New South Wales Court of Criminal Appeal CITATION : R v Bates [2001] NSWCCA 374 FILE NUMBER(S) : CCA 60613/00 HEARING DATE(S) : 6/8/2001 JUDGMENT DATE : 6 August 2001 PARTIES : Regina (NSW) Jason Benjamin Bates JUDGMENT OF : Dowd J at 1; Smart AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0678 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : Mr PM Winch- Applicant Ms EA Wilkins- Crown SOLICITORS : DJ Humphreys- Applicant SE O'Connor- Crown CATCHWORDS : Appeal against severity of sentence - Attempted armed robbery - Robbery with a dangerous weapon - Parity - Aggravating factors - Justifiable sense of grievance LEGISLATION CITED : Crimes Act 1900 CASES CITED: Lowe v The Queen (1984) 154 CLR 606. DECISION : 1. Application for leave granted; 2. The appeal in respect of count 1 be dismissed and that sentence confirmed, that is, a fixed period of imprisonment of two-and-a-half years, commencing from 10 September 1999 and expiring on 9 March 2002; and 3. In respect of count 2, the appeal is allowed and the sentenced quashed, and in lieu thereof, a sentence of six-and-a-half years is imposed, commencing on 10 March 2001 and expiring on 9 September 2007, with non-parole period of four-and-a-half years, commencing on 10 March 2001 and expiring on 9 September 2005. IN THE COURT OF CRIMINAL APPEAL 60613/00 DOWD J SMART AJ 6 August 2001 Jason Benjamin BATES v Regina (NSW) Judgment 1 DOWD J: The applicant, Jason Benjamin Bates, seeks leave to appeal against the severity of sentences imposed by His Honour Nield DCJ in the District Court in respect of two offences contrary to s97(2) of the Crimes Act 1900 ('the Act'). 2 This is a parity appeal being essentially the only matter argued. The first of the offences was an attempted armed robbery committed with a dangerous weapon, the second of the offences was robbery with a dangerous weapon; the penalties for both offences being twenty-five years imprisonment by virtue of the fact that an attempt carries the same penalties as the offence itself. 3 The applicant was sentenced to imprisonment as, indeed, was his co-offender, Earl, the first sentence being to date from 17 September 1999, a sentence of two-and-a-half years to expire on 16 March 2002, for the attempted robbery. On the robbery charge, the applicant was imprisoned for a period of seven-and-a-half years to commence on the 17 March 2002 and to expire on 16 September 2009, with a non-parole period of five years, commencing on 17 March 2002 and expiring on 16 September 2007. The applicant has been in custody since arrest and charged on 10 September 1999. 4 The first attempted robbery was on a TAB agency, being on 7 September 1999, that being unsuccessful because access was denied to the area where the money was kept. The co-offender, Earl, discharged a sawn-off shotgun he was carrying, shooting at the lock area of the door that was between him and the area where the cash was kept. 5 The second robbery was at a bank at Crows Nest. The co-offender Earl was carrying the loaded shotgun, but did not fire it on that occasion. A considerable amount of money was taken. Both the applicant and the co-offender were arrested in the vicinity of the bank and gave interviews to the police admitting involvement in the bank robbery. 6 The first ground of appeal is that the sentence imposed on the applicant was identical to that imposed on the co-offender, and there was therefore a justifiable sense of grievance on the part of the applicant arising from the fact of parity and the lack of disparity in the light of the roles taken by each of them. 7 On sentence, Earl had taken into account on a Form 1, three offences. The first was stealing a motor vehicle between 1 March and 30 April 1999; the second was causing danger with a firearm by firing a double-barrelled shotgun at the TAB office at Burwood South on 7 September 1999 in a manner likely to injure an officer of that Institution; and thirdly, possessing an unauthorised firearm, namely, a sawn-off shotgun at Crows Nest on 10 September 1999, when not being authorised by licence or permit to do so. 8 There is little contest as to the circumstances in which the offences were committed. The argument put by the applicant is that the sentences should have significantly differed because of the more significant role of the older man Earl in the two offences, and the failure to take into account in the sentence of Earl the Form 1 matters that I have referred to. 9 Of those Form 1 matters, the maximum penalty for the third offence is ten years. The nature of the charge against Earl was at the highest level of seriousness available within s93G(1)(c)of the Act, and therefore, the applicant puts to the Court that the charge should have resulted in an increased sentence against Earl, when those matters are taken into account. 10 It is put by the Crown that His Honour did in fact take those matters into account, as His Honour referred to them in his Remarks on Sentence. However, other than His Honour saying that the matters were taken into account, His Honour has not indicated the manner in which those matters were taken into account in the sentence that was imposed. 11 The High Court in Lowe v The Queen (1984) 154 CLR 606, and in particular, Brennan J (as he then was), at p 617, held that there is no rule of law that co-offenders be given the same sentence for the same offence: "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly, the imposition of disparate sentences on co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time". 12 Indeed, that is what occurred here. His Honour had a difficult task in the sentencing process, and indeed took into account the fact that the applicant had a significantly heavier record than the co-offender Earl and, in particular, took into account the aggravating factor, which is a very real matter, that the applicant was on a recognisance at the time of the offence. His Honour also took into account that the applicant was armed with a knife or screwdriver whilst Earl was armed with a loaded shotgun. 13 The Crown submits that His Honour, in weighing up the different factors, took into account proper matters in determining that there should be parity of sentence between the two parties. His Honour carefully considered the differences between the two prisoners, the criminal records and the relevant roles of the parties. It is however clear, although the applicant is no longer a juvenile, that in terms of the roles of Earl and the applicant, Earl clearly was the instigator and the applicant the accomplice. Notwithstanding that it was a joint criminal enterprise, it was Earl that gave instructions which the applicant carried out, and it is clear, on Earl's evidence, that he was in charge of the operation. 14 It appears to me that taking into account, firstly, the fact of the disparate roles of the two parties, notwithstanding that the applicant was in breach of a recognisance, that the cumulative effect of the greater role taken by Earl and the clear error of His Honour in reflecting in his sentence the Form 1 matters as showing a disparity between the two parties, that the applicant is entitled to have a sense of grievance in terms of the authorities in relation to parity. It appears to me that the sentences should have reflected the disparity of the roles and the seriousness of the offence, and that therefore this Court should intervene. 15 In terms of intervention, it is my view that His Honour very carefully examined the circumstances of the applicant and the serious matters in terms of his record. Since that time, the applicant has shown, as indicated in his affidavit of 27 July, considerable application in applying himself to develop and use the skills which he has acquired, and has demonstrated a considerable responsibility in terms of the courses that he has undertaken and the responsible way he has gone about his prison duties. I also take into account the high standard of his results in his academic record at the South-Western Sydney Institute and the Certificates of Achievement. I also take into account the evidence of Ann Maree Sheehan, and the comment upon the application of the applicant to his duties within the prison system and the reference provided for him. 16 It is my view that the Court should re-sentence the applicant, and in so doing, the Court should not only reflect the seriousness of the offences, but should reduce the overall sentence of the applicant and should also reduce the non-parole period, and in that respect, I propose that he be re-sentenced in respect of the second offence, and in that sentence special circumstances will be reflected; the reason for the special circumstances being the fact that the parole period in the second sentence will take into account the fact that the first term is a fixed term. 17 Accordingly, I propose the following: (a) That the application for leave be granted; (b) That the appeal in respect of count 1, the attempted robbery count, be dismissed and that sentence confirmed, that is, a fixed period of imprisonment of two-and-a-half years, commencing from 10 September 1999 and expiring on 9 March 2002; and (c) In respect of the second count, I would allow the appeal and quash the sentence, and in lieu thereof, impose a sentence of six-and-a-half years and, in using the powers under s55 of the Crimes (Sentencing Procedure) Act 1999, to partly accumulate and render the sentence partly concurrent, that the applicant be imprisoned for a term of six-and-a-half years, to commence on 10 March 2001, that is, partly concurrent for one year, expiring on 9 September 2007, with a non-parole period of four-and-a-half years, commencing on 10 March 2001 and expiring on 9 September 2005. 18 SMART AJ: I agree. 19 DOWD J: The orders of the Court will be as I have proposed. oOo 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.