New South Wales Court of Criminal Appeal CITATION : REGINA v. LEONARD [2000] NSWCCA 28 FILE NUMBER(S) : CCA 60212 of 1999 HEARING DATE(S) : Wednesday 23 February 2000 JUDGMENT DATE : 23 February 2000 PARTIES : REGINA v. LEONARD, Alfred Archibald JUDGMENT OF : Grove J at 15; Greg James J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1220 LOWER COURT JUDICIAL Luland, DCJ. OFFICER : COUNSEL : Crown: D.C. Frearson App: R. Burgess SOLICITORS : Crown: S.E. O'Connor App: T.A. Murphy CATCHWORDS : Criminal law - appeal - sentence - disparity LEGISLATION CITED : Crimes Act 1900 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL No. 60212 of 1999 CORAM: GROVE, J. GREG JAMES, J. WEDNESDAY 23 FEBRUARY 2000 REGINA v. ALFRED ARCHIBALD LEONARD JUDGMENT 1 GREG JAMES, J: Application for leave to appeal against sentence is brought in respect of sentences imposed by His Honour Judge Luland in the District Court after pleas of guilty entered by the applicant to two charges, the first, accessory after the fact to robbery, an offence punishable by a maximum of five years' imprisonment and the second, assault on a police officer, an offence punishable by a maximum of seven years' imprisonment. 2 The appellant has a long and appalling criminal record. Nonetheless, as has been pointed out on this appeal, prior to the matters for which he was sentenced that record is one which had shown some signs of improvement. 3 His Honour, when he came to sentence, reviewed shortly the facts of the commission of the offences. It is not necessary on this appeal to set them out in detail, save that the appellant had accepted a lift with one Timothy Peckham. It turned out that lift was in a stolen vehicle. He was driven by Peckham to the Riverstone RSL and was sitting in the car at a time at which Peckham robbed an elderly lady of her handbag occasioning her some injuries. In panic, when Peckham returned to the vehicle, the applicant drove them both away from the scene. When pursued by police he abandoned the vehicle. Chased by a police officer he struck the police officer in the right eye with his fist. He was overpowered and arrested. 4 When interviewed he not only admitted his complicity in the offence to which he eventually pleaded guilty but nominated Peckham and gave information which enabled Peckham to be apprehended. 5 Peckham in due course was charged and came before his Honour for sentence having pleaded guilty to aggravated robbery under s.95 of the Crimes Act 1900, a crime carrying a maximum penalty of 20 years' penal servitude and the offence of take and drive a conveyance without consent, which carried a maximum sentence of five years, being an unlicensed driver was also taken into account. 6 At the time at which Peckham committed these offences he was on parole for the offence of robbery with wounding and had been granted bail. He had also committed the further offence of break, enter and steal which carried a maximum offence of 14 years' penal servitude to which he had pleaded guilty and he had been in custody for some time prior to sentence. His parole had been revoked. 7 The learned District Court judge sentenced Peckham in respect of those offences on the break, enter and steal to a fixed term of 18 months' penal servitude to date from the date of his arrest and, on the aggravated robbery, to a sentence totalling five years' penal servitude comprising a minimum term of three years and an additional term of two years and a fixed term of 12 months which was concurrent with a sentence imposed in respect of the offence of take and use motor vehicle. 8 It is apparent that Peckham's culpability was greatly in excess of that of the present prisoner and that the offences he had committed were offences punishable by a greater maximum. 9 It has been submitted on the applicant's behalf in succinct and carefully prepared submissions that the learned trial judge fell into error in the sentence that he imposed on the applicant. In particular, although s.444B of the Crimes Act requires the consideration of a reduction in sentence on a count of assistance to authorities, his Honour did not expressly refer to the nomination of Peckham when the applicant had been arrested and the provision of information as to the commission of the offence. Although his Honour did expressly refer to and take into account the applicant's plea of guilty. The fact that his Honour made no mention of the nomination of Peckham does tend to suggest that, whilst his Honour may have been aware of the fact, his Honour failed to take it into account in the sentence that he eventually imposed. It is, of course, much better practice, bearing in mind the statutory injunction to take the matter into account, that it be expressly referred to. 10 Further, when one compares the sentence imposed on Peckham and his culpability with the sentence imposed upon this applicant one cannot but be of the view that the applicant might well have a justifiable sense of grievance and that, in that sense, the sentences are disparate. 11 For my part I would see those matters as errors which taint the total sentences imposed. I would not find it necessary to consider, in the overall circumstances, as to whether this sentence is, considered discretely from the other alleged errors, in error by being manifestly excessive, as was submitted. 12 Nor would I find it necessary, as I am of the view his Honour fell into error in the respect I have mentioned, to consider whether his Honour further erred in failing to find special circumstances. I am of the view that there are here clearly to be found special circumstances in the accumulation of the sentences, in the evidence that was before his Honour, which it is not necessary for me to recite, and in the evidence which has been tendered by way of the affidavits of the applicant and his spouse, which accord with the material that was before his Honour as to the family circumstances of the applicant. All of these are such as to show the appropriateness for extended supervision to assist the applicant's coping skills, particularly since there appear to be prospects of rehabilitation as evidenced by his concern for assisting his family to cope with difficult circumstances. 13 I would, therefore, consider that leave to appeal should be granted and the appeal allowed, that the sentence below should be quashed on the count of accessory after the fact, that is, count one and, in lieu thereof, the applicant should be sentenced to 10 months' imprisonment to commence 2 August 1999, comprising a minimum term of seven months which would expire on 1 March 2000, and an additional term of three months. That would require a directed release on parole on 1 March 2000. 14 The orders I would propose, therefore, are, grant leave to appeal, allow the appeal, quash the sentence below on the first count and in lieu thereof sentence the applicant to 10 months' imprisonment comprising a minimum term of seven months commencing on 2 August 1999 and expiring on 1 March 2000, with an additional term of three months. I direct release on parole on 1 March 2000. 15 GROVE J: I agree with the judgment of Greg James, J. and with the orders he proposes. Those orders, therefore, will be orders of the court. 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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