New South Wales Court of Criminal Appeal CITATION: DRINAN v REGINA [2006] NSWCCA 303 HEARING DATE(S): 1 August 2006 JUDGMENT DATE: 22 September 2006 JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 2; Rothman J at 3 DECISION: Leave to appeal granted; Appeal dismissed. CATCHWORDS: Criminal Law - appeals - whether use of standard non-parole period was inappropriate - parity - whether sentences manifestly excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Way (2004) 60 NSWLR 168 CASES CITED: Postiglione v The Queen (1997) 189 CLR 295 Lowe v The Queen (1994) 154 CLR 606 PARTIES: A - Anthony Stewart DRINAN R - REGINA FILE NUMBER(S): CCA 2006/951 COUNSEL: A - Mr L Flannery R - Mr D C Frearson SOLICITORS: A - S Calomeris (LAC) R - S Kavanagh (Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/61/0012 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 26 August 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Drinan and Stender (Unreported, District Court of NSW, 26/08/05) - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/951 SPIGELMAN CJ HOEBEN J ROTHMAN J 22 September 2006 ANTHONY STEWART DRINAN v REGINA Judgment 1 SPIGELMAN CJ: I agree with Rothman J. 2 HOEBEN J: I agree with Rothman J. 3 ROTHMAN J: Anthony Stewart Drinan was sentenced by his Honour Judge Finnane at the Sydney District Court on 26 August 2005 for three offences: malicious damage (date of offence 10 August 2004); common assault (date of offence 10 August 2004); aggravated break, enter and commit serious indictable offence (date of offence 14/15 August 2004). 4 For each of those offences, Mr Drinan was sentence to a s.9 bond (in relation to Counts 1 and 2) and in relation to Count 3, a non-parole period of 2 years and 6 months' imprisonment with a total term of 6 years, each of which was to date from 24 June 2005. From those sentences Mr Drinan seeks leave to appeal and, to the extent leave is granted, requests this Court to quash the sentences and impose lesser sentences. 5 The maximum sentence for each offence is: Count 1, malicious damage, imprisonment for 5 years; Count 2, common assault, imprisonment for 2 years; and Count 3, aggravated break, enter and commit serious indictable offence, imprisonment for 20 years. No standard non-parole period is set for any one of the offences. Background Facts 6 On 9 August 2004 someone stole a six week old dog from the residence of the applicant and his girlfriend. They sought and obtained information on the identity of the thief or thieves. From that information the applicant suspected that Darren McKeown and Nathan Carrick were responsible. The circumstances of the robbery were that the thieves had hit the adult mother dog in order to steal the puppy. 7 On 10 August 2004, three persons, one of whom was the applicant, went to Mr Carrick's place. They knocked on the window and the applicant's brother, Matthew Drinan, kicked a hole in the wall. All of this was at or about 10.30 pm. When the said Matthew Drinan kicked the hole in the wall, the effect was that Mr Carrick was hit through the hole. The applicant and his co-offender then started questioning and abusing Mr Carrick. At the time the applicant was armed with a pick handle. A Mr Stender took hold of Mr Carrick's shirt and threatened him and, before they left the premises, the applicant hit Mr Carrick on the shoulder with the pick handle and smashed the bedroom window. The evidence is that this incident would not have been reported but for the occurrence of the later incident which I will now describe. 8 On 14 August 2004 at about 11.00 pm, the applicant and Mr Stender, together with their respective girlfriends and another, consumed a large quantity of the alcohol at home in Orange. (The Sentencing Judge found that both the applicant and Mr Stender were alcoholics and had been alcoholics for many years.) At approximately 11.00 pm that night Mr Stender and the applicant went to Mr McKeown's home. Again the applicant was armed with the wooden pick handle which, by this time, had been wrapped in red coloured tape because the wood of the handle had split. The Sentencing Judge found that the applicant took the pick handle with him because he intended to use it to assault either or both Mr McKeown or Mr Carrick. Mr Stender knew that the applicant was in possession of the pick handle and was likely to use it. 9 On arrival at the McKeown home, they damaged the screen door. After discussion with the pregnant girlfriend of Mr McKeown, Mr Stender and the applicant departed. They went to Mr Carrick's place of residence. There, once more, Mr Stender damaged the screen door and entered the premises. 10 Mr Carrick, the victim, was in the rear bedroom lying on a mattress watching television. Mr Stender kicked the mattress. Both men then yelled at him about the stolen dog (the dog had been returned by the Police two days earlier). Mr Carrick indicated that it was Mr McKeown who had stolen the dog and curled up under the blankets fearing for his safety and protecting his head with his arms. The sentencing judge described the scene thus: "Despite the fact that Mr Carrick was obviously helpless and completely unable to defend himself, both men then set about assaulting him. [The applicant] used the wooden pick handle to strike Mr Carrick upwards of ten times or more on the shoulders, arm, chest and left side of his head. Mr Stender assaulted Mr Carrick by kicking him in the forehead and on the side of the head three times. He then stomped on his head just above the ear twice. At one point, Mr Stender tried to persuade [the applicant] to leave, [the applicant] pushed him away and kept hitting the victim. The victim was crying and shouting; as it turns out he is a man who has a mild mental disability." Finnane DCJ described the behaviour as "particularly violent". 11 The applicant and Mr Stender left the premise leaving Mr Carrick injured without taking precautions to ensure that assistance was gained for him. Mr Carrick was severely injured. The next day when he could summon help, he was taken to Orange Base Hospital where he was found to be suffering from a badly broken jaw and severe bruising to the left side of his body. He underwent surgery and the insertion of plates. On his arrest, or as soon after his arrest as was reasonable, the applicant pleaded guilty and was treated by the sentencing judge as having pleaded guilty to all three charges at the first opportunity. Grounds of Appeal 12 The applicant raises three grounds of appeal, which grounds go to both leave and the merits of the appeal. Those grounds are: a Ground One: His Honour erred by using as a starting point the standard non-parole period and then crafting the sentence around it, rather than, having determined that the standard non-parole period did not apply, exercising his sentencing discretion in accordance with established sentencing practice and by reference to matters identified in s.3A, s.21A, s.22, s.22A and s.23 of the Crimes (Sentencing Procedure) Act 1999; b Ground Two: His Honour erred in failing to properly consider the issue of parity; c Ground Three: The sentence imposed for the aggravated break, enter and commit serious indictable offence is manifestly excessive. Ground One: Inappropriate Use of the Standard Non-Parole Period 13 Pursuant to the principles involved in sentencing, His Honour was required to determine whether the objective seriousness of the offence was within the mid-range of seriousness. The submission of the applicant concentrates on some words used by his Honour and, with respect to Counsel, does so out of context. His Honour said: "I am required to approach sentence in these matters having regard to principle. When it comes to matters where standard non-parole periods are imposed, it is recognised that the level of sentences imposed before the standard non-parole period regime came in, are quite different and reference to previous statistics are of very limited value. That is because one of the effects of the standard non-parole period system is to cause an increase in sentence and in particular the minimum period that a person spends in custody… [His Honour referred to R v Pellew 2005 NSWCCA 151] A standard non-parole period of 5 years is applied to this offence if a Judge comes to the conclusion that it is in the middle range of objective seriousness. The maximum penalty is 20 years. The middle range of objective seriousness is always a difficult thing to determine. Because in this case the defender pleaded guilty, I am not in any way obliged to impose a standard non-parole period, even if I come to the conclusion that the offence is in the middle range of objective seriousness. However, I am required to have regard to the non-parole period which is fixed as one guide post and the maximum as another. I am then required to look at questions of discount of sentence that might apply because of an early plea of guilty and any matters in aggravation and mitigation. What, in truth, I am required to do is to determine, having regard to the fact that I do not have to impose that period but do have to determine where in the range of objective seriousness this applies, what is the non-parole period that I would fix before discounting it for an early plea of guilty. I must have regard to all the aggravating and mitigating features." 14 There is no error involved in that approach of his Honour. His Honour went on to determine the sentence that he sought to impose both as to non-parole period and the remainder of sentence. Nothing in R v Way (2004) 60 NSWLR 168 is inconsistent with the approach adopted by his Honour and this ground of appeal fails. Ground Two: Parity 15 The complaint made by the applicant is that Finnane DCJ imposed identical sentences on the applicant and his co-offender Robert Stender. 16 Finnane DCJ imposed identical overall effective sentences on both the applicant and his co-offender. In the case of the applicant, he was sentenced for three offences, while Mr Stender was sentenced for two offences. 17 The subjective circumstances of each offender were different. Unlike the applicant, Mr Stender had a record of previous convictions and was on a s.12 bond from Queensland at the time of the offence. The applicant had no prior offences. Further, the applicant submits that Mr Stender was older than the applicant, although it is conceded that the age difference is only 10 months. 18 The applicant draws the Court's attention to what is said to be a concession. During the course of submissions, the Crown conceded that there was no distinction between the objective circumstances of the offence committed by each of the co-offenders. As a result of that concession no submission was made on behalf of the applicant as to parity. 19 An analysis of the facts would suggest that the concession by the Crown was generous to the applicant. As previously noted, when the applicant was assaulting the victim with a pick handle, the co-offender sought to have him cease the activity and leave. One would have thought, in those circumstances, that the objective circumstances of each offender were to some extent different. Nevertheless, the concession was made. The applicant now suggests that sentencing each of the applicant and his co-offender to the same sentence in circumstances of that concession and the absence of a submission on parity was an error of law and, also implicitly, a denial of natural justice. 20 The objective circumstances of the offence may well be the same and for the purposes of this appeal I will treat them as the same. The fundamental question is whether the subjective differences between the two co-offenders warrant a less severe sentence for the applicant in circumstances where the applicant has pleaded guilty to an additional offence. Put another way, do the subjective differences warrant a more severe sentence for the co-offender in the circumstances of these offences? The age difference does not seem to be particularly significant. It certainly does not, in the circumstances of this case, mean that the co-offender was the leader and the applicant his subordinate. Ultimately, his Honour treated the previous convictions and the s.12 bond from Queensland as not making a material difference to the sentence to be imposed. That was a matter within the discretion of his Honour. 21 The notions of equal justice require consistency in punishment between co-offenders in like circumstances, and due discrimination for relevant differences in criminality: Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1994) 154 CLR 606. Fundamentally, the question is always whether the same sentence is justified for both and, if not, the extent of any differences. In this case, the Crown conceded that the objective seriousness of the offence (as distinct from the offenders) was comparable. His Honour applied this assessment. That necessarily implies that, taking into account only objective seriousness of the offences, the sentences should also be comparable. However, one must bear in mind that in the case of the applicant there are three offences and in the case of the co-offender there are two. Moreover, his Honour's view that the record of previous convictions and the existence of the previous s.12 bond from Queensland, were not such as to warrant disparate sentences, is one which, in the circumstances of this case, was open to his Honour and with which this Court ought not interfere. Otherwise put, there is no justified sense of unfair treatment by treating each of the co-offenders comparably, notwithstanding their slightly different subjective circumstances. Ground Three: Manifest Excess 22 As the discussion with his Honour during the course of sentencing indicated, one can imagine worse cases than the instant case. However, it is always possible to imagine a worse case. By and large, a worse case than this aggravated break, enter and commit serious indictable offence would have probably resulted in other serious charges being laid. This is a situation where, because it was thought the victim had stolen a puppy of the applicant, the applicant damaged the victim's property, assaulted him on one occasion and then assaulted him quite seriously, having broken into his premises to do so, on a second occasion. The victim was bashed with a pick handle in his own home. This is an extremely serious and violent offence. Clearly there are, as the Sentencing Judge indicated, subjective factors which the Sentencing Judge took into account to impose a non-parole period of two years and six months as part of a total effective term of six years (i.e. a remainder of term of three years and six months). 23 The maximum sentence that could have been imposed was 20 years imprisonment. A lesser sentence than 2½ years' non-parole period for these offences would be less than adequate. 24 In these circumstances there is no manifest excess in the sentence that has been imposed. Each of the subjective circumstances has been taken into account and the Sentencing Judge found special circumstances warranting a shorter non-parole period than required by the statute. 25 I would reject each of the grounds of appeal and I propose the following orders: a Leave to appeal be granted; b The appeal be dismissed. ********** 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.