Shedden v R [2013] NSWCCA 225

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Shedden v R [2013] NSWCCA 225 Hearing dates: Monday, 23 September 2013 Decision date: 09 October 2013 Before: Hoeben CJ at CL at [1] Bellew J at [46 ] Barr AJ at [47 ] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - whether sentencing judge should have applied parity principle - manslaughter - group of young men engaged in retaliatory assault - victim shot while armed with a knife - comparison of culpability and personal characteristics of two offenders - important differences in culpability and personal characteristics - no basis for any justified sense of grievance. Legislation Cited: Criminal Appeal Act 1912 Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 R v Forbes [2011] NSWSC 1547 Category: Principal judgment Parties: John Wayne Shedden - Applicant Representation: Counsel: Mr S Odgers SC - Applicant Ms H Wilson - Respondent Crown Solicitors: SE O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/226908 Decision under appeal Citation: [2012] NSWSC 759 Date of Decision: 2012-07-06 00:00:00 Before: Fullerton J File Number(s): 2010/226908

Judgment 1HOEBEN CJ at CL: Offence and sentence On 16 April 2012 the trial of the applicant for the murder of Joshua Maynard at Raymond Terrace on 29 June 2010 was listed for hearing. On 17 April 2012 he was arraigned on that charge to which he entered a plea of not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment. 2On 6 July 2012 Fullerton J sentenced the applicant for that offence - imprisonment with a non-parole period of 6 years and 9 months, commencing 7 July 2010 and expiring 6 April 2017 with a balance of term of 2 years and 3 months, expiring 6 July 2019. 3Pursuant to s5(1)(c) of the Criminal Appeal Act 1912 the applicant seeks leave to appeal against the sentence imposed on him on a single ground of appeal: The sentencing judge erred in failing to apply the parity principle. Factual Background 4At about 9pm on 29 June 2010 Daniel Forbes was walking with two friends when a red Commodore, in which the deceased and his younger brother were travelling as passengers, stopped and the deceased alighted. The deceased was aged 20 and his younger brother 19. Daniel Forbes and his two friends were aged 18. They had been celebrating an 18th birthday and were considerably affected by alcohol. One of his companions was punched by the deceased causing facial injuries which bled profusely. Mr Forbes was also assaulted. 5Mr Forbes and his friends ran from the scene to his home where he telephoned the applicant. The applicant was at that time aged 31. The applicant then invited Mr Forbes and his friends to come to his home at Links Drive. Except for Mr Forbes, they arrived armed with various weapons, including knives. Mr Forbes was unarmed. 6The applicant permitted the young men to use his home as a base from which a retaliatory assault could be planned and launched. The applicant also arranged for his older brother, Chad Shedden, and another friend, Bradley White, to join them. The applicant dispatched one of his friends to collect Bradley White. He was overheard to say to his brother, "Some of the young boys have been beaten up and they need our help". 7After Chad Shedden arrived he was seen by Mr Forbes to remove a shortened shotgun from his jacket. He was also seen to open the breech and remove and replace a cartridge. There was no evidence that the applicant was present when this occurred, or that he was otherwise aware that his brother was armed with a loaded firearm until it was discharged, killing the deceased some time later. He was, however, aware that one of the people who had grouped together in his house had a gun, having overheard someone on the telephone attempting to obtain another gun. It is conceded that he made no enquiries as to who had the gun or whether it was loaded. 8As Bradley White was driven into Links Drive, the red Commodore also arrived. Members of the applicant's group had by that time positioned themselves in various locations on the street from where they launched a surprise attack on the red Commodore using weapons of various kinds. None of the occupants of the red Commodore got out of the car. The applicant was armed with a metal rod which he threw, and which struck the back of the car. 9The red Commodore sped off pursued by Bradley White. There was no evidence of any contact between the two vehicles, or the occupants of the two vehicles, before Mr White returned to Links Drive where he regrouped with the applicant, his brother Chad Shedden, and the other young men. Still armed with weapons of various kinds they then moved around the area on foot looking for the red Commodore and its occupants. They were unsuccessful and returned to Links Drive where they again concealed themselves in anticipation of the red Commodore returning. At this time the applicant knew that the group was variously armed with metal rods, a hammer and knives in anticipation of a fresh confrontation with the occupants of the car. The applicant continued to believe that one of the group had a gun. 10Meanwhile, the occupants of the red Commodore armed themselves and made their way back to Links Drive in a blue Commodore in substitution for the damaged red Commodore. On this occasion, the car was met at the corner of Links Drive and an intersecting street by someone who was dispatched to lure the car into the street for the purposes of being ambushed by those in the applicant's group. 11As the blue Commodore drove into the street it was struck with broken pieces of paving bricks, causing the car to stop. The applicant and those in his group then surrounded the car, striking it with the obvious intention of causing damage. 12The applicant was at the rear of the car brandishing a metal rod when the deceased emerged from the front passenger seat armed with a machete or knife of some kind and moved toward the rear of the car. He was heard to say, "Who wants to get stabbed?" As he approached the rear of the car, he was shot by Chad Shedden who was standing close to the applicant. Before the shot was fired, Chad Shedden was heard to tell the applicant to move out of the way. He was heard to say to the deceased, "Do you want to get shot? Do you want to get shot?" 13The deceased died on the way to the hospital from a single shotgun injury to the chest. 14Initially the applicant denied any involvement, when first spoken to by the police. Later in a record of interview of 7 July 2010, following his arrest, the applicant directed the police to an area under the Irrawang Bridge on the north bank of the Hunter River where the shotgun that was used to kill the deceased was located by police divers the following day. Within a short period of time, he nominated his brother as the shooter to the police. 15At the time the applicant provided this information, he had a well founded fear of retaliation by his brother and by other members of his family because of the assistance which he had provided to the police. As a result, he has been in protective custody since the date of his arrest (7 July 2010), not only because of fears of retaliation from members of the family and friends of the deceased, but also from members of his own family. Remarks on sentence 16In relation to the objective seriousness of the offence, her Honour said: "24 I am satisfied that the offender played a principal role in the joint criminal enterprise in the course of which the deceased was shot and killed. Rather than counselling Daniel Forbes and his friends (very much younger men) against retaliation for the assault they suffered at the hands of the deceased, he recruited others to join with him for the specific purpose of mounting a retaliatory attack and then participated in that attack in the belief that one of the members of his group had a gun. In addition, apparently not content with having damaged the red Commodore in the first attack, the offender was party to planning and launching a second armed attack after the blue Commodore was lured into Links Drive. While this does not constitute organised criminal activity as that concept is understood in s21A(2)(n) of the Crimes (Sentencing Procedure) Act, the assault was the subject of some planning, however amateurish. The offending is further aggravated by the complete disregard for public safety associated with a planned violent assault on a suburban street with the knowledge that one person was armed with a gun (s21A(2)(i)). Other aggravating factors under s21A(2) (including the use of a weapon and the offence being committed in company) have been taken into account in the assessment of the objective criminality of the joint criminal enterprise. 25 While I accept that the offender could not have known that the occupants of the blue Commodore would get out of the car, it was part of the planned attack that it would be stopped by missiles of various kinds being thrown at it. In those circumstances it was inevitable that there would be a physical confrontation between the two groups of men with a real risk of serious injury being inflicted given the offender's knowledge that members of his group were armed with knives and other makeshift weapons. Although the evidence does not establish that he knew that the gun in the possession of one of the men in his group was loaded until his brother and the deceased confronted one another and the gun was discharged, this does not diminish the objective seriousness of his criminal offending to any significant degree." 17Because of the plea of guilty, and the assistance provided to the police, her Honour allowed a combined discount of 25 percent in favour of the applicant. 18The following subjective circumstances were taken into account. The applicant had a criminal record with entries of violence as a juvenile and convictions for offences involving violence as an adult. The most recent offence was possession of a knife with the intention to commit an indictable offence in 2008, which attracted a term of imprisonment of 18 months. 19The applicant did not call any evidence. His subjective circumstances were addressed in submissions by his counsel. It was not submitted that there were any factors in s21A which mitigated the objective seriousness of his offending. 20In relation to parity, her Honour said: "Parity 32 Daniel Forbes was sentenced by Harrison J for his role in the manslaughter of the deceased to imprisonment for 3 years with a non-parole period of 1 year and 6 months (see R v Forbes [2011] NSWSC 1547). 33 The facts found by his Honour for sentencing purposes are materially different from the facts upon which this offender is to be sentenced. His Honour found that Mr Forbes failed to appreciate the likelihood that the planned retaliatory attack would result in physical violence; that he was not armed at any time; that he had no opportunity to prevent the fatal shooting or withdraw from the enterprise even on the theoretical assumption that he was aware from what he had been told of what was likely to occur. His Honour also found that he was vulnerable to the influence of the offender and his brother as older men. In the result, his Honour was satisfied that Mr Forbes' criminality was at the lower end of the scale. 34 His Honour was also satisfied that leniency should be extended because of Mr Forbes' age, the fact that he had no criminal record and other favourable subjective circumstances. The sentence that might otherwise have been imposed was also discounted by 50 percent, representing the combined effect of an early plea of guilty and Mr Forbes' undertaking to give evidence against this offender and Chad Shedden. 35 In accordance with settled authority, the offender's counsel did not submit that the principles of parity applied in these circumstances." 21When passing sentence, her Honour summarised the salient features of the applicant's offending as follows: "38 In this case I am satisfied that the offender's role reflects a high degree of criminality which is untempered by any matters in mitigation. I am also satisfied that the nature of the joint criminal enterprise in which he apparently took a leading role was different in a range of respects from the circumstances frequently encountered in cases of manslaughter in this category. While I am obliged to accept that the death of the deceased was not something that the offender contemplated, and that it was ultimately the result of a stand-off between two armed men, his conduct in planning and joining with others in an armed attack of the kind that was launched (and on two separate occasions on the one night in a suburban street), carried with it the risk of someone suffering serious injury. This must attract a sentence capable of deterring others from behaviour of the kind in which these two groups of men participated as well as punishing this offender and denouncing his conduct publicly. ..." Relevant findings in the sentence proceedings of Daniel Forbes - R v Forbes [2011] NSWSC 1547 22Mr Forbes was born in February 1992 and was aged 18 at the time of the offence. He had been in regular employment and a large number of testimonials from people in many different walks of life were placed before the court. He was found to be genuinely remorseful for his offending behaviour. Although other persons in the group were armed, Mr Forbes was not. 23In relation to mitigating factors, it was found in favour of Mr Forbes that the death of the deceased was not itself planned, organised or even discussed. There was some provocation in terms of the assault on him. He was a person of good character with no criminal convictions. He was assessed as unlikely to re-offend and with excellent prospects of rehabilitation. He received a 50 percent discount for his early plea and assistance to police. 24In addition, the following specific findings were made in his favour. "As his group was leaving the house his intention was to "punch on" with the members of the opposing group" [48]. "It is apparent that the offender neither armed himself with any weapon nor would he appear at any time up until when the deceased was killed to have taken any specific or particular act in furtherance of the enterprise beyond his limited organisation of his colleagues and his presence at the scene as a participant in it." [49] "There is as well the very troubling spectre of the role played in all these events by the Shedden brothers. Each has a significant criminal history ... Each was also in relative terms considerably older than the offender and other members of the Lakeside Crew. It is clear that they were influential in what occurred." [58] "The relationship between the death of the deceased and the presence of the offender at the scene in this case is very little more than spatial and contemporaneous. He did not contribute to the death of the deceased in any direct causal sense and he had no opportunity to prevent it or to withdraw from the enterprise on the theoretical assumption that he had been apprised of what was about to occur." [59] "... the offender was inexperienced in life and unfamiliar with the potential consequences of violence. He was also naïve and gullible, and upon the basis of his uncontested record of interview, he was easily led." [60] The appeal 25A preliminary submission was made by the applicant to the effect that her Honour had incorrectly stated the concession made by his counsel when she said "the offender's counsel did not submit that the principles of parity applied in these circumstances". The applicant submitted that the effect of what his counsel said was not that he should receive the same sentence, nor the same "starting point sentence" as Mr Forbes, but that it should still be taken into account as a "touchstone" in accordance with parity principles. 26I do not agree. The relevant exchange is to be found at T.38.31 of the sentencing transcript. "FITZGERALD: The other matter that arose in your Honour's canvas of the Crown, before I move to my fresh matters, is that of the applicability of the sentence of Daniel Forbes. I do not submit to the court that parity is something that the court would need to consider, but I do, in asking the court to view the penalty of Daniel Forbes as, if I may, a touchstone, insofar as there is some comparisons and some distinguishing features, it is conceded that my client is older than Daniel Forbes; my client, at the relevant time, was 31; I think, I stand to be corrected, Daniel Forbes was then 18. My client has with him the life experience, and those life experiences include a criminal history such as it was, and I'll refer to that later if I may." 27As I read that exchange, senior counsel was expressly eschewing reliance upon the parity principle, but did wish to make reference to the sentence imposed on Mr Forbes as providing some assistance to her Honour when sentencing the applicant. Ultimately, however, that issue is not determinative. It is open to the applicant with leave pursuant to r 4 of the Criminal Appeal Rules, to raise the issue. If the parity principle was capable of being engaged in this matter, but was not and injustice resulted, the granting of leave would clearly be appropriate. 28Accordingly, I propose to deal with the matter on that basis. 29The applicant submitted that the parity principle plainly applied in this case. This was because the principle applied to "co-offenders". He relied upon the statement by the plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462: "29 ... The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision." The applicant submitted that in this case there was no issue that the applicant and Mr Forbes were co-offenders. 30The applicant submitted that the application of the parity principle required a comparison of the seriousness of the offences committed by each co-offender and of the matters personal to each in the light of sentencing principles and guideposts. When assessing relative offence seriousness, a particular co-offender's level of culpability was to be assessed by reference to the offender's particular conduct. Differing personal history and matters "subjective" to each co-offender might justify different sentences, notwithstanding comparable offence seriousness. 31The applicant conceded that there were differences, particularly in terms of subjective circumstances between him and Mr Forbes. The applicant submitted that the issue before this Court was whether those differences justified a starting point sentence for the applicant which was 12 years, i.e. 6 years longer than the starting point for Mr Forbes. He submitted that they did not. 32The applicant submitted that because her Honour erred in failing to apply the parity principle when it clearly applied, the question for this Court was not whether it was "open" to her Honour to impose the sentence which she did but rather whether this Court, considering the issue for itself, regarded it as an appropriate application of the parity principle. 33The applicant submitted that a comparison of culpability and subjective considerations between the co-offenders made it clear that the parity principle had been breached by the applicant's sentence and that he had a justifiable sense of grievance. 34In relation to the offending, the applicant submitted that the level of culpability was equal. Mr Forbes had "gathered people together to assist him to respond by assaulting the deceased and his companions". By comparison, the applicant did not initiate the joint criminal enterprise but rather recruited others to join with him for the specific purpose of mounting a retaliatory attack. The disregard of public safety associated with a planned assault on a suburban street was relevant to the offending of both. 35The applicant submitted that his knowledge in relation to the firearm and that of Mr Forbes was similar. Mr Forbes knew that Chad Shedden had a shotgun and saw him load it, whereas the applicant was told that a participant in the joint criminal enterprise had a firearm but he did not know who, nor did he know whether it was loaded. 36The applicant accepted that in relation to subjective circumstances, there was a significant difference between those of Mr Forbes and his. Mr Forbes was 18, did not have a criminal record and was found to be a person of good character with excellent prospects of rehabilitation. He had also expressed remorse. The applicant accepted that he had a criminal record with entries for violence and convictions for offences involving violence as an adult. There was no evidence of remorse. 37The applicant submitted that the result of such a comparison made it clear that his sense of grievance was justified in that the differences between him and Mr Forbes, by reference to culpability and personal circumstances, simply did not justify such a disparity in sentences. Consideration 38It is not accurate to say that her Honour erred in failing to apply the parity principle. It is clear from the way in which her Honour dealt with it (see [20] hereof) that her Honour implicitly accepted that the principle applied otherwise there was no purpose in her setting out what she regarded as the significant distinguishing features between Mr Forbes and the applicant. What her Honour was really saying in a shorthand way, was that when one carried out the comparison of culpability and personal circumstances, which the application of the parity principle required, the end result was that there was no basis for any justified sense of grievance on the part of the applicant. The question for this Court is whether it was open to her to reach that conclusion. 39I do not agree that the culpability of the applicant and Mr Forbes was the same. The participation of Mr Forbes in the joint criminal enterprise was very much as a follower under the direction of the applicant and his brother. The applicant actively recruited participants in the joint criminal enterprise and adopted a leadership role. The applicant played a part in planning and launching the two attacks on the car in which the deceased was travelling. This is to be contrasted with the position of Mr Forbes who was found to be naive, gullible and easily led. The applicant was armed but Mr Forbes was not. 40In the particular circumstances of this offence, the difference in ages is important. The applicant was 31 and Mr Forbes was 18. Not only did the applicant have more life experience, but that experience extended to crimes of violence which included the possession if not the use of a weapon. Mr Forbes had no such experience and was clearly dominated by the applicant and his brother. 41As her Honour found, the applicant instead of using his age and greater experience to counsel his younger companions, including Mr Forbes, used it to encourage their participation in the joint criminal enterprise in which he had a principal role. 42As the applicant properly conceded, a comparison of their personal characteristics significantly favoured Mr Forbes. Mr Forbes had the advantage of good character without any criminal antecedents, remorse and excellent prospects of rehabilitation. 43These were the very differences which the plurality in Green v The Queen; Quinn v The Queen identified as justifying a significant disparity in sentences: "31 ... The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." 44Her Honour found, in effect, that it was the profound differences between the culpability and personal circumstances of the applicant and Mr Forbes that reduced the principle of parity to a point of virtual irrelevance. Not only was it open to her Honour to find that the parity principle did not apply in the sense that there was no basis for a justified sense of grievance on the part of the applicant but had it been necessary to consider these matters for myself I would have reached the same conclusion. 45The orders which I propose are: (1) Leave to appeal be granted. (2) Appeal dismissed. 46BELLEW J: I agree with Hoeben CJ at CL. 47BARR AJ: I agree with Hoeben CJ at CL.