Jackson Allred v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge,Penfold,Burns JJ
• Judgment Date: 27 May 2015
• Docket Number: File Number(s): ACTCA 28 of 2013
• Date: 27 May 2015

[2015] ACTCA 21

COURT OF APPEAL

Before:

Refshauge, Penfold and Burns JJ

File Number(s): ACTCA 28 of 2013

Jackson Allred

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel:

Ms T Warwick (Appellant)

Mr J Lundy (Respondent)

Cases Cited:

Allred v Burnett [2014] ACTSC 22

Barbaro v The Queen (2014) 88 ALJR 372

Beniamini v Stormon [2014] ACTSC 2

Bugmy v The Queen (2013) 249 CLR 571

Bui v The Queen [2015] ACTCA 5

Cranssen v The King (1936) 55 CLR 509

Crowley and Garner (1991) 55 A Crim R 201

Eisenach v The Queen [2011] ACTCA 2

Gollan v Bourne & Thomson (1989) 42 A Crim R 22

Harland-White v The Queen [1998] TASSC 999

Hili v The Queen (2010) 242 CLR 520

Holliday v The Queen [2013] ACTCA 31

House v The King (1936) 55 CLR 499

Islam v Wasley and Ross [2014] ACTSC 127

Markarian v The Queen (2005) 228 CLR 357

Postiglione v The Queen (1997) 189 CLR 295

R v Allred and Cringle (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 330 of 2011, SCC 3 of 2012, 5 June 2013)

R v Ang [2014] ACTCA 17

R v CV (2013) 233 A Crim R 57

R v Gordon (1994) 71 A Crim R 459

R v McFarland (1993) 2 Tas R 201

R v PM [2009] ACTSC 24

R v TW (2011) 6 ACTLR 18

R v Williams [2014] ACTCA 30

R v Yates (1984) 13 A Crim R 319

Webb v O'Sullivan [1952] SASR 65

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 66, 74

Criminal Code 2002 (ACT), ss 48, 310(a)

APPEAL — GENERAL PRINCIPLES — Conspiracy to commit aggravated robbery — Appeal against sentence — Proper grounds of appeal — Manifest excess — Available range of sentences — “Crushing” sentence — Offender already re-sentenced — Reduction of head sentence — Statutory restriction on change to the nonparole period

Decision:

1. The appeal be upheld.

2. Mr Allred be sentenced to imprisonment for four years and six months to commence on 6 January 2013.

3. The sentences handed down in Allred v Burnett [2014] ACTSC 22, to commence on 6 July 2018, be adjusted under s 74 of the Crimes (Sentencing) Act 2005 (ACT) by directing that each of them commence one year earlier than specified in that decision and as set out in [77] of the reasons for judgment in this appeal.

4. A nonparole period be set to commence on 6 January 2013 and to end on 6 January 2017.

THE COURT:

Introduction

1 Jackson Allred, the appellant, was recorded having telephone conversations with Shane Cringle, a detainee at the Alexander Maconochie Centre, between 10 and 17 May 2011, in which it was alleged that Mr Allred and Mr Cringle were conspiring to commit an offence of aggravated robbery.

2 An indictment for that offence was filed in the Supreme Court on 20 March 2012 charging Mr Allred and Mr Cringle with that offence and an alternative offence of conspiring to commit robbery. Both Mr Allred and Mr Cringle pleaded not guilty. After a trial before a jury, both were convicted of the offence of conspiring to commit the offence of aggravated robbery.

3 Aggravated robbery is an offence against s 310(a) of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 2500 penalty units (which was, at the time, a fine of $275,000) and imprisonment for 25 years. Under the principles in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]–[31], it is to be regarded as a very serious offence.

4 By virtue of s 48 of the Criminal Code, the offence of conspiring to commit an offence is punishable as if the offence conspired had been committed. Mr Allred and Mr Cringle were, therefore, liable to the maximum penalty for the offence of aggravated robbery.

5 Both offenders were sentenced on 5 June 2013 for the offence by Nield AJ. Mr Allred was sentenced to imprisonment for five years and six months from 6 January 2013 to 5 July 2018 with a nonparole period of three years from 6 January 2013 to 5 January 2016. Mr Cringle was sentenced to imprisonment for six years and six months with a nonparole period of three years.

The Appeal

6 Mr Allred now appeals against the sentence. The grounds of the appeal were:

• i. The sentence was manifestly excessive;

• ii. His Honour erred in failing to impose a sentence that properly reflects the principles of parsimony or minimality;

• iii. His Honour erred in failing to give adequate weight to the Appellant's subjective circumstances;

• iv. His Honour erred in failing to impose a sentence that properly reflects the principles of totality;

• v. His Honour erred in the determination of concurrency and cumulation of sentences;

• vi. His Honour erred in that the sentence is crushing;

7 As this Court has pointed out on a number of occasions, grounds such as those pleaded here, except ground (i), are not proper grounds of appeal. They are not matters that enliven the appellate jurisdiction of the court. See, for example, R v Ang [2014] ACTCA 17 at [13]; R v Williams [2014] ACTCA 30 at [10]–[19].

8 The imposition of a sentence is the judicial exercise of a discretion. The principles upon which an appellate court will interfere with such a judicial decision are well-known.

9 In Cranssen v The King (1936) 55 CLR 509 at 520, Dixon, Evatt and McTiernan JJ summarised the approach of an appellate court in sentencing appeals as follows:

In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.

10 Earlier, in House v The King (1936) 55 CLR 499 at 505, their Honours had identified two bases for appellate intervention. One is where there is specific error, such as taking into account irrelevant considerations, failing to take into account relevant considerations, mistaking the facts or acting on a wrong principle. The other is where the court cannot identify such a specific error but the sentence is what is now called manifestly excessive or inadequate and the court may infer that there has been an error such that the discretion has not been properly exercised.

11 This court is bound to apply these principles, but, as has been frequently said before in cases such as Eisenach v The Queen [2011] ACTCA 2, the multiplication of grounds of appeal which are not specific errors does not assist in showing that the sentence was manifestly excessive.

12 In Eisenach v The Queen, this Court said at [42]–[44]:

42. Where the ground of an appeal against sentence is manifest excess (or inadequacy), by necessary implication no specific error is being identified. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 ( Dinsdale v The Queen) (at 325–326):

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

43. To multiply the grounds, which can be no more than speculative suggestions as to areas where the sentencer may have failed to take a factor into account in the proper way, is generally a fruitless exercise in such an appeal and hardly helpful to the appellate court, save perhaps to particularise the areas where the appellant will address argument. They may, of course, be in the nature of particulars of factors on which the appellant wishes to place emphasis in the appeal, but they are no more than that.

44. In order to succeed in the appeal, then, the appellant must make good, in the way identified in Dinsdale v The Queen that the sentence was manifestly inadequate.

13 In particular, a ground of appeal that the learned Sentencing Judge failed to have proper regard to a matter or give it proper weight does not constitute a proper ground of appeal. As this Court said in R v Ang at [22]:

… appeal grounds framed to assert “failures” by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters by the sentencing judge, do not properly invoke either category of appellate intervention.

14 Gageler J explained in Bugmy v The Queen (2013) 249 CLR 571 at 597–8; [53], when considering the grounds of appeal by the Director of Public Prosecutions to the NSW Court of Criminal Appeal:

The Director's three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might...