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Court of Criminal Appeal 13 December 2001

Regina v Angeles

[2001] NSWCCA 515

Theft & property
SENTENCING APPEAL AGAINST SENTENCE

Citation: Regina v Angeles [2001] NSWCCA 515
Court: NSW Court of Criminal Appeal
Date: 13 December 2001
Judge(s): Mason P, Sully J, McClellan J

Background

The applicant pleaded guilty in the District Court to detaining a person for advantage under s 90A of the Crimes Act 1900, arising from his role in the kidnapping of a wealthy Chinese student in May 2000. The victim was abducted from his home, held captive for six days, and released only after police intervention. The applicant's role was primarily logistical: he drove the main instigators, conducted surveillance of the victim on prior occasions, and remained involved throughout the week the victim was held.

Judge Herron sentenced the applicant to three years' full-time imprisonment with a non-parole period of fifteen months. The applicant sought leave to appeal, arguing that the sentences imposed on two co-offenders, August and Mendoza, were so much lighter that the disparity created an unjust outcome.

The appeal raised the parity principle: the question of whether co-offenders who are sufficiently comparable in culpability should receive sentences that do not diverge so markedly as to generate a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and that imposed on co-offender August was sufficient to warrant appellate intervention on parity grounds.
  • Whether the disparity between the applicant's sentence and the more lenient sentence imposed on co-offender Mendoza similarly warranted intervention.
  • Whether any such disparity gave rise to a "justifiable sense of grievance" as required by the test in Lowe v The Queen (1984) 154 CLR 606.

Decision

The Court rejected both parity arguments. On the comparison with August, the Court found the two offenders' criminality was relatively comparable. While August had physically restrained the victim, the applicant had driven the principal offenders over a sustained period and was involved across multiple stages of the offence. August's sentence, which included nine months' full-time custody plus three years' periodic detention, was not assessed as significantly more favourable than the applicant's fifteen-month non-parole period when periodic detention's practical effect was taken into account.

On the comparison with Mendoza, the Court acknowledged Mendoza's sentence was lenient, having been imposed entirely by way of periodic detention. However, McClellan J held that the mere existence of a disparity does not, without more, require appellate intervention. The test is whether the applicant has a justifiable sense of grievance in the relevant legal sense.

The Court found that Mendoza's circumstances of cooperation were markedly different from the applicant's, and that this distinction justified the difference in outcome. The Court also considered the approach in R v Diamond, which addresses situations where a co-offender's sentence is "gravely inadequate." The Court concluded that Mendoza's sentence, while lenient, did not reach that threshold in a way that made the applicant's sentence unjust. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle permits appellate intervention in sentencing only where a disparity between co-offenders is so marked as to engender a "justifiable sense of grievance," as established in Lowe v The Queen (1984) 154 CLR 606.
  • A disparity in sentences between co-offenders does not, on its own, require an appellate court to intervene; the differences in each offender's circumstances and cooperation must be carefully weighed.
  • Where a co-offender received a lighter sentence because of markedly different circumstances, such as a significantly greater degree of cooperation with authorities, that distinction can legitimately explain an apparent sentencing gap.
  • In assessing parity, the Court of Criminal Appeal looked beyond the headline sentence figures and considered the practical effect of different sentencing modalities, such as full-time custody versus periodic detention.
  • Even where a co-offender's sentence might be characterised as lenient, an appellate court will not reduce another offender's sentence unless that leniency was so extreme as to be "gravely inadequate" in the sense discussed in R v Diamond.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 90A (detaining a person for advantage)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- R v Pritchard & McDonald (unreported, NSWCCA, 22 April 1993)
- R v Stack (unreported, NSWCCA, 17 April 1997)
- R v Diamond (unreported, 18 February 1993)