Citation: Regina v Pheeney [2002] NSWCCA 278
Court: New South Wales Court of Criminal Appeal
Date: 25 June 2002
Judge(s): Smart AJ; Blanch AJ
Background
The applicant was one of nine co-accused who pleaded guilty to their respective roles in an organised shoplifting syndicate operating across Sydney and some regional areas between late 1998 and May 2000. The syndicate targeted expensive, easily resaleable goods from large supermarkets and other retailers. A dedicated police task force was established to investigate the group before arrests were made.
The applicant pleaded guilty to four counts of larceny, covering the theft of cosmetics, cigarettes, cigars, and men's toiletries with a combined value of over $25,000. He was 43 to 44 years old at the time of the offences and had a prior record of dishonesty offences dating back to 1978. The sentencing judge in the District Court imposed a total sentence of 18 months, with a non-parole period of nine months.
The applicant sought leave to appeal his sentence in the Court of Criminal Appeal, arguing that the sentence was disproportionately harsh when compared with the sentence received by a co-offender named Green.
Legal Issues
- Whether the applicant had a justifiable sense of grievance about the disparity between his sentence and that imposed on co-offender Green, given the sentencing judge's own categorisation of their respective levels of criminality.
Decision
The Court noted that the sentencing judge had categorised co-offenders into three tiers: very serious, serious, and moderate criminality. The applicant was placed in the moderate category alongside two other co-offenders. Green was placed in the serious category, one tier above the applicant.
Green was sentenced on 16 offences (seven counts plus nine on a Form 1) to three years' imprisonment with a non-parole period of one year and nine months. The applicant, sentenced on six offences, received 18 months with a nine-month non-parole period. That is, the applicant received half the head sentence and less than half the non-parole period that Green received.
The Court applied the established principle from the High Court authorities that a parity argument requires a "justifiable" sense of grievance, not merely a sense of grievance. There must be a sensible, objective basis for the claimed disparity. Examining the records and backgrounds of both the applicant and Green, the Court found no such basis. The sentencing judge had been careful and correct, and the difference in sentences reflected the genuine difference in the number of offences and the seriousness of each offender's conduct.
Orders Made
- Application for leave to appeal refused.
Key Takeaways
- A parity argument in sentencing requires more than a subjective sense of grievance; the authorities require that the grievance be "justifiable," meaning it must have a sensible, objective basis (following The Queen v Lowe and R v Postiglione).
- In dismissing the application, the Court of Criminal Appeal confirmed that a lower categorisation of an offender's criminality does not automatically establish parity grounds if the resulting sentence is already substantially less than that of the comparison co-offender.
- The number of offences for which a co-offender is sentenced is a legitimate factor explaining differences in sentence length, even where both offenders fall into adjacent tiers of culpability.
- Achieving perfect mathematical proportionality across multiple co-offenders sentenced simultaneously is not required; the sentencing court is expected to strive for consistency, not precision.
- No error was established in the District Court's approach, and the Court of Criminal Appeal found the sentences carefully reasoned and appropriate to each offender's role and record.
Legislation and Cases Referenced
Cases:
- The Queen v Lowe (1984) 154 CLR 606 (High Court of Australia)
- R v Postiglione (1997) 189 CLR 295 (High Court of Australia)