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Court of Criminal Appeal 29 March 2001

R v Cimone

[2001] NSWCCA 98

Also reported as (2001) 121 A Crim R 433
Assault & violenceTheft & property
ROBBERY IN COMPANY LARCENY RECEIVE STOLEN PROPERTY ADEQUACY OF SENTENCE PARITY OF SENTENCE REHABILITATION

Citation: R v Cimone [2001] NSWCCA 98
Court: New South Wales Court of Criminal Appeal
Date: 29 March 2001
Judge(s): Beazley JA, Studdert J, Sperling J

Background

The respondent pleaded guilty to robbery in company, larceny, and receiving stolen property arising from a serious 1999 robbery. The offending involved forcing a victim to drive to a remote location at knifepoint, robbing him of cash and valuables, withdrawing further funds from his bank account under threat, and leaving him stranded while threatening him with harm if he contacted police.

Three co-offenders were also involved. Two were juveniles dealt with in the Children's Court, and the third, Cosovan, was an 18-year-old sentenced to 18 months periodic detention with a non-parole period of six months. Cosovan's sentence was explicitly benchmarked by his sentencing judge against the respondent's sentence, a position the Crown had accepted in those proceedings.

Moore DCJ sentenced the respondent to three years imprisonment with a two-year non-parole period for the robbery in company, along with concurrent sentences for the other charges, all to be served by way of periodic detention. The Crown appealed, contending that the offending, particularly the robbery in company, warranted a full-time custodial sentence.

  • Whether the sentences imposed on the respondent were manifestly inadequate, particularly in light of the guideline judgment in R v Henry (1999) 46 NSWLR 346 on robbery in company
  • Whether the parity principles established in Lowe v R (1984) 154 CLR 606 prevented the Court of Criminal Appeal from imposing a full-time custodial sentence on the respondent, given Cosovan's lesser sentence remained on foot
  • Whether the respondent's rehabilitation prospects and assistance to police were relevant mitigating considerations

Decision

The Court, per Beazley JA (with Studdert and Sperling JJ agreeing), accepted that the sentence imposed for robbery in company represented a significant departure from the Henry guidelines. The respondent's profile matched the standard Henry offender: a young person with limited criminal history, use of a knife, moderate planning, genuine threat of violence, a vulnerable victim, and a guilty plea. On its face, the sentence was manifestly inadequate, and had the matter ended there, the Court indicated it would have been inclined to impose a full-time custodial sentence.

However, three factors demanded separate consideration: the respondent's rehabilitation prospects, his assistance to police, and the parity principles arising from Cosovan's sentence. The Court found that the Crown had, in a practical sense, foreclosed its own appeal against Cosovan by expressly accepting before that sentencing judge that the respondent's sentence was the appropriate benchmark. Cosovan's sentence, also appearing manifestly inadequate on its face, was never challenged by the Crown.

The critical obstacle was parity. The respondent had agreed to give evidence against Cosovan, who was then sentenced on the basis of parity with the respondent. If the Crown appeal now succeeded and the respondent received a full-time custodial sentence, he would be treated significantly more harshly than Cosovan. The Court held this would give rise to a legitimate grievance within the meaning of Lowe, and that the respondent was equally entitled to the protection of parity principles as Cosovan had been.

The Court distinguished R v Diamond and R v Steele, in which sentences had been increased on Crown appeal despite parity concerns, finding those cases did not apply on the particular facts here. The Court described the outcome as a "unique and exceptional departure" from Henry, making clear the decision turned on the unusual procedural history rather than any general qualification to that guideline.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Parity principles can prevent a successful Crown appeal even where a sentence is manifestly inadequate, provided the co-offender's sentence has been set by reference to the respondent's and the Crown has not also appealed the co-offender's sentence.
  • Where the Crown expressly accepts, in a co-offender's sentencing proceedings, that a particular sentence should serve as the benchmark, it may effectively shut itself out of challenging that benchmark on appeal against the original offender.
  • A respondent who has cooperated with police and agreed to give evidence against co-offenders acquires a particularly strong parity interest where those co-offenders are subsequently sentenced by reference to his own sentence.
  • The Court of Criminal Appeal confirmed this decision constituted a unique and exceptional departure from the Henry guidelines, signalling that Henry remains the governing standard for robbery in company and that periodic detention will rarely be appropriate.
  • Sufficient parity concerns to defeat a Crown appeal arise where increasing the respondent's sentence would leave him materially worse off than a co-offender whose lesser sentence, benchmarked against his, was never challenged by the Crown.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1) (robbery in company), 117 (larceny), 188 (receiving stolen property)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery in company)
- Lowe v R (1984) 154 CLR 606 (parity principles in sentencing)
- R v Diamond (unreported, NSWCCA, 18 February 1993)
- R v Steele (unreported, NSWCCA, 17 April 1997)