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Court of Criminal Appeal 23 February 2000

REGINA v. WATERMAN

[2000] NSWCCA 29

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE DISPARITY

Citation: [2000] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 23 February 2000
Judge(s): Grove J; Greg James J

Background

The appellant was sentenced in the District Court by Hosking DCJ for two offences: disposing of stolen property (under s 188 of the Crimes Act 1900) and escaping lawful custody (under s 34 of the Correctional Sentence Act 1952). Both offences carried a maximum of 10 years' imprisonment. The escape had occurred while the appellant was gardening outside minimum-security prison confines, just two weeks before he was due to commence work release, and he remained at large for only 13 days.

During those 13 days, the appellant came into possession of electrical goods and identification cards, and was apprehended attempting to pawn the goods. These circumstances gave rise to the receiving charge. The District Court imposed 18 months' penal servitude on the escape count (cumulative on existing sentences, as required by statute) and a concurrent fixed term of 18 months on the receiving count.

A co-accused, who had escaped alongside the appellant, was sentenced separately after the appellant. The sentencing of the two men at different times made a parity comparison unavailable to Hosking DCJ at the time he dealt with the appellant. By the time of the appeal, however, it was known that the co-accused had received a minimum term of three months and an additional term of nine months for the escape, with a break and enter charge placed on a schedule.

  • Whether the sentence imposed on the appellant was infected by appealable error, including on grounds beyond parity
  • Whether the principle of parity required the Court to intervene, given the co-accused received a substantially lighter sentence for substantially the same offending
  • Whether any distinguishing feature justified the disparity between the two sentences

Decision

The Court of Criminal Appeal focused primarily on the parity ground. Both the Crown and counsel for the appellant confirmed to the Court that no distinguishing features existed between the appellant and the co-accused that could justify the significant difference in sentences. The Crown Prosecutor conceded that there was no good reason why the appellant should not have received a sentence of the same general nature and extent as that imposed on the co-accused.

Greg James J acknowledged the tension inherent in the parity principle: the co-accused's sentence might itself be considered inadequate when assessed against the objective seriousness of the offending. Nevertheless, the Court found this was precisely the situation contemplated by the High Court's reasoning in Lowe v The Queen (1984) 154 CLR 606, namely that a sentence otherwise appropriate may need to be reduced to prevent a co-offender from experiencing a justifiable sense of grievance at having received a harsher penalty.

Because the parity ground was sufficient to require intervention, the Court did not need to determine the other grounds of appeal, noting only that those grounds would not, of themselves, have produced a sentence in the same range as the co-accused's.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • On count two (escape): fixed term commencing 18 October 1999 and expiring on the date of the appeal (23 February 2000)
  • On count one (receiving stolen property): fixed term of six months commencing 25 August 1998

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle can require a sentence to be reduced even where the result appears inadequate in the abstract, provided a co-offender's lesser sentence would otherwise give rise to a justifiable sense of grievance.
  • Relying on Lowe v The Queen and Postiglione v The Queen, the Court applied the principle that disparity between co-offenders' sentences is a recognised ground of appellate intervention where no distinguishing features exist between the offenders.
  • Where a co-accused is sentenced after the original sentencing hearing, parity arguments that were unavailable at first instance can still be raised on appeal once the co-accused's sentence becomes known.
  • The absence of any distinguishing feature between co-offenders was critical: both the Crown and defence agreed that nothing separated the appellant's culpability from the co-accused's in a way that could justify the difference in outcome.
  • Procedural timing, including the logistical need to sentence co-offenders separately, does not insulate a disproportionate sentence from appellate review on parity grounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 188 (disposing of stolen property)
- Correctional Sentence Act 1952 (NSW), s 34 (escape from lawful custody; cumulative sentencing requirement)

Cases
- Lowe v The Queen (1984) 154 CLR 606 (High Court of Australia)
- Postiglione v The Queen (1997) 187 CLR 295 (High Court of Australia)