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Court of Criminal Appeal 16 August 1999

REGINA v. STEIN

[1999] NSWCCA 250

Assault & violenceTheft & property
SENTENCING FACTUAL ERROR AS TO NUMBER OF OFFENCES DISPARITY WITH SENTENCE OF CO OFFENDER

Citation: Regina v Stein [1999] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 16 August 1999
Judge(s): Wood CJ at CL; Greg James J

Background

The appellant was a 19-year-old who pleaded guilty to two offences: armed robbery in company at a Kotara video store (committed with a co-offender and a juvenile), and a separate armed assault with intent to rob at a store in Mark's Point. Both offences involved knives and caused lasting psychological harm to the victims.

The District Court sentenced the appellant to five years penal servitude (minimum three years, additional two years) before sentencing his co-offender. The co-offender faced only the Kotara robbery charge, with the Mark's Point matter dealt with on a schedule as a related offence. The trial judge subsequently sentenced the co-offender to four years penal servitude (minimum two years six months, additional 18 months).

When sentencing the co-offender, the trial judge expressly stated that he did not intend to impose a lesser penalty, reasoning that the two offenders should be treated equally despite differences in their charges. That reasoning produced a disparity: the appellant ended up with a heavier sentence than his co-offender, contrary to what the trial judge had intended.

  • Whether the disparity between the appellant's sentence and the co-offender's sentence justified appellate intervention on parity grounds.
  • Whether the Court of Criminal Appeal could intervene to give effect to the trial judge's stated intent of equal treatment, notwithstanding differences in the charges faced by each offender.

Decision

Greg James J, with Wood CJ at CL agreeing, identified that the trial judge had clearly intended to impose equal sentences on both offenders. When the co-offender came to be sentenced, the judge explicitly rejected any submission for a lesser penalty and stated his intention of parity. The lighter sentence ultimately imposed on the co-offender therefore did not reflect any deliberate differentiation; it reflected a factual error in the judge's reasoning about the number of offences for which the appellant had been sentenced.

The court accepted that, in the circumstances, the trial judge was correct to conclude that both offenders warranted equal treatment. Although the appellant faced two charges and the co-offender faced one, the co-offender had a prior criminal record including attempted armed robbery, was on a recognisance at the time, and had introduced the younger appellant to drugs. The appellant, by contrast, was a first-time offender who had made an early plea, had strong rehabilitation prospects, and was serving his sentence largely in strict protection because of threats made against him.

Because the trial judge had plainly intended equality of sentence, the Court of Criminal Appeal held it was appropriate to intervene to honour that intent, relying on the principle in Hodges and the earlier decision in Hajjo. The appellant's sentence was reduced to match that of his co-offender.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentences quashed.
  • In substitution, the appellant was sentenced to four years penal servitude commencing 25 January 1998, comprising a minimum term of two years and six months and an additional term of 18 months.

Key Takeaways

  • The Court of Criminal Appeal confirmed that appellate intervention on parity grounds is available where a disparity between co-offenders' sentences results from a factual error rather than deliberate judicial choice, following Regina v Hodges (1997) 95 A Crim R 85.
  • Where a sentencing judge expressly states an intention to impose equal sentences on co-offenders, an unintended disparity in the sentences actually imposed can constitute a sufficient basis for appellate intervention.
  • A difference in the number or nature of charges faced by co-offenders does not automatically preclude a finding that parity of sentence is appropriate; the totality of the circumstances, including the respective roles, criminal histories, and personal circumstances of each offender, remains relevant.
  • The appropriate remedy in such circumstances is to adjust the sentence to reflect the trial judge's stated intent, rather than to re-exercise the sentencing discretion afresh on a different basis.
  • Factors such as a first-time offender's early plea, rehabilitation prospects, youth, and the circumstances in which the offending occurred are capable of balancing against differences in the number of charges when assessing parity with a more experienced co-offender.

Legislation and Cases Referenced

Cases:
- Regina v Hodges (1997) 95 A Crim R 85
- Regina v Hajjo (NSW Court of Criminal Appeal, unreported, 31 August 1992)

Legislation: No specific legislation was cited in the judgment.