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Court of Criminal Appeal 5 May 2000

Regina v Jade Lillian CLARKE

[2000] NSWCCA 160

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL OFFENDERS APPELLANT PREGNANT AT TIME OF SENTENCE NO SENTENCING ERROR DETECTED.

Citation: Regina v Jade Lillian Clarke [2000] NSWCCA 160
Court: Court of Criminal Appeal, New South Wales
Date: 5 May 2000
Judge(s): Hulme J; Carruthers AJ

Background

The appellant pleaded guilty to robbery in company under section 97 of the Crimes Act 1900, with two further offences taken into account on a Form 1: being armed with intent to commit an indictable offence, and larceny. The primary offence involved a late-night robbery at a Sydney service station, where her co-offender held a large carving knife to the victim's throat while the appellant removed cash from the register and a counter drawer. Four days later, acting alone and armed with the same knife, the appellant returned to the same premises and removed money, though no confrontation occurred.

The appellant's co-offender pleaded guilty to armed robbery over the same incident and was sentenced by the same judge in the District Court. The sentencing judge, Christie DCJ, imposed identical sentences on both the appellant and her co-offender: a minimum term of three years penal servitude and an additional term of two years. At the time of sentencing, the appellant was pregnant with the co-offender's child.

The appellant sought leave to appeal on the basis that the identical sentences were unjust given the differences in their objective and subjective circumstances, particularly the Form 1 matters, the appellant's pregnancy, her lack of prior criminal history, her full cooperation with police, and her prospects for rehabilitation.

  • Whether the identical sentences imposed on the appellant and her co-offender produced an unjustifiable disparity, giving the appellant a legitimate sense of grievance within the principles in Lowe (1984) 154 CLR 606 and Postiglione (1995-1996) 189 CLR 295.
  • Whether the sentencing judge erred by failing to give sufficient weight to the appellant's favourable subjective circumstances, including her pregnancy, lack of prior criminal record, cooperation with police, and rehabilitation prospects.
  • Whether the sentence was manifestly excessive having regard to the sentencing guidelines in Henry (1999) 46 NSWLR 346.

Decision

The Court of Criminal Appeal found no error in the sentencing process and dismissed the appeal. Carruthers AJ acknowledged that the parity principle from Lowe and Postiglione did not apply in its precise form here, because the sentencing judge was not dealing with both co-offenders on the same single charge. The presence of the two Form 1 matters against the appellant distinguished her position and required the judge to conduct a careful balancing exercise across a broader range of offending.

The Court accepted that the sentencing judge had weighed the relevant objective and subjective factors with care. He had expressly acknowledged the appellant's compelling subjective circumstances, including her pregnancy, drug addiction, early plea, absence of prior convictions, and excellent rehabilitation prospects. The Court found that equalising the sentences reflected a considered and legitimate exercise of the sentencing discretion, not a failure of it.

The Court also rejected the submission that the sentence was manifestly excessive when measured against the Henry guidelines. Although the sentence predated Henry, Carruthers AJ found that the sentence was consistent with the principles set out in that decision.

On the pregnancy, the Court noted that custodial arrangements for mothers and children had improved since earlier cases, and that while the circumstances attracted sympathy, the applicable legal principles did not support a finding of miscarriage of justice.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's obligation to achieve parity between co-offenders is complicated where one offender faces additional charges on a Form 1 that the other does not. In that circumstance, the principles in Lowe and Postiglione do not apply with the same directness.
  • Identical sentences imposed on co-offenders do not automatically produce a legitimate sense of grievance in the party with stronger subjective circumstances. A careful balancing of objective and subjective factors across the full range of offending can justify that outcome.
  • Favourable subjective circumstances, including pregnancy, absence of prior convictions, full cooperation, drug addiction, and strong rehabilitation prospects, are relevant sentencing considerations but do not necessarily mandate a lesser sentence than a co-offender's, particularly where the co-offender carried additional objective culpability.
  • The Court noted, without deciding a separate appeal, that a lesser sentence for the appellant would itself have created a real risk that the co-offender would have sought to appeal on parity grounds.
  • No sentencing error was established by reference to the Henry guidelines, confirming that those guidelines can be applied retrospectively as a cross-check on sentences imposed before the guideline judgment was handed down.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 114(1), 116, 117, 556A

Cases
- R v Henry (1999) 46 NSWLR 346 (NSW Court of Criminal Appeal guideline judgment on armed robbery sentencing)
- Lowe v The Queen (1984) 154 CLR 606 (High Court: parity of sentence between co-offenders)
- Postiglione v The Queen (1995-1996) 189 CLR 295 (High Court: parity principle)
- R v Ihm (unreported, 9 November 1993, NSW Court of Criminal Appeal) (sentencing of pregnant offenders)