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Court of Criminal Appeal 24 November 1999

R v Carter

[1999] NSWCCA 376

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING DELAY DUE TO APPLICANT WHETHER GROUND FOR LENIENCY CRIMINAL LAW

Citation: Carter v R [1999] NSWCCA 376
Court: NSW Court of Criminal Appeal
Date: 24 November 1999
Judge(s): Dunford J, Sperling J

Background

The applicant pleaded guilty to robbery in company under s 97 of the Crimes Act 1900, arising from a planned assault and robbery in a park in Hay in the early hours of 14 February 1996. The victim, a traveller who had spent the evening with the applicant and others, was lured into a park and set upon by three men, including the applicant, who punched him repeatedly and took $150 cash. The victim suffered facial lacerations requiring stitches and significant bruising.

Following his arrest in February 1996, the applicant did not plead guilty at committal in December 1996. He ultimately entered his guilty plea in March 1997, with sentencing not occurring until August 1998 after a series of adjournments, several of which were attributable to the applicant himself. Judge Twigg in the District Court imposed penal servitude comprising a minimum term of two years and an additional term of two years.

The applicant sought leave to appeal on two grounds: first, that the sentence was disproportionate to the sentence imposed on his co-offender Simon Haigh; and second, that the lengthy sentencing delay should have produced a greater reduction in sentence.

  • Whether the applicant's sentence demonstrated erroneous parity with the community service order imposed on the co-offender Haigh, giving rise to a justifiable sense of grievance under Lowe v The Queen.
  • Whether the delay between the offence and sentencing, for which the applicant bore substantial responsibility, entitled him to additional leniency beyond the credit already given for rehabilitation achieved during that period.

Decision

The Court rejected the parity argument, finding that the differences between the applicant and Haigh were substantial and material. Haigh was not involved in planning the robbery, did not take the money, pleaded guilty at the first opportunity, and promptly offered to give evidence against his co-offenders, which he did at committal. Haigh's prior record was also significantly less serious than the applicant's, which included multiple convictions for dishonesty, fraud, and property offences, some of which were current at the time of the robbery. The Court was satisfied those distinctions fully justified the sentencing disparity.

On the delay ground, the Court acknowledged that delay in bringing an offender to sentence can, in appropriate circumstances, warrant leniency, drawing on the principles in R v Todd and Mill v The Queen. However, it noted that where the applicant bears substantial responsibility for the delay, it is harder to call those principles in aid. Here, the applicant had caused or contributed to several adjournments, had never been left in suspense about the likely outcome (the sentencing judge signalled from the outset that a full custodial sentence was contemplated), and had already received credit for the rehabilitation he demonstrated during the delay period. The Court found no further reduction was warranted on account of the delay itself.

The Court also confirmed the sentence was within the range established by the guideline judgment in R v Henry, noting that while some features of the offence differed from the guideline criteria, favourable and unfavourable factors balanced each other out.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.
  • Sentence confirmed.

Key Takeaways

  • A significant difference in co-offenders' roles, criminal histories, timing of pleas, and cooperation with authorities can justify materially different sentences without producing a justifiable sense of grievance under the parity principle from Lowe v The Queen.
  • Where delay in sentencing is substantially attributable to the applicant, the principles in R v Todd supporting leniency for delay are more difficult to invoke.
  • Rehabilitation achieved during a delayed sentencing process may already be credited by the sentencing court, making separate credit for the delay itself unnecessary.
  • In dismissing the appeal, the Court confirmed that parity arguments require close comparison of individual circumstances rather than surface-level comparisons of sentence outcomes.
  • The guideline in R v Henry applies to both armed robbery and robbery in company, both offences arising under s 97 of the Crimes Act 1900 and carrying the same maximum penalty of 20 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company)

Cases
- Lowe v The Queen (1994) 154 CLR 586
- R v Todd [1982] 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59
- R v Harrison (1990) 48 A Crim R 197
- R v V (1998) 99 A Crim R 297
- R v King (unreported, CCA, 24 February 1998)
- R v Blanco [1999] NSWCCA 121
- R v Fahda [1999] NSWCCA 267
- R v Henry [1999] NSWCCA 111, 46 NSWLR 346