R v Granz-Glenn[2023] QCA 157

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  During 2022, five offenders were sentenced for their part in the unlawful killing of Megan Kirley during a home invasion.  Mr Witoko and Mr Oram were sentenced by Martin J on 31 January 2022.  Ms Hinds was sentenced by Davis J on 4 April 2022.  Mr Emmerson was sentenced by Williams J on 20 July 2022.  The applicant was sentenced by Williams J on 24 August 2022.  He seeks leave to appeal from the sentence which her Honour imposed.
2. [2]
   The circumstances of the home invasion may briefly be summarised:

   1. (a)
      On 9 February 2019, the applicant drove the other four offenders to the shipping container where the victim and her partner lived, arriving at a little after 3.00 am.
   2. (b)
      Three others also attended, but in a separate car.  They did not get out of their car.
   3. (c)
      Emmerson, who is the applicant’s half-brother, was armed with a loaded sawn-off rifle.  Witoko carried a meat cleaver and one of the others was armed with a bat of some sort.  Hinds was unarmed.
   4. (d)
      All five offenders got out of the car which had been driven by the applicant.  Emerson, Witoko, Hinds and Oram approached the front of the shipping container and the applicant moved from his position near the car and walked towards them.
   5. (e)
      The victim and her partner were in bed.  Her partner heard the offenders approaching the container and saw some lights outside.  He armed himself with a pair of nunchucks.  He saw fingers reaching through the gap between the doors and pulling them.  He swung the nunchucks towards the doors.
   6. (f)
      Emmerson discharged a single bullet which struck the victim in the back of her neck, killing her.
   7. (g)
      The five offenders ran from the container towards their car and left the scene.  It was not suggested that they knew anyone had been fatally injured at that time.  The other car also left the scene.
   8. (h)
      After the offending, the five offenders drove to a service station where Hinds purchased cigarettes for herself and the others.  The applicant then dropped each of the others back to their respective residences.
   9. (i)
      The following day she sent a message to the applicant and Witoko that read "[t]hanks for last nite boys I really appreciate it hey."
3. [3]
   Emmerson was tried for felony murder but acquitted of that charge and convicted of manslaughter.  In sentencing him, Williams J was required to make findings consistent with the jury’s verdict of not guilty of felony murder.  Her Honour found that the discharge of the weapon was unwilled, but that Emmerson was culpable in criminal negligence for the unlawful death of the victim by way of a failure to handle the rifle in a safe manner to avoid it being discharged.  Her Honour found that the discharge occurred in the execution of a common plan to commit the unlawful purpose of breaking and stealing property.  Her Honour sentenced Emmerson to 9 years imprisonment and declared 1236 days pre-sentence custody to be time served.
4. [4]
   The other four offenders were respectively sentenced after being convicted on their own pleas of guilty to the offence of manslaughter.  They were each sentenced on the basis of an agreed statement of facts.  Thereby each of them agreed that they had been part of a common plan to rob the victim and her partner by entering the shipping container in which they lived and stealing property from it.  Each of them also agreed that it had been within their contemplation that violence would be used of such a kind or degree in the execution of their common unlawful purpose that the commission of an unintentional, unlawful killing was a probable consequence of such a purpose.  Each was sentenced to 9 years imprisonment with a declaration that the full amount of pre-sentence custody was time served.^[1]  As none of the sentencing judges set parole eligibility dates, pursuant to s 184(2) of the Corrective Services Act 2006 (Qld) each offender would become eligible for parole after serving one half of the head sentence imposed.
5. [5]
   The applicant argued that by imposing that sentence on him the discretion of Williams J miscarried because her Honour –

   1. (a)
      gave insufficient weight to the mitigating factors and antecedents of the applicant and undue weight to the degree of the role played by the applicant in the offence;
   2. (b)
      imposed a sentence that was manifestly excessive in itself and as compared to the sentences of the co-offenders, whose culpability was far greater than that of the applicant;
   3. (c)
      erred in the application of the legal principle of “parity” of sentencing, thus giving rise to a justifiable sense of grievance, due to the manifest disparity as between the sentence imposed upon the applicant and those sentences of his co-offenders, relative to the circumstances personal to the applicant and the degree of his actual culpability.
6. [6]
   I address each of those grounds separately.

Ground 1: insufficient weight

7. [7]
   It has been observed more than once in this Court that a ground of appeal which asserts that a sentencing judge placed insufficient weight on a factor is not an assertion of specific error in the House v The King sense, although it may form part of a submission that the sentence is manifestly excessive.^[2]  Accordingly, ground 1 fails as a basis for alleged specific error.  It must be considered only insofar as it forms part of the argument on ground 2.

Ground 2: manifest excess

8. [8]
   The approach to be taken to a consideration of this ground is not in doubt.  As I have in other cases, I repeat the following propositions articulated in relevant High Court authority.
9. [9]
   Consistency in sentencing is an important goal in sentencing, but the consistency which is sought is consistency in the application of the relevant legal principles.  Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.^[3]
10. [10]
    Examination of sentences which have been imposed in comparable cases may provide a relevant yardstick by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles, but the requirement to have regard to the sentences imposed in comparable cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.^[4]
11. [11]
    In the present case, the applicant did not seek to vindicate his argument by reference to alleged inconsistency with relevant yardsticks.  He did not argue that a head sentence of 9 years was manifestly excessive.  At the time of sentencing the applicant had served more than one third of his head sentence, namely 1262 days (or about 3 ½ years).  The applicant’s contention was that it was the fact that an immediate eligibility date was not ordered which made the sentence manifestly excessive.
12. [12]
    This Court has acknowledged that the extent of the reduction of a sentence to reflect an early plea of guilty is frequently a reduction of the non-parole period to one third of the head sentence.^[5]  But it has also made clear that it is a practice not a hard and fast rule.^[6]  In each case a discretion must be exercised and “[t]he factors relevant to setting a non-parole period include the specific circumstances of the offender including his antecedents, character, and any prior criminal history.”^[7]
13. [13]
    In the present case the sentencing judge specifically considered all those relevant circumstances.  It is clear – as it was in the case of the sentences imposed in respect of Oram, Witoko and Hinds – that the applicant obtained the benefit of his relevant mitigating circumstances by way of reduction of the head sentence which the judge would otherwise have imposed.  Given the real possibility that a head sentence could otherwise have been set at 10 years or greater (with the statutory mandatory consequence that the applicant would then have been required to serve 80% of the head sentence before being eligible for parole) that was of very considerable benefit to him.
14. [14]
    There is no basis in the present case to justify a conclusion that the sentencing judge’s decision not to set a parole eligibility date must have been due to some misapplication of principle.  This ground fails also.

Ground 3: parity

15. [15]
    In sentencing the appellant, the sentencing judge had before her the details of the sentences which had been imposed by Martin J on Oram and Witoko, by Davis J on Hinds, and of course which she had imposed on Emmerson.  Her Honour specifically addressed parity considerations and concluded that the sentence she imposed on the applicant was appropriate.  The applicant did not advance any criticism of her Honour’s recitation of relevant legal principle concerning parity.  Her Honour made the following findings:

    1. (a)
       Emmerson was sentenced on a completely different basis of criminal responsibility to that applicable to the others, and parity with his sentence did not directly arise.  (The applicant before this Court did not challenge the correctness of her Honour’s approach in relation to the Emmerson sentence.)
    2. (b)
       There were significant and substantial similarities between the applicant’s criminality and the criminality of Witoko, Oram and Hinds, namely criminal responsibility for the offence of manslaughter which occurred as a result of the execution of the common pre-determined plan.  At the core of the plan was a common intention to rob the occupants of the shipping container of money and probably drugs whilst armed and in the company of others, in circumstances where it was within the contemplation of the co-offenders that violence would be used of such a kind or degree in the execution of the common unlawful purpose so that the commission of an unintentional unlawful killing was a probable consequence of such a purpose.
    3. (c)
       The applicant was not the principal offender who caused the deadly act which killed the victim.  Nor were Witoko, Oram or Hinds.  But the applicant was an integral part of the common plan because he drove his co-accused to the offence location and also drove them away from the location after the incident.  Although he had no specific knowledge that a gun would be used, he was aware that one of the others was armed with a weapon or instrument or implement of some sort.  Hinds knew that one of the others had an offensive instrument and once she arrived at the scene knew that Emmerson had a gun.
    4. (d)
       Witoko, Oram and Hinds had pleaded guilty at an early stage.  The applicant’s plea could be regarded as timely, but the extent of his early co-operation was such that his plea should be treated as an early plea.
    5. (e)
       Each of Witoko, Oram, Hinds and the applicant had cooperated with the police by largely admitting to their involvement in the matter.  Witoko was recognised as having provided a greater degree of cooperation and detail.  Hinds’ co-operation was recognised, in particular, as leading to the location of Emmerson.  The applicant had provided detailed information to the police and provided an undertaking to give evidence pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld), even though the Crown formed the view that there was no utility in his evidence and he was not called as a witness.
    6. (f)
       Each of the four co-offenders had a criminal history.  There were some differences in the criminal histories, including a period in the applicant’s criminal history where there was no offending.  Oram and Witoko were relatively young at the time of the offending.  The applicant was of a more mature age but less in age than Hinds.
    7. (g)
       The personal circumstances of Witoko, Oram and Hinds largely reflected dysfunctional and/or prejudicial upbringings.  Hinds relied upon a report from a psychologist which identified risks pertaining to trauma and maltreatment.  Her personal circumstances included past sexual abuse and rape.  These factors were considered in arriving at the ultimate sentences.  The applicant’s personal circumstances also included a prejudicial upbringing involving emotional, physical and sexual abuse.  His circumstances included at least signs of PTSD and he had suffered the loss of family members whilst in custody.
    8. (h)
       There were other relevant similarities in personal circumstances.  The applicant and his co-accused had done work or undertaken courses while in custody that improved their prospects of rehabilitation.  There were reasons for hope that upon release these efforts for rehabilitation would continue.
    9. (i)
       Overall, while there were factors which were more favourable to the applicant than the others, there were also factors more favourable to the others than the applicant.  Sentencing is a holistic exercise.  Taking all considerations into account, the appropriate sentence was 9 years imprisonment and a declaration as to time served.
16. [16]
    In Green v The Queen, the High Court observed in the following terms (footnotes omitted):^[8]

“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.”

17. [17]
    Importantly, in conducting that assessment, an appellate court must have regard to the qualitative and discretionary judgments made by the sentencing judge.^[9]  As the New South Wales Court of Appeal recently observed (footnote in original):^[10]

“Accordingly, the proper enquiry for an appellate court is that expressed by R A Hulme J in Lloyd v R:^[11] “was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?””

18. [18]
    In the present application, the argument advanced by the applicant’s counsel was not characterized by an attempt to persuade this Court that the differentiation made by the sentencing judge was not open to her in the proper exercise of her discretion.  To the contrary, the applicant’s argument proceeded more as an invitation that this Court should simply make different evaluations of the relevant considerations than the sentencing judge had made.  Subject to the observation next made concerning the significance of the subsequent Hinds appeal, that course was not appropriate in this case.  In my view, the qualitative and discretionary judgments made by the sentencing judge in the course of reaching her conclusion on parity were judgments which were open to her.
19. [19]
    Of course, in the present case the applicant seeks to make the parity argument good not merely by relying on the material which was before the sentencing judge.  He relies on the fact that, some months after he was sentenced, the Court of Appeal varied Hinds’ sentence by ordering that she be eligible for parole on 27 July 2024, after serving one third of her head sentence.^[12]  The applicant contended that, having regard to the comparison between his circumstances and those of Hinds, and having regard to the outcome which Hinds obtained on appeal, he has a justified sense of grievance based on the fact that he too did not get the benefit of a parole eligibility date being fixed at a date earlier than the statutory default of 50% of his head sentence.
20. [20]
    There is no doubt that an applicant may advance a parity ground by reference to a sentence subsequently imposed on a co-offender.^[13]  In such a case the task of this Court is not merely to ask itself whether the differentiation between co-offenders was one which was open to the sentencing judge, but whether the subsequent sentence is objectively capable of giving rise to a justifiable sense of grievance on the part of the applicant.^[14]
21. [21]
    In order to assess the significance to the applicant of Hinds’ successful appeal it is necessary to consider the appeal decision in a little more detail.
22. [22]
    Oram and Hinds had each applied for leave to appeal from their sentences.  McMurdo JA wrote the principal judgment and Mullins P and Flanagan JA agreed with his Honour.  Oram contended that his sentence was manifestly excessive and that the sentencing judge had sentenced him on an erroneous factual basis.  McMurdo JA expressed the opinion that the sentence was not manifestly excessive and rejected the argument that the sentencing judge had made the alleged factual error.^[15]  Hinds’ application succeeded and her sentence was varied by ordering that she be eligible for parole on 27 July 2024, after serving one third of her head sentence.  McMurdo JA concluded that having regard to Hinds’ offending by itself, her sentence could not be regarded as manifestly excessive.^[16]  However, his Honour concluded that appellate intervention is warranted where there is a marked disparity between sentences giving rise to the appearance of injustice, and a court of criminal appeal may intervene although not satisfied that the sentence is otherwise excessive.^[17]  His Honour found that there was a disparity between Hinds’ circumstances and those of Witoko and Oram justifying appellate intervention.
23. [23]
    The principal reason for the intervention was to be found in the extraordinary extent of Hinds’ assistance to police.  McMurdo JA found that the extent of that assistance was described by counsel before Hinds’ sentencing judge and neither challenged by the Crown nor rejected by the sentencing judge in the following terms:

“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, …, 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”.”

24. [24]
    McMurdo JA found:^[18]

“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.”

25. [25]
    It may be noted that the detail of the extent of Hinds’ co-operation which McMurdo JA found so persuasive was not before Williams J when her Honour sentenced the applicant.  Her Honour had the sentencing remarks of Davis J before her but Davis J had only observed that the submission had been made that Hinds was instrumental in the location and arrest of Emmerson, in that Hinds had telephoned police and that led police to him.  Nevertheless, as mentioned at [20] above, intervention could be warranted even if her Honour’s sentence of the applicant was not itself vitiated by error, so long as the subsequent appellate outcome should be regarded as giving rise to a justifiable sense of grievance on the part of the applicant.
26. [26]
    In this case, the extent of Hinds’ co-operation as identified by McMurdo JA was much greater than that which the sentencing judge found the applicant to have given.  When one appreciates that distinction, one is driven to conclude that, objectively assessed, the applicant can have no justified sense of grievance arising out of the fact that Hinds was given a parole eligibility date and he was not.  Ground 3 fails also.

Conclusion

27. [27]
    The application for leave to appeal against sentence must be refused.
28. [28]
    FLANAGAN JA:  I agree with Bond JA.
29. [29]
    BRADLEY J:  I agree with the reasons of Bond JA and with the order his Honour proposes.