Re Garry Michael Taylor v R [1984] FCA 149 (8 June 1984)

FEDERAL COURT OF AUSTRALIA

Re: GARRY MICHAEL TAYLOR
And: THE QUEEN
No. ACT G9 of 1984
Criminal law

COURT

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies J.
Kelly J.
Neaves J.

CATCHWORDS

Criminal law - sentencing - principles applied on appeal - disparity between sentences of appellant and co-offenders - when does disparity permit interference?

Crimes Act 1900 (NSW) ss.179, 198
Court of Petty Sessions Ordinance 1930 (ACT) s.90A
Crimes Act 1914 (Cth) ss.5, 7
R v Williscroft & Ors (1975) VR 292
R v Geddes (1936) 36 SR(NSW) 554
Channon v R (1978) 20 ALR 1
Cranssen v R [1936] HCA 42; (1936) 55 CLR 509
Harris v R [1954] HCA 51; (1954) 90 CLR 652
Kovac v R (1977) 15 ALR 637
R v Tait & Bartley (1979) 24 ALR 473
R v Butler (1971) VR 892
R v Dole (1975) VR 754
R v H (1980) 3 A.Crim.R 53
R v Wilton (1981) 28 SASR 362
R v D'Ortenzio & Burns (1961) VR 432
R v Bavdaz (1967) 1 NSWR 3
R v Biddell (1975) 11 SASR 460
R v Kite (1971) 2 SASR 94
Re Tisalandis (1979) 1 A.Crim.R 7
Duff v R [1979] FCA 83; (1979) 28 ALR 663

HEARING

CANBERRA
8:6:1984

ORDER

That the appeal be dismissed.

DECISION

On 30 September 1983, the appellant, Garry Michael Taylor, pleaded guilty before the Court of Petty Sessions of the Australian Capital Territory to a charge pursuant to s.198 of the Crimes Act 1900 (NSW) (as it applies to the Territory) that, on 6 February 1983, he maliciously set fire to a vehicle, a Holden panel van registered number YHV.604, then in his possession, with intent to defraud. The maximum sentence which could be imposed for that offence was 14 years' imprisonment. He also pleaded guilty to an offence under s.179 of that Act, that, on 7 February 1983, he falsely pretended to an employee of NRMA Insurance Limited that an NRMA Insurance Limited motor vehicle claim form No.CC.26738, dated 7 February 1983, was a good and valid claim for damage caused to the vehicle, which he knew to be false and, by means of that pretence, then attempted to obtain from the employee $7,000, the property of NRMA Insurance Limited with intent to defraud. The maximum sentence which could be imposed for that offence was five years' imprisonment.

Pursuant to s.90A of the Court of Petty Sessions Ordinance 1930, the appellant was committed to the Supreme Court of the Australian Capital Territory to be dealt with for those offences.

On 21 March 1984, the appellant was sentenced in the Supreme Court to three years' imprisonment on each charge, the sentences being concurrent. A non-parole period of eighteen months was fixed in each case. In imposing these sentences, the learned trial Judge took into account the following additional offences :

(i) on 11 November 1982, larceny of a .22 rifle, telescopic sights, a radio, a pair of binoculars and a wood carving, of a total value of $320;

(ii) on 11 November 1982, unlawfully taking and using a motor vehicle;

(iii) between 2 October 1982 and 6 October 1982, breaking and entering the premises of Motor Tyre Service Pty Limited and stealing two Goodrich radial tyres of a value of $560;

(iv) on 11 January 1983, receiving stolen property, to wit, a pair of extractors of a value of $250;

(v) on 13 November 1982, stealing approximately 50.56 litres of petrol of a value of $23;

(vi) on 7 January 1983, receiving two Goodrich radial tyres and two mag. wheels, property stolen from Beaurepaire Tyre Service Pty Limited of a value of $385.

The evidence discloses that the appellant grew up with his mother and father, a sister and a brother. Relationships in the family were good and the applellant's mother and father were caring parents and were supportive of him. In 1979, when aged 15, the appellant committed a number of offences. The sentences then imposed on him should have been an adequate warning to him. Certainly, his failure to heed that warning indicated that he had a propensity to lapse into crime. Being unhappy with the friends whom the appellant had made in 1979, his parents moved from Kaleen, a suburb of Canberra, to live near Bungendore, a country town outside Canberra. The appellant would have then been aged approximately 16. Later, the appellant took up residence in a house in Queanbeyan and the appellant again began to mix with unsuitable company, some of whom also resided in the house.

In the course of his reasons for sentence, the learned trial Judge said, "He is easily led and bad company has had a fatal attraction for him". Nevertheless, the facts show that the appellant played a pivotal role in the crimes which we have to consider. In the first place, he set up house in Queanbeyan and therefore posed to the world as an independent person responsible for his own welfare. In the second place, he borrowed, with the assistance of his father's guarantee, the sum of $10,000 and with that money purchased for $7,200 the Holden panel van registered number YHV.604. He spent further sums in excess of $5,000 on repairs and improvements to the vehicle. With this vehicle, he attracted friends to him and in the company of friends he committed the crimes we have mentioned. Many of the stolen items referred to in the charges, which were taken into account in the sentences, were used on the Holden van.

The precise circumstances which led to the crimes of arson and fraud are not made clear by the evidence. However, it is reasonable to conclude that a decision was taken by the appellant and one or more of his friends that it was desirable to set fire to the vehicle and to claim its insured value of $7,000. The evidence does not show whether the insurance monies were to be used to repay part of the outstanding personal loan or whether they were to be used for the purchase of a new vehicle. Either way, the monies would have been applied for the appellant's benefit.

In the early morning of 6 February 1983, the appellant, Richard Schwenk, David Ray McDonald and Geoffrey Neil McLean all played a part in the arson. McDonald drove the appellant to and from the scene of the arson and may also have helped to strip the Holden van of some of its parts with a view to making it appear to have been vandalised. McLean helped strip some parts from the vehicle. Schwenk and the appellant both poured petrol over the vehicle. Schwenk set the vehicle alight. On the following day the appellant made the claim on his insurance company, NRMA Insurance Limited, for $7,000.

The principles to be applied in sentencing were considered by Adam and Crockett JJ in R v Williscroft & Ors (1975) VR 292. At pp.299-300, their Honours said:

"The purposes of punishment are manifold and each element will assume a different significance not only in different crimes but in the individual commission of each crime. General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form, and its contemporary prevalence is the cause of considerable community disquiet. Certainly it remains true, despite the impact of the very positive enlightenment manifest over the past generation and proposals for a criminal law that is essentially preventive rather than punitive (see e.g. Lady Wootton, Crime and the Criminal Law, 1963, Hamlyn lectures, 15th. series), that coercive measures to repress criminal behaviour are inevitable for the management of society. That is to say that the concept of punishment remains fundamental to the techniques of correctional treatment. . . . "

Their Honours laid emphasis upon the necessity to take into account and to give due weight to all the circumstances of the particular case. Their Honours said (at p.300) :

". . . ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process".

Their Honours referred to the remark of Sir Frederick Jordan CJ in R v Geddes (1936) 36 SR(NSW) 554 at 555 that ". . . the only golden rule is that there is no golden rule". Nevertheless, their Honours referred, at p.301, to " 'the moral sense of the community' " and to ". . . knowledge of sentences for the same or similar offences which is derived from personal experience or any other source".

Similarly, in Channon v R (1978) 20 ALR 1, Brennan J said, at p.5 :

"The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose. In R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274, Herron CJ, in a judgment in which Sugerman and Walsh JJ A agreed, said : 'The function of the criminal law and the purposes of punishment cannot be found in any single explanation, for it depends both upon the nature and type of offence and the offender. But all purposes may be reduced under the single heading of the protection of society, the protection of the community from crime. The sentence should be such as, having regard to all the proved circumstances, seems at the same time to accord with the general moral sense of the community and to be likely to be a sufficient deterrent both to the prisoner and others : per Jordan CJ, R v Geddes (1936) 36 SR NSW) 554; 53 WN 157. Courts have not infrequently attempted further analysis of the several aspects of punishment (R v Goodrich (1952) 70 WN (NSW) 42, where retribution, deterrence and reformation are said to be its threefold purposes). In reality they are but the means employed by the courts for the attainment of the single purpose of the protection of society.

Retribution, deterrence and reformation are related, however, to the specific conduct in respect of which the offender is sentenced. Deterrence (whether of the offender or others) from committing other kinds of crime, reformation in respect of other failures, or retribution for other kinds of social misconduct, are not purposes to which the judicial discretion in sentencing is directed. But a sentence which is imposed with the object of deterring the offender from committing offences of the same kind again, and with the object of rehabilitating him by reducing or eliminating the factors which contributed to the conduct for which he is sentenced serves the appropiate purpose, provided the sentence is apt to secure those objects. . . ."

Deane J said, at pp.17-18 :

"It is not uncommon to find in judgmentsof appellate courts, reference to the concept of a permissible range of sentence for the particular offence in the particular circumstances. Within the limits of that range, an appellate court will not ordinarily interfere with a sentence which is not otherwise affected by error, for the reason that it cannot be said that it is apparent from the sentence itself that there is unreasonable disproportion between sentence and offence such as to indicate an unsound exercise of discretion. Notwithstanding statements of high authority indicating a contrary view (see, for example, R v Moylan (1969) 3 All ER 783 at 785-6) the formulation of such a permissible range of sentence is not, in itself, an integral or independent step in the determination of sentence. Plainly, there is nothing wrong in a judge formulating, in the process of determining the appropriate sentence, a range within which the appropriate sentence should fall. Consistency in the administration of the criminal law may obviously, in some circumstances, make formulation of, and reference to, such a range desirable. It is not however, in my view, helpful or proper in the sentencing process, to start, as it were, with a range of sentences which are thought to constitute 'the permissible limits' of a proper sentence with respect to the offence charged and then to select a sentence within the range by conscious reference either to factors to which reference is not permissible in the fixing of the range itself or to objectives which are not legitimate objectives of the sentencing process. It is fundamentally wrong to regard a judge as being at large within any such limits or as being entitled to take into account facts or circumstances which are not properly relevant or not properly before him or to seek to obtain objectives which are not legitimate objectives of the sentencing process.

In every case, there is but one ultimate question involved in the determination of sentence. That question is what is the appropiate punishment for the particular offence in the relevant circumstances. Unless a particular fact or circumstance or objective is properly relevant or a relevant consideration either in the determination of that question or in the assessment of wider considerations which are properly relevant to such determination, it will be irrelevant."

As a judgment as to sentence thus involves the exercise of a significant degree of discretion, an appellate court, when reviewing the sentence, must apply the principles applicable to the review of a discretionary decision. In Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519-520, Dixon, Evatt and McTiernan JJ said,

" . . .it remains true that the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentnce itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority."

See also Harris v R [1954] HCA 51; (1954) 90 CLR 652 at 655-6, Kovac v R (1977) 15 ALR 637 at 641-3 and R v Tait & Bartley (1979) 24 ALR 473 at 475-6. In the latter case, Brennan, Deane and Gallop JJ said,

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; Rv Withers (1925) 25 SR(NSW) 382 at 394; Whittaker v R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v R [1977] HCA 44; (1977) 15 ALR 1 at 15-17."

A similar approach was enunciated by the Full Court of the Supreme Court of Victoria in R v Butler (1971) VR 892, R v Williscroft & Ors (1975) VR 292 at 297, and R v Dole (1975) VR 754 at 761 and 764, the Court of Criminal Appeal in New South Wales in R v H (1980) 3 A.Crim.R53, and by the Full Court of the Supreme Court of South Australia in R v Wilton (1981) 28 SASR 362.

In the present appeal, it was not put to the Court that there was any factor to which the learned trial Judge ought to have turned his attention but to which he failed to give weight or that there was any irrelevant factor which he took into account. Nor was it shown that the sentences imposed were so heavy as not to reflect the moral judgment of the community for the crimes committed. The learned trial Judge took into account the nature and seriousness of the crimes, the need for deterrence, the need to rehabilitate the appellant, the effect which a term of imprisonment would be likely to have upon him and the multitude of facts arising out of his past history and his present circumstances which bore upon these matters.

In our opinion, the sentences imposed by the learned trial Judge were senteces which were within the discretion reposed in him and it has not been shown that they "were manifestly excessive" as alleged in Ground 2 of the Notice of Appeal. As his Honour said, "The fact is that this man, after a burst of crime to which he has admitted his guilt, has tried to reform, but has not succeeded. He will have to try harder". Having regard to the nature and seriousness of the crimes and to the appellant's past record, it cannot be said that the learned trial Judge erred in the exercise of his discretion.

However, the appeal was based principally upon a submission that the appellant's friends McLean and McDonald were convicted of the same crimes and received lesser sentences therefor and that there should not be disparity between the sentences which they received and the sentences which the appellant received.

McLean and McDonald were both convicted on 25 November 1983, in the Court of Petty Sessions of the Australian Capital Territory, of a number of offences including in each case an offence charged in the following terms :

". . . that on the 6th day of February 1983, was by an act directly knowingly concerned in the commission of an offence by Garry TAYLOR against a law of the Territory namely Section 198 Crimes Act 1900 in that the said Garry TAYLOR maliciously did set fire to a vehicle, to wit, Holden Panel Van registered number ACT YHV 604 in the possession of him the said Garry TAYLOR with intent thereby to defraud."

McLean was sentenced to 3 months' imprisonment, suspended upon his entering into a bond to be of good behaviour, for the unlawful taking and using of a motor vehicle on 6 November 1982. On each of seven other charges, including the charge of being knowingly concerned in the arson, he was fined $100. A term of the good behaviour bond was the payment of compensation of $1,038.87. McDonald was sentenced to 3 months' imprisonment on a charge that on 11 November 1982 he unlawfully took and used a motor vehicle, the sentence being suspended upon his entering into a bond to be of good behaviour for two years and that he pay compensation of $142.50. On each of seven other charges, including the charge of being knowingly concerned in the arson, he was fined $100.

A factor which a Court, whether it be a sentencing court or an appellate court, should take into account when considering a sentence, is the sentence which has been imposed upon a co-offender of the accused convicted of the same offence. As was said in R v D'Ortenzio & Burns (1961) VR 432 AT 433, it is important that convicted persons should not be left with a sense of injustice or grievance based on reasonable grounds. In our view, that principle applies whether the co-offender was convicted at the same time as the person whose sentence is being considered or at another time or by another court. Convicted persons should not be left with a justifiable sense of injustice or grievance.

But such a sense of grievance will not arise simply because two co-offenders are sentenced to different terms of imprisonment. There is no principle of law that co-offenders should be equally sentenced. In each case, due weight must be given to the circumstances of the accused person. An offender with no prior criminal convictions may expect more leniency from a court than a criminal with a prior record. Each sentence must take into account the individual circumstances of the particular offender. Moreover, the disparity argument has little weight when the involvement of the two offenders convicted of the crime was disparate and did not indicate equal or like degrees of criminality. In R v Bavdaz (1967) 1 NSWR 3 at 6, Herron CJ, McClemens and Maguire JJ said :

"Though unfair discrimination between prisoners has to be avoided, there is no rule that persons jointly guilty of the same offence should all receive the same sentence. If it were otherwise it would be patently unjust to deprive an offender of a chance of rehabilitation merely because he was convicted jointly with another person whose rehabilitation was unlikely. We would respectfully agree with what was said by Hilbery J, in R v Ball (1951), 35 Cr App Rep 164 : 'In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. . . . Not only in regard to each crime, but in regard to each criminal, the Court has the right and the duty to decide whether to be lenient or severe. . . . It follows that when two persons are convicted together of a crime or series of crimes in which they have been acting in concert, it may be right, and very often is right, to discriminate between the two and to be lenient to the one and not to the other. . . The argument that a severe sentence on one prisoner must be unjust because his fellow prisoner, who was convicted of the same crime, received a light sentence or none at all, has neither validity nor force. The differentiation in treatment is justified if the Court, in considering the public interest, has regard to the differences in the characters and antecedents of the two convicted men and discriminates between them because of those differences'."

The disparity argument has again little weight when the co-offenders, though involved in the same activities, were convicted of different offences. As was said in R v Biddell (1975) 11 SASR 460 at 464, by Bray CJ,

" . . . But here the alleged disparity is between sentences for common assault, the maximum penalty of which is imprisonment for one year and a sentence for robbery with violence, the maximum penalty for which is imprisonment for life. Of course there is disparity in the sentences. It would be wrong if there were not.The real complaint, it seems to me, is not against uneven treatment by the courts but uneven treatment by the prosecution. But that has nothing to do with us. The courts are not responsible for the selection of charges by the prosecution."

Moreover, a court may decline to reduce the proper sentence for a crime because of a disparity which the sentence may produce if it is clear that the sentence with which it is compared was so inadequate as manifestly to be in error. As was said in R v Kite (1971) 2 SASR 94 at 96 :

"It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should reeive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved."

See also Re Tisalandis (1979) 1 A. Crim.R 7. In our opinion, a court may also decline to be influenced by a sentence imposed upon a co-offender if that other sentence be inadequate for the crime under consideration, whether or be not it be in error. In R v Bavdaz, cited above, the Court, at pp.6-7, said,

". . . The fact that very lenient sentences are imposed on other men concerned, does not make of itself a heavier sentence manifestly excessive. . . . if the sentence imposed on the individual concerned is a proper one the fact that his co-criminal is leniently treated is, of itself, no reason why the sentence should be' interfered with."

See also R v D'Ortenzio & Burns, cited above, where, at p.433, the Court considered that when a wholly inappropriate sentence has been imposed by the court that first dealt with the crime, a Judge dealing with another prisoner at a later date for the same crime is not bound to impose what he thinks is a wholly inappropriate sentence.

The underlying principle is not that co-offenders must be treated in the same way. Rather it is that, when each is sentenced according to his own circumstances, any disparity should not give rise to a justifiable sense of grievance. Justice should be even-handed, not capricious.

In the present appeal, the argument based on disparity has little force. The appellant is the person on whom most of the responsibility for the arson must rest. The vehicle burnt was his vehicle. He was one of the two persons who poured petrol over the vehicle and the arson occurred to enable him to benefit personally from the proposed fraud. It is not shown that McLean or McDonald was in any way involved in the fraud and they were not charged in relation to it. Moreover, even in relation to the arson, McLean and McDonald were not charged or convicted of the same offence as the appellant. They were charged and convicted of an offence under s.5 of the Crimes Act 1914 (Cth), namely, an offence of being knowingly concerned in a principal offence. The learned Magistrate considered that what was said in Duff v R [1979] FCA 83; (1979) 28 ALR 663 at 697 made it clear that ss.5 and s.7 of the Commonwealth Crimes Act both create offences against that Act. It is not necessary for us to consider whether the view of the learned Magistrate was correct and nothing that we say is intended to express any opinion on the point. The significant matter for present purposes is that McLean and McDonald were each charged and convicted of an offence of aiding and abetting the principal offence of arson and were not charged or convicted of the principal offence itself. It was on that basis that the learned Magistrate assumed jurisdiction. It was on that basis that he sentenced McLean and McDonald.

It must be noted too that McLean and McDonald were first offenders and were each given sentences by way of a suspended sentence of imprisonment, fines totalling $700 and a requirement to pay compensation, sentences which were designed to deter them from further crimes and to encourage them to lead thereafter honest and responsible lives. The sentences previously imposed upon the appellant had failed to achieve that result for him. Moreover, he was unable to pay any substantial fine as his financial resources were fully committed to the repayment of loans. It was open to the learned trial Judge to take the view, which we are sure he did take, that the sentences most calculated to achieve the appellant's rehabilitation would be substantial terms of imprisonment.

In our opinion, there was no undue disparity in sentencing. The sentences imposed in the Court of Petty Sessions were imposed in respect of crimes different from those in respect of which the sentences were imposed in the Supreme Court and in each Court the sentences properly took into account the nature, gravity and circumstances of the crimes and the personal circumstances of the offenders.

We would add that, in any event, the fines of $100 imposed on McLean and McDonald were clearly such inappropriate sentences for the appellant's crimes that they do not, in our opinion, provide any logical foundation for an adjustment of the appropriate sentences for the appellant's crimes by reference to them.

In our opinion, the appellant should not reasonably have any sense of grievance arising from the difference between the sentences imposed on him and the sentences imposed on McLean and McDonald.

We dismiss the appeal.