Citation: Regina v Englebert Adami [2001] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 22 June 2001
Judge(s): Simpson J; Smart AJ
Background
The applicant was convicted of being an accessory after the fact to a break, enter and steal offence at an industrial factory in Moss Vale, which involved approximately $60,000 worth of stolen goods. He assisted by transporting and storing the stolen property, and was found by the sentencing judge to have played an active and significant role. A related charge of being a passenger in a conveyance taken without consent was taken into account at sentencing.
The District Court sentenced the applicant to two years and eight months imprisonment with a non-parole period of two years, commencing from 8 April 2000. Importantly, that date meant the sentence ran partially concurrently with earlier Local Court sentences the applicant was already serving for separate driving and dishonesty offences. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, raising a parity argument by reference to the lighter sentence received by his co-offender, Proudley, who was the principal offender in the break, enter and steal.
Legal Issues
- Whether the sentence of two years and eight months was manifestly excessive for the offence of accessory after the fact to break, enter and steal.
- Whether a justifiable sense of grievance arose from the disparity between the applicant's sentence and the lesser sentence imposed on Proudley, the principal offender.
- Whether the partial concurrency of the sentence with pre-existing Local Court sentences was relevant to the parity analysis.
Decision
The Court examined whether the disparity between the applicant's sentence and Proudley's sentence gave rise to an unjustified sense of grievance. Smart AJ identified significant differences between the two men: the applicant had a substantially worse criminal history, including a prior imprisonment for receiving; Proudley had no prior imprisonment and demonstrated a willingness to engage with rehabilitation; the applicant was older and had been on community service at the time of the offence. These distinctions justified the differential in sentences.
The Court also noted the structural difference between the offences charged. Proudley was sentenced as the principal for break, enter and steal, which carries a maximum of 14 years. The applicant was sentenced as accessory after the fact, which carries a maximum of five years. That lesser maximum penalty reflects the lower culpability generally attributed to accessories after the fact, as compared with principal offenders or even accessories before the fact.
The critical factor resolving the parity question was the partial concurrency. Because approximately ten months of the applicant's sentence ran concurrently with his existing Local Court sentences, his effective head sentence was only twenty-two months and his effective non-parole period was fourteen months. Smart AJ acknowledged that, without this concurrency, the parity concern might have warranted intervention. With it, the actual time to be served did not give rise to a justifiable sense of grievance.
The applicant also raised, at the hearing, that he had spent much of his sentence in protective custody after signing himself in on 28 April 2000. The Court declined to act on this information, noting that post-sentence circumstances are not ordinarily received as evidence on appeal, and that the full facts were not before the Court.
Orders Made
- Leave to appeal against the severity of the sentence granted.
- Appeal dismissed.
Key Takeaways
- A parity argument in sentencing will not succeed where significant objective differences exist between co-offenders, including criminal history, prior imprisonment, age, and willingness to rehabilitate.
- The maximum penalty applicable to an offence carries weight in parity analysis: accessory after the fact carries a maximum of five years, reflecting materially lower culpability than the principal offence of break, enter and steal.
- Where partial concurrency between a new sentence and pre-existing sentences reduces the effective period of imprisonment, that reduction is relevant to whether the sentence creates a justifiable sense of grievance, even where the concurrency relates to entirely separate matters.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that post-sentence developments such as protective custody arrangements are not ordinarily admissible evidence on a severity appeal, and will not generally ground intervention without full facts.
- Sufficient differences in subjective features between co-offenders can independently justify sentencing disparity, independent of any concurrency adjustment.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112 (break, enter and steal) and 350 (accessory after the fact)
Cases:
- Regina v Houvardas [2000] NSWCCA 203