New South Wales Court of Criminal Appeal CITATION: Regina v McIlwraith [2005] NSWCCA 137 HEARING DATE(S): 6 April 2005 JUDGMENT DATE: 6 April 2005 JUDGMENT OF: Hunt AJA at 32; Grove J at 2; Hall J at 33 DECISION: APPEAL DISMISSED CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - AGGRAVATED ROBBERY - MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM BY APPELLANT - PARITY WITH CO-OFFENDER WHO WAS MARKEDLY LESS INVOLVED NOT REQUIRED - JUDGE DECLINES TO DEPART FROM STATUTORY FORMULA WHEN SETTING NON PAROLE PERIOD - NO OBLIGATION SO TO DO - ERROR NOT IMPLIED BY ABSENCE OF ELABORATION LEGISLATION CITED: S 44 Crimes (Sentencing Procedure) Act 1999 Postiglione v The Queen 1997 189 CLR 295 R v Hoshke [2001] NSWCCA 317 R v Fidow [2004] NSWCCA 172 CASES CITED: R v Hookey [2004] NSWCCA 223 R v Phillips [2003] NSWCCA 373 R v Simpson 2001 53 NSWLR 704 PARTIES: Regina v Nathan Vaughan McIlwraith FILE NUMBER(S): CCA 2005/292 V. Lydiard (Crown) COUNSEL: H. Dhanji (Applicant) S. Kavanagh (DPP) SOLICITORS: S.E. O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0528 LOWER COURT JUDICIAL OFFICER: Balla DCJ IN THE COURT OF CRIMINAL APPEAL 2005/292 HUNT AJA GROVE J HALL J Wednesday 6 April 2005 REGINA v NATHAN VAUGHAN McILWRAITH Judgment 1 HUNT AJA: Mr Justice Grove will give the first judgment. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Balla DCJ at Sydney District Court. The applicant had pleaded guilty before a magistrate to a single charge of aggravated robbery, the circumstance of aggravation being that he maliciously inflicted actual bodily harm. The prescribed maximum penalty for such offence is imprisonment for twenty years. For procedural reasons the applicant pleaded guilty to indictment presented but his early plea of guilty before the magistrate was recognized and her Honour indicated that she was reducing the sentence which she otherwise would have assessed by 25 percent in recognition of that early plea. 3 The applicant was sentenced to imprisonment consisting of a non parole period of four years and six months with a total term of six years. 4 The undisputed facts were that at about 9.30 pm on Wednesday 14 January 2004 the applicant with two other persons entered the premises of Civic Video Store in Dee Why. A fourth person, a juvenile, waited outside the store. 5 What happened thereafter was captured on a store security camera. The video has been shown to the Court this afternoon. At the time there were two employees of the store present, a male and a female. The applicant approached the male and, after making an obscene remark, jumped upon the counter and knocked a computer monitor to the floor, whereafter he began to punch the man about the head and body a number of times. The female employee was directed to lie on the floor with which direction she complied. 6 The applicant and one other offender went to cash registers from which money was extracted. The applicant then noticed the male employee's wallet underneath the register and took $135 from it. Two mobile phones belonging to the employees were also taken. 7 The applicant then returned to the male victim, punched him in the head several more times and demanded the keys to a safe. The victim told him that he did not have a key to the safe as he was not the manager. The applicant renewed his attack punching the victim repeatedly about the head. He was later able to rise and he went to the safe cupboard demonstrating that he was unable to open the door. 8 A comment indicated that the intruders were going to leave, however the applicant walked up some stairs and kicked an office door, returned downstairs and then kicked and punched the male employee a number of times again. 9 It appeared that the applicant was continuing to search for either money or keys and the victim was able to get outside the premises. He made his way towards Dee Why police station and the applicant did not follow. 10 About an hour later police saw the applicant in a hotel car park. He was observed to have what appeared to be blood on his clothing and person. He was taken into custody. His clothing was taken for forensic examination and money was found in the pockets as well as some $335 in assorted denominations which fell from his underpants when they were being removed. 11 Testing established that it was the blood of the male employee of Civic Video which was on the applicant's shorts and leg. 12 The victim was found to have sustained fractures to both nasal bones, a black eye and generalized injuries to his head. 13 The applicant presents two grounds of appeal, the first asserting that he has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and that imposed upon one of the co-offenders Lockrey. 14 Unlike the applicant Lockrey pleaded not guilty and following trial was convicted on a count identical to that charged against the applicant. Hock DCJ in sentencing Lockrey was aware of the sentence which the applicant had received. She made a number of important findings for the purpose of assessing Lockrey's sentence. She found that Lockrey did not know prior to entering the store that the applicant was going to use violence on the employee and that the applicant had simply inflicted completely gratuitous violence upon the victim. She noted that when the applicant was arrested about an hour after the offence he was still in possession of most of the cash taken. Lockrey had turned eighteen years of age just ten days before he committed the offence. She added this specific observation: "Issues of parity arise with McIlwraith, who has already been dealt with by her Honour Judge Balla. He was sentenced to a term of imprisonment of six years with a non parole period of four and half years. He too was on parole at the time of this offence. He was twenty two at the time and therefore four years older than this offender. His criminal record was much more extensive. Although the Crown case was based on joint criminal enterprise, in my view McIlwraith's culpability is greater than this offender's, as he was the person who actually inflicted the violence on the young male employee. That factor and the other matters I have mentioned have led me to the conclusion that this offender should receive a lesser sentence than McIlwraith, even though the latter pleaded guilty and his sentence was reduced by 25 percent to reflect the utilitarian value of the plea to the criminal justice system". 15 It might be observed that the applicant's record shows that he was most recently released from custody on 20 September 2003, a little under four months before the present offence. 16 There is no need to recite the various articulations in the authorities concerning the provocation of appellate intervention where disparity in sentence engenders a justifiable sense of grievance in an offender who has received the heavier sentence. In my view the essential issue in this case is whether any sense of grievance harboured by the applicant is justifiable. 17 Counsel for the applicant has drawn attention to what was said in R v Hoshke [2001] NSWCCA 317 concerning the inappropriateness of attempting to assess with any degree of precision the role which is played by each in the consummation of a criminal enterprise. It was recognized, however that that does not mean that differentiation is inappropriate. In this particular case there was a dramatic demonstration available by viewing the footage which the security video camera provided. Whilst the matter before the Court is the sentence imposed by Balla DCJ it suffices for present purposes to observe that the differentiations adverted to by Hock DCJ when dealing with Lockrey were entirely appropriate. Whilst both offenders were on parole, the applicant had a more significant record, was advanced into young adulthood whereas Lockrey had ceased to be, at least technically, a juvenile several days before only, it was the applicant who meted out the significant violence, which was not a matter anticipated by Lockrey when he entered into the venture, and the applicant was the recipient of the bulk of the money taken. 18 Lockrey was sentenced to imprisonment consisting of a non parole period of three years with a total term of five years. Having regard to the "discount" for the early plea of guilty, it can be estimated that the applicant's starting point as assessed by Balla DCJ must have been a total term of eight years imprisonment. It is argued that, on that basis, a non parole period, absent a finding of special circumstances, would amount to six years and this is double the sentence ultimately received by Lockrey. Hence it is said that the applicant has a justifiable sense of grievance. 19 In Postiglione v The Queen 1997 189 CLR 295 @ 304 in the joint judgment of Dawson and Gaudron JJ it was recognized that disparity may be illustrated by examination of the actual time which co-offenders are to spend in prison. It must also be the case that the absence of disparity in the sense of being not so great as to engender a justifiable sense of grievance, can be so illustrated. In the present case the time to be served by the applicant before becoming eligible for consideration for parole exceeds the time to be served by Lockrey by a period of eighteen months. 20 Given that it is conceded that it is the applicant who actually inflicted the bodily harm, the difference in ages and that the applicant had a worse record, I do not conclude that any sense of grievance harboured by the applicant is in the circumstances, justifiable. I would reject the first ground of appeal. 21 Ground 2 asserts that the sentencing judge erred in failing to properly consider the question of special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act 1999. 22 Her Honour stated that she declined to find any special circumstances as set out in that provision. She did not elaborate. It is implicit in the contention of the applicant that the failure to elaborate demonstrates that her Honour failed properly to consider the question. 23 The applicant places reliance upon the opinions expressed by the psychologist Mr Champion in particular. Amongst other things, Mr Champion opined that the applicant was an angry somewhat depressed, impulsive, undercontrolled man with a serious history of poly substance abuse with dependency/addiction. It is not clear that all of those descriptions emanate from analysis of the results of psychological testing which is Mr Champion's area of expertise, however it was opinion evidence available to be acted upon. 24 It is plain, however, that in the context of all the available material, there are matters which would have been capable of amounting to special circumstances for the purposes of the statutory provision. Her Honour was not bound to find such special circumstances. It might be noted that the statutory obligation is to give reasons for departing from the formula so as to increase the proportion of potential release to parole and not to give reasons when the formula is applied. 25 The Crown has noted points concerning special circumstances made in the decision of R v Fidow [2004] NSWCCA 172: "(a) Special circumstances have become so common it appears that there can be nothing special about many cases in which such a finding is made. (b) Recent Judicial Commission research states that 84.7 percent of the 2,801 cases heard in the New South Wales District and Supreme Courts in 2002 had a non parole period to full time ratio of 66.7 percent or less and this was not intended by Parliament. (c) Courts should be cautioned against 'double counting', that is, i.e. using the same matters to reduce the term of sentence as well as to vary the ratio. (d) There is a difference between identifying matters capable of being special circumstances and actually varying the ratio. The circumstances must be 'sufficiently special' to justify variation of the ratio. The non parole period set must still appropriately reflect the criminality involved." 26 However, counsel for the applicant referred to the remarks of Howie J in R v Hookey [2004] NSWCCA 223 where his Honour said: "I appreciate that the section only requires that reasons be given where special circumstances are found, but in a case, as the present, where it is clear that there are matters which might amount to special circumstances, it behoves the sentencing judge to say something as to why they do not justify a departure from the statutory norm. In a situation where 87 percent of the prison population has had a finding of special circumstances made for its benefit, see R v Fidow [2004] NSWCCA 172, the applicant was entitled to know such a finding was not made in his case". 27 Hookey was a case decided by a two judge bench, which by definition, is not an appropriate vehicle for the establishment of legal principle whether relating to sentence or otherwise. It is true however, that in other cases, for example R v Phillips [2003] NSWCCA 373 a bench of three judges (Sully and Hulme JJ and Miles AJ) observed that where it is accepted that there are matters capable of amounting to special circumstances it would be necessary at least to expose some reasoning to justify the end result. Observations such as those just mentioned need to be appreciated in the context particularly of the decision in R v Simpson 2001 53 NSWLR 704 where the bench was constituted by five judges and Spigelman CJ wrote (Mason P, Newman AJ and myself agreeing, Sully J in a separate judgment making no reference to the matter): "It will be a very rare case in which there is no fact capable as a matter of law, of constituting a 'special circumstance'. The first decision is one of fact – to identify the circumstances -, secondly, one of judgment – to determine that those circumstances justify a lower proportion at relationship between the non parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter, there are unlikely to be many cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or to be manifestly excessive". 28 It does not inevitably follow that a judge who has applied the statutory formula has fallen into error in not elaborating reasons for so doing. So to hold would add an obligation which does not appear in the statutory provision. In so saying, I do not dissent from the desirability in an appropriate case of articulating reasons. This Court is not obliged to exercise its power to intervene on sentence simply because a judge has declined to depart from the statutory formula. Adherence to the statute is an inherent and necessarily implicit reason. 29 In Simpson it was expressly and unequivocally said that there is no obligation to give reasons for not varying the statutory proportion under s 44(2) @ p 721. 30 I am unpersuaded that in the present case the non parole period is manifestly excessive. The applicant's crime was aggravated by its commission whilst he was on parole, the assessment of the particular seriousness of which is reflected in the relatively short time since his last release from custody. The violence meted out to the victim was entirely unprovoked and as the facts show, involved no less than three separate occasions in which he returned to beat the victim. No lesser sentence than that imposed by the first instance judge, and I include in that concept the specification of the non parole period, was warranted, and in my opinion the sentence should not be reduced. 31 I propose that application for leave to appeal against sentence be granted but the appeal dismissed. 32 HUNT AJA: I agree with the orders proposed by Mr Justice Grove for the reasons he has given. 33 HALL J: I so agree. 34 HUNT AJA: The orders of the Court are those proposed by Mr Justice Grove. ********** 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.