Citation: Boney v R [2001] NSWCCA 432
Court: NSW Court of Criminal Appeal
Date: 19 October 2001
Judge(s): Wood CJ at CL; Grove J
Background
The applicant, an adult offender aged 18 at the time of the offence, pleaded guilty to armed robbery under s 97(2) of the Crimes Act 1900. Together with his younger brother, a co-offender aged 17, he robbed a woolbroking company employee in Brewarrina at screwdriver-point, taking $35 and then driving off in the victim's vehicle. A take-and-drive offence was taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered without separate conviction).
The co-offender, who was dealt with separately in the Brewarrina Children's Court, received 100 hours of community service after serving four months in detention pending sentence. The applicant was sentenced in the District Court to three years imprisonment with a non-parole period of 18 months.
The applicant sought leave to appeal, arguing solely on the ground of parity: that the disparity between his sentence and the co-offender's left him with a justifiable sense of grievance.
Legal Issues
- Whether the applicant's sentence was manifestly excessive when considered in isolation
- Whether the disparity between the applicant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance sufficient to ground appellate intervention
- Whether a Children's Court sentence can properly be compared with an adult sentence for parity purposes
- Whether the inadequacy of the co-offender's sentence was so extreme as to render any sense of grievance illegitimate
Decision
The Court confirmed that, considered on its own merits, the applicant's sentence was not only appropriate but arguably lenient. His lengthy criminal history, the fact that he was on parole at the time of the offence, and his serious history of substance abuse all pointed to a sentence well within or even at the lower end of the range suggested by the guideline judgment in R v Henry (1999) 46 NSWLR 346. Counsel for the applicant readily conceded this point.
On the parity ground, the Court identified several factors relevant to weighing the disparity. The applicant was only 18 months older than his co-offender, both had blemished criminal records, and both had offended while subject to conditional liberty. Their objective criminality was broadly similar. Both came from comparable backgrounds involving exposure to violence and substance abuse. Importantly, the co-offender had also been dealt with for several additional offences, which did not appear to have been fully placed before the sentencing judge.
The Court acknowledged two limiting principles. First, no appellate court is obliged to reduce a sentence to an inadequate level simply because a co-offender received an unduly lenient sentence. Second, where the co-offender's sentence was so grossly inadequate that any resulting sense of grievance cannot be called legitimate, intervention may be declined. However, the Court found that neither limiting principle precluded some intervention in this case, particularly given the uncertainty about whether the sentencing judge had a full picture of the Children's Court proceedings.
The Court concluded that limited intervention was appropriate. It quashed the original sentence and re-sentenced the applicant to two and a half years imprisonment, with a non-parole period of one year and three months, both back-dated to 12 August 2000.
Orders Made
- The sentence imposed below was quashed
- The applicant was re-sentenced to imprisonment for two and a half years, dating from 12 August 2000 and expiring 11 February 2003
- A non-parole period of one year and three months was specified, dating from 12 August 2000 and expiring 11 November 2001
- The applicant was directed to be released on parole upon expiry of the non-parole period
Key Takeaways
- A sentence that is unimpeachable when assessed on its own merits may nonetheless warrant appellate reduction on parity grounds if a co-offender's substantially lighter sentence creates a justifiable sense of grievance in the more heavily sentenced offender.
- The parity principle is not defeated simply because one co-offender was dealt with in the Children's Court and the other as an adult; the Court of Criminal Appeal confirmed there is no longer an inflexible rule barring comparison across those jurisdictions.
- Where the co-offender's sentence was so grossly inadequate that any grievance cannot reasonably be regarded as legitimate, or where reducing the sentence would duplicate a clear error, an appellate court retains a discretion to decline intervention.
- Relevant differences between co-offenders, including criminal history, the circumstances of conditional liberty at the time of the offence, and the extent of substance abuse, bear on whether the disparity is truly unjustifiable rather than a reflection of legitimate sentencing distinctions.
- Appellate intervention on parity grounds is characterised as limited: the Court reduced the sentence modestly rather than aligning it with the co-offender's outcome, preserving a substantial custodial term that reflected the applicant's objective and subjective criminality.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(2), 154A
Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Henry (1999) 46 NSWLR 346
- Regina v Doggett NSW CCA, 24 March 1996
- Regina v Diamond NSW CCA, 18 February 1993
- Hopper NSW CCA, 19 November 1998