R v Heang[2016] QCA 195

SUPREME COURT OF QUEENSLAND

[1] MORRISON JA:  I have read the reasons of Burns J and agree with those reasons and the order his Honour proposes.

[2] BODDICE J:  I agree that leave to appeal should be refused.

[3] The differences in the objective criminality of the applicant and Shattock called for a higher head sentence in the applicant’s case.  A sentence of 18 months imprisonment for burglary did not constitute a marked disparity from the sentence imposed on Shattock.

[4] As was acknowledged in Green v The Queen,[1] the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.  The different sentences in the present case were amply justified by differences between the co-offenders’ background, criminal history and the part each played in the relevant criminal offence.

[5] Shattock played a significantly lesser role than the applicant in the commission of the offence.  He did not wield a weapon.  He did not make threats to the complainant (either prior to or during the offence).  By contrast, the applicant had previously telephoned the complainant’s partner to demand payment of the debt, and threatened action if it were not paid.  Thereafter, the applicant attended the residence armed with a baseball bat, wielded it, engaged in threats, made demands of the complainant and searched the garage for the complainant’s partner.

[6] The applicant also had a not insignificant past criminal history, including committing further offences whilst on bail for the subject offences.  By contrast, Shattock had a limited, irrelevant and dated past criminal history.  He also did not re-offend after being released on bail.

[7] A head sentence of 18 months imprisonment did not breach the principles of parity.

[8] BURNS J:  The applicant, Jason Michael Heang, pleaded guilty in the District Court at Townsville on 2 September 2015 to an indictment containing one count of wilful damage[2] and one count of burglary.[3]  His co-accused, James Shattock, was sentenced with the applicant, he having earlier pleaded guilty to the same indictment.

[9] By the burglary count, a number of circumstances of aggravation were charged.  These were that the pair obtained entry by means of a break, that they were armed with an offensive instrument, that they were in the company of each other and that they damaged property.[4]  In addition to the indictable offences, Shattock also pleaded guilty to a summary charge, namely, possession of tainted property.

[10] After receiving submissions on sentence, the hearing was adjourned to 22 September 2015 for the handing down of the sentences.  The applicant was sentenced to concurrent terms of imprisonment of two months on the wilful damage count and 18 months on the burglary count.  Pre-sentence custody of 137 days[5] was declared to be imprisonment already served under those sentences and it was ordered that the applicant be immediately released on parole.  Shattock was also sentenced to imprisonment for two months on the wilful damage count but, on the burglary count, he received a sentence of 12 months imprisonment.  Both terms of imprisonment were wholly suspended for an operational period of 18 months and a short period of pre-sentence custody was declared to have been time already served under those sentences.[6]  In addition, an amount of $1,455.20 that was held in the trust account of Shattock’s solicitors was ordered to be paid by way of compensation.  On the summary charge, Shattock was convicted but not further punished.

[11] The applicant seeks leave to appeal against the sentence imposed on him with respect to the burglary count, contending that there was lack of parity between that sentence and the sentence imposed on Shattock for the same offence.  It was argued that his sentence should be varied by reducing the head sentence to 12 months, retaining the declaration of pre-sentence custody and then suspending the balance for the same operational period ordered with respect to Shattock, that is to say, 18 months.

The circumstances of the offending

[12] The complainant and her partner resided in a house owned by the complainant’s mother in a suburb of Townsville.  The applicant, Shattock and the complainant’s partner were known to each other as fellow members at one time of a motorcycle club.  In mid-June 2014, the applicant telephoned the complainant’s partner to demand payment of a debt.  He threatened to “come and kick the door down” if the debt was not paid.  As it was explained during the sentencing hearing, the debt was owed to the applicant and Shattock as well as to a number of other unnamed persons.

[13] Early in the afternoon of 5 July 2014, the applicant and Shattock travelled to the complainant’s house in a motor vehicle driven by Shattock.  This was the vehicle that later became the subject of the tainted property charge to which Shattock pleaded guilty.  When it was discovered that no one was home, they smashed a glass panel in the front door of the house and this constituted the wilful damage count.  They then drove away from the property.

[14] As to the burglary count, about ten minutes after the applicant and Shattock left the complainant’s house, the complainant and her partner were returning home in their vehicle when they saw the two men travelling ahead of them.  The complainant and her partner continued home but, after entering their driveway, became aware that the vehicle containing the applicant and Shattock was following closely behind.  The complainant and her partner drove into the garage and closed the garage door.  The complainant then walked into the house through an internal door and saw the damage that had been caused to the front door.  By this time, the applicant and Shattock had made their way to the other side of the front door.  In response to what the complainant described as a “loud thumping noise on the door”, she told them to “go away” and threatened to call the police.  Almost immediately, there was a “loud crashing” noise as the “front door flew open”.  The complainant saw the applicant standing in the doorway armed with a metal baseball bat.  Shattock was standing behind him.  He was not armed.  As to who carried out the actual “break”, the record is silent, but the obvious implication from what the complainant saw when the door “flew open” is that it was the applicant.

[15] After the front door was forced open, the applicant walked inside followed by Shattock.  The applicant demanded to know where the complainant’s partner was before moving into the garage to look for him.  Although Shattock followed, he stood at the internal door while the applicant looked around the garage.  The applicant was observed by the complainant to be “wielding the [baseball] bat in an upward position”.  When he was unable to locate the complainant’s partner, the applicant told the complainant that her partner “owes us $15,000” before adding that, “if [he] doesn’t contact us, we’ll be back”.  It was not alleged that Shattock said anything to the complainant.  The applicant and Shattock then left the house and shortly afterwards the complainant called the police.

[16] The cost of repairs to the front door amounted to $2,455.20.  Shattock initially paid $1,000 to the complainant’s mother and, when a quotation was provided on the day prior to the sentencing hearing, he deposited the balance in his solicitors’ trust account.  That sum was then the subject of the compensation order made by the sentencing judge to which I have already referred.  As such, Shattock is to be regarded as having paid compensation in full for the damage caused to the property of the complainant’s mother.

[17] It should also be mentioned that both men participated in justice mediations earlier in 2015 and prior to the presentation of the indictment.  These mediations resulted in each man entering into a written agreement with the complainant.  They were in evidence at the sentencing hearing.  By his agreement, the applicant became obliged to pay $400 to a nominated charity, and this sum was subsequently paid.  In Shattock’s case, he agreed to pay the sum of $1,000 referred to in the preceding paragraph as well as the sum of $1,650 to the complainant’s partner for “relocation expenses resulting from this incident”.[7]

Antecedents

[18] Because the sole complaint made on this application was that the sentences respectively imposed on the applicant and Shattock for the burglary lacked parity, a comparison of the factors personal to each offender is necessary.

The applicant

[19] The applicant was born in 1983.  He was 31 years of age at the time of the offences and 32 at the time of sentence.  He had a criminal history of some relevance, although nothing approaching the seriousness of the subject offending.  In 2005, he was dealt with for public nuisance and, in 2008, he was convicted of possession of a dangerous drug and placed on a four-month drug diversion program.  In the following year, he was convicted of being drunk or disorderly in licensed premises and of assaulting or obstructing a police officer.  There are then no further entries until 25 March 2015 when the applicant was dealt with for two offences of entering or remaining on licensed premises when wearing or carrying a prohibited item.[8]  These offences were committed on successive days in February 2015.[9]  He was again convicted of this offence when he appeared in the Magistrates Court on 7 July 2015.[10]

[20] It will be seen that the last three entries on the applicant’s criminal history were for offences committed whilst he was on bail for the subject offences.  Despite that, prosecuting counsel made no submission to that effect and counsel for the applicant erroneously submitted that “since being granted bail on [20 November 2014], he has not come to the attention of police and has displayed … an ability to remain offence-free during that time”.[11]  In the end, the sentencing judge remarked that the applicant’s criminal history would “not affect what I am going to do in your case”,[12] but it is of course impossible to know whether his Honour’s approach would have been any different had he been made aware that the applicant had committed offences whilst on bail.

[21] The applicant was educated to Year 10 level before enlisting in the Royal Australian Army where he remained for almost three and a half years.  After leaving the Army, he commenced business on his own account as a concreter but, within a few years, he was forced to cease work because of the development of a severe anxiety disorder that could be traced to his military service.  A report from the applicant’s treating psychiatrist was advanced to the court in this regard.  It revealed that the applicant suffered from symptoms of anxiety and associated depression as a result of this disorder and that he had been receiving treatment in the form of prescribed medication and psychotherapy on a weekly basis.  The psychiatrist urged the court not to impose a sentence that involved actual custody because, the psychiatrist opined, this would “cause an immediate and profound decompensation in his symptoms of anxiety and would also bring about unnecessary interruption in his treatment, from which he is showing encouraging results”.[13]  The psychiatrist also reported that the applicant had “shown excellent motivation and [had] actively engaged in treatment”.[14]

[22] The applicant has a daughter who was eight years of age at the time of sentence and, although not the primary caregiver, the applicant was having contact with her on every alternate weekend.  He was also making regular financial contributions for her benefit.  Otherwise, it was submitted that the applicant was appropriately remorseful.

[23] For the applicant, it was submitted in the court below that a head sentence of 12 to 15 months imprisonment would be appropriate and that, after taking into account the 137 days already served under that sentence, the balance period of imprisonment ought to be wholly suspended.

Shattock

[24] Shattock was born in 1971, making him 43 years of age at the time of the offences and 44 at the time of sentence.  He was a single man with no dependents.  He had no relevant criminal history; the only entry related to an offence of obstructing police in 2002 for which a fine of $150 was imposed and no conviction was recorded.

[25] He was educated to Year 10 level before entering the workforce.  He had been in continuous, full-time employment ever since.  At the time of sentence, Shattock was employed as a scaffolder/rigger at Mount Isa on a “fly in / fly out” basis and he had held that particular employment since 2006.  When not working, he resided in Townsville.

[26] Like the applicant, Shattock was also said to be remorseful.  In particular, it was submitted on his behalf that he was “very regretful” for what occurred and that he had expressed his remorse to the complainant directly.  It was further submitted that he did not intend to harm anyone in the house, least of all the complainant.  He apologised to the complainant and undertook “not to act in that way or a similar fashion again”.[15]  A letter under the hand of the complainant was tendered in which the complainant asked that a period of actual custody not be imposed on Shattock.  As a condition of the bail to which he was admitted on 7 July 2014, Shattock remained in Mount Isa and did not return to his home in Townsville for a substantial period of time until his bail was later varied.  This was a condition that he was said to have volunteered to “take the heat out of the matter”,[16] but it resulted in him incurring additional expense by way of accommodation in Mount Isa.  In addition, and as earlier mentioned, he paid $1,650 to the complainant’s partner for relocation expenses which were incurred because the complainant and her partner felt that they could no longer reside in the house where the burglary took place, as well as $2,455.20 for the damage caused to that property.  Otherwise, a number of character references were tendered to vouch for his standing in the community.

[27] On Shattock’s behalf it was submitted that he had played a “secondary role”[17] in the commission of the offences, that he had cooperated to a “remarkable”[18] degree and that he had not committed any further offences since being released on bail.  A wholly suspended sentence of imprisonment was submitted to be an appropriate sentence in all of the circumstances.

The sentencing remarks

[28] After observing that the subject offences were of the sort sometimes referred to as “home invasions”[19] and recounting the facts, the sentencing judge remarked:

“People who take the law into their own hands in such a way will be severely punished by the Courts. You are both mature men and whilst the prosecution have conceded there was no actual violence whilst you were in the house, nevertheless, there was an element of premeditation and you made threats whilst one of you was armed. That sort of behaviour, apart from anything else, is cowardly and it is shocking behaviour from mature men”.[20]

[29] His Honour took into account the early pleas of guilty and the feature that both men had participated in a mediation with the complainant during which their “behaviour was discussed”.[21]  The sentencing judge observed that it was the applicant who had wielded the baseball bat and threatened the complainant’s partner.  As against that, the applicant’s anxiety disorder and its ongoing effect on him was taken into account, as were his financial contributions for the benefit of his daughter.  As earlier mentioned, his Honour did not consider that the applicant’s criminal history should affect the sentences to be imposed in his case, and it was accepted that the applicant was remorseful.  As for Shattock, the sentencing judge accepted that he had played a “lesser role in what occurred” and that he had “accompanied [the applicant] on what was a very foolish episode for [Shattock] to be involved in with [his] background and with [his] level of maturity”.[22]  His Honour also accepted that Shattock was remorseful, that he had “stayed away from Townsville whilst on bail”,[23] that he was “highly thought of”[24] by those who provided references and that the complainant “quite specifically in [his] case, [had] asked the Court if it imposes a sentence of imprisonment not to include any actual time to be served”.[25]

[30] His Honour then imposed the sentences to which I earlier referred.

Consideration

[31] One of the two proposed grounds of appeal specified in the Application for Leave to Appeal was that the sentence imposed with respect to the burglary was manifestly excessive, but this ground was abandoned at the commencement of the hearing of the application.[26]  That left as the sole proposed ground of appeal the complaint that there was a lack of parity between the sentences imposed by the court for that count.

[32] In Postiglione v The Queen,[27] Dawson and Gaudron JJ explained that the principle of parity of sentencing was based on an aspect of equal justice.  Their Honours continued:

“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,[28] 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.”[29] (Citations omitted)

[33] More recently, in Green v The Queen,[30] French CJ, Crennan and Kiefel JJ restated the principle in these terms:

“‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order.’ It has been called ‘the starting point of all other liberties.’ It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:[31]

‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ (emphasis in original)

Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.[32]

…

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.”[33]

[34] Here, it was submitted on behalf of the applicant that there were two features of the sentences imposed in the court below which gave rise to a justifiable sense of grievance: first, the significantly greater component of actual custody that had already been served by the applicant (about four and a half months) compared to that served by Shattock (three days) and, second, because the applicant was ordered to be released on parole whereas Shattock received a wholly suspended sentence.  It was submitted that, once account was taken of the applicant’s pre-sentence custody and the effect that custody was likely to have had on his symptoms of anxiety,[34] he should have received the same sentence as Shattock, that is, imprisonment for 12 months, wholly suspended for an operational period of 18 months.

[35] In support of those submissions, it was argued that:

(a) The role played by Shattock in the offence, although a lesser one, was only “marginally”[35] so;

(b) They were “willing partners”[36] in the commission of the offence and each had a motive to take part in the sense that the complainant’s partner was indebted to both of them;

(c) Although it was the applicant and not Shattock who was armed with the baseball bat, the applicant had not used it to injure the complainant (or her partner) or to damage property;

(d) At no time did Shattock attempt to “distance himself from anything that the applicant was doing or saying”;[37]

(e) The applicant had been driven to and from the complainant’s house by Shattock on two occasions in the vehicle that later became the subject of the tainted property charge in relation to which Shattock was convicted and not further punished;

(f) The difference between their respective criminal histories was not such as to warrant such disparate sentences, particularly when regard was had to the significantly longer period the applicant had spent in pre-sentence custody; and

(g) The sentencing judge did not explain why he decided to release the applicant on parole but to impose a wholly suspended sentence on Shattock.

[36] For the Crown, it was submitted that the applicant was the younger of the two offenders with a more substantial criminal history.  Shattock, it was submitted, played a lesser role in the commission of the offence and paid compensation in full.  He had expressed “real remorse and regret”, voluntarily removed himself to Mt Isa to be “away from the complainant”, was a “productive member of the community”[38] and was of good character, as the references tendered on his behalf attested.  By reason of these distinguishing features, it was argued that the parity principle had not been infringed.  Otherwise, it was submitted to be open to the sentencing judge to take the view that the applicant required supervision in the community on parole whereas Shattock did not.

[37] As to the contention that the applicant should have received a wholly suspended sentence rather than parole, the applicant’s counsel accepted during the course of argument on appeal that such a proposition was attended by “great difficulties”,[39] and I agree.

[38] If a court sentences an offender to imprisonment for five years or less, it may order that the term of imprisonment be suspended,[40] but such an order can only be made if the court is satisfied that it is appropriate to do so.[41]  Whether such a course is appropriate in the circumstances of a particular case falls squarely within the discretion of the sentencing judge.  In the exercise of that discretion, the factors personal to the offender will often be influential including his or her antecedents, age and character as well as the offender’s prospects of rehabilitation and whether that would be aided by medical, psychological or psychiatric treatment and/or supervision during the non-custodial operation of a proposed sentence.

[39] This case provides a good example of the exercise of the discretion under s 144 of the Penalties and Sentences Act.  Both offenders received sentences which, in their ongoing effect, did not involve actual custody; the applicant was released on immediate parole, whereas Shattock was left exposed to the statutory consequences if another offence punishable by imprisonment is committed during the operational period of the order.[42]  Reference to their different personal circumstances explains why their sentences were structured differently.  The applicant was younger than Shattock and had a more expansive criminal history, He was afflicted by a severe anxiety disorder which required ongoing psychiatric treatment and its effect on him was such as to render him unemployable.  In contrast, Shattock had little in the way of criminal history, he had been in continuous, gainful employment since leaving school and he was well regarded by members of the community.  He was, in all of the circumstances, a good candidate for a wholly suspended sentence.  The same could not be said of the applicant whose circumstances strongly suggested a need for the framework, support and supervision that release on parole would provide.  There is no substance in the complaint that the applicant should have received a wholly suspended sentence rather than parole.

[40] As to the difference in the head sentences that were imposed, it cannot be doubted that Shattock played a significantly lesser role than the applicant in the commission of the burglary.  It was the applicant who made the initial telephone call and threatened the complainant’s partner.  He was the person responsible for the actual “break” and who wielded the baseball bat in a threatening manner, made demands of the complainant, searched the garage for the complainant’s partner and, when he did not succeed, threatened to return.  In contrast, whilst Shattock also had a motive to take part in the offence and twice drove the applicant to and from the complainant’s house, he played no active role during the burglary, said nothing during its occurrence and was not armed.  He may have done nothing to distance himself from what took place, but he did not add to the ordeal.  The sentencing judge accepted that Shattock was less culpable than the applicant, and no doubt for these reasons.

[41] The applicant also had a more extensive criminal history than Shattock.  In the case of Shattock, his only conviction (not recorded) was for obstructing police 12 years before.  The applicant’s history was more recent and included three offences whilst on bail for the subject offences.  Shattock also paid over $4,000 in compensation (including relocation expenses) whereas the applicant paid less than one tenth of that sum by way of redress.  Shattock also appears to have expressed his remorse in more meaningful ways than the applicant, including residing away from Townsville for a period of time at an extra cost to himself.  Whether because of these matters or because of the lesser role he had played in the commission of the offence, Shattock had the support of the complainant by the time of sentence.

[42] When the differences in the objective criminality of both men are taken into account, it is beyond question that a higher head sentence was called for in the applicant’s case, even when regard is had to the feature that his sentence incorporated a period of actual custody of about four and a half months.  Given their different degrees of culpability, an effective head sentence of 18 months imprisonment with release on parole after four and a half months when compared, as it must be, with a wholly suspended period of 12 months imprisonment cannot be thought to have been other than a sound exercise of the sentencing discretion in the circumstances of this case.

[43] In this Court, the submission was made that, after taking into account the applicant’s pre-sentence custody and the effects on him of that custody given his anxiety disorder, he should have received the same sentence as Shattock, that is, imprisonment for 12 months, wholly suspended for an operational period of 18 months.  Such a submission of course rightly assumes a difference in the culpability and circumstances of the two men.  However, it perhaps overlooked that the applicant’s period of pre-sentence custody was the subject of a declaration in the court below.  As such, the applicant was ordered to remain on parole for a period of about 13 and a half months from the date of sentence.  Leaving aside the difference in the way the respective sentences were structured, such a result is not marginally different from that which was sought on the hearing of this appeal.

[44] In any event, when objectively considered, I am unpersuaded that the differences between the sentences that were imposed in the court below were such as to give rise to a justifiable sense of grievance on the part of the applicant.

Disposition

[45] For these reasons, I am of the opinion that leave to appeal should be refused.