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Court of Criminal Appeal 30 January 2001

R v GRAFF

[2001] NSWCCA 3

Assault & violenceHomicideTheft & property

Citation: R v Graff [2001] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 30 January 2001
Judge(s): Giles JA, Hulme J, Howie J

Background

The appellant was one of three offenders who, over consecutive nights in May 1996, attacked two separate taxi drivers in the course of robberies. The first attack left the driver unconscious and robbed. The second attack, on a driver named Mr Chmeis, was sustained and brutal: the victim was punched, kicked in the head while helpless on the ground, stripped of his clothing and whipped with his belt before the offenders drove off in his taxi. Mr Chmeis died from the kicking to his head.

The appellant pleaded guilty to murder and robbery in company. At sentencing, two additional offences were taken into account: a 1994 group assault at Bankstown railway station that caused the victim to lose consciousness and suffer facial fractures, and a 1995 offence in which the appellant punched a man who fell and struck his head on the footpath, resulting in permanent and severely handicapping brain damage. The sentencing judge, Barr J, found the appellant to be the leader of the three offenders and that all three were equally responsible for Mr Chmeis' death.

The appellant received a minimum term of 18 years and an additional term of 5 years for murder (with the two additional matters taken into account), and a concurrent fixed term of 8 years for robbery. His co-offenders received substantially shorter sentences: a minimum of 10 years for co-offender Leaituaalesi and 11 years for the young offender RT.

  • Whether the appellant had a justifiable sense of grievance arising from a lack of parity between his sentence and those imposed on his co-offenders
  • Whether the sentencing judge erred in declining to find special circumstances, which would have justified a minimum term of less than the standard statutory proportion

Decision

Parity with co-offenders: The Court found that the differences in sentences were fully explained by the individual circumstances of each offender. The appellant was the leader of the group, had a prior history of serious criminal violence, and was on bail at the time of both the murder and the robbery. His co-offender RT was 17 years old at the time of the offences, had shown early signs of remorse, and his disposition towards violence was at least partly attributable to traumatic formative experiences and learning difficulties. The Court was satisfied those factors alone would have led to a sentence appreciably in excess of RT's 17-year total term.

Comparison with Leaituaalesi: The Court accepted that Leaituaalesi's lower total sentence of 16 years was justified by her distinct circumstances. Barr J had found her to be an excessively dependent and easily led young person, with borderline mental retardation, dependent personality disorder, a history of severe childhood trauma and alcohol addiction. The Court concluded these matters provided adequate justification for treating her differently from the appellant.

Special circumstances: The disparity in the proportional relationship between minimum and total terms across the three offenders arose because Barr J found special circumstances in the cases of RT and Leaituaalesi, but not in the appellant's case. The Court held that declining to find special circumstances for the appellant was not open to challenge. The differences between his case and those of the other offenders, in age, experience, mental functioning and the need for community re-entry support, were sufficient to explain that distinction. The Court also found no error in Barr J's conclusion that the five-year additional term was adequate to support the appellant's eventual return to the community.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Parity in sentencing does not require identical sentences for co-offenders; the Court of Criminal Appeal confirmed that differences in individual circumstances, including age, mental functioning, criminal history, leadership role and bail status, can fully justify significant variation in sentence length.
  • Where a sentencing judge finds special circumstances for some co-offenders but not others, that differential treatment does not automatically give rise to a justifiable sense of grievance, provided the distinctions between the offenders' situations are sufficient to explain the different approach.
  • In dismissing the appeal, the Court applied the principle from Veen v R (No. 2) that a pattern of criminal violence is a legitimate factor that may be reflected in a sentence beyond what the immediate offence alone would warrant.
  • A prior offence committed on bail, resulting in devastating permanent injury to the victim, was treated as a matter that must materially affect the overall sentence when taken into account at a later sentencing exercise.
  • Judicial Commission statistics on median sentences provide a reference point but do not determine an appropriate sentence; where the gravity of an individual offence and the offender's history place the case above the median range, a higher sentence may be appropriate.

Legislation and Cases Referenced

Cases:
- Veen v R (No. 2) (1987-88) 164 CLR 465

Legislation:
- No specific legislation was cited in the provided text, though maximum penalties referred to include: robbery in company (20 years), murder (life imprisonment), assault occasioning actual bodily harm (5 years), and maliciously inflict grievous bodily harm (7 years), consistent with the Crimes Act 1900 (NSW)