Citation: [1999] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 18 August 1999
Judge(s): Wood CJ at CL; Greg James J
Background
The applicant, an 18-year-old with no prior criminal record, participated in an armed robbery of the Berala Hotel in March 1998. He was part of a group of four who wore balaclavas, carried a pistol and a baseball bat, tied up hotel staff and a security guard, and stole over $21,000 from a safe. The applicant personally wielded the baseball bat but did not carry the pistol. He subsequently surrendered voluntarily, confessed frankly, and cooperated with authorities.
The District Court sentenced the applicant to five years' penal servitude, with a minimum term of three years and an additional term of two years. His sentencing judge noted several mitigating factors, including his youth, family support, remorse, and good prospects for rehabilitation.
The applicant sought leave to appeal, not on the overall length of the sentence, but on the proportion of its components. His younger brother, Tovio, had been sentenced by a different judge for three armed robberies (including the same Berala Hotel robbery) to four years comprising a minimum term of two years. Critically, when sentencing Tovio, the sentencing judge mistakenly believed the applicant had been sentenced for three armed robberies, not one. That factual error affected the parity assessment between the brothers.
Legal Issues
- Whether a factual error made by a judge sentencing a co-accused, which affected the parity analysis between the two offenders, was sufficient to establish a legitimate sense of grievance entitling the applicant to a reduced sentence.
- Whether the proportions of the minimum and additional terms in the applicant's sentence should be restructured to reflect proper parity with the sentence imposed on his brother.
- Whether the sentences imposed across the related group of offenders more broadly reflected the objective gravity of serious armed robbery.
Decision
The Court accepted that, apart from the parity issue, the original five-year sentence was otherwise unchallengeable and, if anything, on the lenient side. However, the mistaken belief by Taylor DCJ that the applicant had been sentenced for three armed robberies (rather than one) materially distorted the comparison drawn when sentencing the younger brother. This error gave rise to a legitimate sense of grievance in the applicant as to the comparative outcome of his sentence.
Drawing on its earlier decision in Regina v Stein [1999] NSWCCA 250 and Regina v Hodges (1997) 95 A Crim R 85, the Court granted leave and upheld the appeal to the limited extent argued. The total sentence of five years was retained, but the internal structure was altered to mirror the proportions applied to the brother: a minimum term of two and a half years and an additional term of two and a half years.
The Court also took the opportunity to remark on what it described as remarkable leniency in the broader set of sentences imposed on related offenders. The Court noted that it had repeatedly stated, over many years, that sentences for serious armed robbery needed to be higher, and that little upward movement had occurred in practice. It referenced the guideline judgment in Regina v Henry & Ors [1999] NSWCCA 111 and several earlier decisions calling for more deterrent sentences in cases of serious armed robbery.
The Court also expressed concern that co-offenders in related matters had been sentenced by different judges, making parity assessment difficult. Errors about the number of offences committed by co-offenders had occurred on more than one occasion across these proceedings. The Court noted the desirability of listing co-offenders together wherever possible, particularly where guilty pleas are anticipated.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentence restructured: minimum term of two and a half years commencing 9 April 1998, expiring 8 October 2000; additional term commencing 9 October 2000, expiring 8 April 2003.
Key Takeaways
- A factual error by a judge sentencing a co-accused, such as a mistaken belief about the number of offences committed by the original offender, can engender a legitimate sense of grievance sufficient to justify appellate intervention on parity grounds, even where the original sentence is otherwise unimpeachable.
- Parity between co-offenders does not necessarily require identical sentences, but material differences must be explicable by relevant distinctions in culpability, criminal history, or other objective and subjective factors.
- The Court of Criminal Appeal renewed its longstanding concern that sentencing judges were not imposing sufficiently deterrent sentences for serious armed robbery, referencing decades of appellate guidance including the 1999 guideline judgment in Henry & Ors.
- Where co-offenders are sentenced by different judges in separate proceedings, the risk of factual error in parity assessments increases significantly. The Court indicated that common listing of co-offenders is preferable where practicable.
- In restructuring the sentence, the Court held the total term at five years but equalised the minimum and additional terms, reflecting parity with the approach taken to the applicant's brother rather than reducing the overall punishment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2) (armed robbery)
Cases:
- Regina v Stein [1999] NSWCCA 250
- Regina v Henry & Ors [1999] NSWCCA 111
- Regina v Hodges (1997) 95 A Crim R 85
- Regina v Ellis (1993) 68 A Crim R 449
- Regina v Crotty (1993) 1 NSWLR 71
- Regina v Hayes (1984) 1 NSWLR 740
- Regina v Murray (CCA, unreported, 11 September 1986)
- Regina v Vu (CCA, unreported, 11 November 1993)
- Regina v Flack (CCA, unreported, 12 December 1989)
- Regina v Smith (CCA, unreported, 12 December 1989)