Citation: R v Scott [2001] NSWCCA 377
Court: New South Wales Court of Criminal Appeal
Date: 10 August 2001
Judge(s): Dowd J; Smart AJ
Background
The applicant pleaded guilty to a single charge of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. Together with a co-offender, he broke into the home of an 80-year-old victim in Cessnock in the early hours of the morning and stole $420. The victim was struck repeatedly on the face with a wooden tomato stake, suffering lacerations requiring sutures and severe facial bruising. The applicant admitted entering the premises and stealing the money but denied delivering the blows, claiming he was intoxicated on amphetamines at the time.
Morgan DCJ in the District Court sentenced the applicant to seven years imprisonment with a non-parole period of four years and six months. The sentencing judge took into account 13 matters on a Form 1, including breaches of a domestic violence order, malicious damage, and other property offences, many committed while the applicant was on bail.
The co-offender, Pearson, was later sentenced by a different District Court judge to two years imprisonment with an 18-month non-parole period, suspended under s 12 of the Crimes (Sentencing Procedures) Act 1999, having already served approximately three months in pre-sentence custody. The applicant sought leave to appeal against the severity of his sentence, arguing the disparity with the co-offender's sentence was so marked as to generate a justified sense of grievance.
Legal Issues
- Whether the disparity between the applicant's sentence and the co-offender's substantially lighter sentence was so disproportionate as to give rise to a justifiable sense of grievance
- Whether the sentencing judge gave sufficient discount for the applicant's early guilty plea, including a potential Ellis discount where a confession was essential to the prosecution case
- Whether the sentencing judge erred in assessing the hardship of protective custody by reference to the applicant's own conduct leading to that situation
- Whether the overall sentence was manifestly excessive
Decision
The Court accepted that the disparity between the two sentences was significant enough to warrant intervention on parity grounds. Relying on Postiglione v The Queen (1995) 189 CLR 295, the Court recognised that parity is not simply about identical sentences but about proportionality between sentences when different circumstances and degrees of criminality are taken into account. The applicant conceded his total criminality warranted a heavier sentence than Pearson's, but the gap between the two was characterised as grossly disproportionate.
In re-sentencing, the Court balanced the objective seriousness of the offence against the substantially lighter sentence given to the co-offender. The Court also took into account the applicant's progress since the original sentence, including his efforts to address his amphetamine addiction, his acceptance of parental responsibility, completion of courses while in custody, and an employment offer from a referee. These were treated as positive subjective considerations relevant to the re-sentencing exercise.
At the same time, the Court gave significant weight to countervailing factors. The Form 1 matters were numerous and serious, the index offence was committed while the applicant was on bail, and the objective gravity of the offence (a violent home invasion targeting a vulnerable elderly victim) remained unchanged. The Court reduced the sentence but declined to reduce it to a level approaching Pearson's, given those distinctions.
The Court imposed conditions on the parole period requiring supervision by the Probation and Parole Service, as well as psychological treatment, anger management, and drug rehabilitation programs.
Orders Made
- Leave to appeal granted
- Original sentence imposed by Morgan DCJ quashed
- In substitution, a sentence of five-and-a-half years imprisonment imposed, commencing 16 August 1999 and concluding 15 February 2005, with a non-parole period of three-and-a-half years expiring 15 February 2003
- Upon release to parole, the applicant to be subject to supervision by the Probation and Parole Service, including psychological treatment, anger management, and drug rehabilitation as directed by that Service
Key Takeaways
- A significant sentencing disparity between co-offenders can ground a successful appeal against severity, even where the appellant concedes their greater criminality warranted a heavier sentence than the co-offender received.
- Proportionality between sentences, rather than mathematical equivalence, is the governing principle in parity cases, as confirmed by Postiglione v The Queen (1995) 189 CLR 295.
- Where a confession was essential to proving the prosecution case, an Ellis discount may arise in addition to any discount for a guilty plea, and sentencing courts should address that question expressly.
- Positive rehabilitation steps taken between original sentencing and a re-sentencing hearing, such as completing courses, addressing addiction, and demonstrating parental responsibility, are properly taken into account by the appellate court in reassessing sentence.
- Committing an offence while on bail and accumulating a large number of serious Form 1 matters remain substantial aggravating features that limit, but do not eliminate, reduction on parity grounds.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Crimes (Sentencing Procedures) Act 1999 (NSW), s 12 (suspended sentences)
Cases:
- AB v R (1999) 198 CLR 111
- Attorney General's Application (No. 1); R v Ponfield & Ors (Unreported, NSWCCA, 16 December 1999)
- Postiglione v The Queen (1995) 189 CLR 295
- R v Barton (Unreported, NSWCCA, 5 March 2001)
- R v Ellis (1986) 6 NSWLR 603
- R v Hodges (Unreported, NSWCCA, 20 August 1997)
- Thompson v Houlton (2000) 29 NSWLR 383