Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gaggioli v R [2014] NSWCCA 246 Hearing dates: 15/09/2014 Decision date: 31 October 2014 Before: Hoeben CJ at CL at [1]; Fullerton J at [2]; Adamson J at [41] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - aggravated robbery in company - whether a justifiable sense of grievance has been engendered by the differential approach of the prosecution to the facts tendered in the sentence proceedings of the co-offender - whether sentencing judge erred in partially accumulating sentences Legislation Cited: Crimes Act 1900 (NSW), s 97(2) Cases Cited: Baquiran v R [2014] NSWCCA 221 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Ith v R [2013] NSWCCA 280 Ivory v R [2014] NSWCCA 181 Magaming v The Queen [2013] HCA 40; 302 ALR 461 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Henry (1999) 46 NSWLR 346 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Tan v R [2014] NSWCCA 96 Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 16 Category: Principal judgment Parties: Angelo Robert Gaggioli (Applicant) The Crown (Respondent) Representation: Counsel: A Bellanto QC/P Rowe (Applicant) N Adams SC (Crown) Solicitors: Maclarens Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2012/313581 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-07-19 00:00:00 Before: Lerve DCJ File Number(s): 2012/313581 Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal sentences imposed in the District Court on 19 July 2013 after pleas of guilty were entered in the Local Court on 23 April 2012 to three counts of aggravated robbery in company, contrary to s 97(2) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment. 3The offences were committed when three persons were robbed at gunpoint. The property stolen consisted of cash, mobile phones and other electronic devices and credit cards. The weapon, described in the particulars of each charge as a "small black handgun" was a dangerous weapon within the meaning of s 4 of the Crimes Act. The particulars of each charge also alleged that it was the co-offender (Zarb) who had possession of the weapon. 4On 19 July 2013 the applicant was sentenced as follows: Count 1: A non-parole period of 3 years commencing on 27 March 2013 and expiring on 26 March 2016 with a balance of term of 2 years and 6 months expiring on 26 September 2018; Count 2: A non-parole period of 3 years commencing on 27 June 2013 and expiring on 26 June 2016 with a balance of term of 2 years and 6 months expiring on 26 December 2018; and Count 3: A non-parole period of 3 years commencing on 27 September 2013 and expiring on 26 September 2016 with a balance of term of 2 years and 6 months expiring on 26 March 2019. 5A total term of imprisonment of 6 years was imposed with a non-parole period of 3 years and 6 months expiring on 26 September 2016. A discount of 25 per cent was allowed for the early pleas. 6The sentencing order reflects the application of the totality principle in that a non-parole period of 3 years imprisonment was imposed for each of the three counts with the sentences on Counts 2 and 3 partially accumulated by three months resulting in a total non-parole period of 3 years and 6 months. A finding of special circumstances was made based, in part, on the partial accumulation of sentences. 7The applicant relies upon two grounds of appeal: Ground 1: A justifiable sense of grievance has been engendered by the differential approach the prosecution has taken to the facts tendered in the sentence proceedings of the co-offender. Ground 2: His Honour erred in partially accumulating the sentences on Counts 2 and 3. Proceedings and remarks on sentence 8A statement of facts was tendered by consent. The Crown also tendered the applicant's criminal history and custodial history together with a pre-sentence report. The applicant tendered a report of Dr Bruce Westmore, psychiatrist, a report of Ms Anne-Marie De Santa Brigida, psychologist, a report of Mr Jonathon Barker, Salvation Army Bridge Program caseworker, and three character references. 9Since neither of the grounds of appeal concern the applicant's subjective circumstances it is unnecessary to set that evidence out at length. Suffice to note that his Honour was satisfied that, despite the offences having been committed whilst the applicant was subject to a good behavior bond, there was little likelihood of him reoffending given his relatively limited criminal record and the steps he has taken after his arrest to address his drug addiction. His Honour was also satisfied that the applicant was genuinely remorseful and that he had excellent prospects of rehabilitation. 10The facts can be conveniently summarised as follows. 11The applicant and his co-offender (Zarb) followed the three male victims from inside Star City Casino at about 3.30am to their car which was parked in the casino car park. One of the three men withdrew $1000 in cash from an automatic teller machine in the lobby of the casino en route. The victims sat inside the vehicle with Mr Tang in the driver's seat, Mr Li in the front passenger seat and Mr Yang in the back seat. The car doors were closed but not locked. 12The applicant and Zarb opened the rear passenger door and got into the back seat of the vehicle. Zarb sat in the middle seat next to Mr Yang. The applicant sat in the rear seat behind the driver's seat. Zarb produced a small black handgun which he pointed in the direction of Mr Tang, the driver, and directed him to drive. Fearful for his safety, he complied. At different times both offenders said words to the effect, "Don't do anything stupid and nobody will get hurt". Zarb also said, "Drive quickly, do you want the guy on the back seat to be shot?". 13As the car approached Pyrmont both the applicant and Zarb demanded the victims surrender their property whilst threatening them with the handgun. The applicant and Zarb then left but were arrested a few hours later playing poker machines inside the casino. 14Neither the stolen property nor the handgun used in the commission of the offences was recovered. The victims identified the type of weapon from photographs shown to them by the investigating police. 15The sentencing judge considered the offending was a serious example of robbery with a weapon. This finding, together with the value of the property stolen, the vulnerability of the victims, the threats that were issued which amounted to a very real threat of violence (although none was used) and the time over which the threats were issued, was sufficient to place it outside the Henry guideline (R v Henry (1999) 46 NSWLR 346). That finding was not the subject of challenge. The sentence proceedings of the co-offender Zarb 16On 26 March 2013 Zarb was committed to stand trial on the same counts of armed robbery to which the applicant pleaded guilty and for which he was sentenced in July 2013. 17On 3 September 2013 (the first day of trial) the Crown presented an indictment which, in addition to the three counts of armed robbery under s 97(2) of the Crimes Act, included three alternative counts laid pursuant to s 97(1) of the Crimes Act, in which robbery armed with an offensive weapon was alleged, the weapon being particularised as "an object that looked like a pistol". That offence attracts a maximum penalty of 20 years imprisonment. 18Zarb pleaded guilty to each of the alternative counts which were accepted by the Crown in full satisfaction of the indictment. Given the lateness of the pleas, his sentence was reduced by 10 per cent. 19Zarb was sentenced on 29 November 2013 to a total term of 5 years and 4 months, with a non-parole period of 3 years and 3 months, a sentence which was eight months less than the applicant's head sentence. His non-parole period was three months less than that imposed on the applicant. 20Despite the desirability of co-offenders being sentenced by the same sentencing judge, the sentencing judge who sentenced Zarb was provided with the remarks on the applicant's sentence and, as her Honour's remarks on sentence make clear, she took considerable pains to ensure that the principle of parity was observed when sentencing Zarb. 21Importantly, her Honour noted that the facts upon which the applicant was sentenced differed from the facts tendered in the sentencing proceedings before her. In particular, she noted that it was not alleged that Zarb produced a handgun which he used repeatedly to threaten the victims in the course of the robbery - the factual basis upon which the applicant was sentenced. That said, since it is clear, even on the applicant's case, that he and Zarb were engaged in a joint criminal enterprise to rob the victims, as her Honour rightly pointed out, it is of little consequence who was in physical possession of a weapon or, for that matter, who issued the verbal threats. 22Her Honour noted: "The evidence before this Court from Mr Zarb is that he knew his co-offender [this applicant] had an item but did not see it before it was produced in the car, but he was aware there was an item that the co-offender had and was going to use. Therefore this offender knew that the victims would have been aware that there was an item that looked like a pistol that was going to be used and used in a threatening manner. Whether it was this offender who used the item or the co-offender who used the item in the circumstance of this case is of little consequence in my view. This was a joint criminal enterprise. Both offenders decided to rob these three victims at approximately the same time, and they acted in concert getting into the back of the car at the same time, with one of them producing a weapon." 23Significantly, her Honour also noted that although the applicant pleaded guilty, therefore attracting a discount on sentence of 25 per cent, he was charged with an offence carrying a greater maximum penalty. In addition, he was on a good behaviour bond at the time of the offending for what her Honour described as "some intimidation-type offences in the Local Court", an aggravating feature of the offending which would of itself attract a higher sentence. 24Her Honour otherwise regarded the subjective circumstances of the applicant and Zarb as relevantly similar for sentencing purposes. Ground 1: Whether there has been a miscarriage of justice in that the prosecution changed the characterisation of the weapon and its possession in the sentencing proceedings of the applicant's co-offender engendering a justifiable sense of grievance in the applicant. 25The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice: "... It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]: Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." 26In considering whether the applicant has a justifiable sense of grievance it is necessary to have regard to what was done by both offenders in the course of the joint criminal enterprise to rob the victims, and the offences to which they pleaded guilty, as well as the factual findings made by the sentencing judges in each case. 27It is well recognised that sentences imposed on co-offenders may be based upon different factual findings if the evidence tendered before either the same or different sentencing judges differs (see Baquiran v R [2014] NSWCCA 221 referring to R v Chandler; Chandler v R [2012] NSWCCA 135 per Basten JA at [6], referred to with approval in Ith v R [2013] NSWCCA 280 at [61]). The Crown submitted that the difference between the applicant's sentence and that of Zarb (marginal though it is) is justified by the differing factual findings as to who was armed and with what weapon and, in the case of this applicant, that he was on a conditional bond at the time of committing the robberies. 28The applicant does not submit that the judge who sentenced Zarb proceeded on a wrong principle or that she failed to apply parity principles. Rather, it was submitted that what her Honour identified as the difference in the criminal culpability of the applicant and his co-offender was the result of what counsel submitted was an arbitrary selection of different charges by the Crown which has been productive of unfairness to the applicant. 29Senior counsel for the applicant accepted that the discretion in the prosecution to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. He submitted, however, that does not operate to exclude or even limit the operation of the parity principle and that when the principle of equal justice is applied in this case, wholly identical sentences should result, despite the difference in the maximum penalty between the two offences. In support of that submission particular emphasis was placed upon a passage from the decision in Green at [30]: "In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." 30In Chandler a similar argument to that advanced on this appeal was considered but not decided. The Court (Hoeben JA, with whom Bathurst CJ, Basten JA (with additional observations), McClellan CJ at CL and Johnson J agreed) was of the view that application of the parity principle did not arise given the differences in the respective cases of the applicant and his co-offenders and, for that reason, it was not an appropriate case in which to consider the question whether it is open to this Court to examine the prosecutorial discretion in order to determine whether a legitimate sense of grievance has been made out. 31That question has since been the subject of further consideration in Ivory v R [2014] NSWCCA 181 by Bellew J at [60] (with whom Hoeben CJ at CL and Adamson J agreed). In that case a refinement of the argument that was advanced in Chandler and on this appeal included the submission that the choice of charges, and the fact that the Crown did not take steps to have the co-offenders sentenced by the same sentencing judge, was an abuse of process being for an improper purpose. That argument was unsupported by evidence and rejected. 32Consideration was then given to the underlying proposition that is open to this Court to examine the exercise of prosecutorial discretion where a parity ground is pressed. As to that issue, Bellew J said: "[61] Firstly, and contrary to the submissions made by counsel for the applicant, no part of the judgment of the High Court in Green (supra at [30]) is authority for the proposition that after a person is sentenced this Court is able to go behind, and examine, the exercise of prosecutorial discretion. In Green, their Honours recognised the practical difficulties, in terms of the application of parity principles, which can arise when a comparison is sought to be drawn between the sentences imposed on co-offenders who are charged with different offences. Their Honours did not make any reference at all to the issue of prosecutorial discretion. Nothing in the judgment suggests, even remotely, that the approach which was urged on this Court is open. [62] Secondly, the fact that such an approach is not open to this Court is evident from the more recent decision in Elias v R; Issa v R [2013] HCA 31; (2013) 248 CLR 483 where the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said (at [30], citations omitted): "Parity is concerned with the equal treatment of co-offenders. As Green v R explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v R is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct." [63] The Court then said (at [35]): "Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the Court has the power to relieve against the resulting abuse of process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentenced by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged". [64] In the present case, no issue was raised by the applicant at the time of being sentenced about the Crown's decision to charge him with an offence contrary to s. 33(1)(a). The approach now urged on this Court on behalf of the applicant would clearly run the risk of compromising the impartiality and independence to which the High Court referred in Elias. It should be noted that in the course of oral argument counsel for the applicant was invited to refer the Court to any authority which supported the approach which was being advanced. No authority was provided." 33Although in this case it was not submitted that the prosecutor had acted for any improper purpose in the decision to prosecute Zarb for a less serious offence, in my view the underlying principle that the prosecutorial discretion is unreviewable is the same. 34In Magaming v The Queen [2013] HCA 40; 302 ALR 461 at [68] Gageler J noted that it is undesirable for there to be close curial involvement in prosecutorial processes since the courts are a forum where criminal judgment is administered. Such processes necessarily incorporate a decision as to whether a particular charge is to be laid, and in some circumstances whether a particular charge, having been laid, is to be proceeded with. His Honour went on to say: "...The main reason generally given is that the court's review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court. A complementary reason often given is that a court's control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that "the court has other powers to ensure that a person charged with a crime is fairly dealt with"." 35In any event, as the Crown submitted, any suggestion that an unfairness has been perpetrated as a result of the exercise of the prosecutorial discretion in this case is not borne out. Significantly, the applicant admitted to a robbery with the use of a dangerous weapon while his co-offender did not, as was his entitlement. In circumstances where the weapon was never recovered, the Crown case against the co-offender for the charge under s 97(1) would have relied, exclusively, on the description of the weapon by the three victims. In the assessment of the prosecutor, this may well have been an inadequate basis upon which to prove that it was a prohibited weapon as defined, an essential element of the charge which the Crown was obliged to prove beyond reasonable doubt. That being so, to include on the indictment to be presented at the trial of the co-offender an alternative charge under s 97(2) for each of the three armed robbery charges, and to accept pleas of guilty to the alternative counts in full discharge of the indictment, could not be the subject of any criticism. 36Further, I am well satisfied that the differences between the sentences, measured in months, is not only entirely explicable having regard to the different maximum penalties and the different facts with which both sentencing courts were concerned but that disparity is neither "marked", "gross" nor "glaring" such as might warrant intervention and correction by this Court (see Tan v R [2014] NSWCCA 96 at [39]). 37I would dismiss the first ground of appeal. Ground 2: His Honour erred in accumulating sentences on charges 2 and 3. 38The authorities recognise a wide sentencing discretion in the decision to accumulate sentences, in whole or in part, or to direct that sentences be served concurrently (see R v XX [2009] NSWCCA 115; 195 A Crim R 38). Those considerations are determined by reference to the totality principle which requires a sentencing judge to consider whether the sentence for one offence can comprehend and reflect the criminality of all other offences. It is not infrequently the case that concurrent sentences will be imposed for offences rising out of the same criminal enterprise although that is not a necessary result. In this case although the three counts of armed robbery were committed as part of the one course of criminality, extending from the time the offenders took the victims under siege in their car until the time of their release, each of the three victims was robbed and each surrendered their property under the threat of violence. In those circumstances it was open to the sentencing judge in the exercise of the discretion to partially accumulate the sentences on Counts 2 and 3, consistent with the approach of this Court in Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 16 in analogous circumstances, a judgment to which his Honour made express reference. 39I would reject the second ground of appeal. Orders 40Accordingly, the orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed. 41ADAMSON J: I agree with Fullerton 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2014