R v Oram; R v Hinds[2022] QCA 244

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with McMurdo JA.
2. [2]
   McMURDO JA:  In these applications for leave to appeal against sentence, two co-offenders challenge their sentences of nine years’ imprisonment for their participation in the unlawful killing of a person during a home invasion.  In neither case was an order made for the acceleration or postponement of the parole eligibility date.
3. [3]
   Mr Oram was sentenced by Martin SJA in January 2022, at which time he had spent 1,057 days in custody.  He was sentenced with another co-offender, Mr Witoko, who received the same sentence.
4. [4]
   Ms Hinds was sentenced by Davis J in April 2022, at which time she had spent 250 days in custody.
5. [5]
   There were two other co-offenders, namely Mr Emmerson and Mr Granz-Glenn.  Emmerson was sentenced by Williams J on 20 July 2022, having being convicted of manslaughter by a jury after he was tried for murder.  It was Emmerson who killed the victim, by discharging a firearm with criminal negligence.  He, too, was sentenced to a term of nine years’ imprisonment with no order as to parole.
6. [6]
   Granz-Glenn was sentenced by Williams J on 24 August 2022 to an identical sentence.  He pleaded guilty to manslaughter upon the same basis of criminal responsibility as that upon which Oram, Hinds and Witoko had been sentenced, namely that they were guilty as members of a group which had formed a common intention to rob (the victim and her partner) in conjunction with one another, of which the unintentional killing of the victim was a probable consequence.^[1]

The facts of the offence

7. [7]
   An agreed statement of facts was tendered at the sentencing hearing of Oram, Hinds and Witoko.  On 9 February 2019, the five offenders, in pursuit of drugs and/or money, went to the place where the offence was committed, with the intention of committing an armed robbery.  This place was an acreage block on the outskirts of Brisbane where the victim and her partner lived in a converted shipping container.  A car carrying the five offenders, together with another car carrying three others, was driven to the scene where they arrived a little after 3 am.  The victim and her partner were then asleep inside the container.
8. [8]
   Once they had arrived, all five offenders got out of their car.  The occupants of the other car remained in it.  The five approached the front of the shipping container, knowing that someone was inside.  Emmerson was armed with loaded gun which was pointed towards the container, with his finger or fingers on or close to the trigger.  Witoko carried a meat cleaver and, according to the statement of facts, “either Oram or Granz-Glenn was armed with a bat of some sort.”  Hinds stood near them.
9. [9]
   One of the two doors to the container was not fully closed.  From inside the container, the victim’s partner saw a person’s fingers reaching through the gap between the doors and pulling them.  As one door opened, he swung a pair of nunchucks at the intruder.  It was then that Emmerson fired and discharged a single bullet.  It passed over that man’s head, but it struck the victim in the back of her neck.  Almost immediately, the five ran from the container towards their car and the two cars left the scene.  The victim’s partner called Emergency Services who gave him directions to perform CPR.  Police arrived shortly after, but when paramedics attended they pronounced the victim dead.  A post mortem examination revealed a single gunshot wound on the back of the woman’s neck without an exit wound.
10. [10]
    Following the offence, the five drove to a nearby service station where Hinds bought cigarettes for her and the others, and Granz-Glenn then drove each of them home.  On the following day, Hinds sent a text message to Granz-Glenn and Witoko that read:

“Thanks for last nite boys I really appreciate it hey.”

11. [11]
    A week later, police located Granz-Glenn and Oram, and on the following day, they found Witoko.  In the next few days they spoke to Hinds several times, and she led them to Emmerson.
12. [12]
    On 26 February 2019, Oram participated in a lengthy interview with police.  He later provided a written statement.  At first he lied about the events of the night in question, but later in the interview he admitted to going with the others to the location to get cannabis and to do a “run in”.
13. [13]
    Hinds at first lied about her involvement, but eventually admitted to being at the location of the offence with the others, and that when the five had arrived at the scene, she became aware that either Emmerson or Witoko had a gun and they were discussing who would hold it.

Oram’s sentence

14. [14]
    Sentencing Oram and Witoko at the same time, the judge said that each had offered to plead guilty at an early stage and had cooperated with the police by “largely” admitting their involvement.  He commented, however, that Witoko had provided a greater degree of cooperation and more detail and that Oram was not as forthcoming.  Each had a criminal history but neither involved significant violent offending.  Each was relatively young at the time:  Oram was 22 at the time of the offence and 25 at sentence.  Witoko was six years older.
15. [15]
    The judge recorded that he had read a letter from the family of the deceased which demonstrated the enormous effect on them of her death.  He took into account references given in favour of Oram.
16. [16]
    When summarising the facts of the offending, the judge said:^[2]

“The defendant Witoko had taken with him and was holding a meat cleaver.  The defendant Oram may have been holding a bat of some sort.  I say that because there is some uncertainty about whether it was the defendant Oram or another of the men in the Falcon.”

The judge noted that he had received submissions on the issue of parole eligibility.

17. [17]
    The judge summarised his reasoning as follows:

“In this case, each defendant has demonstrated a significant degree of cooperation with the administration of justice. As I have said, both defendants signalled that they were willing to plead at an early stage to this offence. Both defendants cooperated at an early stage with the police. Both defendants have, while on remand, kept out of trouble. Both defendants have, while on remand, done work or undertaken courses which give some reason for hope that, upon release, they will continue in their efforts for rehabilitation.

The plea of guilty is not simply to be regarded as just another part of this process. The plea of guilty means, importantly, that the family of the deceased has not been subjected to the trauma of a trial and, to a lesser extent, the community has been saved the cost of a trial.”

The challenge to Oram’s sentence

18. [18]
    Oram seeks leave to appeal to advance two grounds.  The first is that the sentence was manifestly excessive.  The second is that the judge erred in acting upon a premise that Oram may have been holding a bat of some sort.
19. [19]
    As to the first ground, it is argued that Oram’s sentence was excessive, when it is seen that Witoko received the same sentence and yet he was six years older than Oram and had a more extensive criminal history which included actual imprisonment as well as community-based orders.
20. [20]
    However the argument that the sentence was manifestly excessive was not developed beyond a comparison with Witoko’s circumstances.  It was not said, for example, that Witoko’s culpability was greater than that of Oram.  Nor was it said that having regard to relevant yardsticks, a sentence of nine years, with parole eligibility after four and a half years, was not open to the judge to impose.  In my opinion, the sentence was not manifestly excessive.
21. [21]
    The second proposed ground of appeal is based upon the passage which I have set out above at [16].  The argument is that the judge imposed a heavier sentence for the possibility that Oram was holding a bat.  The prosecutor had conceded that there was no evidence that Oram himself was armed at the scene.  It is said that a possibility that Oram was so armed should not have been used adversely to Oram.
22. [22]
    That ground cannot be accepted.  The sentencing remarks, most importantly the passage which is relied upon for this argument, do not demonstrate that the judge used this possibility adversely to Oram.  Rather, the judge used the fact that the group was armed not only with a loaded gun and a meat cleaver, but also a bat.
23. [23]
    What the judge said was simply a recitation of part of the agreed facts.  It was common ground that either Oram or Granz-Glenn was armed with a bat of some sort.  What mattered to the judge was that the group was armed also with a bat, and that this would have been obvious to all of them.  The judge’s remarks do not demonstrate the fundamental error which the present argument suggests.
24. [24]
    For these reasons, the application by Oram should be refused.

The sentence imposed upon Hinds

25. [25]
    The sentencing judge noted that Hinds, Witoko and Oram were criminally responsible in the same way, under s 8 of the Code.  He noted that it was common ground that Hinds was to be sentenced on the basis that she knew that a gun would be used by one of the group in the prosecution of their plan, in the sense that she knew that one of them was armed with an offensive instrument.  The judge accepted however that she became aware that Emmerson had the gun only as the group arrived at the scene.^[3]
26. [26]
    The judge said that there was no direct evidence of the motivation for the robbery.  He suspected that it was drug related, but added that this circumstance would not matter.  On any assessment, the judge said, the offending constituted a violent invasion of the home of the deceased and her partner.
27. [27]
    Hinds was aged 41 at the time of the offence and was 45 when sentenced.  The judge noted that she had a criminal history dating back to 1995, largely concerning dangerous drugs together with offences of dishonesty and weapons offences.  However, there were offences of violence committed in 1999.
28. [28]
    The judge referred to the dysfunctional upbringing of Hinds, in which she was mistreated in her home, and with her siblings, was removed from her parents’ care by the Department of Children Services.  She was then sexually abused while in care, as well as by a friend of her mother.  In another episode, she was raped by some teenage boys.
29. [29]
    At the time of the hearing, Hinds had three adult children and cared for a four year old grandchild.
30. [30]
    The judge referred to the sentencing of Oram and Witoko.  He noted a submission by the prosecutor that the sentence for Hinds should be heavier than the terms imposed in their cases, on the basis of a “high level of knowledge of the plan and what could follow from that plan”, her less favourable criminal history and her commission of offences which post-dated the offence.
31. [31]
    His Honour was unpersuaded that Hinds had a greater involvement in the planning than Witoko or Oram.^[4]  He accepted that her criminal history was “less favourable” than those of Witoko and Oram, and observed that they were both younger.  As to her subsequent offending, the judge was unpersuaded that it was relevant, and added that the convictions were “minor ones, resulting only in fines.”
32. [32]
    Her counsel submitted to the judge that a head sentence of nine years, as imposed on Witoko and Oram, was appropriate in her case, but that she should be given an earlier parole eligibility date, primarily because, as the judge put it, she was “instrumental in the location and arrest of Emmerson” by telephoning police and leading them to him.
33. [33]
    The judge observed that “parity is an important concept”.  He said that there were some respects in which the offending of Witoko and Oram was more serious than hers, but that their criminal history was less extensive.  At the same time, he accepted that she was involved in the location and detention of Emmerson.

The challenges to Hinds’s sentence

34. [34]
    Her sentence is challenged upon two grounds.  The first is that it was manifestly excessive in that she was not given an earlier parole eligibility date.  The second is that given the differences between her case and that of Witoko (and perhaps Oram) and having regard to her assistance provided to police, in having to serve an identical sentence she could have a “justifiable sense of grievance”.^[5]
35. [35]
    In the way in which these arguments were presented, they were directed to the ground of disparity rather than the ground of manifest excess.  In effect, the sentence was said to be manifestly excessive because of its disparity with those imposed upon Witoko and Oram.  I am not persuaded that the sentence imposed upon Hinds was manifestly excessive, if considered without reference to those other sentences.  Put another way, had Hinds been sentenced first, I would not be persuaded that this outcome would have suggested some error in the exercise of the sentencing discretion.  However where there is a marked disparity between sentences giving rise to the appearance of injustice, a court of criminal appeal may intervene although not satisfied that the sentence is otherwise excessive.^[6]
36. [36]
    The argument of disparity is based upon the nature and extent of the assistance provided by Hinds to police, leading to the location and arrest of Emmerson.  In the course of his submissions to the judge, counsel for Hinds said that he was instructed as follows.  After the offence was committed, Emmerson came to her house.  She was aware of media coverage of the crime in which Emmerson’s photograph had been published.  She did not want him at her house.  He said that he would like to see his children, who were at a certain address, so she took him there.  She stayed there with him but the next day she rang police and informed them of his whereabouts.  The police said to her that they wanted her to go back to that address, and they wanted to know her car registration and what she was wearing so that she could be identified there.  She went to a nearby hotel to think about whether she should provide that assistance.  After several calls from police, she agreed to assist them as requested.  She went back to the place where she had left Emmerson, where she remained with him for 20 minutes before police arrived and arrested him.  Importantly, counsel added, she was motivated to cooperate with police in this way because Emmerson had told her he would not be going back to jail, and that he would be “shooting it out rather than having to return to jail”.^[7]  Counsel submitted to the judge that this was “very significant assistance” which would be best reflected in “[an eligibility] for parole at less than half.”
37. [37]
    There was no challenge by the prosecutor to those facts.  Nor did the judge decline to accept them.
38. [38]
    That cooperation by Hinds was a mitigating factor of considerable weight.  Emmerson had used a firearm in a robbery.  He had told Hinds that he would use a firearm again, this time against police, rather than having to return to jail.  She was motivated to provide this assistance because of her apprehension that Emmerson would shoot someone else.  She placed herself in the dangerous position of returning to the address where Emmerson was, and waiting within there for the police to arrive.  This assistance revealed a genuine remorse, and it was highly beneficial.
39. [39]
    Witoko’s offending was possibly more serious than hers for the fact that he carried a meat cleaver.  Witoko had an extensive criminal history, and he was not a very young man.  They were relevant considerations in assessing what was necessary for parity.  But the factor of Hinds’s assistance required, in the circumstances, that she receive a lower sentence, at least by a parole eligibility date being fixed before she had served half of her sentence.
40. [40]
    In Hinds’s case, leave to appeal should be granted and the sentence varied by ordering that she be eligible for parole after serving one-third of her sentence.  When sentenced on 4 April this year, she had spent 250 days in presentence custody, which was declared as such.  It should be ordered that she be eligible for parole on 27 July 2024.

Orders

41. [41]
    I would order as follows:

1. In CA No 47 of 2022 (Oram), the application for leave to appeal is refused.
2. In CA No 84 of 2022 (Hinds):

1. leave to appeal is granted;
2. the appeal is allowed, by varying the sentence to further order that the applicant be eligible for parole on 27 July 2024.

42. [42]
    FLANAGAN JA:  I agree with McMurdo JA.