New South Wales Court of Criminal Appeal CITATION : R v Haines [2001] NSWCCA 111 FILE NUMBER(S) : CCA 60272/00 HEARING DATE(S) : 23 March 2001 JUDGMENT DATE : 30 March 2001 PARTIES : Regina v Jade Andrew Haines JUDGMENT OF : Studdert J at 1; Barr J at 40 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0164 LOWER COURT JUDICIAL Kinchington DCJ OFFICER : COUNSEL : W.L. Robinson QC (Crown) T.J. Golding (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LEGISLATION CITED : Crimes Act Drug Misuse and Trafficking Act R v Ehrenburg (unreported, NSWCCA, 14 December 1990) Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Postiglione v The Queen (1997) 71 ALJR 875 R v Diamond (unreported, NSWCCA, 18 February 1993) R v Reardon (1996) 89 A Crim R 180 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60272/00 STUDDERT J BARR J Friday 30 March 2001 REGINA v JADE ANDREW HAINES JUDGMENT 1 STUDDERT J: Jade Andrew Haines pleaded guilty before his Honour Judge Kinchington QC to two charges of robbery in company, one charge of stealing from the person and one charge of cultivating a prohibited plant. The judge imposed sentences as follows: - for the two offences of robbery in company, sentences of five years six months to be served concurrently, with a minimum term of two years six months to commence on 7 March 2000; - for the offence of steal from the person, his Honour imposed a fixed term of imprisonment of two years, also to commence on 7 March 2000; - for the offence of cultivating a prohibited plant, his Honour imposed a fixed term of twelve months to commence on 7 March 2000. 2 The offences of robbery in company were offences for which s 97 of the Crimes Act imposes a maximum penalty of twenty years imprisonment. For the offence of stealing from the person, s 94 of the Crimes Act imposes a maximum penalty of fourteen years imprisonment. For the offence of cultivating a prohibited drug, s 23(1) of the Drug Misuse and Trafficking Act imposes a maximum penalty of ten years imprisonment. 3 The applicant seeks leave to appeal against the severity of the above sentences. The application was lodged out of time, but the Crown does not oppose the application for an extension of time for the necessary lodgment, and the Court grants the necessary extension of time. 4 I draw on the reasons for sentence expressed by the sentencing judge in recording the objective facts. 5 The offences of robbery in company and the offence of stealing from the person were committed shortly after midnight on 14 February 1998 near the Moree Leagues Club. A patron named Kenneth Wright left the club and the applicant and other men approached him asking for a cigarette. However, when Mr Wright endeavoured to walk away, the applicant ran behind him and karate-kicked him in the back, causing him to fall to the ground. The victim was then set upon by other members of the group and his wallet was taken from his pocket. The victim regained his feet and attempted to escape but was tackled from behind and he was repeatedly kicked and punched by the applicant and other members of the group. Mr Wright made his escape when a member of the public intervened. The victim required hospital treatment to address the injuries sustained. 6 Shortly after the attack on Mr Wright, Guerther Koessner also left the leagues club and was set upon in much the same fashion. The sentencing judge found that the applicant led the attack by karate-kicking him in the back and knocking him to the ground. This victim also got up and tried to walk away but was again karate-kicked by the applicant. He was then surrounded by the applicant and his companions and demands were made for his money. He rose from the ground but fell down again after the applicant delivered another karate kick. This victim was again set upon, and kicked and punched by the group. Eventually he made his escape when two of his friends came to his aid. In that attack he had money taken and sustained physical injuries. He wore spectacles and these were broken and stood upon. 7 The attack on Mr Koessner was observed by two friends, Russell Lane and Lorna Ellis. When they went to his aid Mr Lane took into his possession Ms Ellis' handbag for safe keeping but the applicant approached Mr Lane demanding the handbag from him and threatened if he did not release it "they are going to roll you for it". The applicant then grabbed the bag from Mr Lane and removed a wallet which contained cash, a driver's licence and other personal items. 8 The applicant was fairly quickly apprehended because he was known to and recognised by Mr Lane. 9 In the course of the interview which took place when the applicant was taken to the police station later the same day, he told the police he had no recollection of the events above considered because he had been drinking and taking drugs. In the course of the interview he admitted he was growing his own cannabis and that he had at that time two plants under cultivation. He declined to say where they were because he wanted the plants to be there when he was released from custody. 10 The applicant was born on 19 June 1977 so that he was twenty-two years of age when he was sentenced for these offences on 7 April 2000. He has a bad criminal record with convictions for driving offences, drug abuse, assault and offences of dishonesty. At the time these offences were committed, he was on a recognizance following his conviction on a charge of possessing implements to enter a conveyance. 11 The sentencing judge accepted that the applicant came from a disadvantaged background with a dysfunctional family environment and that he had a drug and alcohol problem. The judge also accepted that the applicant had mental health problems which were identified in hospital records placed before the court. Before this Court, the applicant sought to rely upon further evidence, being annexures to an affidavit declared and affirmed by Catherine Ridge on 21 March 2001. The annexures to that affidavit consist of a report from Dr Nielssen dated 28 March 2000, handwritten notes from the doctor and a report from Ms Webber from the Kevin Waller Therapeutic Unit dated 17 November 2000. Mr Golding, who appeared for the applicant, submitted that the evidence was admissible as explaining that which was less well understood at the time of sentencing, namely the nature of the applicant's mental health problems. In making this submission, reliance was placed upon the decision of this court in R v Ehrenburg (unreported, NSWCCA, 14 December 1990). The report of Dr Nielssen dated 28 March 2000 was obviously prepared for the proceedings before the sentencing judge, but although it was addressed to the Clerk of the District Court at Moree it did not come to the notice of the sentencing judge. The Crown very properly did not, in the circumstances, oppose the application and the additional evidence is received as fresh evidence to be considered on the application for leave to appeal against sentence. 12 Having considered that fresh evidence, it does not seem to me to add greatly to what the sentencing judge had before him. Whilst his Honour did not define the mental health problems of the applicant, he recognised their existence and it is plain from his remarks that he took them into account for sentencing purposes. Indeed, they were a factor in his finding of special circumstances. It is clear that Dr Synnott, whose reported dated 28 February 2000 the sentencing judge did consider, had in mind that the applicant may be suffering from a schizo-affective disorder, which is "characterised by a contribution of symptoms from both bipolar affective disorder and schizophrenia." 13 Dr Nielssen concluded his report of 28 March 2000: "No information was available about the alleged offences. His low intelligence, drug abuse and psychotic symptoms probably all contributed to his behaviour." 14 For my part, I find it difficult to reconcile the content of the two sentences set out above and it has not been made clear how the condition diagnosed by Dr Nielssen played a causative role in the criminal behaviour of the applicant. 15 Assessment of the fresh evidence now introduced would not of itself cause me to conclude that the sentences imposed in the District Court were inappropriate. 16 Mr Golding properly conceded that the assessment of the sentencing judge that the robbery and stealing offences were extremely serious was correct. He recognised the aggravating circumstances here, that the applicant was on a good behaviour bond, and in addition that he was at the time these offences were committed serving an additional term of six months imposed by the Moree Local Court in respect of an offence of enter with intent to commit an indictable offence. 17 However, the applicant submits that the sentencing process miscarried in his case because of the manner in which a co-offender, Bradley Maxwell Pitt, had been dealt with when he came before the court charged with the same offences but for the offence of cultivating the prohibited plant. 18 The applicant and the co-offender Pitt had been arraigned on a joint indictment before Judge Hosking SC in November 1999 in respect of the two counts of robbery in company and the count of stealing from the person. Both offenders pleaded guilty and Judge Hosking proceeded to sentence the offender Pitt whilst the sentencing proceedings for the applicant were adjourned and dealt with by Judge Kinchington in the following April. 19 Pitt received a lesser sentence than the applicant. Judge Hosking sentenced Pitt to three concurrent terms of penal servitude for two years, setting a minimum term of twelve months in each case. 20 It is submitted that this disparity leaves the applicant with a justifiable sense of grievance by reason of the parity principle referred to in Lowe v The Queen (1984) 154 CLR 606 and further considered in Postiglione v The Queen (1997) 71 ALJR 875. 21 Judge Kinchington was alert to the earlier sentences imposed on the co-offender Pitt and he considered the parity principles and their application. His Honour said as to this when passing sentence (ROS 9): "To my mind the principles of parity generally and as discussed in those two authorities and in the written submissions of Ms Yehia in this case do not require me to approach the sentencing task entrusted to me otherwise than I have done in these proceedings, firstly because I am satisfied from the evidence placed before me in these proceedings establishes that role you played in the confrontation of your three victims was a leadership one which displayed such aggressive behaviour on your part that it undoubtedly set the tone or yardstick for the violence that each of your victims was subject to on this night by the group as a whole, secondly even though it can be said that there is some considerable disparity between Pitt's sentence and the sentences I have subject you to in these proceedings that disparity has been brought about because of the greater criminality displayed by you in the commission of these offences and that in these circumstances that disparity should [not?] give rise to a JUSTIFIABLE sense of grievance on your part and thirdly, because in fixing those sentences I have taken into account what happened to Pitt and that but for Pitt's sentence I would have fixed an overall sentence in respect of the two robbery in company offences in the range of 6 and a half to seven years imprisonment with a minimum non parole period of 3 and a half years." 22 It is submitted by Mr Golding, notwithstanding his Honour's recognition of the parity issue that the sentences were so disproportionate that the judge must have failed to apply the relevant principles in an appropriate way. It was submitted that whilst the applicant was found to be the person who led the attacks, Pitt was nevertheless involved in the violence that followed and that the different degrees of participation of the two offenders did not warrant the difference in the penalties imposed. So far as the subjective features were concerned, both offenders were on good behaviour bonds at the time of these offences and both offenders had previous criminal histories. The applicant was the younger of the two offenders by some three years. Both men came from dysfunctional backgrounds and in the applicant's case there was medical evidence that the applicant had a schizophreniform psychosis secondary to abuse of cannabis with a damaged mental capacity. No such feature was present in the case of the offender Pitt. 23 In Postiglione Dawson and Gaudron JJ in their joint judgment said at 878: "However, the parity principle, as identified and expounded in Lowe v The Queen (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance' (Lowe v The Queen (1984) 154 CLR 606 esp at 610, per Gibbs CJ; at 613, per Mason J; at 623, per Dawson J. . If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co- offenders in question and their different degrees of criminality." 24 The Crown has submitted that there was no lack of due proportion, bearing in mind the different degrees of criminality and the different circumstances of the co-offenders. So far as the offences themselves were concerned, his Honour found that the applicant played a leadership role in the commission of the offences and that finding is not here open to challenge. The applicant instigated the attack against each of the victims of the robbery in company. He instigated the attack in a savage way with karate-style kicks, and this set the tone of violence for the attacks that followed and in which his companions joined, including Pitt. 25 I accept the submission made by the Crown that it was the applicant that set the tone of violence for these attacks. In relation to the third count, it was the applicant who snatched away the handbag from Mr Lane and who took the contents from it. 26 The fourth count concerned the applicant's offence and the applicant's offence alone. The applicant described the plants as six feet in height approximately and that he tended to the plants on a regular basis and took the buds off those plants on a weekly basis. This fourth count was not insignificant. 27 There were also points of distinction in the subjective features of the two offenders. True it is that the offender Pitt was on a recognizance when these robberies took place and so too was the applicant, but there was the added circumstance that the applicant was in the course of serving an additional term when these offences were committed. This feature was referred to in R v Jones (unreported, NSWCCA, 30 June 1994) as "a matter of major aggravation". That is not to say that the feature that Pitt offended whilst on a recognizance was not a matter of significant aggravation in his case but there was the added feature of aggravation with the applicant. 28 One of the matters that influenced Judge Hosking in imposing the sentence which was imposed on Pitt was that offender's expression of remorse to the Probation and Parole Officer whose report was placed before that judge, his insight into his alcohol problems and his willingness to undertake a course in the form of an alcohol and drug awareness programme conducted by the Probation and Parole Service. 29 By way of contrast, the report of the Probation and Parole Service placed before Judge Kinchington was an unfavourable one. The applicant attended for his initial interview on 22 February 2000 but that was terminated when the applicant appeared to lose concentration. The applicant failed to keep an appointment set for the following day and he failed to keep a further appointment set for the following week. It is fair to say that the Probation and Parole report in his case was generally unfavourable. 30 Concerning their antecedents, whilst Pitt's record was not a good one, there is absent from it the features of violent behaviour, including the multiple counts of assault for which the applicant was convicted at the Local Court at Moree in August 1997, malicious damage and the counts of intimidation. 31 As the extract from the sentencing judge's remarks on sentence disclose (repeated at para 21 above), his Honour was alert to the parity issue and considered it, accounting for the difference in the approach that he took to his sentencing task compared with that earlier undertaken for the offender Pitt. 32 Bearing in mind those matters of distinction to which the Crown referred and which I have endeavoured to record, is there that "due proportion" between these two sentences which Postiglione emphasises is required? 33 The applicant was in custody for six months before he was granted bail. When that period in custody is added to the effective sentences set, the applicant will be required in all to spend at least three years in custody for these offences, and to that is to be added the additional term of three years. This means that, effectively, the sentence of the applicant is the equivalent of three times that of the sentence for Pitt, and so too is the non parole period. 34 I have concluded that, whilst making allowance for the distinctive features for the two offenders, the learned judge has imposed a sentence on the applicant which is disproportionate to that imposed on Pitt. 35 When sentencing the applicant, his Honour remarked that to his mind Pitt was dealt with "extremely leniently". However, there was no Crown appeal in the case of Pitt so that his sentence remains undisturbed. Indeed, the minimum term has now expired and the additional term will expire in November. 36 But for a consideration of Pitt's sentences, I would regard those sentences imposed upon the applicant as entirely appropriate. The question arises as to whether this Court should exercise its discretion to reduce the applicant's sentences to avoid disparity with the sentences imposed upon Pitt. This Court would not necessarily intervene in a case where a sentence to which comparison is invited is obviously inadequate. As was recognised in R v Diamond (unreported, NSWCCA, 18 February 1993), there is a stage at which the inadequacy of the lower sentence may be so obvious that any sense of grievance engendered by comparison with it could not be regarded as a legitimate sense of grievance. See also R v Reardon (1996) 89 A Crim R 180. However, whilst I regard the sentences which Pitt received as lenient, I do not regard them as being lenient to the point where I would decline to intervene on this application. In my opinion, because of the lack of due proportion between the sentences of Pitt and the applicant, this Court should now exercise its discretion in the applicant's favour. 37 In re-sentencing the applicant, due allowance is to be made for the relevant differences recognised by the sentencing judge and considered in the course of this judgment. In my opinion, his Honour's finding of special circumstances was appropriate for the reasons he identified and I am satisfied that there are such special circumstances for the purposes of re-sentencing. 38 Having regard to the period of six months spent in custody before the applicant was granted bail, I would propose that the applicant be re-sentenced on the first and the second counts to a term of four years imprisonment with a non-parole period of one year nine months and an additional term of two years three months. I would set a fixed term of imprisonment in respect of the third count of one year and nine months. I would not disturb the sentence imposed for the fourth count. 39 Accordingly, I propose these formal orders: 1. That leave to appeal be granted; 2. That the appeal be allowed and that the sentences imposed in respect of the first, second and third counts be quashed; 3. In lieu of the sentences imposed on the first and second counts the applicant be sentenced to a term of imprisonment of four years to commence on 7 March 2000 and to expire on 6 March 2004 with a non parole period of one year nine months to commence on 7 March 2000 and to expire on 6 December 2001. 4. In lieu of the sentence imposed on the third count, a fixed term of imprisonment of one year nine months to commence on 7 March 2000 and expire on 6 December 2001. 5. The sentence on the fourth count to remain undisturbed. 40 BARR J: I agree with Studdert 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. 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