New South Wales Court of Criminal Appeal CITATION: Anthony John Priest v R [2009] NSWCCA 33 HEARING DATE(S): 19 February 2009 JUDGMENT DATE: 19 February 2009 JUDGMENT OF: McClellan CJatCL at 25; James J at 26; Buddin J at 1 1 Grant leave to appeal. 2 Allow the appeal. DECISION: 3 Quash the sentence imposed in the District Court. 4 Sentence the applicant to a non-parole period of 1 year 8 months with the total term of imprisonment being 3 years 4 months with both terms to commence on 14 November 2007. 5 The total term of imprisonment will expire on 13 March 2011 and the applicant will be eligible for release on parole on 13 July 2009. CATCHWORDS: Criminal law - aggravated robbery - consideration of parity - sentencing judge provided with inaccurate information concerning co-offender's sentence CATEGORY: Principal judgment PARTIES: Anthony John Priest ( Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/11924 COUNSEL: Ms H Cox (Applicant) V Lydiard (Respondent) SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11924 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 08/05/2008 IN THE COURT OF CRIMINAL APPEAL 2007/11924 McCLELLAN CJ at CL JAMES J BUDDIN J THURSDAY 19 FEBRUARY 2009 ANTHONY TONY PRIEST v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court following his plea of guilty to one count of aggravated robbery. The circumstance of aggravation was the infliction of actual bodily harm. That offence attracts a maximum penalty of 20 years imprisonment. A further offence, which appeared on a Form 1 document, namely that the applicant allowed himself to be carried in a conveyance that had been taken without the consent of the owner, was taken into account on sentence. The sentencing judge imposed a non-parole period of 2 years imprisonment with the total term of imprisonment being one of 4 years. 2 The applicant's co-offender had earlier been sentenced by another judge. That offender, who stood for sentence in respect of the same offences, received a non-parole period of 18 months imprisonment with the total term being 3 years imprisonment. 3 The sole ground of appeal is that "the applicant has a legitimate sense of grievance when comparing his sentence with that imposed upon his co-offender". 4 As there was no dispute about the facts of the matter, they can be briefly stated. 5 On 5 February 2007 the victim was contacted by a woman who offered him accommodation in Kempsey. That night the victim drove to Kempsey where he met the woman at a service station. There she introduced him to her companion who was the applicant. The three of them then travelled to premises in South Kempsey where the co-offender was in attendance. The victim stayed overnight at the premises. 6 The following morning the applicant, the co-offender and the victim went for a drive in the victim's car. The victim was directed to drive to an area of bushland. The three men then got out of the car and walked some distance along a track. Without warning the victim was attacked from behind by the applicant who punched him a number of times. The co-offender joined in and placed the victim in a headlock. Whilst the co-offender held the victim, the applicant removed his wallet which contained $800, a Westpac card and personal papers. The offenders demanded the victim's PIN number and the assault continued until he provided them with a number. As it happened, the victim provided them with a bogus number. 7 The applicant and his co-offender then departed. The victim was made to walk but was informed where he could find his car. The victim hitchhiked to Kempsey and reported the matter to police. Later that day the co-offender was arrested at the premises in which the assault upon him had taken place. In the ceiling cavity police recovered the victim's wallet and his personal papers but the $800 was missing. The victim's car with the keys in it was also recovered. 8 The applicant was arrested at the same premises about a week later. He was subsequently granted bail but failed to appear at his committal hearing. In due course he was arrested and the sentence to which reference was made earlier was backdated to take into account the period of time which the applicant had spent in custody prior to being arrested. 9 As a result of the attack, the victim suffered a fractured rib and several abrasions and bruising to his face and head. 10 The applicant was born in Bathurst. He was educated to Year 9 but had problems with literacy. Because he has only limited intellectual capacity he was teased at school by other children and got into fights. His relationship with his mother was a difficult one and as a result he ran away from home. Whilst at school he began consuming alcohol and cannabis but later progressed to amphetamines and heroin. At the time that he committed the present offences the applicant was using heroin and speed at a cost of $400 - $500 a day. He attributed his offending conduct, and indeed earlier offences he had committed, to his dependency upon illicit drugs. 11 The applicant does not have any formal trade qualifications and what employment he has had has been in unskilled positions. He and a former partner have three children, who at the time of sentence, were aged between 2 and 6. The applicant has had no contact with them since the breakdown of that relationship several years ago. The evidence reveals that the applicant is estranged from his family and that he has received no visits whilst he has been in gaol. The applicant gave evidence that he wanted to enter a methadone program and to undergo rehabilitation for his drug problems. 12 The applicant indicated his intention to plead guilty some weeks before the trial was listed to commence. For that reason, the sentencing judge allowed him a discount which his Honour described as being "towards the lower end of the range indicated in the guideline judgment of R v Thomson and Houlton". The sentencing judge was not persuaded that the applicant was truly remorseful for his actions and nor was his Honour prepared to find that the applicant had good prospects of rehabilitation. 13 The sentencing judge described the applicant's antecedents in the following terms: The offender was born on 15 June 1979 and so he is now twenty-eight. He has a criminal history that commenced in the Children's Court when he was sixteen. It includes offences such as stealing, receiving, having a knife in a public place, assault, contravention of an Apprehended Domestic Violence Order and property damage. For these types of offences he received probation and bonds, fines and periodic detention. For an offence of assault occasioning actual bodily harm he was imprisoned for eight months in 2005. There are drink driving and other traffic offences as well. He has a record in Victoria for car theft. He has various offences on his Queensland record. In Western Australia there is an offence of robbery in company that brought three months detention in the Children's Court in 1996. These records of previous offences shows in the offender a continuing attitude of disobedience of the law, such that considerations of retribution and personal deterrence should be given a greater emphasis in the sentencing exercise. I do note however that the offence for which he presently stands for sentence is of significantly more seriousness than all of his previous offences, except perhaps the matter in Western Australia I have referred to. Another matter to particularly note about the offender's criminal history is the fact that on 22 January 2007, only a fortnight before committing the offences with which I am concerned, the offender was placed on a good behaviour bond for a driving offence. It was a condition of the bond that he accept the supervision of the Probation and Parole Service. That obviously had no impact upon the offender. Committing an offence whilst in the community on conditional liberty is well recognised as a serious aggravating feature. 14 It was against that background that the sentencing judge came to consider the issue of parity. The sentencing judge referred to the objective gravity of the offence and properly concluded that it was a serious one. His Honour also concluded that upon the material before him there was no basis for differentiating between the respective roles of the applicant and his co-offender particularly given that they were involved in a joint enterprise. 15 Although the remarks on sentence in respect of the co-offender were not before the sentencing judge other relevant material, including the co-offender's antecedents, were in evidence in the applicant's proceedings. 16 The co-offender was 46 at the time of sentence. He too had a criminal record which commenced in the Children's Court when he was 13. The sentencing judge observed that it "contains some quite serious offences but most of his offending was in his younger years. I note that [the co-offender] was also on conditional liberty at the time of the offences, he having received a suspended sentence bond a month before for two counts of assault." In fact the co-offender's record contained convictions for stealing, break and enter, drug offences, armed robbery and a number of instances of assault occasioning actual bodily harm. He had committed offences in five jurisdictions. 17 The sentencing judge was informed by the Crown that the co-offender had pleaded guilty after the jury had been empanelled for his trial and that he had, as a consequence, received a 15% discount from the otherwise appropriate sentence. The Crown informed his Honour that the co-offender had received an additional discount of 25% on sentence for his offer to give evidence against the applicant. 18 It is common ground that the latter information was incorrect. In fact a combined discount of 25% to reflect his plea of guilty (which was assessed as being worth 15%) and his assistance to the authorities was extended to the co-offender. 19 The sentencing judge concluded that "whilst there might be fine differences between the position of each offender, I have come to the view that parity should apply and this means [the applicant] should receive the same sentence as that imposed upon [the co-offender], aside from the discount [the co-offender] received for his undertaking to assist authorities". The sentencing judge assumed that the earlier judge "had selected a starting point of five years as appropriate and that without the discount for assistance the sentence would have been in the order of four years". 20 It was upon that basis that the applicant received an overall sentence of 4 years imprisonment. The sentencing judge determined, consistently with the sentence imposed upon the co-offender, to fix the non-parole period at 50% of the overall sentence. 21 In those circumstances the applicant submits that the sentence imposed by the sentencing judge is infected by error, albeit one that was caused solely by the inaccurate information provided to him by the Crown. It is submitted that this court should intervene and re-sentence the applicant in such a fashion as to reflect the sentencing judge's clear intentions. 22 I accept that submission and am fortified in doing so by the very responsible attitude taken by the Crown Prosecutor who appeared in this court. She acknowledged that that was the appropriate course for the court to take. The starting point for the co-offender's sentence was 4 years imprisonment before the overall discount of 25%, to which he was entitled, was applied. Accordingly, I am of the view that the same starting point of 4 years should apply in the applicant's case before providing him with a discount for his plea of guilty which, as the sentencing judge said, should be "towards the lower end of the range" of 10% - 25%. 23 In re-sentencing I have had regard to the contents of an affidavit sworn by the applicant. It is not necessary to refer to the contents of it other than to indicate that he has been spending his time in custody productively and that he is taking steps which may provide some optimism for his eventual rehabilitation. Orders 24 I propose the following orders. 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentence imposed in the District Court. 4 Sentence the applicant to a non-parole period of 1 year 8 months with the total term of imprisonment being 3 years 4 months with both terms to commence on 14 November 2007. 5 The total term of imprisonment will expire on 13 March 2011 and the applicant will be eligible for release on parole on 13 July 2009. 25 McCLELLAN CJ at CL: I agree. 26 JAMES J: I also agree. 27 McCLELLAN CJ at CL: The orders of the court will be as proposed by Buddin J. ********** 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. 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