IN THE SUPREME COURT OF THE ) No. ACTCA 15-2009

) No. SCC 10 of 2009

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: DUSAN PAVICEVIC

Appellant

AND: THE QUEEN

Respondent

Judges: Gray P, Refshauge and Ryan JJ

Date: 22 October 2010

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Dusan Pavicevic (the appellant) appeals against a sentence of eight years imprisonment with a non-parole period of five years that was imposed by Higgins CJ on 18 June 2009. The sentencing judge ordered that the sentence commence on 22 July 2008. The sole ground pursued on this appeal is that of disparity with the sentence imposed of his co-offender, Prasatphone Phimphisane, who was sentenced at the same time as he was.

2. In respect of the co-offender, Higgins CJ imposed a sentence of six years and six months imprisonment with a non-parole period of three years and three months.

3. The appellant and his co-offender were charged, and pleaded guilty to, an offence of aggravated robbery. The robbery took place at Campbell’s Cash and Carry at about 11.45am on 19 July 2008.

4. The agreed statement of facts upon which the sentencing judge acted is set out:

Mr Dusan Pavicevic has pleaded guilty to a charge of aggravated robbery. The maximum penalty for this offence is 2500 penalty units, imprisonment for 25 years or both. Mr Pavicevic also wants the court to take into account the following additional offences;

i) unlawfully confined another person [CC 2008/8220]

ii) unlawfully confined another person [CC 2008/8221]

iii) unlawfully confined another person [CC 2008/8222]

Mr Phimphisane has pleaded guilty to a charge of aggravated robbery. The maximum penalty for this offence is 2500 penalty units, imprisonment for 25 years or both. Mr Phimphisane also wants the court to take into account the following additional offences

i) dishonestly without consent drive a motor vehicle belonging to another [CC 2008/9216]

ii) unlawfully confined another person [CC 2008/8218]

iii) unlawfully confined another person [CC 2008/8216]

iv) unlawfully confined another person [CC 2008/8217]

Mr Pavicevic and Mr Phimphisane are friends with, or acquaintances of, Mr Benjamin Day. Mr Day from about 2 April 2008 until 19 July 2008 was employed by ‘Campbell’s Cash & Carry Pty Ltd’, which is located at 6 Hume Place, Griffith in the Australian Capital Territory (ACT), as a casual forklift operator.

From about 16 July 2008 to about 19 July 2008 Mr Day resided at the Kingston Hotel, 73 Canberra Avenue, Griffith ACT. Mr Day had booked a room for a total of six nights (16 July – 22 July 2008) and when booking that room he had provided his details, a mobile phone number and had stated that he would be the only occupant of the room. Mr Day was allocated room 11.

At some point after 16 July 2008 Mr Pavicevic and Mr Phimphisane moved into room 11 at the Kingston Hotel and stayed there with Mr Day until about 19 July 2008.

On 18 July 2008 between about 6.25pm and 7.30pm a white 1995 Ford Econovan, registration (NSW) UBU586 belonging to Mr Andrew Laggner was stolen from the first level of the secure under cover car park at the Target building off Ainslie Avenue in the City. This vehicle was driven to an area near the Kingston Hotel.

Between about 7.00pm [on 18 July 2008] and about 3.45am on 19 July 2008, a white 1990 model Mazda E2000 van, registration (ACT) YUR 569 belonging to Mr Aaron Coventry was stolen from the Civic Pool car park on Constitution Avenue Reid in the Australian Capital Territory (ACT). This vehicle was driven to a car park near the Kingston Hotel.

On Saturday 19 July 2008, Mr Day was rostered to work at ‘Campbell’s Cash and Carry’ from 7.00am to 11.00am and, at some point prior to 7.00am Mr Day left the Kingston Hotel and went to work. After Mr Day went to work he contacted Mr Pavicevic using his mobile telephone. The telephone records of Mr Pavicevic and Mr Day show that between about 9.46am and 11.47am on 19 July 2008 Mr Day made 7 telephone calls to Mr Pavicevic and, Mr Pavicevic made two calls to Mr Day. The calls made between the two varied in times from between 21 seconds to 3 minutes 35 seconds.

At about 9.50am on Saturday 19 July 2008, Mr Pavicevic was observed by the weekend manager of the Kingston Hotel running through the alley way behind the hotel and [a] short time later he was seen placing a green environmental shopping bag and newspapers into the garbage hopper and then walking towards the direction of the rear of the Kingston Hotel.

Mr Pavicevic went to the dirt car park located between the Kingston Hotel and the Eastlakes Club car park and he was seen by the weekend manager standing at the rear of a white van, registration (ACT) YUR 569.

A short time later, the weekend manager of the Kingston Hotel saw Mr Phimphisane in a white Ford Econovan, registration (NSW) UBU 586 in the car park of the alley way at the rear of the hotel. Mr Phimphisane drove the vehicle out of the car park, into the alley way, towards Oxley Street. (CC 2008/9216)

At about 10.30am, Mr Pavicevic and Mr Phimphisane were seen near room 11. At that time Mr Phimphisane was kneeling on the floor in the corridor and Mr Pavicevic was walking into room 11.

A short time later Mr Pavicevic and Mr Phimphisane left the premises in the white Ford Econovan registration (NSW) UBU 586.

Police later executed a search warrant on room 11 at the Kingston Hotel and the following items were located:

i) a hand drawn plan of ‘Campbell’s Cash and Carry’ which included the location of surveillance cameras, the ‘smoke cage’ and ‘dispatch’ area,

ii) a ‘Gregory’s Street Map’ with a page marked with a Canberra Centre parking ticket. The page marked included the location of ‘Campbell’s Cash and Carry’ in Griffith ACT,

iii) the Canberra Centre parking ticket had date / time of 18.07.08 / 19:28:35 which is consistent with the time of the theft of the Ford Econovan registration (NSW) UBU 586 on 18 July 2008,

iv) medication in the name of Mr Pavicevic,

v) a mobile telephone belonging to Mr Phimphisane,

vi) an unconnected mobile telephone and Vodafone card,

vii) a résumé in the name of Mr Day,

viii) a wallet and identification belonging to Mr Phimphisane.

After Mr Phimphisane and Mr Pavicevic left the Kingston Hotel they drove to ‘Campbell’s Cash and Carry’ and arrived at about 11.35am. They approached the entrance of the building and as they did so they were told by an employee that they could not go in. Mr Phimphisane and Mr Pavicevic walked away from the building.

At about 11.45am on 19 July 2008 Mr Pavicevic and Mr Phimphisane returned and entered ‘Campbell’s Cash and Carry’ through the staff entrance. At that time the store was closed. The public entrance and exit had been locked, but the staff entrance adjacent to the public entrance had not been locked.

At the time they entered the premises Mr Pavicevic had his face covered with a black bandana, with a white pattern on it. He was wearing dark sunglasses and a black beanie, a black long sleeve hooded top, dark coloured long pants, black Dunlop Volley shoes and was wearing gloves similar to weight lifting gloves. He was carrying a long serrated kitchen knife with two tips. Mr Phimphisane also had his face covered with a black bandana. He was wearing dark sunglasses, a black beanie, a black long sleeve top, long dark pants and black Dunlop Volley shoes. Mr Phimphisane was carrying a large wide blade chef’s knife.

When Mr Pavicevic and Mr Phimphisane entered the premises Mr Day was near the front of the premises.

At this time there were three other staff members still in the building, the manager Mr Peter Ashton (aged 47), Ms Ashley Shaw (aged 18), Mr Mark Moroney (aged 16).

Mr Pavicevic, Mr Phimphisane and Mr Day went to the office where Mr Moroney and Ms Shaw were located. Mr Pavicevic and Mr Phimphisane tied the hands of Mr Moroney and Ms Shaw behind their backs using long thick black cable ties.

Mr Pavicevic and Mr Day left the office and Mr Day called out to Mr Ashton. Mr Phimphisane remained in the office with the other staff members.

Mr Ashton came from the rear of the store and as he did so Mr Pavicevic said to Mr Ashton “Do as you’re fucking told and no one will get hurt. Get over here.”

Mr Pavicevic and Mr Day walked Mr Ashton to the office where the other staff members were being held. Mr Pavicevic tied the hands of Mr Day and Mr Ashton behind their backs with long black cable ties. Mr Day’s hands were tied in order to hide from the other staff members his involvement in the aggravated robbery.

During this time Mr Pavicevic and Mr Phimphisane demanded everybody’s phone, wallets and keys. Mr Day at this time stated he did not have a mobile phone.

Mr Phimphisane removed the keys, wallets and phones from the other staff members and he asked Mr Moroney and Ms [sic] Ashton for their PIN and account limits for their bank accounts while pointing the knife at them. Both provided these details in fear of being stabbed.

After receiving the phone, wallets and keys of the staff members, Mr Phimphisane said words to the effect of “Don’t go to the cops. We have your addresses and will hurt your families”.

Mr Pavicevic and Mr Day left the office and after they had done so Mr Pavicevic untied Mr Day’s hands. They both went to the rear of the warehouse to a dock referred to by staff as ‘dispatch’. At this time Mr Phimphisane remained with the other staff members.

Mr Day unlocked and opened the large roller door to the dispatch area, and went outside the warehouse and opened a gate in the driveway. The gate was approximately 20 metres from the roller door. Mr Day drove the white Ford Econovan registration (NSW) UBU 586 to the ‘dispatch’ area of the premises.

Mr Day returned to the warehouse and drove the forklift to an area which is known as the ‘smoke cage’. The ‘smoke cage’ is a metal securable cage that contains a large quantity of cigarettes. Mr Day and Mr Pavicevic using the forklift removed pallets of large cartons of cigarettes and took them to the ‘dispatch’ area where they were loaded into the white Ford Econovan. In total 77 large cartons of cigarettes were taken from the ‘smoke cage’ and loaded into the white Ford Econovan.

Mr Pavicevic obtained a key to a cabinet which contained bottles of alcohol from Mr Day. Mr Pavicevic opened the cabinet and removed a number of ‘Johnny Walker – green label’ bottles of scotch.

Mr Pavicevic and Mr Day returned to the office where Mr Phimphisane was holding the other employees. Mr Day’s hands were again tied behind his back.

A short time later Mr Pavicevic and Mr Phimphisane took Mr Ashton, Ms Shaw and Mr Moroney along with Mr Day to the ‘smoke cage’. Mr Ashton, Ms Shaw and Mr Moroney were told to crouch in the corner of the cage. Mr Day also went into the ‘cage’.

The ‘cage’ was locked and at that point either Mr Pavicevic or Mr Phimphisane stated “Don’t call the cops or no one. We’ll send someone in two hours. Think of your families. We know where you live. We aren’t the only two in our circle”.

Mr Pavicevic and Mr Phimphisane left the area leaving Mr Day and the other staff members locked in the ‘cage’. (Unlawful confinement – CC 2008/8220, 8221 and 8222, CC2008/8216, 8217 and 8218)

After some time, Ms Shaw managed to get free from the cable tie securing her hands and the others were able to release their cable ties.

After about two hours Mr Ashton managed to repair a telephone in the cage that had been smashed prior to them being locked in the cage, and contacted ‘000’. A short time later the police and the ACT Fire brigade attended and everyone was released.

After Mr Phimphisane and Mr Pavicevic left ‘Campbell’s Cash and Carry’ the Ford Econovan was driven to ‘Kennards Storage’ which is located in Campbelltown NSW. Mr Pavicevic hired a unit (number 338) and he and Mr Phimphisane unloaded the cartons of cigarettes which they had stolen from ‘Campbell’s Cash and Carry’. A search warrant of ‘Kennards Storage’ executed by police on 25 July 2008 located 48 large cartons of cigarettes which were later identified as having been stolen from ‘Campbell’s Cash and Carry’ on 19 July 2008.

Mr Pavicevic and Mr Phimphisane drove from ‘Kennards Storage’ to the Sunnybrook Hotel which is located in Cabramatta NSW, where they booked a room initially for 2 nights.

At about 8.46pm on 19 July 2008 a telephone call was made to ‘000’ from a payphone in Moorebank NSW. The caller advised the operator that he had just done an armed robbery at ‘Campbell’s Cash and Carry in Canberra’ and that people were locked up in the ‘cigarette container’. This information was passed to the Australian Federal police however by that time the staff members locked in the ‘cage’ at ‘Campbell’s Cash and Carry’ had been released.

During a search warrant of the Sunnybrook Motel executed on the 23 July 2008 police located a number of items including a blue metal cash box containing a number of empty ‘clip seal’ bags. The metal cash box was later identified as having been stolen from ‘Campbell’s Cash and Carry’ during the aggravated robbery. The white Ford Econovan registration UBU 586 was also located in the car park at the motel.

The ground of appeal

5. The ground of appeal upon which the appellant relies is:

That the disparity between the sentences of the appellant and his co-accused is one which gives rise to a justifiable sense of grievance.

The parity principle

6. In Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 623, the principle is summarised by Dawson J (Wilson J agreeing):

There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don[e].

(Citations omitted.)

7. The principle is further elaborated by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 (Postiglione) (at 301-302):

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.

8. The principle is generally invoked where differing sentences are imposed by different judges at different times.

9. We accept, as the NSW Court of Criminal Appeal did, that as far as the objective seriousness of the offence is concerned, there are limits to the amount of differentiation that may be allowed amongst co-offenders to a joint criminal enterprise (R v JW [2010] NSWCCA 49). In making an observation to that effect, the court in that case, also commented (at [166]):

Differences in subjective circumstances will, however, result in differences, sometimes significant differences, in the end result.

10. As to the test to be applied, we adopt what Johnson J said in R v Pan [2005] NSWCCA 114 (at [34]):

The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at para 6.

The appellant’s submission

11. The appellant submits that the sentence imposed upon him and in particular the prison term he is required to serve before being eligible for parole, is markedly different to the sentence imposed on the co-offender. The appellant does not concede any real difference in culpability and whilst the differences in circumstances with his co-offender are acknowledged, it is submitted that a comparison of the two sentences exhibits an unwarranted disparity.

12. The sentencing judge determined that the sentence of the co-offender should be less than that imposed on the appellant because the co-offender had a lesser criminal record and was the follower rather than the leader in the criminal enterprise. In that regard, the appellant submitted that there was very little evidence to support such a finding as neither offender gave evidence in the sentence proceedings. Furthermore, in the statement of facts there was little relevant distinction drawn between the offenders in their respective roles.

13. The appellant acknowledged that he did have a more extensive criminal record than that of the co-offender which included numerous prior convictions for breaking and entering offences. The respondent also acknowledged that this factor would justify a more severe sentence in the appellant’s case but not, the appellant submits, to the extent allowed by the sentencing judge.

The respondent’s submission

14. The respondent submits that the trial judge was correct in forming the view based on the material before his Honour that the co-offender was a follower in the criminal enterprise. The respondent points to the pre-sentence reports prepared in respect of the appellant and the co-offender as well as a report containing a psychological assessment of the appellant. The appellant’s pre-sentence report of 12 May 2009 contains the following (at 5):

Mr Pavicevic spoke freely about the commission of the offence now before the Court. He stated: “We had a plan – break and enter only: no one was supposed to be there. When we got there we saw a person walk out of Cash & Carry I decided to go ahead get some money and everything would be easier. For days leading up to the offence I was overdosing on Valium with plenty of alcohol and pot.”

15. The co-offender’s pre sentence report of 7 May 2009, contains the following (at 5):

Mr Phimphisane advised that prior to the offence, he had been out of prison for a few months and had been using heroin a couple of times per week. He had been contacted by someone he had met during a previous period of imprisonment, who had asked if he wanted to ‘do a job ... it was meant to be easy money ... heaps of money ... I thought I would give it a go as I didn’t have much ... I thought it was a break and enter or something ... I don’t actually do jobs usually’.

16. In the psychological assessment of the appellant, the psychologist states (at 7):

He [Mr Pavicevic] then began to explain how his predicament contributed to his crime. He continued “One day I was at my parole meeting when I saw a guy I recognized from jail [Mr Phimphisane, the co-offender]. It was so good to see a familiar face. I remembered that he was someone pretty harmless and was in jail for something minor like drunk driving, so I thought we could be friends and it wouldn’t matter or contribute to me reoffending. So we started spending time together, and drinking a lot. I met some of his friends, and eventually I manipulated one of the guys [Mr Day, another co-offender] into telling me all the stuff about where he worked [Campbells Cash and Carry] so we could rob it. I saw it as my ‘Big Plan’ to get ahead and get somewhere. If I had money I could get some accommodation and not burden my sister, it would get the ball rolling. But things didn’t go to plan.”

17. In our view, this material clearly justifies the sentencing judge’s conclusion as to the appellant’s role in the commission of the offence. There is no error in adopting this conclusion although, as we have earlier said, there are limits to the allowance that may be made having regard to the extent of the co-offenders’ participation of the actual offence.

18. It is relevant to note that the sentencing judge did, in the course of submissions by the co-offender’s counsel, express the opinion that the co-offender was “the follower rather than the leader” and no contrary submission was made by the appellant’s counsel.

19. What is significant is the justifiable conclusion that the appellant was the planner, manipulator and driving force who instigated the offence and carried it out. That circumstance should, in our view, be reflected in the appropriate penalty to be imposed. The quantum of the difference between offenders is a discretionary judgment to be made by the sentencing judge.

The decision

20. It follows that the appellant is unable to point to error on the part of the sentencing judge. We would add that the desirability of one judge sentencing co-offenders has been stressed in a number of decisions, for example Brennan J in Lowe (at 617):

To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time.

Furthermore, the sentencing of co-offenders by different judges entails a certain level of risk of having inconsistent disparity between the sentences. This was expressed by Dawson J in Lowe where he was stated (at 622):

[Where co-offenders were to be sentenced by different judges this] ... carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible.

21. In the present case, the sentencing judge was in the best position to assess the relatively criminality of the offenders and to distinguish the circumstances relevant to each of the offenders. It also follows that if a judge has sentenced co-offenders at the same time, an appellate court will exercise caution before determining that the disparities between two sentences are unjust. This was referred to by Barr and Howie JJ in R v Swan [2006] NSWCCA 47 (at [71]):

Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes.

22. Further, it should be borne in mind that disparity between sentences is not itself a basis for appellate intervention but a factor to be weighed when the court considers whether there is error in the sentencing process and, if so, whether the court should intervene: see, for example, per Barr J in R (Commonwealth) v Kai Kong Li and Others [2005] NSWCCA 154 (at [44]). In Postiglione, Gummow J stated (at 326):

In various decisions, this Court has emphasised both the discretionary nature of sentencing and its refusal to interfere with the decision of a Court of Criminal Appeal unless there be disclosed an error of principle affecting the sentence or unless it was manifestly excessive.

23. In the present case there is no error of principle and the appellant does not submit that the sentence imposed can be said to be manifestly excessive. The present case calls for different sentences to be imposed to reflect the different degrees of culpability and the different circumstances of the offenders. The appellant has not demonstrated any error of principle or error in the sentencing process. The appeal should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: