Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Connor v R [2017] NSWCCA 311 Hearing dates: 24 November 2017 Decision date: 13 December 2017 Before: Leeming JA at [1] Fullerton J at [2] Adamson J at [55] Decision: 1. Leave to appeal granted. 2. The appeal is dismissed. Catchwords: CRIMINAL LAW – appeal against sentence – robbery armed with a dangerous weapon – error conceded by Crown – parity Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Category: Principal judgment Parties: Mark Anthony O'Connor (Applicant) The Crown (Respondent) Representation: Counsel: A Evers (Applicant) T Smith (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/38135 Decision under appeal Court or tribunal: District Court Date of Decision: 3 August 2016 Before: Baly DCJ File Number(s): 2015/38135 Judgment 1. LEEMING JA: I agree with Fullerton J. In particular, I agree that the applicant's resentencing is far from straightforward, having regard to the seriousness of the offence but also the background of disadvantage and unchallenged favourable findings. I also agree with her Honour that this is a case where despite the minor but material error by the sentencing judge (apparently resulting from an uncorrected error in the "Crown Sentence Summary" provided by the Crown), no lesser sentence is warranted. 2. FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed by Baly DCJ on 3 August 2016 for one count of robbery armed with a dangerous weapon, being a shortened double-barrel shotgun, contrary to s 97(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years imprisonment. 3. In sentencing for that offence, her Honour also took into account two additional matters on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely: * Using an offensive weapon with intent to commit an indictable offence, contrary to s 33B(1)(a) of the Crimes Act, an offence which attracts a maximum penalty of 12 years imprisonment; and * Failing to stop in a police pursuit, contrary to s 51B(1) of the Crimes Act, which attracts a maximum penalty of imprisonment for 3 years for a first offence or, in the case of an offence on a second or subsequent occasion, imprisonment for 5 years. 1. In the same proceedings, the applicant was sentenced under a s 166 certificate for driving a conveyance without consent, contrary to s 154A(1) of the Crimes Act. The Local Court's jurisdictional limit of 2 years imprisonment applied to that offence. 2. Although the armed robbery and the related matters on the Form 1 were committed for trial from the Local Court, a guilty plea to the armed robbery was entered on arraignment in the District Court on 8 April 2016. Her Honour allowed a 15 per cent discount for the plea. 3. The applicant was sentenced as follows: * For the offence of robbery armed with a dangerous weapon, a total term of 7 years and 6 months, comprising a non-parole period of 4 years and 6 months with a balance of term of 3 years; * For the offence the subject of the s 166 certificate, the applicant was convicted but no penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act. 1. Two grounds of appeal are relied upon, the first of which is conceded by the Crown: 1. Her Honour erred by finding that the applicant was subject to a s 9 good behaviour bond when he committed the offence of robbery whilst armed with a dangerous weapon; and 2. Her Honour erred in proceeding to sentence on the basis that questions of parity with the sentence imposed on a co-offender had no role to play in the sentencing exercise. Ground 1: Her Honour erred by finding that the applicant was subject to a s 9 good behaviour bond when he committed the offence of robbery whilst armed with a dangerous weapon 1. In finding that the applicant was on conditional liberty in the form of a s 9 bond for an offence of intimidation at the time of the robbery on 28 September 2014 as an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, her Honour relied upon the accuracy of a submission by the solicitor appearing for the Crown at the sentence proceedings who, in turn, it would appear, relied upon the accuracy of the information in the "Crown Sentence Summary" which was prepared in advance of its tender in the sentencing hearing. 2. On the appeal, the Crown acknowledged that the s 9 bond had in fact expired on 27 December 2013 and, that being the case, an irrelevant matter had been taken into account by the sentencing judge as an aggravating factor. I do note that although her Honour cited the s 9 bond as an example of the applicant's recidivism, she also noted that the applicant had committed further offences after the robbery which, together with his lengthy criminal record, demonstrated his recidivist tendencies. This was not a case where the erroneous statement that the offence had been committed while on a bond was the only aggravating factor; far from it. 3. With the Crown having conceded error, it is for this Court to exercise its independent sentencing discretion in accordance with s 6(3) of the Criminal Appeal Act (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). There being no evidence relied upon by the applicant on re-sentence, and no challenge to any of the other findings made by the sentencing judge (many of which were favourable to the applicant), it is sufficient to restate the facts found by her Honour in her assessment of the objective seriousness of the armed robbery, and her Honour's findings as to relevant features of the applicant's subjective case in determining whether, taking into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, the same or a lesser sentence should be imposed. In undertaking that assessment, in circumstances where a co-offender (AS) was sentenced in separate sentencing proceedings, it will be necessary to apply parity principles. Facts for sentencing purposes 1. At the time of the offence the applicant was in a relationship with AS who worked part-time as a barmaid and waitress at the Clubhouse Hotel in Warren. Through her work, AS was familiar with the opening and closing times and procedures of the hotel, including the location and operation of the tills and safe. 2. From about 25 September 2014, the hotel had convened a number of events resulting in a significant increase in its revenue. AS told the applicant about the increased revenue. They agreed that the applicant should rob the hotel with her assistance. 3. On 28 September 2014, AS worked a shift from midday to about 3pm. The assistant manager, Phillip Crowther, who lived upstairs at the hotel, commenced work that day at 4pm. Over the course of the late afternoon and evening AS attended the hotel on a number of occasions on the pretext of checking her roster and buying cigarettes. Each time she did so she sent a text message to the applicant advising him of the number of people in the hotel and the anticipated closing time. 4. Shortly after 10pm the applicant entered the hotel without being seen and secreted himself out of sight. He was wearing dark clothing, a balaclava and gloves and was armed with a shortened double barrelled shotgun. He sent a message to AS as follows: In like Flynn! Got good spot. Jus a. Waiting game now. Just cruise up n down … [sic] 1. At about 10.15pm AS returned to the hotel at the request of the applicant, again on the pretext of buying cigarettes, to find out whether the remaining patrons had left. She sent the applicant a message: Finishing there [sic] drinks and out. Pretty sure he has the safe keys in his pocket [a reference to Mr Crowther who was the only staff member on duty at that time]. 1. Further text messages were exchanged in which AS assured the applicant that Mr Crowther would surrender the keys to the safe without a fight and that there were no police in the area. 2. As Mr Crowther made his way to the office area the applicant confronted him, pointed the shotgun at his head and handed him a bag. He directed Mr Crowther not to look at him and to open the safe and place the contents in the bag while keeping the shotgun pointed at Mr Crowther's back. The applicant then directed Mr Crowther to open the till in the front bar. The cash stolen totalled about $8,866. The applicant also took a cheque book and some cigarettes. 3. During the robbery AS remained in the vicinity of the hotel to alert the applicant to anything or anyone that might impede his escape. 4. The applicant asked Mr Crowther the safest route from the hotel and was directed to a locked gate at the rear of the premises. The applicant forced him in that direction with the gun at his back. As the applicant left via the back lane he said to Mr Crowther: Now walk slowly, don't run. Walk slow and don't call the cops. I know who you are Phil and I know your room number. I'll come back to get you. 1. The applicant left the hotel in a vehicle stolen from a rural property the previous week and drove towards the nearby town of Nevertire. (This conduct was the subject of the s 166 certificate.) 2. Police stopped the vehicle after observing it to overshoot a corner. As a police officer approached, the applicant accelerated away. Police pursued him at speed through the town of Nevertire before losing sight of him. 3. A short time later, other police travelling from Gilgandra to assist with the investigation of the hotel robbery saw the applicant's vehicle parked in a rest area. As they pulled in behind it, the applicant accelerated away a second time. A further pursuit ensued with the applicant's vehicle exceeding 160km/h. The police ceased their pursuit as the car entered the Warren township. (This conduct was the subject of one of the Form 1 offences.) 4. Later that evening, the applicant contacted TG, a 15 year old girl whom he had met previously, and arranged to meet her. Shortly after they met up the applicant removed the shotgun from one of his bags and put it to TG's knee. He told her that he would shoot her if she told anyone about him robbing the hotel and using a shortened shotgun. He showed her a drawing which contained a sketch of the layout of the bar and the location of the safe. He then demanded that TG accompany him to Dubbo. (This conduct was the subject of the second offence on the Form 1.) 5. TG and the applicant travelled to Dubbo together and booked into a motel. The next day the applicant took TG shopping for clothes, shoes and a mobile phone. He then drove her back to Warren and told her to "keep [her] mouth shut". 6. AS was arrested and charged on 15 January 2015. 7. AS was charged with aiding and abetting the applicant to commit an aggravated robbery, the particular of aggravation being that the victim (Mr Crowther) was deprived of his liberty. That offence carried a maximum penalty of 20 years imprisonment. 8. AS entered a guilty plea to that offence in the Local Court and was committed for sentence to the District Court. On 14 June 2016 she was sentenced by Lerve DCJ to imprisonment for 28 months, comprised of a non-parole period of 14 months. In sentencing for that offence, his Honour also took into account four matters on a Form 1, including supply of a prohibited drug and dealing with property suspected of being the proceeds of crime. 9. The facts upon which AS was sentenced were almost identical to the agreed facts tendered in the applicant's sentence proceeding, save that it was not alleged that AS had any knowledge that a shortened shotgun (or any other dangerous weapon) would be used by the applicant in committing the robbery. 10. The applicant was charged with armed robbery on 6 February 2015. He was in custody at that time, having entered custody on 22 November 2014 for unrelated offending, including assault police and resist arrest driving whilst disqualified and another instance of police pursuit. He declined to answer any questions about the robbery. Subjective circumstances 1. The applicant was aged 41 at the time of sentence. He has a lengthy criminal record with convictions for offences of violence and dishonesty, drug offences and driving offences, some of which have attracted lengthy periods of imprisonment. 2. The applicant has been in full-time employment from time to time in various capacities as an adult interspersed with lengthy periods of imprisonment. 3. Margaret Johnson, forensic psychologist, described the applicant's family and developmental history as characterised by impoverishment, neglect and physical abuse. The applicant lived in various forms of inadequate housing with his father and his father's partner in Wilcannia before he was removed and taken into State care. Between the ages of 14 and 16, the applicant's use of cannabis increased and his encounters with the criminal justice system became increasingly more frequent and more serious. 4. As a young adolescent he was reinstated into his mother's care, although her chronic alcoholism and consequent lack of parental supervision resulted in several institutional custodial placements. 5. On release from juvenile detention he took up residence in a youth refuge at Coonamble before being placed in foster care at Gilgandra. Although he had broken periods of primary and secondary schooling whilst in juvenile detention, he successfully completed his Year 10 certificate. His foster family encouraged him to continue his studies and, although he enjoyed stability for a period of time whilst a member of his foster family, the arrangement came to an end when he commenced a relationship with his foster sister. 6. The sentencing judge accepted that the applicant's moral culpability for his offending was reduced because of his disadvantaged background (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37), but considered that the sentence to be imposed for the subject offences also needed to reflect the need for personal deterrence and community protection. 7. The applicant has had a number of relationships and has fathered seven children, two of whom died when they were young, one at 8 months and one at 13 years, the latter in violent circumstances. His surviving children live independently or with extended family. The sentencing reasons 1. In assessing the armed robbery offence as above the mid-range of objective seriousness (as to which there is no dispute on re-sentence), her Honour found: a) The robbery of the hotel was planned and executed to take advantage of the increase in takings and the position of AS as a person who could supply the applicant with "inside" information. b) The robbery was timed so that the manager would be alone in the hotel. c) The applicant obtained a shotgun and shortened it to use in the robbery and used a stolen vehicle to facilitate his escape. d) The $8,866 which was stolen was significant because of the financial difficulties the hotel was experiencing at the time. 1. Her Honour also took into account a number of aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act, including: a) Mr Crowther was vulnerable because his managerial position meant he was alone in the hotel after closing (s 21A(2)(l)). b) The applicant not only threatened violence but used actual violence when he held the shortened firearm at Mr Crowther's head and back (s 21A(2)(c)). c) Mr Crowther was threatened with reprisals when the applicant said he knew where he lived (s 21A(2)(b)). d) The applicant was on a s 9 bond at the time of the offences for an offence of intimidation. The bond was imposed on 28 June 2012 for a period of 18 months which had since been called up and for which he received a fixed term of imprisonment (s 21A(2)(j)). 1. There was no dispute that matters (a)-(c) are statutory features of aggravation which will be taken into account for the purposes of re-sentence. Matter (d) is the subject of the first ground of appeal, as to which error is conceded. 2. In relation to the Form 1 matters which her Honour was asked to take into account in the sentence to be imposed for the armed robbery in accordance with s 32 of the Crimes (Sentencing Procedure) Act, and which this Court is also invited to consider on re-sentence, her Honour found that the offence involving 15 year old TG was very serious, in circumstances where TG was alone and isolated and must have been in very real fear when the applicant held the gun to her knee and threatened to use it if she did not comply with his demand for her complicity. Her Honour concluded that the Form 1 matters provided an additional basis for the sentence on the robbery to reflect general deterrence and the need to protect the community. It was accepted that on re-sentence a similar approach by this Court would be consistent with the proper exercise of the Court's sentencing discretion. 3. Her Honour accepted that the applicant had demonstrated remorse as a mitigating factor under s 21A(3)(i) and that there were indications that he had genuine insight into a variety of factors that had precipitated his repeated offending in the past. Her Honour also accepted from the applicant's letter which she received on sentence, that he appreciated it was time for him to address a range of issues and to seek treatment to assist him resolving them if he was to avoid the consequences of further breaches of the criminal law. Further, her Honour found that the applicant had a level of education and a demonstrated ability to work which further advanced his prospects of rehabilitation. On balance, she was satisfied that he had reasonable prospects of rehabilitation provided he was able to address the destabilising effects of his previous unsettled lifestyle. 4. At the time of sentence on 3 August 2016 the applicant was serving a number of sentences, the overall effect of which was the expiration of a non-parole period on 29 June 2017. In applying totality principles, her Honour resolved that there should be some accumulation on those sentences and backdated the sentence for the robbery to commence on 1 January 2016. This resulted in a sentence involving partial concurrency of 18 months. 5. Her Honour found special circumstances on the basis of the applicant being at risk of becoming institutionalised and in need of support upon his release both to help him reintegrate into the community and to guard against any relapse into criminal offending. She adjusted the statutory ratio between the non-parole period and balance of term accordingly. Re-sentence 1. Given the Crown's concession that the first ground of appeal is made out, it is strictly unnecessary for this Court to determine whether her Honour's approach to the issue of parity reflected error as contended for in the second ground of appeal. For my part, I would simply note that on a fair reading of the sentencing remarks and the thoroughness with which her Honour dealt with a range of sentencing considerations in an ex tempore judgment, I am not persuaded, as the applicant submitted, that her Honour ignored or disregarded parity principles. Her Honour said: No issue of parity arises, but for abundant caution, the following matters clearly establish that the offenders are not "like" offenders. Firstly, the offender has pleaded to armed robbery. It carries a maximum sentence of 25 years. His co-offender pleaded guilty to a different offence that carries a maximum penalty of 20 years imprisonment. Second, the co-offender pleaded guilty at the earliest opportunity and was afforded a 25% discount. The offender did not, and will be afforded a 15% discount. Third, the offender is 40 and a recidivist. The co-offender was 21 when sentenced, and 20 when she committed the offence, and had no prior criminal history. She was dealt with as a person of prior good character. That is a very significant difference. These matters alone distinguish both the offending and the offenders. Accordingly I am not bound by any issue of parity. 1. It is at least open to accept that in finding that "no issue of parity arises", her Honour intended to convey that the co-offender's sentence did not oblige her to sentence the applicant "on par" with that sentence, given a range of distinguishing features in her offending and in her subjective circumstances. 2. There can be no doubt that her Honour was conscious that the principles of proportionality and equal justice, which inform parity considerations, dictate that like offenders should be treated alike and that the converse also applies. Where there are material distinctions in the nature of the offending, whether because different offences are charged or the offenders perform different roles in the commission of the same offence, or where there are differences in the subjective circumstances of the offenders, a sentencing court is obliged to make due allowance for those differences. That allowance may be reflected in the structure of the sentence, or in significantly different sentences without the disparity giving rise to any legitimate sense of grievance. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49 at [30], French CJ, Crennan and Kiefel JJ observed: 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. 1. The material differences in the gravity of the applicant's offending when compared with that of his co-offender, and the marked differences in their subjective circumstances, including the age of the co-offender (she was aged 20 at the time of the offending and 21 at the time of sentence) and her unblemished criminal record, could not be more stark. 2. That said, I note, as Lerve DCJ observed when sentencing the co-offender, that: … [AS] was far from an innocent abroad. She knew [the applicant] was a criminal. Her demeanour in the witness box gave the indication of someone quite worldly. Further her criminal conduct continued for some time after the robbery and even after [the applicant] was arrested. I am prepared to make some allowance for the offender's relative youth, however that consideration in itself is insufficient to prevent the imposition of a sentence of full time custody. 1. It is clear that AS agreed that the manager of the hotel would be confronted by the applicant, forced to submit to his demands to open the safe and the till and that she appreciated he would be detained against his will whilst that occurred. It is also accepted that she played a substantial and indispensable role in formulating the plan to rob the hotel. However, it formed no part of the offence charged under s 95 of the Crimes Act, or the facts upon which she was to be sentenced for that offence, that she had any knowledge that the applicant would use a shortened firearm, or a firearm of any kind, to threaten the manager in the course of the robbery. That conduct was not only an element of the offence of armed robbery under s 97(2) to which the applicant pleaded guilty, but in the sentencing exercise in which this Court is now engaged it is also an aggravating factor which, in accordance with ss 21A(2)(c) and (d) of the Crimes (Sentencing Procedure) Act, informs the question for re-sentence, namely whether any lesser sentence should be imposed. 2. I accept that the co-offender invited Lerve DCJ to take into account a number of offences on the Form 1, as does the applicant on re-sentence. While this justifies an increase in the sentence for the principal offending for both offences, the gravity of the offending the subject of the applicant's Form 1 (being the use of the same shortened firearm used in the robbery to intimidate a very young person to ensure her complicity in his offending) bears no relationship to the offences on the Form 1 in the co-offender's proceedings, all of which related to the supply of cannabis (albeit in not insignificant quantities) and the proceeds of the sale of some of that drug. 3. The applicant's counsel submitted that the sentence imposed on AS of 28 months imprisonment with a non-parole period of 14 months (which, before the combined discount of 30 per cent, would have resulted in an undiscounted sentence of 3 years and 4 months) would be productive of a legitimate sense of grievance were the applicant's undiscounted head sentence of 8 years and 10 months not disturbed on re-sentence. I am not satisfied that the degree of disparity in the two sentences warrants a lesser sentence than that imposed by the sentencing judge. 4. In coming to that view, I take into account the considerable leniency built into the structure of the sentence imposed by the learned sentencing judge, both because of the weight her Honour gave to the applicant's subjective circumstances and because the sentence involved a substantial degree of partial accumulation with sentences for unrelated offending. 5. In the result, I am of the view that an effective non-parole period of 4 years and 6 months with the balance of term of 3 years is a sentencing outcome commensurate with a synthesis of all relevant sentencing factors in what I regard (as her Honour did) as a challenging sentencing exercise. There is, in this case, a tension between the sentence reflecting the need for general and specific deterrence and the protection of the community on the one hand, and the need for the applicant's favourable prospects of rehabilitation at a critical stage in his life where the risks of institutionalisation are as real as they are potentially avoidable, on the other. In my assessment, no lesser sentence than that imposed by the sentencing judge would adequately address those competing sentencing objectives. 6. I propose the following orders: 1. Leave to appeal granted. 2. The appeal is dismissed. 1. ADAMSON 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: 13 December 2017