New South Wales Court of Criminal Appeal CITATION: Regina v Freeman [2005] NSWCCA 460 HEARING DATE(S): 2 December 2005 JUDGMENT DATE: 2 December 2005 JUDGMENT OF: Grove J at 1; Sully J at 27; Howie J at 28 DECISION: APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - CO-OFFENDERS - APPELLANT DISADVANTAGED BY BEING IN CUSTODY LONGER FOR THIS OFFENCE THAN CO-OFFENDER WHO WAS IMPRISONED FOR ADDITIONAL OFFENCE - PARITY - JUSTIFIABLE SENSE OF GRIEVANCE - RESENTENCE APPROPRIATE CASES CITED: Postiglione v The Queen 1997 189 CLR 295 PARTIES: Regina v Jennifer Freeman FILE NUMBER(S): CCA 2005/2151 H. Dhanji (Applicant) COUNSEL: D. Arnott SC (Respondent/Crown) Steve O'Connor (Applicant) SOLICITORS: S. Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1287 LOWER COURT JUDICIAL OFFICER: Hulme DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2151 GROVE J SULLY J HOWIE J 2 December 2005 REGINA v JENNIFER FREEMAN Judgment 1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Campbelltown District Court. 2 The applicant and a co-offender, Toni Kirby, pleaded guilty to a count of aggravated stealing from the person, an offence which carries the statutory maximum of twenty years imprisonment. 3 Each of the offenders was sentenced to imprisonment consisting of a non-parole period of two years and a total term of three years and four months. Both were arrested and kept in custody from the date of the offence, 30 July 2004. The applicant's sentence was directed to commence on that date. Kirby's, for reasons that I will explain, to commence on 30 August 2004. 4 On the evening of 30 July, the victim, an eighteen year old woman, was travelling home by train after attending a TAFE college. She was seated and listening to a walkman. The offenders approached her and, without warning, attacked her. Kirby punched her in the nose and the side of her head which thereby struck the window next to which she was seated. She attempted to retaliate but Kirby punched her in the mouth. The applicant made off with her backpack. 5 A bystander intervened and pulled Kirby away. The offenders went to the vestibule of the carriage and rifled through the backpack. Upon arrival at a station, they alighted. They threw some of the victim's property onto the railway tracks. Their conduct was reported to transport staff. They were detained and police arrived and arrested them. 6 Among other injuries, the victim sustained a fractured nose, which required closed reduction under general anaesthetic and was performed two weeks after the attack. 7 The applicant presents a single ground of appeal asserting that she has a justifiable sense of grievance, by reason of disparity, between the sentences imposed on her and on Kirby. Subject to the ancillary order for commencement, the sentences were the same and the essential thrust of the applicant's argument is that she is aggrieved because she justifiably expected to be treated more leniently. 8 The first limb of argument asserted that there should have been a differentiation, to the applicant's advantage, in the discount received for the pleas of guilty eventually entered by both offenders. 9 Both were charged with robbery in company, an offence which incidentally attracts the same maximum penalty as that to which the guilty pleas were made. By a letter dated 24 September 2004, the applicant's solicitor sought response to an offer to plead guilty to stealing from the person, in lieu of robbery in company. It was not accepted. I do not regard this offer as relevant. 10 A trial was fixed to commence on 14 March 2005. On 4 March, an offer by the applicant to plead guilty to aggravated stealing from the person was communicated. There was no prior communication on behalf of Kirby but on 14 March, the Crown offered to accept pleas of guilty to aggravated stealing from the person and both offenders pleaded guilty accordingly. The circumstance of aggravation was, of course, infliction of actual bodily harm on the victim. 11 The learned sentencing judge evaluated these pleas and assessed the discount of fifteen per cent for each offender. The extent of assessment, as such, is not challenged but, as noted, the applicant claims there should have been some differentiation in her favour. 12 The only relevant discrimination on this aspect is the making of the offer ultimately accepted by the Crown ten days in advance of trial by the applicant. I do not consider that that provides a factor for sentence assessment which would reasonably aggrieve the applicant in comparing her sentence with that received by Kirby. 13 The second aspect of argument adverted to the respective roles of the offenders. It was put that the applicant took the victim's bag but Kirby was directly responsible for the violence. Whilst that is an accurate description of physical activity, the statement in that fashion avoids acknowledgment of an essential ingredient of the applicant's culpability. The Crown has correctly pointed out that the applicant's guilt of the specific offence involved the malicious infliction of actual bodily harm and the intentional participation of the applicant by lending assistance or encouragement to that violence. It is not a valid approach for comparison to isolate the conduct of the applicant in the taking of the backpack which was the obvious primary target of the criminal enterprise. 14 Next, contrast was sought to be drawn between the ages, maturity and intellectual functioning of the two offenders. The applicant was aged nineteen years and nine months, Kirby aged twenty-seven years and seven months as at the date of offence. They had met whilst in prison and formed a relationship which has not continued. It might be mentioned that the applicant was released to parole after serving the full-time custody portion of her sentence for stealing from the person only shortly before the commission of the current crime. 15 Hulme DCJ had psychological and pre-sentence reports in respect of both offenders. In his remarks on sentence, he made express reference to the applicant's youth, her presentation to the psychologist as an adolescent rather than an adult, and her personality defects which reflected dysfunctional upbringing, substance abuse and intellectual limitations. He made relevant findings also concerning Kirby. 16 He was alert to the need to give account to such matters, especially in the context of parity and he said; "There is nothing to differentiate their culpability in terms of the offence itself and whilst there may be some differences in the criminal history, in the manner in which I have regarded them I do not find that a reason to distinguish between subjective cases which are otherwise of similar significance. Ms Freeman is obviously younger and less mature than Ms Kirby but their life histories paint a picture to me that makes discrimination between them in the imposition of penalty, inappropriate". 17 It is not necessary to pause and recite the detail relevant to each offender. I comment that in terms of criminal history the applicant, despite her youth, is less able to call upon prior record as a factor for leniency. His Honour's conclusion was well open on the evidence and no tainting error has been demonstrated. 18 The final complaint concerns the commencement dates of the sentences, the variation in which I indicated I would return to explain. 19 Both offenders were taken into custody and have remained so after 30 July 2004. At the time, there was an outstanding warrant against Kirby for an offence of goods in custody. The warrant was executed and she was sentenced for that offence to imprisonment for three months commencing on 30 July 2004. When sentencing her for the current offence, Hulme DCJ effected partial cumulation by commencing that sentence, which was the same as that received by the applicant, one month later on 30 August 2004. 20 The essence of the applicant's complaint, is that in terms of minimum full-time custody, Kirby has for this offence had an extension of twenty-two months whereas the applicant received a term of twenty-four months. It is contended that his Honour thereby did not achieve the parity which his remarks indicate he intended. 21 Mr Dhanji, for the applicant, has drawn attention to the observation in the joint judgment of Dawson and Gaudron JJ in Postiglione v The Queen 1997 189 CLR 295 that attention be paid to the actual period to be served in consequence of offences committed and, in that case, where cumulation was relevant and co-offenders involved, the real punishment is "the extra period which they must spend in prison". 22 Mr Arnott SC for the Crown, in a written submission, candidly noted that consideration was given to conceding the appeal to the limited extent of reducing the applicant's sentence by two months but argued against so doing. 23 The argument raised three aspects. It was said that the disparity derived from a proper application of the principle of totality when sentencing Kirby, that two months is not a "marked" disparity and third, although perhaps marginal, the prior record of the applicant, which included stealing from the person, suggests she is less deserving of lenience than Kirby. 24 Whilst there is force in these submissions, the ultimate question is whether, if the applicant harbours a sense of grievance, it is justifiable. A term of two months, within the span of minimum custody of twenty-four months is not trivial and, within that context, should be characterised as "marked". 25 I conclude that the applicant has made out a case for adjustment, so as to make the real punishment for the offence, in the sense discussed in Postiglione, equivalent for both offenders. 26 I propose the following orders: 1. Application for leave to appeal against sentence granted and appeal allowed. 2. Sentence imposed in the District Court quashed and in lieu thereof the applicant be sentenced to imprisonment consisting of a non parole period of one year and ten months commencing on 30 July 2004 and expiring on 29 May 2006, with a parole period of one year and four months commencing on 30 May 2006 and expiring on 29 September 2007. 3. The earliest date of eligibility for release to parole specified as 29 May 2006. 27 SULLY J: Yes, I agree with Grove J. 28 HOWIE J: I also agree. 29 GROVE J: The orders of the Court will be as I have 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.