New South Wales Court of Criminal Appeal CITATION : R v BOWTELL [2004] NSWCCA 17 HEARING DATE(S) : 9 February 2004 JUDGMENT DATE : 9 February 2004 JUDGMENT OF : Sully J at 37; James J at 38; Hulme J at 1 DECISION : See paragraph 36 PARTIES : Sidney Justin BOWTELL FILE NUMBER(S) : CCA 60271/03 COUNSEL : Crown: G Rowling Appellant: A Francis SOLICITORS : Crown: CK Smith Appellant: N Carroll LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0014 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER : - 11 - IN THE COURT OF CRIMINAL APPEAL 60271/03 SULLY J JAMES J HULME J 9 February 2004 R v Sidney Justin BOWTELL Judgment 1 HULME J: In this Application for leave to appeal, 2 grounds only are relied upon, viz.- 1. The learned sentencing Judge erred by failing to have regard to the principles of parity and proportionality and the resulting disparity in sentences imposed upon the applicant and his co-offender gives rise to a justifiable sense of grievance; Lowe v The Queen 1984) 154 CLR 606, Postiglione v The Queen (1977) 189 CLR 295 at 301. 2. A lesser sentence is warranted in law; s6(3) Criminal Appeal Act 1912. 2 The applicant and a co-offender Anderson had escaped from Grafton Gaol and then committed a series of offences. Firstly Anderson, and later the applicant, was sentenced by Judge Bellear. Prior to the sentencing of the applicant a Crown appeal against some of the sentences imposed on Anderson had been allowed. The sentences imposed on the applicant and those imposed on Anderson, with which the first ground of appeal requires comparison to be made, were as follows. 3 In respect of the first count, stealing of a motor vehicle, the applicant was sentenced to imprisonment for a fixed term of three years to date from 25 September 2003 and to expire on 24 September 2006. In respect of this offence Anderson was also sentenced to three years imprisonment, although the starting date (and thus the finishing date) was different, namely, 18 October 2001. The difference in the starting dates arises from the fact that the non-parole periods of sentences each was serving at the time of their escape expired at different times. 4 In respect of the second count, one of detaining for advantage and causing injury, the sentence imposed on the applicant was imprisonment for a fixed term of five years and six months, commencing 25 September 2003 and concluding on 24 March 2009. In fact in his Honour's remarks on sentence the term is said to conclude on 24 September 2009. That was obviously a mistake and the correct date appears in the endorsement on the indictment. In the case of Anderson, the sentence in respect of this offence was one for a fixed term of five years, commencing on 18 October 2001 and expiring on 17 October 2006. 5 In respect of each of two counts of aggravated robbery, the applicant was sentenced to imprisonment for a fixed term of four years and five months commencing on 25 September 2003 and expiring on 24 February 2008. In respect of these offences Anderson was sentenced to imprisonment for a fixed term of four years, each commencing on 18 October 2001 and expiring on 17 October 2005. 6 The difference in length between the sentences for the last three of the offences I have mentioned arises from the fact that Bellear DCJ regarded Anderson as having pleaded guilty to these offences at an earlier stage than did the applicant. For his pleas in respect of these offences Anderson was given a twenty-five per cent discount. His Honour stated that in respect of them he was giving the applicant a discount of only approximately twelve and a half per cent. 7 On count 5, a charge of sexual assault accompanied by the malicious infliction of actual bodily harm, the applicant was sentenced to imprisonment for a fixed term of nine years and nine months, commencing on 25 September 2005 and expiring on 24 June 2015. In respect of a similar charge, both this Court and Bellear DCJ sentenced Anderson to imprisonment for a fixed term of six years, commencing on 18 October 2002 and expiring on 17 October 2008. 8 On the sixth count, also a charge of sexual assault accompanied by the malicious infliction of actual bodily harm, the applicant was sentenced to imprisonment for a term of fifteen years and nine months, commencing on 25 September 2007 and expiring on 24 June 2023, with a non-parole period of nine years and nine months expiring on 24 June 2017. In respect of a charge described by Bellear DCJ as "aggravated sexual assault, offender in company with another", but relating to the same incident, this Court sentenced Anderson to imprisonment for eleven years, commencing on 18 October 2004 and expiring on 17 October 2015, with a non-parole period of six years commencing on 18 October 2004 and expiring on 17 October 2010. 9 On the seventh count, of escaping lawful custody, the applicant was sentenced to imprisonment for a fixed term of two years to commence on 25 June 2017 and expire on 24 June 2019. For his similar offence, this Court sentenced Anderson to a fixed term of two years commencing on 18 October 2010 and expiring on 17 October 2012. 10 From this summary it can be seen that the applicant was sentenced to a total effective length of imprisonment of nineteen years and nine months – from 25 September 2003 to 24 June 2023 – this period including an effective parole period of four years, from 25 June 2019 to 24 June 2023. Anderson was sentenced to a total effective length of imprisonment of fourteen years – from 18 October 2001 to 17 October 2015 – this period including an effective parole period of three years, from 18 October 2012 to 17 October 2015. 11 That difference in length of imprisonment seems to reflect principally two matters, namely: (i) the fact that for the applicant the starting point of the sentence for count 5 commenced two years after the start of the sentences for counts 1 to 4, whereas for Anderson that starting point was only one year later; and (ii) the difference in the sentences imposed in respect of the sixth counts. 12 Other differences, for example, the difference in discount given in respect of counts 2, 3 and 4, and the difference in the sentences imposed in respect of the fifth counts, would not seem to have been reflected in the result. 13 On behalf of the applicant it was submitted that the applicant was entitled to the same discount as Anderson in order to reflect the evidence of contrition and admission of guilt at the time of the applicant's arrest. There is no doubt that the applicant at that time did make substantial admissions and exhibit contrition. Evidence of his remorse is something to which Bellear DCJ had regard, but the fact is that the applicant chose not to plead guilty to most of the charges at an early stage. 14 Anderson pleaded guilty to all charges at the Local Court on 21 January 2002, but the applicant then pleaded guilty only to those the subject of the first and seventh counts. As Bellear DCJ recorded: "At the Grafton District Court on three separate occasions (15 March 2002, 27 March 2002 and 15 April 2002) arraignment was adjourned on the defence application on each occasion. The (applicant) was eventually arraigned on 13 May 2002 and entered pleas of guilty to all counts." 15 There were then a number of adjournments of the matter until on 29 July 2002: "The matter as again stood over to 26 August 2002 for mention as the offender, through his counsel, indicated an intention to file a notice of motion seeking to reverse pleas entered on 13 May. On 26 August 2002 the offender abandoned his application to file a notice of motion ...". 16 There was no error in Bellear DCJ treating the applicant differently from Anderson in this regard. The applicant is not entitled to the discount given for pleading guilty at an early stage when he did not do so. 17 And if his Honour was correct in imposing longer sentences on the applicant in respect of counts 2, 3 and 4, then it was not inappropriate that the commencement date of the sentence imposed on the fifth count should be delayed, so that the applicant serve a longer period of imprisonment on those counts before the sentence on the fifth count commenced, than Anderson was required to serve. 18 On the other hand, to double that period does seem to me to place undue weight on the value of Anderson's pleas, and to create inappropriate disparity. After all, the sentences thought appropriate and imposed on the applicant for counts 2, 3 and 4 were only about 10 per cent longer than those imposed on Anderson for those counts. 19 To place the fifth and sixth charges in context, it is appropriate to refer briefly to the events on the occasion when the offences occurred. The escape occurred between about 6 pm on Friday 28 February and 8.20 am on Saturday 1 March 2001. In the evening of 2 March the offenders saw the victim of the assaults walking towards her car at a beach. She was assaulted, gagged, tied up and carried to her vehicle. Anderson drove off in it with Bowtell holding the victim in the rear seat. They found $20 in the victim's purse and bought petrol with it. They then drove into bushland. The victim was placed on the boot of the car, stripped naked and raped. The offenders took turns, each having penile/vaginal intercourse four or five times. There was also digital penetration and oral sex. It was this activity on and near the boot which was the subject of the sixth counts. 20 They then re-entered the car and drove off with the victim. Out of fear she pretended to be agreeable, but wanted water. Anderson insisted on having intercourse in the back seat, first with the victim sitting on him and, in the words of the victim, "wanting to have it all sorts of different ways", while Bowtell drove. It was this intercourse which was the subject of the fifth charge against Anderson. 21 After some time the vehicle stopped, water was obtained, and all drove off. Later the vehicle stopped again. The three alighted and Bowtell had penile/vaginal intercourse with the victim on a towel on the ground while Anderson kept watch. After this they again drove off, later stealing some money from the victim's credit card account. The intercourse referred to in this paragraph is the subject of the fifth charge against the applicant. 22 The physical injuries suffered by the victim consisted principally of multiple abrasions and bruises, although she suffered also a dislocated knee and three splits to her genital area. The evidence did not identify what, if any, injuries were caused in the course of one of the offences rather than another, although it seems clear that the vast majority are likely to have been caused at the time of, or before, the offence the subject of the sixth count. 23 Apart from the difference in discount arising from the difference in timing of the pleas, there is no indication in the remarks on sentence as to why his Honour regarded the offence the subject of the fifth count against the applicant deserving of more serious punishment than the offence fifthly charged against Anderson. While there are differences between their past record of offending, those differences are insufficient to explain why the sentence imposed on the applicant was so much higher than that imposed on Anderson, and I am unable to see, in the evidence relating to the offences themselves, any basis for the difference. 24 I turn to the sixth count where, as has been said, the applicant was sentenced to imprisonment for a term of fifteen years and nine months, with a non-parole period of nine years and nine months, compared with the sentence of imprisonment for eleven years, with a non-parole period of six years imposed on Anderson. Counsel appearing for the Crown in the appeal pointed out that fifteen years and nine months suggests a starting point of eighteen years prior to a discount of approximately twelve and a half per cent for the applicant's plea, and that in Anderson's appeal it was said: "47... However, the head sentences (sic) his Honour imposed, on the more serious of the aggravated sexual assault offences, was eleven years. This suggested that his Honour adopted a starting point prior to the discount of the plea of something in the order of fifteen years. This does not reflect a starting point reflecting the objective gravity of the offence as 'just short' of the worst case. On that basis, a starting point of something of the order of eighteen years would have been appropriate and a 25 per cent discount for the plea would bring the head sentence down to about thirteen years and six months. Absent a finding of special circumstances, this would suggest a non-parole period of the order of about ten years." 25 However, the Court went on to say: "48. Although this would have been at first instance, applying the principle of double jeopardy, does not permit this Court to sentence on that basis. Assuming, for the reasons I have given above, the impracticality of any release to parole for the prior offences, the effect of his Honour's accumulation of the sentences and of the way in which his Honour imposed an additional sentence for the escape offence, was to impose upon the Respondent, over and above the sentence he was already serving, an additional head sentence of eleven years for the entire course of criminality, with a minimum period of eight years. In this case, the principle of totality is of particular significance. That principle extends to encompass the period of incarceration prior to that escape. 49. In my opinion, given the totality of the conduct, the sentence was manifestly inadequate. Bearing in mind the principle of double jeopardy, and that of totality, the additional term should be thirteen years, of which at least ten years should actually be served, with a period of three years potentially in the community under supervision on parole. The inadequacy arises from the way his Honour accumulated the sentences. In my opinion, the two sexual assaults should have been partially cumulative; they were separate in time and location, with the earlier and more serious incident being one of four or five acts in company, and accompanied by threats to the victim's life." 26 Furthermore, the effect of the Court's orders was to commence Anderson's imprisonment for the sexual assault offences one year after the end of the non-parole period he was previously serving (the sentences for the offences of car stealing, kidnapping and robbery occupying this one year), imprison him for a total period of thirteen years, including a non-parole period of eight years for those sexual assault offences, and then have two of the remaining five years devoted to his custody on the escape from lawful custody charge. I confess to some difficulty in reconciling this with all that was said in the passages I have quoted. 27 Be that as it may, the head sentence of fifteen years and nine months imposed on the applicant for the sixth count was four years and nine months longer than that imposed on Anderson. The non-parole period imposed on the applicant for this offence was three years and nine months longer than that imposed on Anderson. Even if one took the view that the applicant should not have the benefit of the double jeopardy which Anderson received, I do not see in the remarks of the Court on Anderson, when considered in totality and in light of the orders made, justification for differences so large. 28 A further way of looking at the issue of disparity is to consider the overall result. For his offending in company with the applicant, Anderson has been imprisoned for fourteen years, of which a maximum of three years can be spent on parole. By the orders of Bellear DCJ the applicant was sentenced to imprisonment for nineteen years and nine months, of which a maximum of four years can be spent on parole. Even making allowance for a difference of approximately twelve and a half percent for the difference in their pleas, making an assumption (incorrect and adverse to the applicant) that that difference applied to all offences, and allowing for a reduction of two years in Anderson's sentence on account of the principle of double jeopardy, there would remain a disparity of the order of two years. 29 The Crown correctly pointed out that this Court's discretion to intervene in order to correct any disparity of sentence between that imposed upon the applicant and that imposed on his co-offender is discretionary – see Lowe v The Queen (1994) 154 CLR 601 at 610, 616 and 624; R v Diamond (unreported CCA, 18 February 1993); R v Reardon (unreported CCA, 19 August 1996) at p1 – and the Court is not required to intervene if the result would be to produce a sentence disproportionate to the objective criminality involved – see R v Steele (unreported CCA, 17 April 1997) at p8; R v Boney [2001] NSWLR 432 at [15]. 30 It was also submitted that it has not been shown that a lesser sentence is warranted in law, and that the sentence ultimately imposed on Anderson reflected, by reason of double jeopardy, a lower sentence than this Court thought appropriate. 31 So far as this last matter is concerned, I accept its relevance to the exercise of the discretion to interfere on the ground of parity, but it has been held in R v Christie [2000] NSWCCA 354 and R v Sharpe [2002] NSWCCA 96 that that does not make the sentence against which comparison is made inappropriate for that purpose. 32 Prominent features of the sentences Bellear DCJ imposed on the applicant are both their accumulated length and the total length of them and the sentence he was previously experiencing. As has been said, his Honour sentenced the applicant to imprisonment for nineteen years and nine months, of which a maximum of four years can be spent on parole. Previously, the applicant was subject to a sentence of imprisonment for twenty-one years, from 23 September 1988, including a non-parole period of fifteen years ending on 22 September 2003, imposed for manslaughter. If the sentences under appeal are allowed to stand, the total period of the applicant's incarceration would be over thirty years. He was born in January 1971, so he has been in prison since he was seventeen. 33 In terms of number of offences Anderson's antecedents are far worse than the applicant's, although consisting mainly of breaking, entering and stealing and other offences of dishonesty and drug offences, which would seem to be relatively low on the scale of such offences. There are two prior offences of escaping lawful custody. The full history of Anderson's incarceration is not before this Court, but it seems clear that he enjoyed numerous periods of freedom, during which he committed many of his offences. The sentence he was serving at the time of his escape with the applicant was for two counts of inflicting grievous bodily harm, and was one of ten years imprisonment, including a non-parole period of seven years and six months, commencing on 19 April 1994. 34 This difference in the length of the prior sentences of the two offenders means that the principle of totality had a significantly greater part to play in the case of the applicant. Bellear DCJ gave no recognition to this. Indeed, his Honour has not obviously given any attention to the topic of totality of the sentences he was imposing and that the applicant was already serving. 35 When regard is had to all of the matters to which I have referred, the conclusion at which I have arrived is that this is a case where parity should have resulted in the applicant's sentences broadly according with those imposed on Anderson. Of course, recognition has to be made of the differences – the lesser discount for some of the applicant's pleas, the greater allowance for totality, and the fact that Anderson had the benefit of an allowance for double jeopardy. 36 In the result, it seems to me that justice will be done by imposing on the applicant a total sentence of the same length as that imposed on Anderson. Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal insofar as it relates to the sentences imposed on counts 1 to 4. 3. Allow the appeal in respect of the sentences imposed for the offences in counts 5 to 7. 4. Quash the sentences imposed for the offences in counts 5 to 7. 5. In respect of the offence the subject of count 5, that the applicant be sentenced to imprisonment for a fixed term of six years commencing on 25 September 2004 and expiring on 24 September 2010. 6. In respect of the offence the subject of count 6, that the applicant be sentenced to imprisonment for a period of eleven years commencing on 25 September 2006 and expiring on 24 September 2017, such period to include a non-parole period of six years commencing on 25 September 2006 and expiring on 24 September 2012. 7. In respect of the offence the subject of count 7, that the applicant be sentenced to imprisonment for a fixed term of two years commencing on 25 September 2012 and expiring on 24 September 2014. 37 SULLY J: I agree. 38 JAMES J: I also agree. ********** Last Modified: 02/12/2004 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.