Regina v Swan [2000] NSWCCA 114

New South Wales Court of Criminal Appeal

CITATION : Regina v Swan [2000] NSWCCA 114 FILE NUMBER(S) : CCA 60093/99 HEARING DATE(S) : 22/03/00 JUDGMENT DATE : 22 March 2000

PARTIES : Regina v Anthony Dean Swan JUDGMENT OF : Abadee J at 1; James J at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0525 LOWER COURT JUDICIAL Twigg DCJ OFFICER :

COUNSEL : M. Grogan - Crown Ms R. Burgess - Appellant SOLICITORS : S. E. O'Connor - DPP T. A. Murphy - Appellant

LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Henry (1999) 46 NSWLR 346 DECISION : The orders of the court that I would propose are as follows:; The applicant should be granted leave to appeal; the appeal should be allowed; the sentence should be quashed and, in lieu thereof, the applicant should be sentenced to 3 years' penal servitude consisting of a minimum term of 18 months to commence on 13.1.1999 and to expire on 12.7.2000 together with an additional term of 18 months to commence on 13.7.2000 and to expire on 12.1.2002. The prisoner is to be released for parole on 12.7.2000.; It is appropriate for me to also find that special circumstances exist justifying the change in the statutory proportions and those special circumstances involve the need for a longer term of rehabilitation for the applicant.

IN THE COURT

OF CRIMINAL APPEAL

60093/99

ABADEE J JAMES J

WEDNESDAY 22 March 2000

REGINA v Anthony Dean SWAN

JUDGMENT 1 ABADEE J: On 26 February 1999 before District Court Judge Twigg the applicant adhered to a plea of guilty to one count of robbery in company under s 97 of the Crimes Act 1900. The maximum penalty for that offence is twenty years penal servitude. He asked that three matters be taken into account on a form 1 involving stealing a mobile phone, common assault and failure to appear. 2 The applicant was sentenced to four years penal servitude commencing on 13 January 1999 comprising a minimum term of two years and an additional term of two years. His Honour also directed conditions for parole. There does not appear to be any dispute before the Court that the conditions should not have been imposed and so much appears to be a common view. 3 On the same day his co-accused, Gene Griffiths, date of birth 15 August 1994 and of the same age as the appellant, pleaded guilty to the same offence. She also asked that a breach of a four-year recognisance imposed in 1996 for an offence of stealing from the person under s 94 of the Crimes Act 1900 be taken into account. His Honour sentenced her to three years' imprisonment comprising a minimum term of eighteen months and an additional term of eighteen months and directed no action on the breach of recognisance because of the penalty imposed in relation to the robbery. 4 Gene Griffiths was thus given a sentence which resulted in her receiving a minimum term of six months less than that received by the applicant, or one year, if one is looking at the total sentence. 5 His Honour did not give full reasons for the decision and there is some difficulty that we have fairly encountered in relation to why there was in fact a different sentence imposed upon the woman, Griffiths, as opposed to the sentence that was imposed upon the applicant. 6 The circumstances, it may be briefly stated, were that at 7.30pm on 5 August 1998 the victim's father gave the young boy, Steven Groves, a thirteen-year-old boy, a sum of $50. It appears during the evening the young boy walked through a vacant lot in Wilga. There he saw the applicant, the applicant's girlfriend Gene Griffiths, and the applicant's nephew, Ian Swan, a boy aged about thirteen years of age. The applicant asked him if he wanted to buy a pair of Adidas shoes for $20. In any event what occurred may be summarised as follows: the young victim claims he was punched, he dropped to the ground and that the $50 was taken from him. 7 Subsequently the victim was taken to the Moree Police Station where he was observed to have cuts and minor injuries to his lips. 8 Clearly, on any view, what occurred to the young victim must have been a somewhat horrifying, frightening experience. The young victim was aged thirteen. It was evening in a vacant area and, as the young victim said, he was frightened, he was crying and considerably distressed, which is not altogether surprising. In addition he was also punched. 9 However, what was considerably in dispute at the trial and what was never resolved by his Honour was who in fact actually punched the victim. There was some dispute as to whether or not it was the applicant or whether or not it was the young thirteen-year-old. Thus it was a matter in issue as to who delivered the punch or physically assaulted the young boy. It was not resolved because, at the commencement of the sentencing proceedings, no adjournment was granted by his Honour to enable all witnesses to be called for purposes of enabling the issue to be determined one way or the other, at least in terms of how he struck the victim. 10 As I have said it is common ground, and so much appears, that the victim was struck but whether by the applicant or the thirteen-year-old boy his Honour was unable to say, and did not consider it necessary to say. 11 At p 7 of his Honour's reasons his Honour ultimately came to the conclusion that he did not consider that it really mattered one way or the other who did the striking. As there was a common purpose alleged the plain facts were, as he considered, that all three of them were a party to robbing in company the victim. It was on this basis that his Honour then proceeded to sentence. 12 The point that is made by the applicant's counsel is that on the basis that all three of them were part of a plan to rob in company, and upon the basis that it could not be proved beyond reasonable doubt as to who struck the punch then, on proper analysis, what his Honour was deciding was that the objective circumstances of the offence were indeed the same objective circumstances relevant to the sentencing of both co-accused or, to put it another way, that once his Honour considered that it was inappropriate to determine who struck the punch, that the objective facts relating to the offence could not be distinguished as between Miss Griffiths and the applicant. It appears that it is the case, that when it came to the matter of sentencing, his Honour, in the result, was really unable to draw a distinction between the culpability of the applicant and the culpability of Miss Griffiths. 13 In my view I consider that this particular submission by the applicant's counsel has been made good. What has been submitted here is that there was a disparity in the sentences imposed upon the applicant and Miss Griffiths giving rise to a sense of legitimate grievance having regard to parity principles which are well known and well established. Once one puts to one side the fact that the objective circumstances of each are similar then the question is whether, having regard to principles of parity, his Honour was entitled to consider that perhaps the subjective features pertaining to Miss Griffiths warranted the imposition of a sentence less than that which was imposed upon the applicant. 14 The Court is looking at a situation of a difference of some twenty-five per cent between the two sentences that were imposed. It has been submitted by and on behalf of the applicant that, on close examination and analysis allowing for of course different emphasis on different matters that, really, there is little to be seen in terms of distinction between the subjective features involving the case of Miss Griffiths and the subjective features involving the case of the applicant. 15 Without submitting that argument to closer detailed scrutiny it seems to me, that nevertheless having regard to the matters that have been pointed out in the written submissions and having regard to the matters that have been taken up and submitted verbally by both counsel for the applicant and counsel for the Crown, that there is some considerable difficulty in determining why, in the circumstances of this particular case, the subjective features in a real sense are in fact different in the case of the applicant from that involving Miss Griffiths. As I have said, there are differences to be made in emphasis but, removing those emphasised differences, I am of the view, when one is looking at the subjective features, that there is some similarity between the two cases. 16 It seems, therefore, that, in the circumstances, the applicant has made out a case for intervention by this Court and has established that there is a justifiable sense of grievance having regard to parity principles when considering the sentence imposed upon the co-accused. That seems to lead inevitably to the conclusion that there should be a re-sentencing and there should be a re-sentencing to put the two sentences, really, in the same category of parity. 17 However, the applicant has also submitted that that would still create a situation whereby the sentence involving a three-year sentence would still be manifestly excessive. 18 We have been taken to some of the passages in the Chief Justice's judgment in R v Henry (1999) 46 NSWLR 346, particularly pp 380 and 381. It is not necessary to submit those passages to close scrutiny. What was being propounded in Henry's case was a guideline judgment in respect of an offence which involved the first part of s 97(1) of the Crimes Act 1900 and not the second part dealing with robbery in company. Nevertheless, having regard to some of the matters that the Chief Justice touched upon on p.303.1 there are nevertheless serious matters of some serious concern in the instant case. 19 True, in the instant case no weapon was utilised and true, perhaps there was a limited degree of planning or premeditation. However, actual violence was committed and actual violence was committed upon a young lad who was going about his own business and could expect he should be permitted to do so in safety. He was confronted by three people, a man and woman of the same age and a co-accused of the age of thirteen, but he was confronted in a dark area of a township where he was defenceless where, without provocation, he was assaulted and put in considerable fear. For a young person what he underwent I would have thought was something that would be a highly frightening experience. 20 I am not satisfied that a sentence of three years, even if one was to reduce the sentence to that of parity with the co-offender, would, in all the circumstances of this particular case, be one that should be regarded as being inappropriate. Indeed, having regard to the matters that his Honour did find, having regard to the matters that I have referred to and it is appropriate that I should do so since on a re-sentencing it is necessary for the Court to consider the matter afresh, I believe that, in the result, a re-sentence should result in a similar sentence to that which was imposed upon the co-accused. I also add that, in coming to that conclusion, I have had regard to the materials that have been put before the court relating to the applicant's behaviour and progress since his incarceration. For all these reasons I am, therefore, of the opinion that this court should re-sentence. 21 The orders of the court that I would propose are as follows: 22 The applicant should be granted leave to appeal; the appeal should be allowed; the sentence should be quashed and, in lieu thereof, the applicant should be sentenced to three years' penal servitude consisting of a minimum term of eighteen months to commence on 13 January 1999 and expire on 12 July 2000 together with an additional term of eighteen months to commence on 13 July 2000 and to expire on 12 January 2002. The prisoner is to be released for parole on 12 July 2000. 23 It is appropriate for me to also find that special circumstances exist justifying the change in the statutory proportions and those special circumstances involve the need for a longer term of rehabilitation for the applicant. They are the orders that I would propose. 24 JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour.