New South Wales Court of Criminal Appeal CITATION : Regina v Sharpe [2002] NSWCCA 96 FILE NUMBER(S) : CCA 60037/01 HEARING DATE(S) : 20 March 2002 JUDGMENT DATE : 20 March 2002 PARTIES : Regina v David Dimitrious Sharpe JUDGMENT OF : Adams J at 26; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0660 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER : COUNSEL : (A) H Dhanji (R) G E Smith SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Sentencing - mistake of fact - parity, principles of parity apply where co-offender sentenced by this Court on Crown appeal. LEGISLATION CITED : Nil R v Hoschke [2001] NSWCCA 317 Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Postiglione v The Queen (1997) 189 CLR 295 R v Henry (1999) 46 NSWLR 346 R v Christie [2000] NSWCCA 354 DECISION : Extend the time in which the applicant may apply for leave to appeal. Leave to appeal granted. Appeal allowed. Sentence quashed. In lieu thereof the applicant is sentenced to imprisonment for three years commencing on 3 July 2000, with a non-parole period starting that day and ending on 25 March 2002 on which day the applicant is to be released on parole. IN THE COURT OF CRIMINAL APPEAL 60037/01 ADAMS J SMART AJ Wednesday, 20 March 2002 REGINA V DAVID DIMITRIOUS SHARPE JUDGMENT 1. SMART AJ: Mr Sharpe seeks an extension of time, and leave to appeal against the severity of a sentence of four years imprisonment with a non-parole period of two years, commencing on 3 July 2000, for the offence of robbery in company imposed by Shadbolt DCJ. The applicant had pleaded guilty. 2. The applicant was only a few days late in lodging his application for leave to appeal. He experienced difficulty in obtaining legal advice over the Christmas holiday period and the law vacation. The extension of time sought should be granted. 3. The applicant relies on a significant mistake of fact by the judge and the principle of parity. 4. The facts: About 4.20pm on 3 July 2000, the applicant and Andrew Hoschke approached the victim, a male aged fifteen who was seated on a seat at a bus stop at the edge of the park facing Eddy Avenue near Central railway. Hoschke said to the victim, "Give me all your money." The victim replied, "Here's twenty cents." The applicant said, "Not that kind of money, I mean fifty dollar notes." The victim said, "I don't have any." Hoschke said, "I'll pull my knife out of the back of my pants and I'll stab you in the chest." The victim said, "I haven't got any." The applicant said, "Show me your wallet." The victim took a five dollar note and a ten dollar note from his pants pocket and attempted to separate the notes. The applicant struck the victim across the right side of his face with an open hand and said, "If you don't give me the money I'll use my fist the next time." The victim handed over the money. The applicant and Hoschke stood facing the victim. The applicant handed over the five dollar note to a woman who approached and asked for some money. The two men walked across Eddy Avenue to an access ramp to Central railway station. The incident and the subsequent movements of the men were captured on closed circuit television. Police were alerted and the two robbers were chased and apprehended. The judge incorrectly stated that it was the applicant who threatened to stab the victim. When interviewed, the applicant admitted the interchange but claimed it was a gift. 5. The applicant was born on 2 March 1981. His criminal history commenced in March 1995. From March 1995 to date, he has committed a multitude of offences, including malicious damage by fire, malicious damage to property, dishonesty offences, aggravated robbery and drug offences. Most of the matters were dealt with in the Children's Court. He received a variety of penalties but no custodial sentence. 6. The judge correctly stated that the applicant's record was not one which would allow the Court to extend to him any particular leniency. The judge said that if the applicant had not pleaded guilty he would have received a sentence of six years and that because of the plea, he would take a third off that sentence. 7. The judge took into account the applicant's history and personal details which are set out in the pre sentence report. At the age of about three, the applicant was made a ward of the state and thereafter spent his life in departmental homes and foster homes. His foster parents could not cope with his behavioural problems. The Probation and Parole officer has written: "The offender presents as a man who appears to have experienced an unsettled upbringing which seems to have been in part a consequence of his own disruptive behaviour. He has a lengthy juvenile record and a history of non compliance with authority figures. This appears to have affected his response to past community base sentencing options. He remains manipulative, with a tendency to rationalise his behaviour and the extent and precise variety of his drug use remains unknown. It seems however that marijuana use is severely entrenched and he needs to address this. He has verbalised good intentions in this regard but it is considered that his stated good intentions are court motivated. Unless Mr Sharpe makes a more concerted effort to deal with his problem and gain more insight into his behaviour, his prognosis appears to be poor." The Social Worker has written: "Like many young people who have experienced lengthy periods in substitute care, he has been affected by multiple placements. In common with others he has lost contact with his natural parents and has relied on a range of unrelated strangers to provide for his care. Typically, children with this background are disadvantaged socially and academically and there is certainly evidence that this has been the case with Mr Sharpe. At interview Mr Sharpe presented as an articulate young man who would appear to be of at least average intelligence and would normally have a great deal of potential." 8. The judge thought that what was said by the Probation and Parole Officer had the ring of truth. 9. The applicant gave evidence before the judge and expressed remorse and his desire to rehabilitate himself. The applicant's former foster father for a period, gave evidence that he was prepared to assist the applicant provided he was willing to obtain a job and try to stand on his feet. 10. The judge found special circumstances in the applicant's age, this being his first time in custody, and the need for a considerable period of time for rehabilitation. I agree that there are special circumstances and that the judge correctly fixed a non parole period which was much less than three-quarters of the sentence. 11. The judge subsequently sentenced Hoschke to two years imprisonment with a non parole period of eighteen months to be served by way of periodic detention, to commence on 24 February 2001. The Director of Public Prosecutions appealed against that sentence. The facts as to Hoschke are set out in the judgment of Carruthers AJ in R v Hoschke [2001] NSWCCA 317. The evidence before the sentencing judge revealed that it was Hoschke who threatened to stab the victim. The judge again incorrectly stated that Sharpe threatened to stab the victim. The judge, in part, reversed the roles in fact played by Sharpe and Hoschke. It should be noted that it seems that Hoschke did not in fact have a knife. 12. The judge adopted the submission made by the legal representative for Hoschke, that he played a subordinate role in the robbery in that it was not he who hit the victim, nor threatened him, that was all done by Sharpe who was older than Hoschke. Hoschke was fourteen months younger than Sharpe. 13. In Hoschke, Carruthers AJ said: "In its written submissions to this Court the Crown made out a cogent case that his Honour made two significant errors of fact, namely that the respondent played a subordinate role in the robbery and that he was only half as culpable as Sharpe. They flow from the fact, it was submitted, that his Honour mistakenly believed that it was Sharpe who originally demanded money from the victim and that it was Sharpe who threatened the victim that he would produce a knife. After reconsideration, Mr Cogswell of Senior Counsel for the Crown, with his customary frankness and fairness, accepted the situation and indicated to this Court that the Crown no longer sought to rely upon the asserted misstatements of fact by his Honour. The Crown relies principally on the submission that his Honour erred in the sentence which he imposed by failing to take into account the fact that the subject offence was committed whilst the respondent was enjoying conditional liberty. Further that his Honour erred in imposing a period of imprisonment which was far too short, and finally his Honour erred in ordering the sentence to be served by way of periodic detention. Insofar as the factual matters are concerned, it is my view, sufficient to notice the fact that the criminal law has always looked with great disfavour upon robbery in company. If two persons agree to perform a joint criminal enterprise such as in the instant case of robbery of an unarmed innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in consummation of the criminal enterprise." 14. Hoschke also had a record which did not permit the Court to extend to him any particular leniency, however it was not as bad as that of the applicant. There was no demonstrated evidence of remorse on Hoschke's part. In that case this Court noted the judge's observations as to parity and reviewed the subjective factors as to Hoschke. This Court found that the judge erred in finding that there were exceptional circumstances which took the case outside the parameters set by Henry (1999) 46 NSWLR 346. 15. Ultimately, this Court in Hoschke set aside the sentence imposed by Shadbolt DCJ on Hoschke and sentenced him to imprisonment for two years and nine months to date from 24 February 2001, with a non parole period of sixteen months. 16. The Crown contended that in the light of the seriousness of the offence, the judge's error was not sufficient to warrant intervention. The offence was certainly serious but the judge by his mistake tended to increase the applicant's criminality. Nevertheless, upon re-sentencing, I may well not have imposed a lesser sentence on this account. The Crown contended that the different sentences imposed on the two co-offenders were justified by the differences in their personal and subjective features in that: (a) The applicant's criminal history was worse than that of Hoschke. (b) Hoschke had better prospects of rehabilitation. (c) The applicant was on two recognisances at the time of the offence. However, Hoschke was subject to a probation order and a community service order. (d) Hoschke's sentence in this Court made allowance for the principle of double jeopardy. 17. The applicant pointed out that by the time the Crown's appeal against the sentence imposed on Hoschke was heard, Hoschke had been sentenced, in relation to the offences of maliciously inflicting grievous bodily harm and breaching an Apprehended Violence Order, to an aggregated sentence of eight months with a non parole period of six months. The non parole period in relation to that sentence was due to expire on 30 September 2001. 18. It was submitted that the combined effect of the sentences imposed on Hoschke was as follows: ( i) from 24 February 2001 to 30 March 2001, the sentence was served by way of periodic detention; (ii) from 31 March to 30 September 2001, Hoschke was in custody in relation to the unrelated matters of maliciously inflicting grievous bodily harm and breaching an Apprehended Violence Order; (iii) from 1 October 2001 to 23 June 2002, he is serving a non parole period in relation to this offence in full time custody. 19. It was submitted that while the non parole period imposed on the co-offender by the Court of Criminal Appeal was one of sixteen months it has the effect, taking into account the seventy-eight days served by Hoschke in pre sentence custody, of extending his full time custody by approximately eleven and a half months, and of course the five weeks served in periodic detention cannot be overlooked. 20. The principles as to parity have been authoritatively stated in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. This Court must apply those principles. 21. The differences between the applicant and Hoschke are not such as to justify the extent of the difference in their sentences. I accept that some difference is warranted because of the more favourable subjective features of Hoschke. It must be remembered that both were approximately equally culpable, both were young men whose records did not entitle them to leniency, and both needed to undergo rehabilitation. I do not accept the Crown submission that because the sentence imposed on Hoschke was a result of a Crown appeal to this Court the principles of parity do not apply. That does not alter the justifiable sense of grievance. A similar view was taken in R v Christie [2000] NSWCCA 354. 22. This Court has the advantage also of the affidavit of Kitty Rivana King of 15 March 2002. She is the sister of the applicant and twenty-nine years of age. She holds a position as an employment consultant in Ballina with a church organisation. She is prepared to assist her brother with accommodation and also to attempt to reintegrate him into the community by offering a stable domestic environment where he will receive emotional support. She also hopes to be able to offer direct assistance to him in securing employment upon his release from custody. 23. The affidavit of Madeline Schneider of 15 March 2002 details that since his imprisonment, the applicant has been undertaking useful courses. 24. It is the strength of the parity point on the applicant's behalf that compels re-sentencing. 25. Having considered all the circumstances, I propose the following orders: (a) Extend the time in which the applicant may apply for leave to appeal. (b) Leave to appeal granted. (c) Appeal allowed; sentence quashed. (d) In lieu thereof, the applicant is sentenced to imprisonment for three years commencing on 3 July 2000, with a non parole period starting that day and ending on 25 March 2002, on which day the applicant is to be released on parole. 26. ADAMS J: I agree with his Honour's reasons and with the order proposed. The order will therefore be as his Honour Justice Smart 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.