New South Wales Court of Criminal Appeal CITATION : R v BRIDGES [2001] NSWCCA 92 FILE NUMBER(S) : CCA 60237/99 HEARING DATE(S) : 21/03/2001 JUDGMENT DATE : 21 March 2001 PARTIES : REGINA v Alan Graham BRIDGES JUDGMENT OF : Dowd J at 29; Barr J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0227 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : Crown: LMB Lamprati Applicant: RJ Button SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys CASES CITED: Lowe v The Queen (1984) 154 CLR 606 DECISION : Leave to appeal granted; Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60237/99 DOWD J BARR J Wednesday, 21 March 2001 REGINA v Alan Graham BRIDGES JUDGMENT 1 DOWD J: The Court is in a position to give judgment. I ask Barr J to give the first judgment. 2 BARR J: Alan Graham Bridges seeks leave to appeal against a sentence imposed upon him in the District Court. On 2 March 1999 the applicant pleaded guilty before Ducker DCJ to a charge that on 14 October 1995 at Pillar Valley he broke and entered a dwelling house and robbed the occupant in circumstances of special aggravation. The maximum penalty for that offence is imprisonment for twenty-five years. Having allowed for a period of eight months in custody, bail refused, his Honour imposed a sentence of imprisonment of six years and ten months, comprising a minimum term of three years and ten months and an additional term of three years. The effective sentence was therefore one of seven and one-half years with a minimum term of four and one-half years. 3 On 14 October 1995, the applicant, his brother Raymond Bridges, Patrick James Leach, Peter Gerard Hennessy and Michael Jones decided to go to a remote property in order to steal cannabis. Mr Dieter Hans Sommer lived there and ran an engineering business from the property. The party arrived at about 9pm. Mr Sommer was lying on a couch watching television when three men, at least two of whom wore balaclavas, smashed the glass door and entered the building. Leach punched Mr Sommer in the head with his fists and the applicant struck him on the leg with a metal torch about a foot and a half long. They tied Mr Sommer's hands behind his back and put a hessian bag over his head. They beat him about the head and body. They half carried, half dragged him to a house that was under construction on the property and there tied him to a timber wall with his hands above his head. One of the men, apparently gratuitously, dislocated his middle finger. They left the property, taking with them a drum of cannabis and a rifle which belonged to Mr Sommer. 4 Although Mr Sommer managed to free himself, he was exhausted and could do nothing until the following morning. Then he discovered that his telephone had been put out of order and that his four-wheel drive vehicle had been stolen as well. He managed to drive an unregistered vehicle to the Grafton Base Hospital. He was examined there and was found to have sustained a compound fracture of the skull, a displaced cheek bone, broken ribs, a broken right leg and a dislocated finger. 5 The police began to make enquiries and spoke in due course to the offenders. Raymond Bridges immediately admitted his involvement. Hennessy consented to a formal interview, in which he admitted his involvement. Leach declined to be interviewed. 6 The applicant at first denied his involvement but in a second interview admitted to taking part. Hennessy showed the police the stolen rifle, which had been hidden on his property. More importantly, he undertook to give evidence on behalf of the Crown against his co-offenders. 7 As well as sentencing the applicant, Ducker DCJ also sentenced Leach and Hennessy. Leach pleaded guilty to a charge identical to the applicant's. Hennessy pleaded guilty to armed robbery, a lesser offence carrying a maximum of twenty years' imprisonment. His Honour found that the applicant and Leach were the two who had beaten and tied up Mr Sommer. His Honour found that Leach had played the leading role but that the applicant had a much more serious criminal record. He therefore imposed the same sentence upon each of them, though that meant that Leach had to spend longer in prison because he had credit for only seventeen days' pre-sentence custody. 8 Leach successfully appealed to this Court which found that his Honour's finding that Leach was the leader was not justified on the evidence. His sentence was reduced to one of six years and nine months imprisonment, comprising a minimum term of four years and an additional term of two years and nine months. 9 Ducker DCJ found that Hennessy's involvement was minimal and that, although he knew the car was to be stolen and had not dissociated himself from the actions of Leach and the applicant at the property, he had not taken part in the violence and had been intimidated by those offenders. He was, in effect, too frightened to do anything to stop the attack. He placed the stolen cannabis in the vehicle and received some of it himself. His Honour described Hennessy's decision to offer to give evidence on behalf of the Crown as courageous and noted that it might well have been the matter would not have come to trial without his co-operation and the detailed information he provided. His Honour gave him the benefit of a four-year bond. 10 Bridges pleaded guilty before Christie QC DCJ to a charge of robbery, an offence carrying a maximum penalty of fourteen years. His Honour found that Bridges was not the moving party but was unable to determine precisely what role he played. There was no finding that Bridges played any part in the violence or that he was present when it occurred. Bridges' antecedents were minor. 11 His Honour indicated that but for the sentence passed upon Hennessy he would have imposed a sentence of two years' imprisonment with a minimum term of eighteen months. In the circumstances he gave Bridges the benefit of a four-year bond. 12 Jones pleaded guilty before Twigg QC DCJ to a charge of concealing a serious indictable offence. The maximum penalty for that offence is two years' imprisonment. Jones' antecedents were minor. He was sentenced to three hundred hours' community service. 13 There is only one ground of appeal. The applicant asserts a justifiable sense of grievance by comparing the length of his sentence by those imposed upon his co-offenders. It was acknowledged that he might have expected to receive a longer sentence than those imposed upon the others, but it was said that the difference was so great as to demonstrate error. The particular complaint was between a custodial sentence of seven and one-half years and the non-custodial sentences imposed upon Hennessy and Raymond Bridges. No comparison was sought to be made for these purposes with the sentences imposed upon Leach and Jones. 14 When deciding an appeal on the ground of disparity of sentences, the Court must ask itself whether, in all the circumstances, the applicant has a justifiable sense of grievance. It is not any grievance which is justifiable and there is no rule that requires co-offenders convicted of the same offence to receive the same sentence: Lowe v The Queen (1984) 154 CLR 606. 15 Before dealing with the detail of the findings made about each of Raymond Bridges and Hennessy, I should deal with a matter raised by Mr Button during oral submissions. It was submitted that a particular injustice arose because of the circumstances in which the sentencing proceedings were conducted. The applicant and Leach were dealt with at the one time by Ducker DCJ. Although Hennessy also was dealt with by his Honour, that was on a later day and after he had imposed sentence upon the applicant and Leach. Raymond Bridges and Jones were, of course, dealt with by different judges. 16 Mr Button stopped short of submitting to the Court that the conduct of the several sentencing proceedings before three judges on four occasions itself produced a miscarriage of justice. The complaint was put in the following way and, like Mr Button, I can illustrate it by referring only to the case of Mr Hennessy. 17 In deciding to impose upon Hennessy a four-year bond, Ducker DCJ found many facts in his favour. Those facts were found at a proceedings at which the applicant was not present. If the applicant had been present he might have made submissions which might have produced the result that Ducker DCJ might not have dealt so leniently with Hennessy. The sentence imposed on Hennessy was therefore likely to have been less than it ought to have been. The applicant therefore has a justifiable sense of grievance. 18 Reference was made to Ducker DCJ's remarks on sentence of Hennessy and to six particular findings of fact. In respect of these findings of fact, it was submitted that his Honour expressed the view that if those facts had been known at the time that he was imposing sentence upon the applicant and Leach, he might have imposed longer sentences upon them. The facts were these. First, the applicant and Leach were violent criminals. Secondly, the applicant gratuitously dislocated Mr Sommer's finger in order to intimidate Hennessy. Thirdly, Hennessy was subjected to threats. Fourthly, so serious was the activity, particularly of Leach in relation to Hennessy, that it might even have been considered appropriate to charge him with conspiring to pervert the course of justice. Fifthly, Hennessy might find it impossible to hide from the applicant and Leach. Finally, Leach and the applicant were ruthless, hardened criminals. 19 The first and the sixth findings pointed to by Mr Button are, in effect, the same. It is unrealistic, in my opinion, to suggest that such a finding was not available to Ducker DCJ when he sentenced the applicant. In fact, his Honour found just such a thing and sentenced the applicant accordingly. An important factor by reference to which his Honour sentenced the applicant was his criminal record, to which I shall later refer. 20 The other facts all relate in some way to threats and intimidation found to have been directed towards Hennessy. It seems to me that the findings were made principally in relation to the activities of Leach and, in the circumstances, there seems nothing that the applicant could have done which would have resulted in his Honour not making the relevant findings in favour of Hennessy, producing a justification for a lesser sentence than would otherwise have resulted. In any event, I consider that any chance the applicant might have had by evidence or argument to produce a different result is speculative. 21 I do not consider that any particular injustice arose or that any difference in the sentences imposed upon Hennessy or Raymond Bridges could have resulted from the circumstances pointed to by Mr Button. I turn then to the circumstances of the several offenders. 22 The first to receive a non-custodial sentence was Hennessy. Like the applicant, he went to Mr Sommer's property intending to take cannabis by force but there the similarity between his part and the applicant's ends. He was convicted of a lesser crime. He played no part in the violence perpetrated by the applicant and Leach that formed such an important aggravating feature of their offences. Hennessy was intimidated by at least one of the principal offenders and probably both. He played an important part in the robbery, namely, placing the stolen cannabis in the vehicle and later received a share of it, but even so his criminality bore no relation to that of the applicant and Leach. 23 Most importantly, Hennessy courageously came forward and assisted the authorities in such a way that this matter came into court. There is considerable doubt whether that would have happened if Hennessy had not taken the decision he did, in the face of the threats and intimidation found to have been directed towards him. 24 Finally, Hennessy was not a violent man, as his Honour found, and had a record that his Honour described as really fairly minor, comprising a conviction of high range PCA, one of offensive language, the possession of an offensive implement and possession of a firearm, something of which he was convicted soon after the law in that respect was changed. He had also been convicted of possessing a small amount of cannabis. Since committing the offence concerning Mr Sommer he had suffered sleeplessness, anxiety, depression, fear and loss of self-respect. 25 By way of contrast, the applicant, who was forty-four years old when sentenced, had a very serious criminal record dating from 1974. From then until the 1990s he confined himself to offences of violence and the use of illegal drugs. Thereafter he was convicted of larceny and of assaulting police. In 1991 he was convicted of six counts of armed robbery and one of assaulting and robbing. He has been sent to prison more than once, on the last occasion for four years with a minimum term of two years. 26 The next offender was Raymond John Bridges, whose offence carried a maximum penalty of fourteen years' imprisonment. Like Hennessy's, his criminal antecedents were minor. He had been convicted of assault, possessing a prohibited drug on four occasions and cultivating a prohibited plant. He had never been punished by more than a modest fine. Christie DCJ was unable to find that he was present during the violence and observed that Hennessy had been subjected to threats and intimidation on the part of the applicant. 27 These summaries show how different each offender with whose sentence the applicant compared his own was from the applicant, both objectively and subjectively. To my mind they show that the cases with which the applicant desires to compare his own were not really comparable at all. In my opinion none of the sentences imposed upon the co-offenders is capable of raising a justifiable sense of grievance. 28 I would grant leave to appeal but would dismiss the appeal. 29 DOWD J: I agree. The orders of the Court will be as proposed by Barr 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.