an orchestrator" and "a principal" in the organisation. This was an important finding of fact. She described the scheme as a commercial undertaking for profit, and a "professional crime", involving "calculated dishonesty", and the offences as premeditated and well planned. No challenge has been made to these descriptions. They are plainly apposite. 4 The seven offences for which the applicant stood to be sentenced were committed over a period of seven months commencing on 24 March 1995 and concluding on 20 October 1995. Although details of the applicant's participation in each of the separate offences were provided, it is unnecessary here to re-state those details. What has been written above is a sufficient account of his involvement for present purposes. The precise details of his actions in relation to individual motor vehicles is immaterial. Subjective circumstances 5 The applicant was born on 19 December 1967. He was twenty-seven years of age at the time of the offences. He had previously been before the courts, as a juvenile, in 1981, 1984, and 1985 for offences of break enter and steal, assault, stealing and resisting arrest and offensive behaviour. In 1987 he was convicted of a count of receiving and another of goods in custody, and in 1991 of six counts of receiving, for which he was sentenced to six months imprisonment. That was his first custodial sentence. 6 His pleas of guilty were entered, as her Honour accepted, at the earliest reasonable opportunity. The value of the pleas was somewhat tempered by reason of the strength of the Crown case, as a result of the availability of two indemnified witnesses to give evidence. On the other hand, the utilitarian value of the pleas was enhanced because the Crown estimated that a trial, if it eventuated, would have been lengthy and costly, with between 300 and 600 witnesses expected to be called. Six months had been set aside for the trial. Her Honour accepted the pleas as some evidence of contrition and remorse. 7 There was a lengthy delay (three and a half years), not attributable to the applicant, between his being charged and being sentenced. He gained the benefit of this in two ways. Firstly, her Honour accepted that this was a period of uncertainty for him and secondly, he was able to present himself as someone who had not re-offended during that interval and who could, accordingly, be seen as well on the way to rehabilitation. 8 The applicant is in a long standing (fifteen year) stable marriage and has three children. Parity 9 At least eight other participants in the enterprise were charged and at least six of them were sentenced by the same sentencing judge. For the purpose of the parity argument her Honour's sentencing remarks in relation to six co-offenders have been made available to the court. These are: Robert Wright; Vincenzo Caccamo; Michael Langley; Christopher Sziklai; Mathew Rolfe; Nubeel Hassarati. 10 One thing that emerges with some clarity is that the sentences imposed on the applicant were significantly more severe than the sentences imposed on any of the other participants. That, of course, is far from conclusive that the principles of parity were overlooked or not properly applied. Indeed, the question was specifically raised by counsel who represented the applicant, and adverted to by her Honour. It will, regrettably, become necessary to examine in some detail the circumstances appertaining to those of the other offenders of whom sufficient information is available. Appended to this judgment is a chart in which I have endeavoured to set forth the relevant circumstances relating to each of these offenders, and the sentences imposed on them. 11 Three offenders, besides the applicant, were sentenced by Judge Payne on 26 January 2000. These were Wright, Sziklai, and Caccamo. Rolfe had been sentenced nine days earlier, on 19 January 2000. Langley was sentenced on 16 March 2000. Hassarati, who the applicant has selected as the most relevant for the purposes of the parity argument, was sentenced in May 1998. I will return in some detail to a consideration of Hassarati's circumstances and sentences. 12 The sentences imposed on the co-offenders (other than Hassarati) ranged from twelve months' imprisonment, with a minimum term of five months (Wright) to twenty months' imprisonment, with a minimum term of twelve months (Rolfe). Two (Sziklai and Caccamo) were sentenced to imprisonment for fourteen months with equal minimum and additional terms of seven months. Langley was sentenced to imprisonment for eighteen months, with a minimum term of eight months. (In setting out these terms I have set out the effective overall term which the combination of sentences will result in being served by the offenders. There were, of course, multiple offences in each case, each offence resulting in an individual sentence.) 13 There were, as might be expected, significant differences between the various participants in relation to such things as the number of charges faced, the extent of involvement, age at date of offending, the period of participation, prior criminal history and subjective circumstances. Given the large number of participants, this makes comparison for the purposes of considering the parity argument a complicated and rather unrewarding exercise. 14 There is, in relation to the applicant, one critical finding which marks him off from the offenders to whom I have referred in paragraph 12 above. This concerned his level of involvement in the scheme. I have already referred to the sentencing judge's description of the applicant as "an orchestrator", and "a principal" in the enterprise. Such a description was not applied to any of these participants. (For the moment, I leave Hassarati aside.) Indeed, in each of those cases, her Honour made contrary findings. She found each to be not a principal, but to have been engaged in activity at the lowest rung of the enterprise, such as actually stealing the cars, which carried the greatest risk of exposure and apprehension. These findings alone present a considerable obstacle to the applicant's attempt to advance a true parity argument in relation to these co-offenders. Having said that, I recognise that it is open to him nevertheless to argue that the disparity that in fact eventuated exceeded what might reasonably be attributed to the greater role that he played. His minimum term is more than double the next longest minimum term of twelve months (Rolfe), who was twenty-two and twenty-three while involved in the car stealing scheme, and who was involved over about nine months, and who asked that four unrelated matters be taken into account pursuant to s 21 of the Criminal Procedure Act 1986. He faced a later, also unrelated, charge of armed robbery. The fact of the armed robbery charge, however, had the effect of requiring a different balancing exercise in the interests of totality. 15 Sziklai's involvement extended over three and a half years, he pleaded guilty to five counts on indictment and asked that a further nine be taken into account. One offence was committed whilst on bail. The applicant, by contrast, was not subject to any form of conditional liberty at the time of his crimes. 16 It can be seen that any attempt to reconcile all the cases is likely to be unproductive. As I have said, the finding concerning the applicant's role in the enterprise was of considerable significance, and marks him in an important way apart from those offenders who were found not to be principals. Having regard to the huge number of variables, each giving rise to exercise of discretionary judgment on the part of the sentencing judge, it is not possible to discern any manifest disparity such as would bespeak injustice in relation to these co-offenders. The applicant was realistic in his selection of Hassarati as the appropriate comparable. Hassarati pleaded guilty to eight counts and asked that a further thirteen counts be taken into account. Her Honour did not make a finding about his participation in the same terms as that she made about the applicant which has been quoted above, but she did make findings about his involvement and these were, in effect, that he was more significantly involved than any of the other co-offenders to whom reference has been made. Her Honour noted a concession made by the Crown, which she apparently accepted, that Hassarati was not involved in all of the criminality undertaken by the principals. However, she went on to say: "He was critical to that part of the scheme he was involved in … without his preparedness to register the cars in his name and sell the cars, that part of the scheme that he was actively involved in could not have worked." 17 Hassarati was aged twenty-six at the time of his involvement. He participated over roughly the same period as the applicant, from 24 February 1995 to 13 November 1995. Like the applicant he pleaded guilty at the earliest opportunity. Unlike the applicant he had no relevant criminal history but, again unlike the applicant, two of the offences were committed whilst he was subject to a recognisance. 18 Hassarati was sentenced to a total term of imprisonment of eighteen months made up of a minimum term of eight months and an additional term of twelve months. That occurred on 29 May 1998. On 31 July 1998, having received an assessment that he was suitable for an order that he serve his imprisonment by way of home detention, Judge Payne made such an order. This is a significantly more lenient sentence than the same sentence served by way of full time incarceration: R v Jurisic (1998) 45 NSWLR 209 at 215. 19 Even if Hassarati had not received the added leniency of an order that his sentence be served by way of home detention, there is a vast discrepancy between the term of imprisonment imposed upon him and the sentence imposed upon the applicant. That discrepancy can only partly be explained or justified by the different findings of fact as to their relative involvements. The description of Hassarati's role in the scheme shows that he was an important manager of one of its branches. I am unable to see how the sentence imposed upon him could legitimately be so much less than that of the applicant. One explanation might be that the sentence imposed on Hassarati is manifestly inadequate but that is not a matter for this court to determine. Hassarati is not here represented and, even bearing in mind that a finding that the sentence was manifestly inadequate could not result in any action prejudicial to Hassarati, it would not be appropriate to make such a pronouncement. 20 The question is whether the disparity is such as to give rise to "a justifiable sense of grievance" in the applicant. (Lowe v R (1984) 154 CLR 606 at, eg, 610), with appropriate emphasis on the word "justifiable": R v Diamond unreported, NSWCCA 18 February 1993. 21 Hassarati was sentenced almost two years before the applicant, but this, far from being a matter which should have operated adversely to the applicant, in fact benefited him because it gave him the opportunity of showing his rehabilitation during that period. Apart from the long gap between the sentencing of the two men, there is no apparent reason for the very substantial disparity. The applicant submits that he was given insufficient credit for his plea of guilty, but this cannot be seen to be so from a reading of the sentencing remarks. In this respect what was said by her Honour in relation to all offenders was virtually identical and is unexceptional. It may be that insufficient credit for the plea of guilty is what underlies the disparity, but this can be determined only as a matter of inference and the inference is not very powerful. However, there must be some explanation and this is possibly one. 22 Hassarati's sentence, even if served in a prison, would have been sufficiently disparate to give rise to concern. It is the more so, given the order that the sentence be served by way of home detention. One of the matters raised on the application concerns the approach taken by the sentencing judge to the question of home detention. At the time she sentenced Hassarati there was authority in this court that an order for home detention was not a matter relevant to a consideration of the adequacy of a sentence: R v Smith (1997) 95 A Crim R 373. Jurisic, which overruled Smith in that respect, was not decided until October 1998, post dating Hassarati's sentencing but pre-dating the applicant's sentencing. Two other benches of this court had reached a similar conclusion (R v Lambrinos, unreported, 17 July 1998, NSWCCA; R v Byrne, (1998) 104 ACrimR 456) but each of these also postdated Hassarati's sentencing. The authority of this court at the time Hassarati was sentenced was, accordingly, Smith. 23 Judge Payne was specifically asked to have regard to parity principles in sentencing the applicant, and her attention was drawn to Hassarati in particular. She concluded that, the view taken by this court in relation to the home detention order having changed in the interim, the applicant could not have a justifiable sense of grievance if she were to impose a sentence substantially different from that she had imposed on Hassarati. 24 I have some difficulty with this conclusion. If all other things are equal, but there has been a relevant change in the case law affecting sentencing, I do not think the principles of parity would ordinarily be affected. On the other hand, if a delay has been brought about by an offender's own actions and a change in the law operates against that offender, he or she may have little cause for complaint. But that is not this case. Her Honour found that the delay was not the fault of the applicant. To the extent that he was entitled to expect to be treated comparably with Hassarati, his entitlement did not change because of a revision of the view taken by this Court about the weight that should be given to an order that a sentence be served by way of home detention. It may, as I have observed, be different if the delay is brought about deliberately by the offender, or for his/her own purposes. It is not possible to be prescriptive. 25 In this respect I am satisfied that her Honour was in error. Further, I am satisfied that the disparity in sentencing cannot adequately be explained or justified by any of the objective or subjective facts. That is not to say that the applicant was entitled to a sentence parallel to that imposed on Hassarati. What he was entitled to was one that adequately reflected his additional involvement but retaining appropriate relativity to Hassarati's. I do not think this was achieved. In Lowe it was acknowledged that there are occasions when the application of the principles of parity will mean that an inadequate sentence is imposed (p612, per Mason J). 26 This is, in my opinion, such a case. The applicant's involvement in this very serious car stealing and rebirthing racket deserved punishment of the dimensions imposed. But, on the face of it, so also did Hassarati's involvement. In my opinion, if there was adequate reason for Hassarati's sentence to be as lenient as it was, then the applicant was entitled to be sentenced relative to that leniency. The fact that no adequate reason for that leniency is apparent does not alter the position. The applicant has made good his claim in relation to the parity argument. Whether discrepancies occurred because of inadequate weight being given to the guilty pleas, or for some other reason, does not matter. Relevant disparity has been established. In my opinion the demands of justice would be met if the applicant were re-sentenced in such a way as to request him to serve a minimum term of twenty-one months and an additional term of seven months. Having regard to the requirements of R v Pearce (1998) 194 CLR 610, I propose the following orders: 1 leave granted to appeal sentences; 2 each appeal allowed; 3 each sentence quashed; 4 in lieu thereof the applicant be re-sentenced as follows: (i) Counts 1 and 2 : imprisonment for a fixed term of six months commencing 28 January 2000 and expiring 27 July 2000, to be served concurrently; (ii) Counts 3 and 4 : imprisonment for a fixed term of six months, to be served concurrently with one another but consecutively upon the sentences imposed on counts 1 and 2, commencing on 28 July 2000 and expiring on 27 January 2001; (iii) Counts 5, 6 and 7 : imprisonment for sixteen months commencing 28 January 2001 and expiring 27 May 2002, with a non parole period of nine months commencing 28 January 2000 and expiring 27 October 2001. I would direct that the applicant be released on parole at the end of the non parole period on 27 October 2001. 27 HOWIE J: I agree with Simpson J. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.