New South Wales Court of Criminal Appeal CITATION: Douglas v R [2006] NSWCCA 94 HEARING DATE(S): 1 February 2006 JUDGMENT DATE: 5 April 2006 JUDGMENT OF: Sully J at 1; Latham J at 2 DECISION: Leave to appeal granted; Appeal refused. CATCHWORDS: Sentence only - aggravated break enter and steal - parity considerations where co-offender sentenced by Childrens Court - relevance of four year difference in age between applicant and juvenile co-offender. LEGISLATION CITED: Crimes Act 1900 R v Colgan [1999] NSWCCA 292 CASES CITED: R v Boney [2001] NSWCCA 432 R v Rushby [1999] NSWCCA 104 PARTIES: Applicant - Warren William Douglas Respondent - The Queen FILE NUMBER(S): CCA 1817/2005 COUNSEL: Applicant - Ms D Yehia Respondent - Mr G Rowling SOLICITORS: Applicant - C Hunter Respondent: Mr S Kavanagh LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/1194 LOWER COURT JUDICIAL OFFICER: Dodd DCJ IN THE COURT OF CRIMINAL APPEAL 1817/2005 SULLY J LATHAM J 5 April 2006 WARREN WILLIAM DOUGLAS V REGINA Judgment 1 SULLY J: I agree with Latham J. 2 LATHAM J: The applicant, Warren William Douglas, seeks leave to appeal against a sentence imposed by his Honour Judge Dodd on 3 March 2005. The applicant pleaded guilty to an indictment containing one count of aggravated break enter and steal pursuant to s112(2) of the Crimes Act 1900. A further offence of take and drive conveyance without consent of the owner was taken into account on a Form One document. The Judge imposed a non-parole period of one year and eight months with a balance of term being one year and eight months. The offence on indictment carries a maximum penalty of 20 years' imprisonment. 3 The facts relating to the commission of the offence were set out in a document titled "Agreed Facts", which the Judge incorporated into his remarks on sentence. No issue has been taken on this appeal with the facts as summarised by his Honour and I adopt them for the purposes of these reasons. 4 On the evening of 5 November 2001, the applicant and two co-offenders, namely Cairns and Zarglis met at another co-offender's house (Coleman). At some stage that night, all persons left in a car belonging to Kearns and drove to an inner city suburb. Zarglis asked Cairns to stop and park the car, whereupon the applicant and Zarglis left, returning a short time later with a red Hyundai (the subject of the Form One offence). Cairns followed Zarglis, who drove the red Hyundai, to a town house at Oxley Park where the applicant lived. A short time later, the applicant, Zarglis, Cairns, Coleman and an unknown co-offender left the premises in one or other of the cars and drove to Penrith. The red Hyundai was driven into the front roller door entrance of the Lawson Street Loan Office at Lawson Street, Penrith. The applicant and three co-offenders entered the premises, shattered the glass display counters in the shop and stole jewellery consisting of watches, necklaces, bracelets and rings. During the commission of the offence, an alarm was set off. The applicant and his three co-offenders returned to the vehicle where Cairns was waiting. The offenders returned to the applicant's townhouse where the proceeds of the offence were divided up. The applicant was arrested on 8 November 2001 and declined to participate in an interview. He was granted bail. The value of the items stolen that night was approximately $41,995. Approximately $15,000 worth of damage was caused to the loan office premises and fittings. 5 The applicant was almost 21 at the time of the offence and 24 years of age at the time of sentence. The period of time which elapsed between the commission of the offence and sentence was partly explained by the applicant's conduct over the history of the proceedings. The matter was originally listed for trial at Penrith District Court on 19 May 2003. The plea was entered on 21 May 2003 and the matter was stood over for the purposes of the preparation of a Pre Sentence Report. The applicant's bail was continued. The applicant next appeared for sentence on 29 August 2003, on which occasion the applicant's mother gave evidence and a number of documents were tendered in the applicant's case. There followed a luncheon adjournment, after which the applicant failed to return to court. A bench warrant was issued on that day and executed on 9 December 2004, at which time the applicant was taken into custody. On 15 December 2004 the applicant applied for bail before his Honour Judge Dodd who refused bail. The matter was stood over for sentence to 25 February 2005, when the evidence and submissions were completed. 6 In the course of his Honour's remarks on sentence the offence was described as a serious offence, "attended with a great deal of destruction." The prevalence of the offence, in particular "ram raids", rendered the principle of general deterrence of particular relevance to the sentencing exercise. I respectfully agree with his Honour's assessment of the objective gravity of the offence, that is, that it fell towards the middle of the scale for such offences. Specific aggravating features were present, namely the fact that the offence was part of a planned criminal activity, that the loss and damage caused by the offence was substantial and that the offence was committed while the applicant was on conditional liberty. 7 The Judge recognised that the applicant's criminal history deprived him of any leniency. Disregarding five convictions in the Children's Court relating to the theft of motor vehicles, the applicant had been convicted on three occasions in 1999 for property offences and motor vehicle offences, resulting in the imposition of fines, a community service order and a recognisance to be of good behaviour for two years. In August of 2000 the applicant was breached for his failure to comply with the terms of the community service order. In May 2001 the applicant received a s 9 bond to be of good behaviour for 12 months in relation to a property offence. In September and October 2001 further convictions were recorded for property and motor vehicle related offences. The applicant was fined on these occasions. As at the date of the commission of the offence, the applicant was on bail for a break, enter and steal offence and subject to the bond he had entered but 6 months previously. Following the commission of the instant offence, the applicant was convicted in February 2002 at Penrith Local Court on a break enter and steal charge, for which the applicant received a suspended sentence of imprisonment for 12 months and a further s 9 bond of 12 months in relation to an offence of drive whilst disqualified. In July 2002, the applicant was again convicted of two counts of drive whilst disqualified and received a sentence of six months imprisonment and nine months imprisonment respectively. The applicant's appeals against these sentences to the District Court were dismissed. A further conviction for larceny in September 2002 at Penrith Local Court resulted in a sentence of six months' imprisonment. The applicant also received a sentence of two months imprisonment (backdated to 9 December 2004) at Ryde Local Court on 2 March 2005 in relation to a larceny offence. 8 It is difficult to describe this criminal history as anything other than the manifestation of a continuing attitude of disobedience to the law. However, what is notable is the absence of convictions throughout 2003 and 2004, even allowing for the fact that the applicant was in custody until mid March 2003. Clearly, the applicant had made some progress during this period, if for no other reason than he was fearful of returning to prison. The applicant gave some evidence of an assault he had sustained whilst in custody in late 2002. The Judge adverted to the applicant's progress since being returned to custody on 8 December 2004. The Pre Sentence Report provided evidence of the applicant's engagement in drug and alcohol programs within the prison system and his regular attendance at counselling. The applicant completed a relapse prevention program and was committed to furthering his employment prospects upon release. He had formed a relationship with a young woman whom he met whilst at large. The Judge acknowledged the objective evidence tending to suggest that the applicant had "turned over a new leaf" and that he was genuinely remorseful. His prospects of rehabilitation were considered reasonably good. 9 No issue is taken with the allocation by the Judge of a 15 percent discount in order to reflect the utilitarian value of the applicant's plea, coming as it did shortly prior to the commencement of the trial. Nor is any specific error the subject of complaint by the applicant, save for the issue of parity to which I will now turn. 10 The applicant's grounds of appeal as filed were that the Judge failed to have regard to the question of parity and that the sentence was manifestly excessive. On the hearing of the appeal, counsel for the applicant wisely conceded that, absent the parity point, the second ground could not be maintained. It is only necessary therefore to consider the issue of parity and then only in regard to the sentence imposed on the co-offender Zarglis, since the applicant also concedes that there were relevant distinguishing features between himself and the co-offenders Coleman and Cairns. 11 It is instructive to set out what his Honour said in relation to the applicant's co-offenders:- In respect of Coleman, he pleaded guilty in the magistrates court to one count of aggravated break enter and steal in company and was sentenced by his Honour Judge O'Reilly at Penrith District Court on 28 August 2002 to a total sentence of two years periodic detention with a non parole period of 15 months. His Honour then there took into account the early plea of guilty and also an undertaking by Coleman to give Crown evidence against his co-accused. Zarglis was a juvenile dealt with at Cobham Children's Court on 16 January 2002 in respect of the goods in custody charge for which he was fined $300, an aggravated break and enter with intent in company, which is the matter in respect of which you are now before me, for which he was given a nine-month suspended sentence that is subject to a control order; and the matter of being carried in a conveyance without the consent of the owner, for which he was given 100 hours community service. Cairns entered a plea of guilty after the fact of being an accessory to break enter and steal and had taken into account a count of taking and driving a conveyance without the consent of the owner. He was sentenced by me at Penrith District Court on 2 May 2003 and given a section 9 bond for three years subject to supervision. I took into account his plea of guilty at the earliest opportunity on that charge and an undertaking to give evidence on behalf of the Crown in respect of his co-accused. For various reasons, none of those matters are exactly comparable to the extent of necessitating parity of sentencing. Zarglis was a juvenile. The other two entered pleas at the earliest opportunity and undertook to give evidence for the Crown. In respect of all of them, the histories were not the same and there were not the same aggravating factors as must be taken into account in your case. In my view no issue of parity arises. Nevertheless, the sentence that I must impose on you should not be unduly disproportionate to the way in which they have been dealt with. 12 The applicant submits that despite the Judge's awareness of the need to impose a sentence on the applicant which was not unduly disproportionate to that imposed upon the co-offenders, his Honour nonetheless proceeded so to do. The applicant relies upon the absence of any Crown appeal, particularly in relation to Zarglis. It is asserted that, absent a finding that the sentence imposed on Zarglis was inadequate, the Judge was required to have regard to that sentence, even if that resulted in the imposition of a more lenient sentence than would have otherwise been imposed. It was not contended that a measure of difference in the sentences to be imposed was not justified. The applicant accepted at all times that a full-time custodial sentence was appropriate. Rather, it is said that the measure of difference, such as it was, did not call for a full-time custodial sentence of the duration imposed. 13 In support of the submission that his Honour failed to have regard to the sentence imposed upon Zarglis, the applicant points to comments made by his Honour in the course of the applicant's bail application on 15 December 2004. On that occasion, his Honour was responding to a submission made by the applicant's then representative, to the effect that none of the offenders had received a custodial sentence. His Honour said "there might be reasons for that. ….. But it appears that Coleman and Cairns who -- there was another fellow, Zarglis who was a juvenile, so forget about him -- but Coleman and Cairns who were co-offenders escaped getting prison terms because of an early plea of guilty and undertakings to give evidence. …. I am just saying what happened to the other two. ….. Well, I'm not sentencing him now. This is a bail application." I would not regard these comments as bearing in any way upon his Honour's approach to the question of sentence almost 3 months later, particularly in view of the fact that the focus of the proceedings on that day was the likelihood of the applicant's appearance at court so that a sentence might finally be imposed. 14 Returning then to the remarks on sentence, it cannot be realistically maintained in my view that his Honour treated the sentence imposed upon Zarglis as irrelevant for the purposes of formulating an appropriate sentence in the applicant's case. His Honour was conscious of its relevance to the issue of proportionality. There is a distinction to be drawn between a determination in relation to issues of parity and the complete disregard of a sentence imposed upon a co-offender. A determination that issues of parity do not arise in a given case is nonetheless consistent with an acknowledgement of the relevance of a sentence passed upon a co-offender. As Sully J. observed in R v Colgan [1999] NSWCCA 292, where the sentencing regime applied respectively to a co-offender and to an applicant are completely different, it may be that the outcome in the less punitive jurisdiction is not "wholly irrelevant". However, it does not follow that it is appropriate to advance a parity argument, of the kind which seeks to draw direct comparisons between two offenders, as though they were both subject to the same jurisdiction. Both Spigelman C. J. and Newman J. agreed with these observations. 15 This much was recognised by Wood C.J. at C.L. in R v Boney [2001] NSWCCA 432, wherein his Honour summarised a number of factors applying to that applicant's case, including: -- There is no longer an inflexible rule that there is no utility in comparing sentences imposed upon co-offenders who are separately dealt with, one in the Children's Court and the other as an adult. See Regina v Govinden (1999) 106 A Crim R 314 and R v Colgan [1999] NSWCCA 292. While it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence. ……………………………………………………………………………Even where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved." 16 When one has regard to the objective and subjective circumstances in relation to the co-offender Zarglis, bearing in mind the principles set out above, I am unpersuaded that there was anything erroneous in his Honour's approach and I am unpersuaded that any relevant disparity arises warranting the intervention of this Court. There was an age difference of some significance between the applicant and Zarglis. That feature alone is capable of distinguishing the applicant from Zarglis : see R v Rushby [1999] NSWCCA 104. As noted above, the applicant was almost 21 years of age as at the date of the offence, whereas Zarglis was one month beyond his 17th birthday. Accepting that Zarglis drove the red Hyundai into the premises and accepting that his criminal history was at least as lengthy and as serious as the applicant's, the applicant was well and truly an adult, with all the responsibility and liability that adulthood brings. True it is that the applicant had suffered from a young age with attention deficit disorder, precipitating his departure from school at the age of 14, and true it is that the applicant's early life and teenage years were blighted by misfortune, the deaths of several close relatives, homelessness and drug abuse. Be that as it may, there was no evidence to suggest that the applicant was relevantly developmentally delayed, to the extent that might suggest maturity well below his chronological years. Even were I to reach the conclusion that disparity arose, I would not intervene to reduce the applicant's sentence. The objective gravity of the offence was of a high order, requiring no lesser sentence than that imposed. 17 There is no substance to the applicant's ground of appeal. I propose the following orders: -- 1. Leave to appeal granted. 2. Appeal refused. ********** 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.