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105
Court of Criminal Appeal 23 August 2000

Regina v Doan

[2000] NSWCCA 317

Also reported as [2000] 50 NSWLR 115
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE PARITY BETWEEN CO OFFENDER

Citation: Regina v Doan [2000] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 23 August 2000
Judges: Spigelman CJ, Grove J, Kirby J (Grove J delivered the principal judgment; Spigelman CJ and Kirby J agreed)

Background

The appellant and a co-offender, Papadatos, were inmates at the Oberon Young Offenders Centre who escaped together, threatened an elderly couple at a rural homestead with a knife and screwdriver, forced them to hand over car keys, stole their vehicle, and were arrested shortly afterwards. Both faced four identical charges: escaping lawful custody, two counts of common assault, and stealing a motor vehicle.

The key distinction was procedural, not factual. Papadatos was sentenced in the Lithgow Local Court and received relatively modest sentences. The appellant was committed to the District Court for sentence because, given his existing armed robbery sentence, even sentences identical to those imposed on Papadatos would have exceeded the Local Court's jurisdictional limit on consecutive terms under what is now s 58 of the Crimes (Sentencing Procedure) Act 1999.

Freeman DCJ found there was "little to choose between" the two offenders in terms of culpability and prior record. Despite that finding, the District Court considered itself not bound by the principle of parity because the Local Court sentences were manifestly inadequate. The appellant was ultimately sentenced to a minimum term of 18 months for escape, substantially more than Papadatos received for the same conduct.

  • Whether the parity principle applies when co-offenders are sentenced in different courts (Local Court and District Court)
  • Whether a sentencing court may depart from the parity principle on the basis that a co-offender's sentence, imposed in a court of limited jurisdiction, was manifestly inadequate
  • Whether the Local Court's jurisdictional sentencing ceiling is relevant when a higher court sentences a co-offender for the same offences
  • Whether the sentences imposed on the appellant were, in all the circumstances, manifestly excessive

Decision

The Court of Criminal Appeal accepted that the parity principle applies even where co-offenders are sentenced in different courts. The mere fact that Papadatos was dealt with in the Local Court and the appellant in the District Court did not extinguish the appellant's legitimate expectation of comparable treatment, given the absence of any relevant distinction in their culpability.

The Court acknowledged the tension between parity and the acknowledged inadequacy of the Local Court sentences. Grove J drew on principles developed in Australian jurisdictions to hold that, while a co-offender's inadequate sentence does not automatically cap the sentence imposed on an appellant, such inadequacy is still a relevant factor. Where the co-offender's sentences were "grossly inadequate," the appellant's sentences should not be reduced to that same inadequate level.

On the question of the Local Court's jurisdictional maximum, the Court held that this ceiling did not set a benchmark for the District Court. The District Court was entitled to impose whatever sentence the offences warranted, unconstrained by what the Local Court could or could not have imposed. The relevance of parity lay in comparing the actual sentences received, not in mechanically applying the Local Court maximum.

Weighing all these factors, the Court found the difference between the minimum term elements of the respective sentences, seven additional months for Papadatos compared to eighteen months for the appellant, was manifestly excessive. The Court reduced the appellant's sentences accordingly, though it declined to reduce them to the level of Papadatos's sentences, which it regarded as grossly inadequate.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentences imposed in the District Court quashed.
  • The appellant resentenced as follows (all sentences commencing 14 June 2000, to be served concurrently):
  • Escaping lawful custody: 16 months imprisonment with a non-parole period of 12 months.
  • Each assault offence: 9 months imprisonment (no separate non-parole period set, wholly subsumed within the escape non-parole period).
  • Stealing a motor vehicle: 6 months imprisonment.
  • 13 June 2001 specified as the earliest date on which the appellant would be eligible for release on parole.

Key Takeaways

  • The parity principle in sentencing is not confined to cases where co-offenders are dealt with in the same court. It can apply even where co-offenders are sentenced in different courts, including where one is sentenced in the Local Court and the other in the District Court.
  • Where a co-offender's sentence was manifestly inadequate, that inadequacy does not automatically cap the sentence available for an offender dealt with in a higher court. However, gross inadequacy remains a relevant consideration that may justify some reduction from what the offences would otherwise warrant.
  • A Local Court's jurisdictional sentencing ceiling does not set a benchmark for the District Court when sentencing a co-offender. The higher court sentences according to the offences' true objective and subjective features, without reference to what the lower court could or could not have imposed.
  • In assessing parity, the comparison focuses on the actual sentences received, particularly the minimum term (or non-parole period) elements, rather than on the nominal or theoretical limits of the respective courts.
  • Sufficient disparity existed in this case between seven additional months of minimum custody for the co-offender and eighteen months for the appellant, despite the absence of any relevant difference in culpability, to establish a justifiable sense of grievance warranting appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 58
- Crimes Act 1900 (NSW), ss 61, 154AA
- Correctional Centres Act 1952 (NSW), s 32
- Sentencing Act 1989 (NSW), ss 8, 24
- Criminal Procedure Act 1986 (NSW)
- Justices Act (NSW), s 51A

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Capper (1993) 69 A Crim R 64
- R v Carrion [2000] NSWCCA 191
- R v Crombie [1999] NSWCCA 297
- R v Doyle (1987) 30 A Crim R 1
- R v Sanford (1994) 72 A Crim R 160
- R v Stroud (1977) 65 Cr App R 150
- Canino v Venning (1993) 66 A Crim R 92
- Freeman v Harris [1980] VR 267
- Hansford v His Honour Judge Neesham [1995] 2 VR 253
- Various unreported CCA decisions (NSW)