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16
Court of Criminal Appeal 15 September 1999

Regina v Colgan

[1999] NSWCCA 292

Assault & violenceTheft & propertyFirearms & weapons
ACTS CITED :

Citation: Regina v Colgan [1999] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Spigelman CJ, Newman J, Sully J

Background

The applicant, an 18-year-old woman, pleaded guilty in the District Court at Newcastle to one count of armed robbery and one count of attempted armed robbery in company. Both offences carry a maximum penalty of 20 years' penal servitude. The sentencing judge also took into account four related but less serious matters.

The armed robbery involved the applicant entering a service station armed with a long-bladed knife alongside two male co-offenders, stealing cash, cigarettes, and other items. The attempted armed robbery occurred the following night at a different service station, where the group wore balaclavas and gloves and attempted to force entry, including using what appeared to be a baseball bat.

Mitchelmore DCJ sentenced the applicant to two years' penal servitude with a minimum term of one year for the armed robbery, and a concurrent fixed term of one year for the attempted armed robbery. The applicant sought leave to appeal on the basis that the sentences were manifestly excessive.

  • Whether the imposition of full-time custody was appellably severe given the applicant's compelling subjective circumstances, including a troubled background and genuine rehabilitation efforts.
  • Whether a parity argument arose from the fact that a co-offender, who was 16 years old at the time and dealt with in the Children's Court, received a significantly lighter outcome as a result of the distinct legislative regime governing juvenile offenders.

Decision

On the first ground, the Court found no error in the sentencing judge's approach. The Court acknowledged that the applicant presented a strong and sympathetic subjective case, including a tragic background and genuine steps toward rehabilitation. However, the Court reaffirmed that armed robbery and cognate offences are extremely serious and attract full-time custody except in the most exceptional circumstances. The sentencing judge was found to have properly balanced the objective gravity of the offences against the applicant's personal circumstances.

On the parity argument, the Court acknowledged this ground was less straightforward. The applicant's co-offender, likely the principal organiser of the offending, was 16 at the time and was dealt with in the Children's Court under a legislative regime that restricts the penalties available for minors. The Court confirmed, citing R v Govinden (1999), that strict parity principles do not apply when comparing sentences imposed on an adult with those imposed in the Children's Court. However, the Court also confirmed that the outcome in the Children's Court is not wholly irrelevant: an adult co-offender may have a justifiable sense of grievance arising from the disparity in regimes.

Spigelman CJ added a nuanced observation: age alone does not determine maturity, and there was some basis to conclude the 16-year-old co-offender may have been more mature than the 18-year-old applicant. The Chief Justice also noted that the sentencing judge had been given a slightly inaccurate figure for the co-offender's sentence but declined to infer from this that the judge treated that outcome as irrelevant. Ultimately, the Court found the applicant's sentence was well within the permissible range and declined to intervene.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Armed robbery and attempted armed robbery in company are treated by the Court of Criminal Appeal as offences of serious objective gravity, attracting full-time custody except in the most exceptional circumstances, even where strong subjective factors are present.
  • Strict parity principles do not apply when comparing an adult's sentence with the outcome received by a co-offender dealt with under the Children's Court legislative regime, as confirmed in R v Govinden (1999).
  • Notwithstanding the inapplicability of strict parity, the Court of Criminal Appeal confirmed that a co-offender's Children's Court outcome is not entirely irrelevant: an adult defendant may have a justifiable sense of grievance arising from the difference in sentencing regimes, and this is a factor a sentencing court may take into account.
  • A difference in chronological age between co-offenders does not necessarily reflect a corresponding difference in maturity, a consideration the Court noted as relevant to how much weight a Children's Court outcome carries in sentencing an adult.
  • No error was established in the sentencing judge's approach to balancing objective seriousness against the applicant's subjective circumstances, and the sentence fell within the range available to the court below.

Legislation and Cases Referenced

Cases:
- R v Govinden (1999) NSWCCA 118

Legislation:
No specific legislation was cited in the metadata or judgment text. The judgment references, in general terms, the legislative regime governing the sentencing of minors in the Children's Court.