Re Gregory John Kelly v R [1992] FCA 7; (1992) 33 FCR 536 (10 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: GREGORY JOHN KELLY
And: THE QUEEN
No. ACT G46 of 1991
FED No. 7
Criminal Law - Practice and Procedure
[1992] FCA 7; (1992) 33 FCR 536

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson(1), O'Loughlin(2) and Higgins(3) JJ.

CATCHWORDS

Criminal Law - Appeal against sentences imposed - Handling stolen property - Knowingly concerned in the commission of an offence of theft - Sentences set aside - Sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently - Eight month's imprisonment for being knowingly concerned in the commission of an offence of theft - Sentences cumulative - Non-parole of eight months - Sentences manifestly excessive - Disparity of sentences - Evenhandedness in sentencing.

Practice and Procedure - Sentence - Co-offenders - Appellant sentenced prior to co-offender - Disparity between sentences - Interference by appellate Court - Principles.

Crimes Act 1900, ss.99, 113,

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Taylor v The Queen (unreported: 8/6/84; Full Court; Federal Court)

The Queen v MacGowan (1986) 42 SASR 580

Jackson and Hakim (1988) 33 A Crim R 413

Reg v Faulkner (1972) 56 Cr App R 594

House v The King [1936] HCA 40; (1936) 55 CLR 499

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

R v Tait and Bartley (1979) 24 ALR 473

Schumacher (1981) 3 A Crim R 441

Weatherall (1987) 28 A Crim R 70

Smith and Smith (1988) 39 A Crim R 48

The Queen v Morse (1979) 23 SASR 98

Moyse (1988) 38 A Crim R 169

R v Maitland (1963) SASR 332

O'Malley v French (1971) 2 SASR 110

HEARING

CANBERRA
10:1:1992

ORDER

The sentences imposed in the Court below be set aside.

In lieu thereof, there be a sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently.

There be a further sentence of eight month's imprisonment for being directly knowingly concerned in the commission of an offence of theft; that sentence should be cumulative.

In respect of the total period of twenty calendar months, there should be a non-parole period of eight months to date from 25 July 1991.
NOTE: Settlement and entry of orders is dealt with in Order36 of the Federal Court Rules.

DECISION

I agree with the reasons for judgment of O'Loughlin J. and with the orders which he proposes.

The appellant pleaded guilty in the Magistrates' Court on 29 May 1991 to five counts of handling stolen property: contrary to the provisions of s.113 of the Crimes Act 1900 in its application to the Australian Capital Territory. On the same day, he also pleaded guilty to being directly knowingly concerned in the commission of an offence of theft by a young man named McNeil: contrary to s.99 of the same Act. He was committed for sentence to the Supreme Court of the Australian Capital Territory and, on 1 August 1991 that Court sentenced him, in respect of each of the five offences of handling stolen property, to serve two years imprisonment; those sentences were concurrent. For the offence of being directly knowingly concerned in the commission of an offence of theft, he was sentenced to a further term of two years imprisonment, to be served cumulatively. In respect of the total period of four years imprisonment, the learned sentencing Judge fixed a non-parole period of eighteen calendar months to date from the date upon which he had been taken into custody, 25 July 1991.

2. At the time when sentence was imposed, the appellant's co-offender, McNeil, had not been dealt with; McNeil had entered a plea of guilty in the Magistrates' Court on 17 July 1991 and had been committed for sentence to the Supreme Court but the date of sentence had not then been fixed. Eventually McNeil was dealt with on 8 October 1991, but, by that time, the appellant had filed his Notice of Appeal in these proceedings to comply with time constraints. By way of sentence, McNeil was ordered to perform 208 hours of unpaid community work within a period of twelve months.

3. The appellant's Notice of Appeal had been couched in general terms, claiming that the sentences were manifestly excessive and that the learned sentencing Judge had failed to take proper account of the appellant's good record, his pleas of guilty and other matters that had been advanced by way of mitigation in the interests of the appellant. But when the appeal was called on for hearing, counsel for the appellant sought the leave of the Court to amend the grounds of appeal to include the subject of disparity in the sentences handed down to the appellant and his co-accused. Whilst not opposing the application to amend, the Crown reserved the right to argue that the principle of disparity could only assist an appellant who had been sentenced subsequently to his co-offender, and not as here, where the appellant had been dealt with first in point of time. The Court reserved its judgment on the application to amend but instructed counsel to present full argument on the issue of disparity. The proposed amendment to the grounds of appeal was in the following terms:-
"... that the sentence of the appellant was excessive

having regard to the sentence imposed on the co-offender,
Gary David McNeil, and this disparity will, unless corrected
by order of this Honourable Court leave the appellant with a
justifiable sense of grievance."

4. As drafted, the ground of appeal is deficient; it should have read:

"... that the disparity between the sentence of the
appellant and the sentence of his co-offender, Gary David
McNeil, was manifestly excessive and this disparity will,
unless corrected by order of this Honourable Court leave the
appellant with a justifiable sense of grievance."

5. However, no point was taken on the drafting and, as it would be unsatisfactory to dispose of the matter on technical grounds, the subject of disparity will be considered on its merits.

6. The first issue to be determined is the argument that was advanced to the effect that the principle of disparity was not an available ground of appeal. Such an argument is grounded in the proposition that the learned sentencing Judge could not have erred in the exercise of his discretionary powers when he did not know, and could not have known, of the co-offender's sentence. As has already been stated, this argument assumes that the principle of disparity can never be available to the first of two or more co-offenders when the parties are sentenced on separate occasions.

7. Disparity in sentences is as much a concern for sentencing Judges as it is for appellate courts, but it is obvious that the subject of disparity can never arise before the first of two or more sentencing Judges; there is no other sentence then extant to guide one towards parity. However, such a statement of fact is not relevant at the appellate level if, when the appellate court considers that matter, both (or all) offenders have been sentenced.

8. The existence of disparity in the sentences of co-offenders can, but does not always, reveal that an error in the sentencing process may have been committed. There can be occasions when an appellate court will intervene, not because the higher sentence is manifestly excessive, but because a comparison of the sentences shows a disparity of such a size as "to engender a real sense of grievance": (Lowe v The Queen) [1984] HCA 46; (1984) 154 CLR 606 at 622-623 per Dawson J.; see also Gibbs C.J. at 610, Mason J. at 612 and Wilson J, at 616). But the difference between the sentences must be manifestly excessive and the difference must call for the intervention of an appellate court in the interests of justice: (Lowe at 624 per Dawson J.).

9. Although the High Court refused special leave to appeal in Lowe, it is implicit in the remarks of the members of the Court that the argument now advanced by the Crown must be wrong. The appellant in Lowe had been sentenced some two months before his co-offender; he received six years hard labour whilst his co-offender was admitted to probation for three years and was ordered to perform 200 hours of community service. Dawson J. noted that the Court of Criminal Appeal "... expressed the view that the disparity was sufficient to engender a real sense of grievance". It was this view which had led the Court of Criminal Appeal to allow the applicant's appeal and to vary his sentence by recommending that he be eligible for parole after serving twelve months of his sentence. But the Court of Criminal Appeal had refused to reduce the head sentence of six years and it was from this refusal that special leave had been sought from the High Court.

10. A month or so prior to the decision in Lowe, a Full Court of this Court considered the issue of disparity (admittedly where the appellant had been sentenced subsequently to his co-offender) and, in the course of its reasons, the Court said:

"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."

(Taylor v The Queen: unreported: judgment delivered 8 June 1984).

11. The remarks in Lowe and in Taylor clearly suggested that the accident of timing in the sequence of the sentences would not inhibit an appellate court from considering the issue of disparity where the circumstances warrant it.

12. The question has been squarely answered in South Australia in The Queen v MacGowan (1986) 42 SASR 580. In that case the petitioner was entenced to terms of imprisonment aggregating six years with a non-parole period of four years; he sought but was refused leave to appeal. His co-accused, having absconded whilst on bail, was not dealt with until much later. When finally sentenced, the co-accused, who was ten years older and had a much worse criminal history, received terms totalling five years with a non-parole period that was three months shorter than that given to the petitioner. The Petition to the Governor for clemency was referred to the Full Court by the Chief Secretary. The Chief Justice, King C.J. (with whom Mohr and von Doussa JJ. agreed) identified the petitioner's complaint as one of "gross disparity" even though the sentences imposed upon each offender were "within the range of sentences reasonably open to the sentencing Judge" (p 583). At the same page he described the disparity as "an affront to one's sense of fairness." There being "no countervailing consideration which would inhibit the Court from rectifying the injustice" the Full Court intervened to reduce the petitioner's head sentence by a year and his non-parole period by six months.

13. The collective force of these authorities makes it clear that the argument advanced by the Crown must be rejected. This Court clearly has the power to consider the question of disparity irrespective of the order in which sentences were imposed. Accordingly, leave should be granted to make the necessary amendment to the grounds of appeal.

14. The first count of handling stolen property related to a photocopier which the appellant acquired in October 1988 in satisfaction of a debt that was owing to him. A few days later, the appellant sold it to a third party. The owner had reported the theft of the photocopier and relevant business houses had been advised of its identifying features. Thus when, some years later, the third party took it to a repairer for servicing, it was recognised and the police were led to the appellant. As a result of a search of his home, the police discovered a compact disc player, a video cassette recorder and two television sets. The appellant made admissions in respect of each item to the effect that he either knew or suspected that each had been stolen prior to him acquiring it. However, the appellant maintained that all items had been purchased for his personal use and it would seem that the learned sentencing Judge accepted that he was not engaged in the business of "fencing" stolen property.

15. The final charge related to the appellant being knowingly concerned in the theft of certain money from an insurance company. At the time when the police executed the search warrant on 20 February 1991, they found in the garage at the appellant's house a 1986 Ford Laser sedan. That vehicle had been registered in the name of the co-offender, McNeil. It transpired that McNeil had, on 23 August 1987, reported to the insurance company that the vehicle had been stolen; at the time when McNeil lodged his report the car was in the appellant's possession as he had promised McNeil that he would attend to some repairs. Although McNeil made the report without first telling the appellant, he nevertheless told him about it very soon thereafter. The appellant had the chance to distance himself from McNeil and from McNeil's criminal conduct, but he failed to take the opportunity. Within a short time, McNeil's claim on the insurance company was met; he received $14,750. He paid $12,733 to the financier of the car and kept the balance; the appellant received no part of it.

16. The appellant's evidence was that having found out that the vehicle had been reported stolen, he did not know what to do with it. However the learned sentencing Judge rejected this explanation, saying:-

"... I do not believe the accused in respect of that
evidence. He was an experienced trader in second hand goods
and he would know that an honest person would not have kept
the vehicle knowing that it had been reported to the
insurance company as having been stolen. The only
conclusion I can come to is that he kept the vehicle for his
own purposes, which were dishonest."

17. The accused is now 37 years of age. Apart from some minor traffic misdemeanours, he has no prior convictions. He did most of his schooling in New South Wales country towns and worked at Forbes for about two years or so before moving to Canberra in 1973. He would have then been 19. After a variety of positions, the appellant settled into work as a bus driver remaining in that employment until his resignation in 1988. In that year, he took over the operation of a restaurant. It is probably of some significance that the losses sustained in the operation of the restaurant coincided with his acts of dishonesty. Eventually, the restaurant business collapsed and the appellant was forced to submit to his creditors under the provisions of Part X of the Bankruptcy Act. At the time of sentencing, he was working as a general handyman.

18. His Honour rightly regarded the appellant's history of dishonesty as very serious. In the course of his remarks he said:-

"It is a notorious fact the burglary offences commonly
result in the theft and illegal disposition of household
appliances, such as television sets and video recorders.
There is a ready market for such products and those who
engage in that sort of criminal activity do so because they
know that they can dispose of stolen property on that
market. That is precisely what has happened in relation to
the items covered by the five offences of handling stolen property.
People who receive stolen property are just as dishonest as
the original thief. It is also a notorious fact that
insurance companies are seen as fair game for fraudulent
claims. The consequence of that form of fraud is, of
course, higher insurance premiums.
People who assist dishonest people who defraud their
insurance companies are likewise dishonest. They are cheats
and they should receive condign punishment."

19. It would be difficult to qualify, let alone dissent from, any of those remarks. It should be clearly understood that the grounds of appeal, insofar as they allege a failure on the part of the learned sentencing Judge to take account of all relevant factors, are not made out. On the contrary, his Honour recognised the appellant's previous good character, his pleas of guilty, his co-operation with the investigating police officers and the fact that the stolen property had been recovered; there is nothing about his sentencing remarks that would suggest that he failed to give proper weight to any relevant matter.

20. But it is still necessary to consider whether the sentences can properly be regarded as manifestly excessive. Independently of that question, there is the further question whether, upon the principle of disparity, this Court should intervene.

21. At Street C.J. observed in Jackson and Hakim (1988) 33 A Crim R 413 at 430:-

"A well recognised - indeed it is the most commonly
encountered - ground for challenging a sentence is that,
although there is no discernible error in the sentencing
adjudication, the sentence as passed is manifestly excessive."

22. Such is the present case - there is no discernible error in his Honour's sentencing remarks; the strongest argument in favour of this appellant is to say that four years imprisonment is "just too much" - it is manifestly excessive; as Lord Parker L.C.J. said in Reg v Faulkner (1972) 56 Cr App R 594 at p 596 "at the end of the day, as one always must, one looks at the totality and asks whether it was too much." Despite his criminal conduct, despite the period of time over which it occurred, a man of 37 without previous convictions who had otherwise shown an ability to work hard and make a place for himself in the community, should not have been subjected to such a heavy term of imprisonment.

23. But the circumstances under which this Court can interfere in the sentencing process are severely curtailed. The principles are to be found in cases such as House v The King [1936] HCA 40; (1936) 55 CLR 499 and Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509. More recently a Full Court of this Court in R v Tait and Bartley (1979) 24 ALR 473 explained those principles in these terms:-

"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
my 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. (p 476)

24. Those principles have been consistently followed in this Court in such cases as Schumacher (1981) 3 A Crim R 441; Weatherall (1987) 28 A Crim R 70 and Smith and Smith (1988) 39 A Crim R 48.

25. In The Queen v Morse (1979) 23 SASR 98, King C.J. (with whom White and Mohr JJ. agreed) explained how an appellate court should go about the task of assessing whether a sentence was manifestly excessive. He said:-

"To determine whether a sentence is excessive, it is
necessary to view it in the perspective of the maximum
sentence prescribed by law for the crime, the standards of
sentencing customarily observed with respect to the crime,
the place which the criminal conduct occupies in the scale
of seriousness of crimes of that type, and the personal
circumstances of the offender." (p 99)

26. In coming to the conclusion, in the present case, that a total period of four years was manifestly excessive in respect of the conduct of this appellant in his circumstances, material assistance is obtained by having regard to the principle of "totality". In Moyse (1988) 38 A Crim R 169 both Jacobs J. (at p 170) and Matheson J. (at p 177) referred to earlier unreported remarks of King C.J. The learned Chief Justice had said:-

"There is a principle of sentencing known as the principle
of totality, which enables a court to mitigate what strict
justice would otherwise indicate, where the total effect of
the sentences merited by the individual crimes becomes so
crushing as to call for the merciful intervention of the
court by way of reducing the total effect."

27. Those remarks apply in this case; the Court is justified in intervening under the "totality" principle.

28. But it is essential, as a separate exercise, to consider the subject of disparity. Having resolved that it is necessary for this Court to intervene, the question of penalty is at large. But the task of this Court in assessing the correct penalty for being concerned in the commission of an offence of theft will be materially affected by the determination of the complaint of disparity. It is always possible that a finding of disparity in favour of the appellant will result in a shorter sentence than that which might have been imposed if the appellant had only succeeded in obtaining a finding that this penalty was manifestly excessive.

29. In MacGowan (supra) King C.J., said that the principles which should govern a court's approach to the question of disparity had been laid down by the High Court in Lowe (supra); he said that the following principles could be derived from Lowe and from other decisions of the Full Court:-

1. Where two or more persons are sentenced by the same
judge for the same crime or crimes the sentences
imposed on them should be proportionate to their
respective degrees of culpability and to the various
personal factors of aggravation and mitigation. Any
distinctions in the sentences imposed should fairly
reflect differences in the respective degrees of
culpability and the circumstances of the offenders and
should be explained by the sentencing judge.
Unjustified disparities will be rectified by the Court
of Criminal Appeal on appeal by the Attorney-General
or the offender even though the sentence under review,
considered apart from disparity, might be regarded as
within the permissible sentencing range.
2. Sentences imposed by different judges on co-offenders
should also be proportionate to the respective degrees
of culpability and the individual circumstances of the
co-offenders. In such circumstances, a sentencing
judge should ascertain the punishment which has been
imposed upon any co-offender previously sentenced. He
should endeavour to assess a sentence which fairly
reflects any relevant distinctions. If, however, the
earlier sentence is, in the opinion of the judge
imposing the subsequent sentence, outside the range of
sentences properly applicable to the case, he may
legitimately impose what he regards as the appropriate
sentence, leaving any correction of disparity to the
Court of Criminal Appeal. The sentencing judge should
give reasons explaining any disparity between the
sentence which he imposes and earlier sentences
imposed on co-offenders.
3. Marked disparity of sentences imposed upon
co-offenders by different judges is a ground upon which
the Court of Criminal Appeal may intervene on an
appeal by the Attorney-General or an offender. If
both sentences are within the maximum authorised by
law and are within the range of sentences properly
open on the facts of the case, the Court of Criminal
Appeal is not bound to intervene. In such
circumstances disparity, although a ground for
interference, will not necessarily lead the Court of
Criminal Appeal to interfere. It is a matter for the
discretion of the Court. There may be considerations
against interference. The protection of the public
may require the higher sentence to stand. The lower
sentence may be so inadequate that to establish parity
may be felt to compound the error in a way which would
be unacceptable to the public conscience. The sense
of grievance experienced by the offender may have to
be tolerated in the public interest. But in the
absence of strong countervailing considerations, the
Court of Criminal Appeal will interfere to eliminate
marked disparities which cannot be justified in the
circumstances of the case."

Although the learned sentencing Judge did not believe the appellant when the appellant said that he did not know what he could do with the vehicle, and although his Honour concluded that the appellant had kept it for some unspecified dishonest purpose, he did not comment on the relative degrees of criminality of the appellant and his co-offender, McNeil. Thus the only evidence that was before his Honour was the evidence of the appellant to the effect that McNeil alone originated the fraudulent scheme and McNeil, to the exclusion of the appellant, benefited to the extent of a sum in excess of $2,000.00. That was the appellant's version of the facts; it was a version that was consistent with his plea of guilty and no attempt was made by the prosecuting authorities to contradict it by sworn evidence. In such circumstances the Court was entitled "to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused": R v Maitland (1963) SASR 332 at p 335; O'Malley v French (1971) 2 SASR 110 at p 112. It is important to bear this in mind - the more so as it was suggested from the Bar table that McNeil was sentenced upon the basis that he was a younger man who had been led astray by his older companion. No such proposition was before the learned sentencing Judge. His task therefore was to sentence an older man but one, who on the evidence before him, had played the lesser role and received no financial gain; that then becomes the framework within which to consider a term of two years imprisonment against an order for 208 hours of unpaid community work. So expressed, it is not difficult to accept that the appellant may well have a justifiable and real sense of grievance. The disparity was manifestly excessive and warrants the intervention of this Court.

30. The appellant's course of conduct warrants incarceration; his maturity and experience, when compared with McNeil's youth and inexperience, means that he is not entitled to the same lenient treatment. Independently, the extent of his criminal conduct was such that imprisonment must be ordered for the receiving charges. However, in each case, the justice of the matter warrants substantial reductions in the terms.

31. The sentences imposed in the Court below should be set aside. In lieu thereof, there should be a sentence of one year's imprisonment for each offence of handling stolen property to be served concurrently; there should be a further sentence of eight month's imprisonment for being directly knowingly concerned in the commission of an offence of theft; that sentence should be cumulative. In respect of the totalperiod of twenty calendar months, there should be a non-parole period of eight months to date from 25 July 1991.

I have had the advantage of reading the Reasons for Judgment of O'Loughlin J. I agree with the views expressed by his Honour and with the orders he proposes.