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Court of Criminal Appeal 21 June 2000

Regina v Emerson

[2000] NSWCCA 271

Assault & violenceTheft & property
CRIMINAL LAW AGGRAVATED BREAK ENTER & STEAL SEVERITY OF SENTENCE PARITY OF SENTENCE DISPARITY BETWEEN CO OFFENDERS

Citation: Regina v Emerson [2000] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 21 June 2000
Judge(s): Newman J, Grove J

Background

The appellant pleaded guilty in the Albury District Court to aggravated break, enter and commit felony under s 112(2) of the Crimes Act 1900, an offence carrying a maximum of 20 years penal servitude. He and his younger brother had entered a nursing home armed with a knife and terrorised a 78-year-old resident with a serious physical disability. Seven additional offences were taken into account on a Form 1, including larceny, assault, drug-related matters, and a further break, enter and steal.

Freeman DCJ sentenced the appellant to a head sentence of 10 years, comprising a minimum term of 7 years and an additional term of 3 years. The appellant's brother, who was 18 at the time of sentencing, received a head sentence of 6 years with a minimum term of 4 years.

The appellant sought leave to appeal, arguing the sentence was manifestly excessive when considered alone, and that the four-year difference in head sentence compared to his brother created an unjustifiable disparity.

  • Whether the head sentence of 10 years and minimum term of 7 years were manifestly excessive for this offence, having regard to the objective facts and the appellant's subjective circumstances, including his early guilty plea.
  • Whether the disparity between the appellant's sentence and his co-offending brother's sentence gave rise to a justifiable sense of grievance warranting appellate intervention under the parity principle.

Decision

On the question of manifest excess, the Court accepted that the sentence sat at the top of the range but declined to find it beyond range. The offence involved the deliberate terrorising of a particularly vulnerable victim in a setting where such vulnerability was foreseeable. The appellant also carried an extensive criminal record spanning 15 years, from the age of 14 to 29, including numerous prior convictions for break, enter and steal. Both general deterrence and specific deterrence were significant factors in the sentencing exercise.

The Court noted the appellant's early guilty plea as a genuine mitigating factor but found it insufficient to bring the sentence outside the permissible range. The minor adjustment his Honour had already made to the minimum term was noted. No error was established in the sentencing discretion.

On the parity ground, Newman J applied the principles from R v Lowe and R v Postiglione, as interpreted in R v Doggett: the question is not whether the appellant feels aggrieved, but whether a reasonable mind would regard that grievance as justified. The Court identified two factors that legitimately explained the sentencing difference: the 11-year age gap between the brothers and the vast difference in their criminal histories. The younger brother had just turned 18 and was being sentenced as an adult for the first time, making rehabilitation a dominant consideration for the sentencing court.

Counsel for the appellant appropriately conceded that some disparity was inevitable given the brothers' ages. The Court accepted that the disparity went no further than was justified by those differences in circumstances and culpability, and rejected the parity argument.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence at the top of the permissible range is not, without more, manifestly excessive, particularly where the victim was highly vulnerable and both general and specific deterrence are prominent considerations.
  • A justifiable sense of grievance under the parity principle requires more than a numerical difference in sentences; a reasonable observer must regard the disparity as unjustified when all relevant differences between co-offenders are taken into account.
  • Where co-offenders differ markedly in age and criminal history, those differences can legitimately explain a substantial sentencing gap, even where the objective criminality was identical.
  • Rehabilitation carries greater weight in sentencing a first-time adult offender who has recently turned 18, and a sentencing court may lawfully impose a significantly lower sentence on that basis compared to an older, repeat offender.
  • An extensive criminal record dating from a young age and containing multiple relevant prior offences will materially limit the mitigating effect of an early guilty plea.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit felony)

Cases
- R v Lowe (1984) 154 CLR 606
- R v Postiglione (1997) 189 CLR 295
- R v Doggett, unreported, NSW Court of Criminal Appeal, 24 March 1997