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Court of Criminal Appeal 14 July 2000

Regina v Lockyer

[2000] NSWCCA 336

Assault & violence

Citation: Regina v Lockyer [2000] NSWCCA 336
Court: New South Wales Court of Criminal Appeal
Date: 14 July 2000
Judge(s): Adams J; Bell J

Background

The applicant pleaded guilty in the Wollongong District Court to assault occasioning actual bodily harm under s 59 of the Crimes Act 1900, carrying a maximum of five years imprisonment. The offence arose from a joint attack on a victim at his home, described by the sentencing judge as unprovoked and particularly vicious. The applicant struck the victim on the temple with a piece of wood resembling a table leg, both inside and outside the victim's dwelling.

The applicant's co-offender, who participated in the same assault, had been sentenced by the same judge about six weeks earlier. That co-offender received a fixed term of six months imprisonment, having been in custody since November 1998. The applicant, who had been on bail, was sentenced to two years imprisonment with an additional term of eight months.

The applicant did not challenge the sentence as excessive in absolute terms, given the seriousness of the offence and his lengthy criminal record. His sole ground of appeal was that the sentencing judge failed to apply the principle of parity, producing an unjustifiably large disparity between his sentence and that of his co-offender.

  • Whether the sentencing judge erred by failing to consider the parity principle when sentencing the applicant significantly more harshly than his co-offender for the same assault
  • Whether any difference in the circumstances of the two offenders justified the substantial disparity between their sentences
  • What sentence was appropriate on resentencing, taking into account both objective and subjective factors

Decision

Bell J (with Adams J agreeing) examined the respective backgrounds of the applicant and his co-offender in detail. Both men were of broadly similar age and had comparable criminal records, including prior convictions for violence. The co-offender had been on parole for malicious wounding offences at the time of the assault, which Bell J considered an aggravating factor particular to him.

Bell J accepted that the applicant could properly be regarded as the more culpable of the two, having struck the first blow and having used a piece of timber on the victim's temple. However, despite this basis for distinguishing between the co-offenders, the disparity between a fixed term of six months and a head sentence of two years was so pronounced that error in the sentencing process was established.

The Court found that the sentencing judge had not referred to parity considerations at all in his reasons when dealing with the applicant. Given the scale of the disparity and the broadly similar profiles of the two men, this omission amounted to a demonstrated sentencing error, warranting intervention and resentencing by the Court of Criminal Appeal.

On resentencing, Bell J took into account the subjective material before the District Court as well as more recent material reflecting the applicant's participation in a prison ministry program. No special circumstances warranting an extension of the additional term were identified.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof: imprisonment for one year and eight months, dating from 17 April 1999, with a non-parole period of fifteen months
  • Earliest release date noted as 16 July 2000
  • Order made directing release on parole at the expiration of the non-parole period pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • The parity principle requires a sentencing court to consider whether a disparity between the sentences of co-offenders is justifiable; a failure to address parity at all in sentencing reasons can constitute error.
  • A significant difference in culpability between co-offenders (such as one having struck the first blow or used a weapon) may warrant a heavier sentence, but only to a degree proportionate to that difference.
  • Where co-offenders have broadly similar ages and criminal histories, the sentencing court bears an obligation to explain any substantial departure in sentence length.
  • In dismissing the District Court's sentence and resentencing, the Court of Criminal Appeal reduced the head sentence from two years to one year and eight months, reflecting greater culpability than the co-offender while correcting the unjustifiable disparity.
  • Positive post-sentence conduct, such as participation in rehabilitation programs, is capable of being placed before an appellate court on resentencing by way of affidavit evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59 (assault occasioning actual bodily harm)
- Criminal Procedure Act 1986 (NSW), s 21 (Form 1 matters); s 33C(2) (Table 2 offences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances); s 50 (parole order)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Regina v Hodges (unreported, NSWCCA, 20 August 1997)
- Steele (unreported, NSWCCA, 17 April 1997)
- Diamond (unreported, NSWCCA, 18 February 1993)