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Court of Criminal Appeal 6 December 1999

R v Freeman

[1999] NSWCCA 394

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE: SENTENCING NO QUESTION OF PRINCIPLE

Citation: Freeman v R [1999] NSWCCA 394
Court: New South Wales Court of Criminal Appeal
Date: 6 December 1999
Judge(s): James J; Sperling J

Background

The applicant pleaded guilty in the District Court to one charge of armed robbery committed on 7 October 1997, in which he and two co-offenders entered a service station wearing balaclavas, threatened the attendant with a knife, and stole approximately $778. The sentencing judge also took into account a separate breaking, entering and stealing offence committed by the applicant and his co-offenders in the early hours of the same night. The applicant received a total sentence of seven years penal servitude, comprising a minimum term of four years and an additional term of three years.

One co-offender, Dennis Williams, had been sentenced separately to six and a half years penal servitude, but with a minimum term of only one year and three months. That significant reduction in the minimum term reflected a 50 percent discount for substantial assistance to authorities, including making early admissions, naming his co-offenders, and undertaking to give evidence against them.

The applicant sought leave to appeal against his sentence on the basis that the disparity between his minimum term of four years and Williams's minimum term of one year and three months was so pronounced as to give rise to a justifiable sense of grievance.

  • Whether the disparity between the minimum terms imposed on the applicant and his co-offender was sufficient to give rise to a justifiable sense of grievance warranting appellate intervention.
  • Whether the differences between the two offenders' circumstances adequately explained that disparity.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. James J identified several material differences between the applicant's case and that of the co-offender that together explained the gap between their minimum terms.

The co-offender had received a 50 percent discount on his minimum term for assisting authorities, a reduction James J described as high but within permissible limits. The applicant, by contrast, had pleaded guilty only after being incriminated by the co-offender, and had not provided any equivalent assistance. The co-offender had also pleaded guilty at an early stage and demonstrated genuine remorse, earning a further discount that was not available to the applicant.

Additional distinguishing factors weighed against the applicant. The breaking, entering and stealing offence had to be taken into account in his sentencing but not in the co-offender's. The applicant also committed the offences only days after completing a prior prison sentence for breaking and entering with intent, and while subject to a recognizance. Taking all those differences together, the Court concluded that the disparity in minimum terms did not give rise to a justifiable sense of grievance.

Sperling J agreed with James J's reasons and proposed orders.

Orders Made

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

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing disparity between co-offenders must be assessed by comparing both total sentences and minimum terms (or non-parole periods), consistent with the High Court's approach in Postiglione v The Queen.
  • A 50 percent discount on a minimum term for assistance to authorities was characterised as high but within the range of permissible discounts, illustrating the significant weight courts may place on genuine co-operation.
  • Not all apparent disparities between co-offenders produce a justifiable sense of grievance. Where material differences exist, including one offender's early plea, substantial assistance, absence of additional offences, and different criminal histories, those differences can fully account for what might otherwise appear to be an unequal outcome.
  • The fact that an applicant pleaded guilty only after being incriminated by a co-offender, rather than at an early stage of his own volition, was treated as a relevant distinction reducing the weight to be given to the guilty plea in mitigation.
  • No question of principle was raised by this decision, and the Court's analysis was confined to the particular facts of the case.

Legislation and Cases Referenced

Cases:
- Postiglione v The Queen (1995-1996) 189 CLR 295 (High Court of Australia)
- R v Henry (1999) 34 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)

Legislation: No specific legislation was cited in the judgment text, though the maximum penalty for armed robbery (20 years penal servitude) was noted by the sentencing judge.