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Court of Criminal Appeal 19 November 2001

R.V. WATE

[2001] NSWCCA 474

Assault & violenceTheft & property

Citation: R v Wate [2001] NSWCCA 474
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2001
Judge(s): Barr J; Adams J

Background

The appellant pleaded guilty, on the day his trial was listed to begin, to one count of robbery in company with wounding. The offence occurred in October 1997 when the appellant, together with two co-offenders, robbed a taxi driver at night. The appellant held the driver in a chokehold while a co-offender stabbed him multiple times with a kitchen knife, causing serious injuries to the driver's chest and arm. A third co-offender distracted the driver and stole cash and personal items.

The appellant had denied any involvement for three years following the attack, changing his plea only as the Crown's case was about to be heard. In the District Court, Judge Latham sentenced him to eight years' imprisonment with a non-parole period of four years. He then sought leave to appeal against that sentence.

  • Whether the appellant had a justifiable sense of grievance when comparing his sentence with those imposed on his co-offenders (the parity principle)
  • Whether the sentencing judge erred in failing to sufficiently distinguish the appellant's role and circumstances from those of the co-offenders
  • Whether the sentencing judge erred in failing to account for 108 days of pre-sentence custody served by the appellant

Decision

On the parity ground, the Court found no justifiable sense of grievance when comparing the appellant's sentence with that of the co-offender who wielded the knife and received nine years with a six-year non-parole period. Barr J noted significant differences between the two cases: the knife-wielding co-offender had confessed promptly, pleaded guilty at the earliest opportunity, and was found to have always intended to plead guilty to a serious charge. The appellant, by contrast, denied involvement for three years and only changed his plea when a conviction appeared inevitable.

The Court also rejected the submission that the sentencing judge had failed to draw meaningful distinctions between the co-offenders' roles. Barr J held that the judge's observation about the joint criminal enterprise did not mean the roles were irrelevant, but rather that the appellant's chokehold was essential to enabling the full attack to proceed. The sentencing judge had also expressed real doubts about the appellant's claimed contrition and rejected his assertion that he had participated under duress.

On the pre-sentence custody issue, however, the Court identified an error. The appellant had spent 108 days in custody before sentencing, but this was never drawn to the sentencing judge's attention and was not addressed in her remarks. Barr J concluded this was a material omission that required correction, even though the overall length of the sentence and the non-parole period were otherwise appropriate. Adams J agreed with the outcome and added that the sentencing judge's original sentence was correct both in isolation and when assessed against the sentence given to the co-offender.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • In lieu, the appellant sentenced to imprisonment for eight years commencing 1 July 2000 and expiring 30 June 2008
  • Non-parole period of four years fixed, expiring 30 June 2006, upon which date the appellant would be eligible for release on parole

Key Takeaways

  • The parity principle does not produce a justifiable sense of grievance where meaningful differences exist between co-offenders, including the timing of guilty pleas, criminal histories, and the promptness of cooperation with police.
  • A late guilty plea entered only on the eve of trial carries limited weight as evidence of contrition, particularly where the accused denied involvement throughout the intervening period.
  • Where pre-sentence custody is overlooked entirely at the sentencing hearing and not addressed in the remarks on sentence, the Court of Criminal Appeal will adjust the sentence to give appropriate credit, even where the overall sentencing approach is otherwise sound.
  • Participation in a joint criminal enterprise can attract a substantial sentence even where the accused did not personally wield a weapon, if that participation was instrumental in enabling the full offending to occur.
  • No error was established in the sentencing judge's treatment of parity or in her assessment of the respective roles of the co-offenders.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited in the provided text, though the offence of robbery in company with wounding carries a maximum penalty of 25 years' imprisonment under New South Wales law; robbery in company (without wounding) carries a maximum of 20 years' imprisonment.

Cases:
- No cases were expressly cited in the provided text. The judgment refers to sentences imposed by Blanch CJDC (on co-offender Rahim) and Finnane DCJ QC (on co-offender Carbery) in related District Court proceedings.