New South Wales Court of Criminal Appeal CITATION : Regina v Fear [2002] NSWCCA 361 FILE NUMBER(S) : CCA 60123/2001 HEARING DATE(S) : 30/11/01 JUDGMENT DATE : 29 August 2002 PARTIES : Regina Wayne Frederick Fear JUDGMENT OF : Hidden J at 1; Newman AJ at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0639 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : P Byrne SC - Applicant DML Woodburne - Crown SOLICITORS : Glenn K Walsh - Applicant SE O'Connor - Crown CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - offences of armed robbery and break enter and steal - further offences on a Form 1 - no question of principle. LEGISLATION CITED : Firearms Act 1996 Prohibited Weapons Act 1989 The Queen v De Simoni (1981) 147 CLR 383 CASES CITED: R v PG [2001] NSWCCA 231 Pearce v The Queen (1988) 194 CLR 610. DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60123/01 HIDDEN J NEWMAN AJ Thursday, 29 August, 2002 REGINA v Wayne Frederick FEAR JUDGMENT 1 HIDDEN J: The applicant, Wayne Frederick Fear, pleaded guilty in the District Court to six counts on an indictment, comprising two counts of armed robbery, three counts of break, enter and steal and one count of possessing a shortened firearm (an offence under the Firearms Act). He also asked the sentencing judge to take into account on a Form 1 ten further offences: robbery in company, possession of a shortened prohibited firearm and possession of a prohibited weapon (both offences under the Prohibited Weapons Act), receiving, two charges of goods in custody, two charges of possessing amphetamine, and charges of driving in a manner dangerous and driving whilst disqualified. Taking those additional matters into account, his Honour passed sentences on the six counts in the indictment, some concurrent and some cumulative, so as to arrive at an effective sentence of imprisonment for 12 years with a non-parole period of 9 years. 2 The sixteen offences were committed over the period between November 1997 and September 1999, most of them in 1999. There is no need to recite the detail of them. The three robberies, that is, the two armed robberies on the indictment and the robbery in company on the Form 1, were all committed at bowling clubs. In each case the applicant was armed with a tomahawk and was in the company of a co-offender, PG, who was himself armed, on one occasion with a revolver and on the other two occasions with a replica pistol. No-one was hurt in the course of these robberies, but they were executed professionally and substantial sums of money were stolen. On one occasion they also stole the victims' motor vehicle. 3 The three offences of break, enter and steal were committed in commercial premises. Again, on each occasion the applicant was in company with a co-offender. On one occasion that was PG, on another it was one Douglas Carroll, while the co-offender on the third occasion remains unidentified. Again, the offences were planned and executed professionally and substantial sums of money were stolen. Most of the money from all six offences was never recovered. 4 No more need be said about the offences on the Form 1, except that five of them arose from the circumstances of the applicant's arrest, and the search of his person and a car which he had been driving, on 12 September 1999. The majority of the offences, both on the indictment and on the Form 1, were committed whilst the applicant was on bail for other offences or some of the subject offences. 5 The applicant was aged between thirty six and thirty eight at the time of the offences and is now forty one. He has a fairly long criminal record, commencing when he was twenty three years old, for offences of dishonesty, drug offences and traffic offences. His Honour had documentary and oral evidence about his background, which it is not necessary to recite. His Honour accepted that his pleas of guilty had been proffered at the earliest appropriate opportunity and discounted the sentences by twenty five percent on that account. He also accepted that the applicant was contrite and had taken steps towards rehabilitation while in custody awaiting sentence. He did not find special circumstances, noting that the overall sentence which he proposed afforded the applicant the opportunity of supervised liberty for three years. The application 6 In written submissions Mr Byrne SC, for the applicant, argued that his Honour had failed to give sufficient weight to his client's subjective case. This was not developed in oral submissions and, in any event, it appears to me that his Honour's remarks dealt with that aspect of the case adequately. Mr Byrne's written submissions asserted that his Honour erred in declining to find special circumstances, but that argument was not developed either orally or in writing. At the hearing of the appeal Mr Byrne said no more than that this Court should find special circumstances if we were otherwise minded to intervene. 7 The three charges of break, enter and steal were laid under s 112(1) of the Crimes Act, the basic offence which carries a maximum sentence of 14 years imprisonment. His Honour noted that in each case the applicant could have been charged with the aggravated offence under s 112(2), carrying a maximum sentence of 20 years, on the basis that he was in company with a co-offender: s 105A(1)(b) of the Act. This matter appears to have troubled his Honour, who noted that, in respect of the offence committed with Douglas Carroll, Carroll himself had been charged with the aggravated offence. When passing sentence on each of those counts, his Honour specified the higher sentence which he would have passed if the applicant had been charged with the aggravated offence as, he said, he should have been. In addition, his Honour noted that neither the applicant nor PG had been charged with stealing the motor vehicle in the course of one of the armed robberies. 8 These observations about the break, enter and steal charges led Mr Byrne to submit that his client might have a reasonable apprehension that his Honour had taken into account matters constituting more serious charges than those for which he stood for sentence: cf The Queen v De Simoni (1981) 147 CLR 383. In addition, it was said, his Honour's reference to the stealing of the motor vehicle might reasonably lead the applicant to believe that his Honour had taken into account to his detriment a matter with which he was not charged. 9 There is some force in this argument. With respect, I think that his Honour's observations were unfortunate and should not have been made. The framing of charges is a matter very much in the discretion of the prosecuting authority, whether it be the police or the Director of Public Prosecutions, and the exercise of that discretion may well be influenced by factors of which a sentencing judge would be unaware. Implicit criticism by the sentencing judge of that process is likely to give rise to the perception of unfairness of which Mr Byrne complained. 10 That said, the question which we must consider is whether those observations of his Honour caused the sentencing process to miscarry. I am not persuaded that they did. There is nothing about the sentence passed for the armed robbery involving the stolen motor vehicle to suggest that it was influenced by consideration of an offence which was not charged. Equally, his Honour's specification of the sentence which he would have passed for each of the break, enter and steal offences if the aggravated offence had been charged demonstrates that he was being careful not to fall into the error identified in De Simoni. 11 This brings me, then, to the principal argument in this application. His Honour had earlier sentenced Douglas Carroll for the charge of aggravated break, enter and steal arising from the offence committed with the applicant, another charge of break, enter and steal and six further offences on a Form 1. The effect of the sentences which his Honour passed was an overall sentence of 5 years and 3 months with a non-parole period of 2 years and 3 months. 12 PG had been sentenced by Judge O'Reilly for sixteen armed robberies, six on an indictment and ten on a Form 1, which included the three offences committed in company with the applicant. Two of those common offences were on the indictment, and I take it that the third was on the Form 1. Judge O'Reilly found that the appropriate overall sentence was imprisonment for 15 years, but he reduced that by almost half because of very significant assistance which that offender had afforded to the authorities. In the event, he imposed concurrent sentences of 7 ½ years with a non-parole period of 5 years. An application by PG to this Court for leave to appeal led to a reduction of the non-parole period: R v PG [2001] NSWCCA 231. 13 In dealing with the applicant, his Honour said that he considered the sentences imposed on the other two men to be relevant and accepted the principle that, all things being equal, co-offenders should receive the same sentence. He noted Judge O'Reilly's starting point for the sentence of PG before the reduction for his co-operation with the authorities, and continued, "… on this basis, the starting point for the armed robbery offences … committed by the prisoner and (PG) is imprisonment for fifteen years …". He made a similar observation about his own approach to the sentencing of Carroll, but in this Court argument was confined to the relationship between the sentences imposed upon the applicant and upon PG. 14 There is a measure of artificiality in considering Judge O'Reilly's starting point for sentence for the armed robberies which the applicant and PG had in common as 15 years. As I have said, the sentences which that judge passed were all concurrent and it is clear that he considered 15 years as the appropriate starting point for the whole of PG's criminality embraced by the charges on the indictment and the Form 1. In the present case his Honour approached the matter in accordance with the High Court's decision in Pearce v The Queen (1988) 194 CLR 610. His Honour determined the sentence appropriate for each count in the indictment, taking into account the matters on the Form 1 in respect of one of them, and then considered questions of accumulation and concurrence with an eye to totality. In the result, as the Crown prosecutor in this Court pointed out, a comparison of the sentences passed upon the applicant and PG in respect of the two common offences on indictment, viewed in isolation, show that the applicant received the same sentence as PG on one of them and a lesser sentence on the other. In truth, no practical purpose is served by such a comparison because of the different approaches of the two sentencing judges. 15 Mr Byrne's real complaint is that the effect of the sentences passed upon the two men, viewed globally, is such as to leave the applicant with a justifiable sense of grievance. He acknowledged the special leniency to which PG was entitled because of his assistance to the authorities, and accepted that the relevant comparison was between the total sentence of 12 years imprisonment passed upon the applicant and Judge O'Reilly's starting point of 15 years for PG. Mr Byrne pointed out that PG faced sentence for no less than sixteen armed robberies, whereas the applicant was to be dealt with for only three armed robberies, together with three offences of break, enter and steal, three offences under the Firearms Act and the Prohibited Weapons Act, and a number of lesser offences on the Form 1 which could have been dealt with summarily. 16 The difficulty with this argument, as his Honour pointed out, is that there is no real parallel between the situations of the two men when one has regard to the whole of the charges which they faced, quite apart from differences in their age and antecedents. PG's overall criminality does appear more serious than that of the applicant. However, only three of the many offences for which he was to be sentenced were in common with the applicant. For the practical reasons to which I have referred, no meaningful comparison can be made between the manner in which the two men were dealt with for those offences and an argument based upon the principle of parity cannot be sustained. It may well be that Judge O'Reilly dealt with PG more leniently than other judges might have, including the judge who sentenced the applicant. I have no doubt that our prisons are full of offenders who perceive that they have been dealt with harshly in comparison with others who have been sentenced for similar, albeit unrelated, crimes. 17 Finally, Mr Byrne submitted that the effective sentence of 12 years is manifestly excessive. I accept that it is severe but, in all the circumstances, I consider it to have been within the range of sentence properly open to his Honour. Putting aside the more minor offences on the Form 1, the applicant faced sentence for a number of very serious offences. While he showed signs of rehabilitation, he is not a young man and he has a criminal history, albeit for offences less serious than these. In addition, as I have said, the gravity of the majority of these offences was aggravated by their being committed while he was subject to conditional liberty. 18 I would grant leave to appeal but dismiss the appeal. 19 NEWMAN AJ: I have had the advantage of reading the reasons of Hidden J in draft. I agree with both his Honour's reasons and the orders he proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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