New South Wales Court of Criminal Appeal CITATION : R v AM [2001] NSWCCA 80 revised - 12/09/2001 FILE NUMBER(S) : CCA 60813/99 HEARING DATE(S) : 23 February 2001 JUDGMENT DATE : 23 February 2001 PARTIES : Crown - Respondent AM - Applicant JUDGMENT OF : Grove J at 23; Simpson J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0131 LOWER COURT JUDICIAL Coleman DCJ OFFICER : COUNSEL : P G Berman SC - Crown A C Haesler - Applicant SOLICITORS : W E O'Connor D J Humphreys LEGISLATION CITED : Sentencing Act 1989 Crimes Act 1900 CASES CITED: R v Lowe (1984) 154 CLR 606 R v Postiglioni (1997) 189 CLR 295 DECISION : Leave to appeal granted, appeal dismissed.. IN THE COURT OF CRIMINAL APPEAL 60813/99 GROVE J SIMPSON J 23 February 2001 REGINA v AM Judgment SIMPSON J : 1 This is an application for leave to appeal against the severity of sentences imposed on the applicant by Judge Coleman in the District Court on 3 December 1999. The applicant had pleaded guilty to one charge of causing grievous bodily harm with intent to murder and one of using an offensive weapon to commit the indictable offence of assault. The first charge was preferred on the basis that the applicant was a principal in the second degree. The maximum penalty prescribed in relation to that charge is imprisonment for twenty-five years. The applicant was indicted as a principal on the second charge and was liable to a maximum penalty of imprisonment for twelve years. 2 Judge Coleman sentenced the applicant on the first charge to a total term of imprisonment of eleven years and eight months with a minimum term of seven years and an additional term of four years and eight months. On the second charge he imposed a concurrent sentence of six years made up of a minimum term of four and a half years and an additional term of one and a half years. 3 The circumstances of the crimes were very bad indeed. The Crown alleged that there were in fact four offenders involved, including the applicant, three of whom (also including the applicant) stood to be sentenced by Judge Coleman on the same day. The fourth had not been brought to trial at the time of sentencing. On the Crown case, it was the fourth person who instigated the crimes; it is unnecessary for the purpose of this application to make any determinations in that respect. 4 The relevant facts may be stated relatively briefly. At the invitation of one of the co-offenders, Garry John Broderick, the applicant agreed to be involved in an attack which was intended to result in the murder of one of the victims, John Stewart. The reason for the attack concerned a dispute with his business partner, who was the fourth person already mentioned, and who commissioned Broderick to commit the murder. The motive of that person was said to be financial. Broderick recruited a second offender, Anthony Polverino, and the applicant. The applicant was promised the sum of $10,000 for his participation. He was fully aware that the purpose of the exercise was to murder Mr Stewart. 5 Together at 2.15am on 18 December 1997 the three entered the house on a rural property that was occupied by Mr and Mrs Stewart, Mrs Stewart being the victim of the second offence, and their two young children. The applicant's role was to subdue Mrs Stewart while her husband was murdered. Very serious injuries were in fact inflicted on Mr Stewart by either or both of Broderick and Polverino. In the most serious part of the attack his throat was cut by a knife, the trachea almost entirely severed. Mr Stewart, being trained as a veterinarian, had sufficient knowledge of anatomy to grasp his throat, preventing complete severance and stemming blood loss. He was also stabbed several times in the chest, one of the stabs resulting in penetration of his lungs. A punch to his eye caused a fracture with consequent restriction, probably permanent, of his vision. After the three attackers departed Mr Stewart attempted to move to the telephone and call for help, but it was left to his nine year old son, who had been sleeping in a nearby room, to complete the call. 6 Mrs Stewart was punched and kicked numerous times and a cable tie was drawn over her head and pulled tightly around her throat. She managed to insert her fingers between the tie and her throat, thus preventing strangulation. The sentencing judge was satisfied that this applicant held Mrs Stewart by the throat in his attempt to subdue her and also held her head up while Polverino slipped the cable over her head and then tightened it around her neck. 7 The Stewarts' daughter, then aged six, heard the commotion and entered the bedroom, observing part of the attack. The applicant put his hand over her mouth and removed her from the room. The Stewarts' son also observed the injury and believed his father was dying before his eyes. 8 It is unnecessary to deal further with the attack or its aftermath. It will be obvious that it has had a devastating effect on the psychological well-being of the victims, and in that I include the two children, as well as on the physical well-being, particularly of Mr Stewart. 9 The applicant was initially interviewed by police on 13 May 1998. This followed the disclosure to police by a former girlfriend of his that he had admitted to her his involvement. In the interview on that date he denied any knowledge of or involvement in the attack. He maintained an alibi that had previously been prepared. Following the interview a number of telephone calls in which the applicant participated were intercepted, and he was invited again to be interviewed the following day in the presence of a barrister. He declined to participate in the interview and declined to participate in a line up. 10 Notwithstanding his denials, the applicant was committed for trial in March 1999. Both Polverino and the applicant subsequently gave information to police implicating themselves and each other. Judge Coleman accepted that when the applicant gave this information he was unaware that Polverino was adopting the same course. It appears that Polverino's statements, at least initially, were made as induced statements in the process of his attempting to negotiate an indemnity for himself. Such is said not to have been the case with the applicant. 11 The applicant entered a plea of guilty to the charges on 17 June 1999. On 19 August in the Local Court he undertook to give evidence for the prosecution in accordance with the various statements he had by then made, and to continue to assist the prosecution authorities in providing such information as he was able. As I have noted, all three appeared for sentence together 12 Judge Coleman considered that the offences fell into the worst category of this kind of case. However, he recognised that certain subjective features, including the fact that each had entered a plea of guilty, required some reduction of the maximum penalty and, further, that assistance give by each, or that each had undertaken to give, required a further and quantified discount. In sentencing Broderick and Polverino for the more serious offence, that is, the attack on Mr Stewart, he took as a starting point a total term of imprisonment of twenty years. This recognised the subjective circumstances but excluded the discount to be given for assistance. In each of those cases he quantified that assistance as thirty-five per cent, and on the more serious offence sentenced each to imprisonment for thirteen years made up of a minimum term of eight years and an additional term of five years. In relation to the charge involved in the attack on Mrs Stewart, each was sentenced to imprisonment for six years made up of a minimum term of four years and six months and an additional term of one and a half years. 13 His Honour recognised that, in relation to the offence against Mr Stewart, the applicant was indicted and pleaded guilty as a principal in the second degree. His role had been to ensure that Mrs Stewart was subdued, and it seems that he played no active role in the attempted murder of Mr Stewart. His Honour considered, therefore, that the applicant's criminality was less than that of the two co-offenders in that offence; however, he considered him equally culpable in relation to the attack on Mrs Stewart. 14 Having regard to the view he took of the applicant's criminality on the first offence, he took as a starting point, after having taken into account all the subjective circumstances, including the plea of guilty, a total term of imprisonment for eighteen years. He allowed for the applicant a discount for assistance to the authorities of the same magnitude that he had allowed the two co-offenders, that is, thirty-five per cent. He found that special circumstances pursuant to s 5(3) of the Sentencing Act 1989 existed justifying departure from the ratio there stated and imposed the sentence I have already mentioned. On the offence against Mrs Stewart, he imposed a sentence identical in terms to that imposed on the two co-offenders. 15 The grounds on which the applicant asserts that this court should interfere are threefold, but, as I understand the argument, they really all come down to one, which may be stated as a parity argument in accordance with the principles stated in R v Lowe (1984) 154 CLR 606, and R v Postiglioni (1997) 189 CLR 295. The other matters concern the credit allowed respectively for the applicant's plea of guilty and assistance to the authorities, although, as I have said, it seems to me that these all really go to the question of whether the differential that exists between the sentences imposed on the co-offenders and on the applicant give sufficient recognition to the difference in their participation. 16 The nub of the applicant's argument is that the starting point of eighteen years, being only two years less than the twenty years starting point allowed for the two co-offenders, failed adequately to reflect their differing roles, the subjective circumstances, and the applicant's convictions as a principal in the second degree. In respect to the last matter, it is not to be overlooked that s 345 of the Crimes Act 1900 provides for a maximum penalty for accessorial liability equivalent to the maximum penalty for the principal offenders. However, I accept that sentencing practice ordinarily, or at least frequently, allows an accessory or a principal in the second degree to be sentenced less severely than a principal. Everything depends upon what it is that constitutes the conduct that forms the foundation for the offence. 17 The argument that was put orally is that there should have been a greater differential because the applicant's plea of guilty was more than merely utilitarian, that it was the first in time of the three pleas offered, and that the applicant's assistance was worth more than is reflected in the discount of thirty-five per cent. However, I can see little to distinguish between the pleas of guilty offered by the two co-offenders and that offered by the applicant, or the assistance that each ultimately offered and gave. The pleas of guilty were all perhaps a little more than utilitarian, but I do not think that any difference between the three offenders should have been reflected in the sentences. 18 Another point that was made is that the applicant's plea and assistance, being the first in time, had what the sentencing judge referred to as a snowballing effect, and therefore was at least a part of the reason for the pleas and assistance offered by the other two. However, I do not depart from the position I have already stated, that there is really little, if anything, to distinguish between the three in this respect. 19 The real question is whether the applicant can demonstrate that his involvement in the offence against Mr Stewart was so significantly less than that of the other two offenders that the differential is shown to have been inadequate. 20 The whole purpose of his involvement was to permit Broderick and Polverino to pursue their stated intention of murdering Mr Stewart. In order to do this he had to subdue Mrs Stewart. While he may not have held or used a knife, and, indeed, he may not have known that it was intended to use a knife for the purpose, his actions were deliberate actions designed to enable the co-offenders to murder Mr Stewart. I am not persuaded that he was given inadequate recognition for the different role that he played. In my opinion the subjective circumstances disclosed in relation to the three offenders differed little. All were of substantially good character and were said to have acted out of character. 21 A particular matter that was mentioned in the written submissions on behalf of the applicant was that he had deliberately removed the daughter from the room when she entered in some attempt to shield her from what was going on. I am not persuaded that this should have entitled him to any greater reduction in the sentences imposed on the co-offenders. 22 I am satisfied that adequate attention and recognition was given to the pleas of guilty and the assistance both individually and as they relate to the pleas of guilty and the assistance given by the co-offenders. I am not satisfied that any error has been identified in the approach taken to the sentence. I would grant leave to appeal, but dismiss the appeal. 23 GROVE J: I agree with Justice Simpson, and the orders of the court will be as she has proposed. ********** 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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