Citation: Regina v Shannon Ryan [1999] NSWCCA 432
Court: New South Wales Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J
Background
The applicant pleaded guilty on 29 July 1998 to eleven counts: three counts of receiving stolen property (contrary to s 188 of the Crimes Act 1900) and eight counts of breaking, entering and stealing (contrary to s 112(1) of the Crimes Act 1900). He also asked the sentencing court to take into account a further matter involving unlawful possession of cannabis. The offences involved planned burglaries of unoccupied homes at Penrith, with investigators finding a handwritten list the applicant had prepared identifying desired items and potential target premises.
On 11 August 1998, Judge Nield in the District Court sentenced the applicant to concurrent terms of four years' penal servitude (minimum term two years, additional term two years) for the breaking and entering offences, and concurrent fixed terms of two years for each receiving offence.
A co-offender, who had committed eight of the same breaking and entering offences jointly with the applicant, was sentenced on the same day. That co-offender later successfully appealed to the Court of Criminal Appeal, and his sentences were reduced from five years (minimum 2.5 years) to four years (minimum two years) for the breaking and entering offences. The applicant then sought leave to appeal against the severity of his own sentences, relying in part on the disparity created by his co-offender's successful appeal.
Legal Issues
- Whether the sentences imposed on the applicant were, standing alone, manifestly excessive so as to warrant appellate intervention.
- Whether the reduction in the co-offender's sentences, achieved through a separate appeal before a differently constituted bench, gave rise to an unjustified sentencing disparity that required an adjustment to the applicant's sentences.
- Whether "special circumstances" existed under s 5(2) of the Sentencing Act to justify a departure from the standard ratio between minimum and additional terms.
Decision
On the first ground, the Court rejected the submission that the original sentences were manifestly excessive when assessed independently. Sully J noted that the guidelines concerning s 112(1) offences, delivered in a separate guideline judgment on the same morning, would have made that first submission "even more decisively rejected."
On the parity ground, the Court accepted that the co-offender's successful appeal had produced an unjustified disparity. The applicant's culpability was not greater than his co-offender's in any material respect, and it was not appropriate for the applicant to be left serving a relatively harsher sentence as a consequence of a reduction made in separate proceedings before a different bench.
The Court did not treat the parity principle as requiring mathematical equivalence. Sully J observed that parity considerations "can only be taken so far" and that the reduction should not simply mirror the percentage reduction granted to the co-offender. The Court considered a modest overall reduction appropriate, bringing the aggregate sentence from four years to three years and six months.
The Court also found special circumstances justifying a longer additional term, citing the applicant's age and prospects of rehabilitation. Sully J added a general observation that co-offender appeals should, where possible, be heard by the same bench of the Court, reflecting the Court's repeated position on that procedural point.
Orders Made
- Leave to appeal granted.
- Appeal against sentences allowed and original sentences quashed.
- For each contravention of s 188 of the Crimes Act 1900: penal servitude for a fixed term of 1 year and 6 months, commencing 11 August 1998 and expiring 10 February 2000.
- For each contravention of s 112(1) of the Crimes Act 1900: penal servitude for 3 years and 6 months, comprising a minimum term of 1 year and 6 months (commencing 11 August 1998, expiring 10 February 2000) and an additional term of 2 years (commencing 11 February 2000, expiring 10 February 2002).
Key Takeaways
- The parity principle in co-offender sentencing can justify appellate intervention even where the original sentence was not, in isolation, manifestly excessive. A sentencing disparity that arises from a co-offender's successful separate appeal may still warrant adjustment.
- Parity does not require mathematical equivalence with a co-offender's sentence. The Court of Criminal Appeal made clear that parity considerations have limits and that a simple proportional reduction does not automatically follow.
- Where a co-offender's appeal and the present applicant's appeal are heard by differently constituted benches, the risk of inconsistent outcomes increases. The Court reiterated its view that co-offender appeals should, wherever possible, be listed before the same bench.
- Special circumstances under s 5(2) of the Sentencing Act were found on the basis of the applicant's age and rehabilitation prospects, permitting a longer additional term relative to the minimum term.
- The guideline judgment on s 112(1) breaking, entering and stealing offences, delivered the same morning, was noted as reinforcing the rejection of the manifest excess ground, though it did not alter the outcome on the parity ground.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1) (breaking, entering and stealing) and 188 (receiving stolen property)
- Sentencing Act (NSW), s 5(2) (special circumstances)
Cases:
- Reg v Diamond (unreported, Hunt CJ at CL and James J, Smart JJ dissenting, 18 February 1993)
- Reg v Steele (unreported, Sheller JA, Grove and Simpson JJ, 17 April 1997)
- Reg v Hill (the co-offender's appeal, heard 28 May 1999, Barr J and McInerney AJ, unreported, referenced in the judgment)