Citation: R v Haines [2001] NSWCCA 111
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2001
Judge(s): Studdert J, Barr J
Background
The applicant pleaded guilty in the District Court to two counts of robbery in company, one count of stealing from the person, and one count of cultivating a prohibited plant. The offences arose from a series of violent attacks near the Moree Leagues Club in February 1998, in which the applicant and others assaulted and robbed two men leaving the club, then seized a handbag from a bystander. The applicant was 22 years old at sentencing and had a prior criminal record involving driving, drug, assault and dishonesty offences.
District Court Judge Kinchington sentenced the applicant to a head sentence of five years and six months (with a minimum term of two years and six months) for the robbery offences, a fixed term of two years for the stealing offence, and a fixed term of twelve months for the cultivation offence, all sentences running concurrently from 7 March 2000.
The applicant sought leave to appeal on the ground that the sentences were excessive, arguing in particular that they produced an unjust disparity when compared with the lighter sentences received by his co-offender, Bradley Maxwell Pitt.
Legal Issues
- Whether the sentences imposed were manifestly excessive in light of the applicant's personal circumstances, including mental health issues, disadvantaged background, and drug and alcohol problems.
- Whether fresh evidence about the applicant's mental health condition should be admitted and, if so, whether it affected the sentencing outcome.
- Whether the disparity between the applicant's sentences and those imposed on the co-offender Pitt was sufficiently significant to warrant intervention by the Court of Criminal Appeal.
- Whether the co-offender's sentences were so obviously inadequate that any sense of grievance arising from the comparison could not be regarded as legitimate.
Decision
The Court admitted fresh evidence consisting of a psychiatric report and related materials not placed before the sentencing judge. However, the Court found this evidence added little to what the sentencing judge had already considered. The sentencing judge had recognised the applicant's mental health problems and taken them into account, and the fresh material did not establish a clear causal link between the applicant's diagnosed condition and his offending.
On the core question of disparity, the Court found that the co-offender Pitt had received sentences that were lenient in comparison to the applicant's, and that this produced a lack of due proportion between the two. Referencing the principles in Lowe v The Queen and Postiglione v The Queen, the Court accepted that courts should reduce an offender's sentence to avoid unjust disparity, even where the comparison sentence is itself considered lenient, unless that lower sentence is so obviously inadequate as to make any sense of grievance illegitimate.
The Court concluded that while Pitt's sentences were lenient, they did not reach the threshold of obvious inadequacy that would justify declining to intervene. Accordingly, the Court exercised its discretion in the applicant's favour and reduced the sentences on the robbery and stealing counts. The finding of special circumstances by the sentencing judge was upheld, and appropriate allowance was made for time spent on remand.
Orders Made
- Leave to appeal granted.
- Appeal allowed; sentences on the first, second, and third counts quashed.
- First and second counts (robbery in company): term of imprisonment of four years commencing 7 March 2000, with a non-parole period of one year and nine months commencing 7 March 2000 and expiring 6 December 2001.
- Third count (stealing from the person): fixed term of one year and nine months commencing 7 March 2000 and expiring 6 December 2001.
- Fourth count (cultivating a prohibited plant): sentence of twelve months undisturbed.
Key Takeaways
- A sentencing disparity between co-offenders can ground a successful appeal even where the comparison sentence is considered lenient, provided the lower sentence is not so obviously inadequate that the resulting sense of grievance lacks legitimacy.
- The threshold for declining to intervene on disparity grounds is a high one: the Court of Criminal Appeal found that Pitt's sentences, though lenient, did not meet the standard of being "obviously inadequate" described in R v Diamond and R v Reardon.
- Fresh evidence about an offender's mental health may be admitted on appeal where it was not before the sentencing court, but its weight will depend on whether it adds materially to what the sentencing judge had already considered.
- Where a psychiatric condition is raised in mitigation, establishing a causal connection between that condition and the offending behaviour is relevant to the weight the condition will carry in the sentencing analysis.
- In re-sentencing, the Court made allowance for time spent in custody on remand prior to bail being granted, reflecting the established principle that pre-sentence detention should be factored into the final sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), ss 94, 97
- Drug Misuse and Trafficking Act (NSW), s 23(1)
Cases
- R v Ehrenburg (unreported, NSWCCA, 14 December 1990)
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 71 ALJR 875
- R v Diamond (unreported, NSWCCA, 18 February 1993)
- R v Reardon (1996) 89 A Crim R 180