New South Wales Court of Criminal Appeal CITATION: CALIMBAS & VERGILLA v R [2010] NSWCCA 245 HEARING DATE(S): 16 September 2010 JUDGMENT DATE: 16 September 2010 JUDGMENT OF: McColl JA at 27; Hulme J at 1; Latham J at 28 EX TEMPORE JUDGMENT DATE: 16 September 2010 DECISION: Leave to appeal granted. Appeal dismissed. CALIMBAS, Curt PARTIES: VERGILLA Oscar REGINA FILE NUMBER(S): CCA 2008/8842; 2008/8843/9982 COUNSEL: Crown: P Ingram Applicants: T Gartelmann SOLICITORS: Crown: S Kavanagh Applicants: S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): LOWER COURT JUDICIAL OFFICER: Ellis DCJ LOWER COURT DATE OF DECISION: 9 December 2008 - 7 - IN THE COURT OF CRIMINAL APPEAL 2008/8842 2008/8843/9982 MCCOLL JA RS HULME J LATHAM J Thursday, 16 September 2010 Oscar VEGILLA v R Curt CALIMBAS v R Judgment 1 RS HULME J: On 23 November 2007 four persons robbed the Rhodes Branch of the Bank of Queensland. Two were armed with crowbars and two with shotguns. During the course of the robbery police were notified and attended while the robbery was still in progress. As an incident of the events, a number of offences were committed. 2 The offenders were Oscar Vegilla, Curt Calimbas, Toka Makira and Terry Taniela. With the exception of Vegilla who was charged with the seventh offence listed below, the charges against each offender were identical. The offences, the relevant statutory provisions, and the maximum period of imprisonment prescribed for the offences are as follows:- No Offence Section/Act Maximum 1 Carried in conveyance without consent of owner 154A Crimes Act 5 years 2 Robbery armed with a dangerous weapon 97(2) Crimes Act 25 years 3 Discharge loaded firearm with intent to prevent lawful apprehension 33A(2) Crimes Act 20 years 4 Fire firearm near public place 93G(1)(b) Crimes Act 10 years 5 Possess shortened firearm without authorisation 62(1)(b) Firearms Act 10 years 6 Possess prohibited firearm without authorisation 7(1) Firearms Act 14 years 7 Attempt take motor vehicle without consent when person in vehicle and recklessly inflict actual bodily harm 154C(2) & 344A Crimes Act 14 years 3 Pursuant to s54A et seq of the Crimes Sentencing Procedure Act, a standard non-parole period of 3 years has been prescribed for the offence I have numbered 6. 4 Briefly summarised, the circumstances of the offending were as follows. In a vehicle stolen some days beforehand, the four offenders drove to the bank. All four left the vehicle, Taniela and Calimbas armed with shotguns and the other two each with a crowbar. A security guard was pushed into the bank and forced to the ground. Calimbas and Taniela approached the service counter and Calimbas levelled a shotgun at staff. The security screen was activated but Vegilla with the assistance of others was pushed towards the ceiling, removed ceiling tiles and then via the roof cavity entered the area behind the security screen. 5 Vegilla opened the security door from inside and he, Calimbas and Makira then commenced to ransack teller drawers. At least one member of staff was manhandled. 6 Police then attended and were observed by the offenders who ran to an ATM bunker adjacent to the banking chamber. The door to that chamber closed and its lock had the effect of trapping the offenders in the bunker. The shotguns were then fired at opaque glass panels of the bunker with a view to the offenders' escape. Members of the public were nearby and as a result of the discharge of the firearms, pellets struck the stolen vehicle, and others travelled across the street, one landing near the right eye of one pedestrian and another in the back of a second. 7 Vegilla managed to escape through the fractured glass and ran off. So did Makira. Taniela and Calimbas were arrested adjacent to the bunker. A number of fired shotgun cartridges were recovered. After running off Vegilla sought to further his escape by committing the seventh offence. 8 The sentences imposed on the four offenders for the offences they had in common were as follows (The numbering of the offences accords with the numbering in the preceding table):- Calimbas Vegilla Makira Taniela Term Start Term Start Term Start Term Start 1 6 mts FT 12/5/08 6mts FT 23/6/08 6mts FT 25/3/08 6mts FT 23/12/07 5 1½ yr FT 12/8/08 1½ yr FT 23/9/08 1yr8m FT 25/6/08 1yr8m FT 23/3/08 4 1½ yr FT 12/2/09 1½ yr FT 23/3/09 1yr8m FT 25/12/08 1yr8m FT 23/9/08 6 4/2 yrs 12/8/09 4/2 yrs 23/9/09 4½yrs/2yr 25/6/09 4½/2 yrs 23/3/09 3 3yr10m/ 12/2/11 3yr10m/ 23/3/11 4/2 yrs 25/12/09 4/2 yrs 23/9/09 2yr 2yr 2 7¾/4 yrs 12/12/12 7¾/4 yrs 23/1/14 8/4 yrs 25/6/10 8/4 yrs 23/3/10 9 The sentence imposed on Vegilla for his further offence was of imprisonment for 4 years including a non-parole period of 2 years both such periods commencing 23 January 2013. 10 The effective sentences imposed on the four offenders were thus:- Calimbas imprisonment for 12 years and 4 months including a non-parole period of 8 years and 7 months Vegilla imprisonment for 13 years and 4 months including a non-parole period of 9 years and 7 months Makira and imprisonment for 10 years and 3 months including a Taniela non-parole period of 6 years and 3 months 11 All offenders had been on parole on 23 November 2007. The first commencing date in each case was selected having regard to the period that that offender had left to serve in consequence of his parole being revoked as a result of the 23 November 2007 offending. 12 All four offenders were sentenced by Ellis DCJ – Calimbas on 9 December 2008, Vegilla on 17 April 2009 and Makira and Taniela on 9 October 2009. In the course of his remarks when sentencing Makira and Taniela his Honour observed:- "Mr Vegilla faced one additional count of attempt take a motor vehicle with assault in circumstances of aggravation, otherwise known as attempted aggravated car jacking. Apart from that all four pleaded guilty to the same six offences. The criminality of all four is on a par. The only significant difference that needs to be reflected in sentences is that Mr Calimbas and Mr Vegilla are each entitled to a greater utilitarian discount for their respective pleas of guilty because those pleas of guilty came at an earlier point in time. In imposing the sentences which the court is about to announce, the court adopted a mathematical formula by simply calculating, having regard to the discount allowed to Mr Vegilla and Mr Calimbas where it was that the court commenced the sentence and then to simply discount that nominal figure by the percentage of discount to which Mr Taniela and Mr Makira are entitled." 13 Although the criminal antecedents of the 4 offenders were not identical, they were all significant. Calimbas was born in November 1985. In December 2005 he had been sentenced for robbery whilst armed with an offensive weapon, assault with intent to rob whilst armed with an offensive weapon and robbery in company. For this last offence he was sentenced to imprisonment for 3½ years including a non-parole period of 18 months both such periods commencing on 27 June 2005. 14 Vegilla was born in May 1983. His record included at least 4 offences of robbery in one form or another for the last of which he was sentenced to imprisonment for 5 years including a non-parole period of 3 years, both such periods commencing on 22 March 2004. 15 Makira was born in November 1982. His record included stealing and being carried in stolen vehicles, assault with intent to rob, shoplifting, 2 counts of robbery in company and 2 of robbery whilst armed with an offensive weapon. The longest sentence for these last mentioned offences was of imprisonment for 5½ years including a non-parole period of 3¼ years, both such periods commencing on 29 November 2002. 16 Taniela was born in September 1980. In August 2004 he was sentenced for an offence of robbery in company (with another similar offence taken into account), the term of imprisonment imposed being 4 years including a non-parole period of 2 years, both such periods commencing on 9 February 2004. 17 In arriving at the sentences imposed on Calimbas and Vegilla his Honour noted that the Crown had agreed that an appropriate discount for their pleas of guilty was between 20 and 25%. When sentencing Makira and Taniela his Honour observed that he proposed to allow each a utilitarian discount of 20% in relation to counts 1 and 2 and a discount of 15% in relation to counts 3 to 6. A consideration of the length of the sentences for these last mentioned offences imposed on Calimbas and Vegilla on the one hand and those imposed on Makira and Taniela on the other shows that his Honour carried out this expressed intention. 18 However a comparison of the starting dates of the sentences imposed for offences 3 and 2 shows significantly different degrees of accumulation. In the case of Calimbas and Vegilla - the sentence for count 3 commences 18 months after the commencement of the sentence for count 6, and the sentence for count 2 commences 22 months after the commencement of the sentence for count 3. 19 In the case of Makira and Taniela - the sentence for count 3 commences 6 months after the commencement of the sentence for count 6, and the sentence for count 2 commences 6 months after the commencement of the sentence for count 3. 20 In totality, Makira and Taniela were given 28 months more of concurrency in their sentences than were the Calimbas and Vegilla. His Honour gave no reason for this difference. Having regard to the passage quoted from his Honour's remarks when sentencing Makira and Taniela, the inference is inevitable that the difference in the extent of accumulation was a mistake. 21 The sole ground of appeal relied on by Calimbas and Vegilla is of unjustified disparity with the sentences imposed on Makira and Taniela. It was submitted that the differing degrees of accumulation resulted in effective sentences imposed on Calimbas and Vegilla that give rise to a justified sense of grievance. 22 Once the reason for the difference is recognised the complaint has only to be stated to be rejected. This Court has long held that a sense of grievance is not justified or justifiable if a lower sentence imposed on a co-offender is unduly lenient – see e.g. R v Borkowski [2008] NSWCCA 102 and the cases referred to therein. As was said by Gleeson CJ with the concurrence of Powell JA and Ireland J in R v Rexhaj (unreported, NSWCCA 29 February 1996):- The principle which underlies … (intervention for disparity) … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. …. There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision. 23 The matter is a fortiori when the reason for disparity is as it was when Makira and Taniela were sentenced. 24 In its submissions to the Court the Crown argued that, considered in light of Makira and Taniela's criminality the sentences imposed on them were manifestly inadequate. Given what I have just said, it is unnecessary for me to embark on a detailed consideration of this ground. I would however not leave the matter without saying that, simply in light of the offender's records and the description of the offending that I have set out above, the Crown's submission is demonstrably correct. The sentences imposed on Makira and Taniela were not only manifestly, but grossly, inadequate. They would have been equally so if imposed on Calimbas or Vegilla. 25 I cannot conclude these remarks without observing that the inspiration of this appeal is in part due to yet another failure on the part of the Office of the Director of Public Prosecutions to appeal against sentences which were not only manifestly inadequate but, so obviously so, that it is beyond comprehension that the Director did not appeal against them and that anyone with sufficient experience to be employed in his office did not ensure that that occurred. Whether the explanation lies in lack of funds or a lack of competence, the sentences imposed on Makira and Taniela should not have been allowed to stand. 26 In the case of the present applicants, leave to appeal should be granted but the appeal dismissed. 27 McCOLL JA: I agree with Hulme J. 28 LATHAM J: I also agree with Hulme J. In particular I agree that, at the very least, an examination of the individual sentences imposed by the Judge on Taniela and Makira for the firearm offences suggest that the Judge did not comply with Pierce. The circumstances surrounding the discharge of the firearms warranted sentences significantly above those imposed by the Judge. The terms of imprisonment imposed were, in my view, wholly inadequate to reflect the objective criminality of those individual sentences. ORDER: The orders of the Court, therefore are that leave to appeal is granted. Appeal 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.