SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The application for leave to appeal against sentence should be refused for the reasons given by Jones J.

[2]  WHITE JA: I agree with the reasons of Jones J for refusing leave to appeal the sentence imposed below.

[3]  JONES J: The applicant Kenneth Barnard Black seeks leave to appeal against the sentences imposed on him after pleading guilty to four offences in the District Court at Rockhampton on 13 May 2010.  The four offences were committed in the space of one and a half hours on 25 October 2009.  The offences and sentences imposed were as follows:

[4] During the commission of these offences the applicant, then aged 20 years, was in the company of co-offenders Mark Edward Ricks, then aged 17 years, and Joseph Reginald Weldon, then aged 21 years.  Each of them was charged jointly on the one indictment with the four offences.  Each of them pleaded guilty to those four offences at the same time.  Different sentences were imposed on each offender to reflect the different levels of culpability and the different antecedents of each defendant. 

[5] As a result, the respective periods of imprisonment for Mr Ricks and Mr Weldon were as follows:

[6] The grounds upon which the applicant seeks to appeal are stated as:

(a) Comparative sentencing with the co-accused Mark Ricks

(b) No major adult criminal history

(c) Never had parole or probation orders before

(d) First time in custody

[7] When the application came on for hearing the applicant appeared in person by video link.  He had not provided any written outline of submissions.  When given the opportunity to make oral submissions he simply argued that his penalty should have been the same as that of Mark Ricks.

[8] The issue then is whether the learned sentencing judge has achieved parity in his sentencing of these offenders in what appears to have been a joint enterprise.

Circumstances of offending

[9] At 7.15 pm on the evening of 25 October 2009, the applicant, Mr Ricks and Mr Weldon went to the residence of the first complainant seeking drugs.  When the complainant said he did not have any, Mr Weldon opened the door and entered the residence.  Mr Ricks, armed with a meat hook, and the applicant, armed with a tyre lever, followed.  There was a fourth, but yet unidentified, offender who was armed with a knife.  The complainant’s wife and young child were ordered into a bedroom. Then Mr Weldon threatened to shoot the complainant with a pistol he said he held in his pants.  Mr Ricks searched the house but found no drugs.  He then pulled the telephone cord from the wall.  Mr Weldon took the complainant’s wallet, phone and coin tins from the house.  The total amount stolen was $750.

[10]  At 7.45 pm on the same evening, the four offenders went to another residence occupied by a 48 year old woman and her two sons aged 18 years and 15 years.  Mr Weldon approached the woman seeking drugs.  She said she did not sell drugs and there followed some verbal exchanges.  Mr Weldon went inside the house and threatened the 15 year old boy with a knife.  The woman complainant attempted to phone the police and Mr Weldon pulled the phone cord from the wall.  Mr Ricks also entered the house armed with the meat hook.  The applicant had by this time entered the residence through the back door and was armed still with the tyre lever.  He searched the house but found no drugs.  Mr Weldon assaulted both the sons, one of whom received a laceration to his forehead which required stitching.

[11]  At about 8.00 pm, the offenders visited the residence of the third complainant who lived there with his girlfriend and two children aged four years and 14 months.  On this occasion Mr Ricks first entered the dwelling and threatened the complainant with the meat hook.  He pushed the complainant onto a chair and punched him in the head several times.  The applicant and Mr Weldon also entered the house armed as before.  They realised that the complainant was not the person they were looking for and left the house but took with them two mobile phones.

The applicant

[12]  The applicant was 21 years of age at sentencing.  He had completed education to Year 8 level and had no qualifications beyond that.  He left home in his teenage years and lived on the streets for a period before moving in with another family.  The mother in that family setting was murdered in late September 2009.  This event was upsetting for the applicant causing him to become depressed and to lose his job.  At the time of the subject offending he was not taking the prescribed medication for his depression.  He was, however, drinking alcohol and consuming amphetamines.  He had met the co-offenders only a few days earlier in a hotel.  He claims to have been under the influence of drugs when committing the offences.

[13]  The applicant has a criminal history which included one offence for breaking and entering premises and another of entering a vehicle and stealing.  There were other minor offences including possession of drugs for which fines had been imposed.  He had cooperated with the police and gave a record of interview in which he made full admissions.

[14]  By contrast Mr Ricks, who was 17 years of age, had no admissible criminal history.  He had completed Year 10 level of education and had been in full employment thereafter.  Mr Ricks and Mr Weldon are in fact brothers.  So there was an additional influence on Mr Ricks’ involvement in the offending.  Neither he nor his brother agreed to be interviewed.

Sentencing submissions

[15]  In submissions made by counsel for all parties there was a general agreement that the sentencing range for these offences was between three years and five and  a half years imprisonment.  Reliance was placed on the decision of R v Leu; R v Togia[1] where a number of comparable decisions were considered.

[16]  It is clear enough that Mr Weldon, being the eldest of the trio, was the ringleader.  He also had a more significant criminal history.  These factors justified his receiving a higher sentence than the other two offenders.

[17]  Each of the offenders could point to post-sentence support and prospects of employment.

Parity

[18]  In this situation it was obvious that parity of penalty had to be considered and it was in fact the major part of the learned sentencing judge’s deliberation.

[19]  The principle of parity in sentencing a co-offender was discussed in Lowe v The Queen[2] where Gibbs CJ said (at p 609-10):

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.  The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether the sentence, viewed in isolation, was manifestly excessive… It may be said that the very existence of disparity reveals that an error has been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”

[20]  In Postiglione v The Queen,[3] the principles stated in Lowe were confirmed but further observations by the Court were made.  In particular, Dawson and Gaudron JJ said (at p 303):

“[D]ifferent criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison.  And, of course, it is necessary when applying the parity principle that like be compared with like.  There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused.  If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”

Conclusion

[21]  The learned sentencing judge did take into account the differences in the roles played by each of the offenders and the differences in their background and past offending.  His Honour took into account also the level of cooperation provided by the applicant and the fact that he was badly shaken by the death of his foster mother.  Against that, he had to balance the fact that Mr Ricks was younger, he had no prior criminal offending and that he was being led by an older brother.  These matters were appropriately weighed by the learned sentencing judge and in the exercise of his discretion, inevitably this has led to some difference in the sentence between the applicant and Mr Ricks.  That difference of one year between the principal sentences of the applicant and Mr Ricks was, in my view, appropriate. It certainly does not show that there has been any miscarriage of the discretion exercised by the learned sentencing judge.

[22]  I would therefore refuse the application.