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Court of Criminal Appeal 6 August 2001

R v Bates

[2001] NSWCCA 374

Theft & propertyFirearms & weapons
APPEAL AGAINST SEVERITY OF SENTENCE ATTEMPTED ARMED ROBBERY ROBBERY WITH A DANGEROUS WEAPON PARITY AGGRAVATING FACTORS JUSTIFIABLE SENSE OF GRIEVANCE

Citation: R v Bates [2001] NSWCCA 374
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2001
Judge(s): Dowd J, Smart AJ

Background

The applicant was convicted in the District Court on two charges under s 97(2) of the Crimes Act 1900: attempted armed robbery and robbery with a dangerous weapon. Both offences carried a maximum of 25 years imprisonment. The crimes involved a TAB agency robbery that failed when staff denied access to the cash area, followed days later by a successful bank robbery in which a substantial sum was taken.

The applicant's co-offender, Earl, was the dominant figure in both offences. Earl carried a loaded sawn-off shotgun and, during the first attempted robbery, fired it at a locked door. Earl also had three additional offences taken into account on a Form 1 at sentence, including possession of an unauthorised firearm and causing danger with a firearm.

Despite these differences in role and additional offending, the sentencing judge in the District Court imposed identical sentences on both the applicant and Earl. The applicant sought leave to appeal against the severity of his sentence on the ground of parity.

  • Whether the applicant's sentences should have differed from those of his co-offender Earl, given their disparate roles in the offences
  • Whether the sentencing judge adequately reflected Earl's Form 1 matters in a way that justified identical sentences for both offenders
  • Whether the applicant had a justifiable sense of grievance arising from the absence of any disparity in the sentences imposed

Decision

The Court granted leave to appeal and found that the applicant did have a justifiable sense of grievance. Although the sentencing judge had acknowledged the Form 1 matters against Earl, the Court observed that the judge gave no indication of how those matters actually affected the sentence imposed on Earl. The failure to transparently reflect those additional serious offences in Earl's sentence meant that the resulting parity was not adequately explained.

The Court accepted that the applicant had a significantly heavier criminal record than Earl and had been on a recognisance at the time of the offences, both of which were properly treated as aggravating factors. Earl, however, was clearly the instigator and the dominant party in the joint enterprise: he gave the instructions, carried the loaded shotgun, and discharged it during the first offence. The applicant, by contrast, played a subordinate role and was armed only with a knife or screwdriver.

Weighing those factors, the Court concluded that the cumulative difference in roles and the inadequate treatment of the Form 1 matters warranted intervention. The Court also noted the applicant's positive conduct in custody, including educational achievements and references to his work performance within the prison system. On re-sentencing, the Court reduced the sentence on the robbery count and recognised special circumstances in setting the non-parole period, partly because the second sentence ran partly concurrent with a fixed-term first sentence.

Orders Made

  • Leave to appeal granted
  • Appeal on count 1 (attempted armed robbery) dismissed; sentence confirmed as a fixed term of two-and-a-half years, commencing 10 September 1999 and expiring 9 March 2002
  • Appeal on count 2 (robbery with a dangerous weapon) allowed; sentence quashed and replaced with a term of six-and-a-half years commencing 10 March 2001 and expiring 9 September 2007, with a non-parole period of four-and-a-half years commencing 10 March 2001 and expiring 9 September 2005

Key Takeaways

  • A justifiable sense of grievance arising from parity in sentencing can arise where co-offenders receive identical sentences despite meaningful differences in their roles and the additional offences attributed to each.
  • Where a sentencing judge purports to take Form 1 matters into account but does not explain how those matters affected the sentence imposed, an appellate court may find that the exercise of the sentencing discretion was not adequately transparent.
  • The High Court's principle in Lowe v The Queen (1984) 154 CLR 606 confirms that neither identical nor disparate sentences are inherently appropriate for co-offenders; justice requires that sentences reflect each offender's actual conduct and antecedents.
  • Being on a recognisance at the time of offending is a real and significant aggravating factor, but it does not automatically neutralise other considerations, such as a co-offender's dominant role or more serious additional offending.
  • Positive post-sentence conduct, including educational attainment and demonstrated responsibility in custody, formed part of the Court of Criminal Appeal's consideration when re-sentencing the applicant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93G(1)(c), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 55

Cases:
- Lowe v The Queen (1984) 154 CLR 606