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Court of Criminal Appeal 23 February 2000

Regina v Pagett

[2000] NSWCCA 438

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL PARITY ARGUMENT

Citation: Regina v Pagett [2000] NSWCCA 438
Court: NSW Court of Criminal Appeal
Date: 23 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The appellant pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years penal servitude. She was sentenced by Judge Goldring in the Sydney District Court on 9 August 1999, receiving a minimum term of two and a half years from the date of sentence, with an additional term of 18 months to follow.

The appellant had a prior armed robbery conviction from 1996. She was released on parole in April 1998 but breached her parole conditions in October 1998 by failing to remain at her required address and failing to report. In November 1998, while she remained at large and before she had been located, the Parole Board revoked her parole and directed her to serve the remaining balance of her additional term. The subject armed robbery was committed in December 1998, while she was still at large.

The appellant's co-offender, Thomas, had a different history. His parole had not been independently breached prior to the armed robbery. The Parole Board revoked his parole only after he was sentenced for the subject offence, with the revocation directly referable to the commission of that offence. The appellant argued that her sentence should have been backdated to her date of arrest, and that the disparity between her sentence and Thomas's constituted a breach of the parity principle.

  • Whether the sentencing judge erred by not backdating the appellant's sentence to the date of her arrest, in line with the approach taken for co-offender Thomas.
  • Whether a genuine disparity existed between the sentences imposed on the appellant and Thomas, in breach of the parity principle.
  • Whether the sentencing judge should have taken into account the possibility that the Parole Board would conduct an early review of its direction that the appellant serve the balance of her additional term.

Decision

The Court rejected the parity argument. The key distinction was that the appellant's parole had been revoked for reasons independent of the subject offence, specifically her prior failure to comply with parole conditions in October 1998. Thomas's parole, by contrast, had not been revoked independently, and when it was revoked, it was solely because he had committed the subject offence. This meant the two co-offenders were not in materially comparable positions.

The Court also noted a further factor favouring the appellant in the original sentencing: Judge Goldring did not treat the commission of the armed robbery while on parole as an aggravating feature against her, even though it plainly could have been. Under R v Train, committing an offence on parole is an aggravating circumstance. The appellant therefore received a benefit in the sentencing exercise that Thomas did not require, because his breach of parole arose from the offence itself rather than from prior non-compliance.

On the additional argument raised by counsel at the hearing, the Court acknowledged that offenders who are directed to serve the balance of an additional term following parole revocation can reasonably expect a Parole Board review within a reasonable period. However, the Court was not persuaded that this consideration, even if placed before the sentencing judge, could have materially affected the outcome. Given the circumstances of the appellant's breach and the seriousness of the offence, any speculation about the timing or outcome of a future Parole Board review was too uncertain to carry significant weight.

The Court granted leave to appeal but dismissed the appeal, finding no breach of the parity principle and no identifiable error in the sentences imposed.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle in sentencing requires that co-offenders be in materially comparable positions before a disparity in outcomes can constitute an error; where parole histories differ in kind and cause, the principle may not be engaged.
  • A conviction for a serious offence while on parole is an established aggravating factor under R v Train, and a sentencing judge's decision not to apply that aggravation can itself operate as a benefit to the offender when assessing alleged parity.
  • Where parole revocation stems from independent breaches of conditions rather than from the commission of the offence being sentenced, the sentencing court is not required to treat the parole background in the same way as it would for an offender whose revocation arose solely from that offence.
  • The possibility that a Parole Board may conduct an early review of a direction to serve the balance of an additional term is a recognised consideration, but it will not necessarily affect the sentencing exercise where any such review remains speculative in timing and outcome.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that apparent mathematical disparities in sentences do not automatically establish a breach of the parity principle where the underlying circumstances differ in legally significant respects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed)

Cases:
- Regina v Train (1999) NSWCCA 109
- Regina v Jones (Unreported, NSWCCA, 30 June 1994)