R v Baumgart[2014] QCA 109

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.

[2] ATKINSON J:  Daniel Baumgart has applied for leave to appeal against sentences imposed upon him in the District Court at Maryborough on 3 October 2013 on the ground that the sentence for armed robbery in company with personal violence is manifestly excessive when compared to the sentence imposed upon a co-offender for the same offence. 

[3] The applicant was sentenced on 3 October 2013 on his plea of guilty with respect to offences committed on three different occasions.  He committed an offence of fraud and two counts of attempted fraud on 20 September 2012.  On 22 December 2012, he committed the offence of armed robbery in company with personal violence.  On 3 January 2013, he committed the offences of possession of drugs, possession of drug utensils and use of a controlled drug.

[4] He was sentenced to five years imprisonment for the armed robbery in company with personal violence, two years imprisonment for the fraud, 18 months imprisonment for each of the attempted frauds, six months imprisonment for possession of drugs and drug utensils and a conviction recorded but no further punishment imposed for the offence of use of a controlled drug.  Each sentence was ordered to be served concurrently.  His parole eligibility date was set at 3 July 2014.  A pre-sentence custody declaration of 273 days from 3 January 2013 to 3 October 2013 was made meaning that he was effectively to serve 18 months before he was eligible for release on parole.

[5] The circumstances of the indictable offences were set out in schedules tendered to the court on sentencing.

[6] The fraud and attempted fraud offences were committed in the following circumstances.  On 20 September 2012 the applicant and a co-offender, Robert Roden,  used a stolen credit card to purchase $2,770 worth of electronic equipment, sports shoes and clothing and sunglasses.  They attempted to purchase jewellery to the value of $1,260 in one shop and $103 in another with the same credit card but were unsuccessful.  The applicant was arrested on the following day.  At that time he denied having any involvement in the purchasing of the goods but admitted CCTV footage identified him and his co-offender at the various stores.  He did not admit to knowing that the credit card was stolen.

[7] The armed robbery in company with personal violence was committed on 22 December 2012.  The complainant received a phone call from the applicant whom she had known for about five years asking her to collect him from a petrol station to take him to his girlfriend’s house.  She agreed to do so.  As she stopped her car at a set of traffic lights she observed two men including the applicant running towards her car.  The applicant got into the front passenger seat of her car and the applicant’s co-offender, Harley Enniss, who was unknown to the complainant, sat in the rear passenger driver’s side seat.  Enniss grabbed the complainant around the throat holding an object against her throat which she believed might be scissors.  He pulled her hair and yelled at her to give him her cash.

[8] She stopped the car.  The applicant then started searching her car and ran his hands over her body looking for money.  Enniss leaned over and started biting her on the face.  The applicant said to her “Give me the cash, give me the cash”.  The complainant gave the applicant her handbag which contained $300.  He then demanded she give him the car keys, she removed them from the ignition and dropped them on the floor, beeping her car horn to get the attention of people who might be able to assist.  The applicant then left the car and called to Enniss to come with him.  They ran off.  She suffered a number of injuries to her head and face.  The applicant was located on the following day and arrested.

[9] The drug charges committed on 3 January 2013 were possession of the dangerous drug cannabis, the use of a water pipe and scissors used in connection with smoking that dangerous drug and the unlawful possession of a controlled drug, Fentanyl.

[10] The learned sentencing judge sentenced the applicant on the basis that while he was not the person who had bitten the complainant he had lured her into the situation where she was attacked.  The facts on which the applicant was to be sentenced did not allege that he was the one who held the scissors.  When Enniss was earlier sentenced he was also not sentenced on the basis that he had held the scissors.  This factor alone shows the disadvantage of having co-offenders sentenced at different times.[1]  The applicant was sentenced on the basis that he did not object to Enniss’ conduct or attempt to stop him and he looked for and took the complainant's money whilst Enniss was biting her.  He betrayed the trust the complainant had in him, as he expected her to have a significant amount of cash on her when he lured her into the situation where she was attacked and robbed.

[11] The applicant was born in 1981 and was 31 years old at the time of the offences and sentences imposed.  He has an extensive criminal history dating back to 1997 when he was sentenced in the Children's Court to four months detention with an immediate release order for two counts of breaking and entering premises and committing an indictable offence and two breaches of bail undertakings.  He was given 12 months probation in May 1998 for three counts of wilful damage.  He was sentenced to six months detention to be served after being convicted of burglary in the Maryborough Children’s Court on 29 October 1998.

[12] Thereafter he was convicted of many offences including offences relating to drugs, dishonesty, traffic offences, breaches of court orders and violence.  His dishonesty offences included 18 counts of stealing, 10 separate offences of fraud, three of attempted fraud, one of being found in a dwelling house without lawful excuse, three counts of possession of tainted property, four counts of unlawful possession of suspected stolen property, two counts of receiving tainted property, four counts of unauthorised dealing with shop goods and one count of unlawful entry of a vehicle for committing an indictable offence at night damaging property.  Other antisocial offences included two counts of making false calls and two counts of wilfully giving a false alarm with regard to a fire, one count of tampering or interfering with a facility, two counts of wilful damage and two counts of wilful destruction of police property.  Other offences against the police included three counts of assaulting a police officer, eight counts of obstructing a police officer and two counts of contravening a direction or requirement.

[13] In addition, the applicant had been convicted of numerous drug offences including ten counts of possessing dangerous drugs, one count of supplying dangerous drugs, five counts of possessing utensils, one count of failing to take reasonable care or precautions in respect of a syringe or needle, one count of possessing a thing used in the commission of a crime under Part 2 of the Drugs Misuse Act and one count of possessing property suspected of having been acquired for the purpose of permitting a drug offence.

[14] He had been convicted of weapons offences which included one count of unlawful possession of a weapon and one count of possession of a knife in a public place.  His offences of violence included one count of threatening violence, two counts of serious assault and two counts of assault occasioning bodily harm.  In addition he had been convicted of numerous breaches of court orders including two breaches of bail, one breach of a community service order, three breaches of suspended sentence, three breaches of domestic violence orders and one count of escaping lawful custody.

[15] At the time the applicant was sentenced he was subject to other sentences that had been previously imposed.  On 21 March 2012 the applicant was sentenced in the Supreme Court in Maryborough on one count of trafficking dangerous drugs between 1 March 2010 and 20 May 2010.  He was sentenced to four years imprisonment to be suspended for five years.  A declaration was made that the time spent in pre-sentence custody be deemed as time already served under this sentence.  That time was 456 days.  He was subject to that suspended sentence when he committed the offences for which he was sentenced and which he now seeks leave to appeal.

[16] On 4 April 2012 he was convicted of possessing a thing used with intent to forge documents, possession of modified firearms, using a thing to forge documents, forgery, breach of bail conditions, assuming the name of an officer with intent to mislead, committing public nuisance, possessing utensils or pipes for use, and possessing property suspected of having been acquired for the purpose of committing a drug offence.  He was sentenced to three months imprisonment.  It was cumulative upon the sentence already imposed; 14 days spent in custody were declared to be time already served under the sentence and his parole release date was 4 April 2012.  He was on that parole when he committed the offences for which he was sentenced and which he now seeks leave to appeal.

[17] His criminal history shows that the applicant had been sentenced to detention or imprisonment on 20 occasions.  He was subject to a suspended sentence when he committed the offences to which he pleaded guilty.  Additionally, the fraud and attempted fraud offences were committed whilst he was on parole and the armed robbery offence was committed whilst he was on bail for the fraud and attempted fraud offences.  The learned sentencing judge said that he was on parole when he committed the robbery but on appeal the respondent's counsel, Ms Loury, informed the court that his parole had in fact ended just after he committed the fraud and attempted fraud offences.

[18] There could be no complaint about the sentences imposed in view of the seriousness of the offending and the personal circumstances of the offender.  The minor error by the sentencing judge of referring to his committing the robbery "on bail and in breach of parole" rather than on bail and in breach of a suspended sentence could make no difference to the sentence imposed.  The only matter raised by the applicant was that the sentence imposed upon his co-offender on the armed robbery in company with personal violence was less than that imposed upon the applicant.  The question is whether such a difference could give rise to a justifiable sense of grievance because of a marked disparity in the sentences.

[19] Enniss was sentenced on his plea of guilty on one count of armed robbery in company with personal violence and one count of assault occasioning bodily harm with circumstances of aggravation.  On the count of armed robbery he was sentenced to three years imprisonment and on the count of assault occasioning bodily harm 18 months imprisonment.  His parole date was set after he had spent nine months in custody.

[20] That different punishments imposed upon different offenders for the same offence can give rise to a justifiable sense of a grievance has been encapsulated by the courts by reference to a principle described as the parity principle.  The rationale for this principle is set out in the judgment of Mason J (as his Honour then was) in Lowe v The Queen:[2]

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.  It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

[21] The parity principle however does not require that the sentence imposed on each of two co-offenders should be the same.  This understanding of the parity principle was set out by Dawson and Gauldron JJ in Postiglione v The Queen:[3]

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice.  Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.  In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances.  If so, the notion of equal justice is not violated.  On some occasions, different sentences may indicate that one or other of them is infected with error.  Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice.  However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'.  If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence.  Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."

[22] That the parity principle does not require precisely the same sentence for each offender was confirmed recently in Green v The Queen; Quinn v The Queen[4] where French CJ, Crennan and Kiefel JJ held:

"The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria.  The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity.  The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise."

[23] The learned sentencing judge referred to the differences between the applicant and Enniss which justified the disparity in their sentences.  Enniss was only 20 years old, 10 years younger than the applicant.  He was only sentenced for the offending on 22 November 2012 and not in respect of the other offences committed by the applicant of fraud and attempted fraud on 20 September 2012 and possession of drugs, possession of drug utensils and use of a controlled drug on 3 January 2013.

[24] Enniss' criminal history was much more limited than the applicant's extensive criminal history.  While he had prior dishonesty and breach offences, Enniss had no prior convictions for violence and had only been sentenced to imprisonment once before, a four month suspended sentence, which he had been required to serve.

[25] In addition the respondent's counsel pointed in her submissions to further factors which justified the difference in the sentences imposed.  Unlike the applicant, Enniss was not in breach of a suspended sentence or on bail when he committed the robbery.  He pleaded guilty at a very early stage before the applicant's matters had proceeded through a committal hearing.  He cooperated with the police by making admissions as to his involvement and was remorseful for his actions.  The explanation for his becoming involved in drugs and thus committing robbery was the death of his child during labour whilst he was in custody.

[26] All of those factors justify the differences in the sentences imposed upon the applicant and his co-offender Enniss and could not therefore objectively give rise to a justifiable sense of grievance.

[27] Accordingly the application for leave to appeal against sentence should be refused.

[28] JACKSON J:  I agree with the reasons for judgment of Atkinson J and the order proposed by her Honour.